Arguably, the only Fundamental Right that enjoys more legal protection than Right to (possession of) Property is Right to Life1. This seems undoubtedly true as one of the instances the Law authorizes the deprivation of Right to Life is in the defence of Right to Property2. The Constitution of Federal Republic of Nigeria provides that a person shall not be regarded as having been deprived of his life if he dies as a result of ” … the defence of property3. It then follows that the Right to Life of an individual may be curtailed simply in the defence of another person’s property. Is it then right to quickly reach the conclusion that a private person may deprive another person who has stolen or is about to take his property his Right to Life? This article seeks to examine the extent of the right of a private person to deprive another man of his Right to Life simply because the other man has or is about to deprive him of his property.
It is very imperative to establish before delving into the subject matter that Section 383 of Criminal Code defines “stealing” while section 286 of Penal Code defines “theft”. Basically, the principles governing the offence under the Nigerian two Codes are the same. Although both Codes are diametrically different in terms of mens rea (the guilty mind) and the punishments they prescribe. The guilty mental element in “stealing” is fraudulent taking or fraudulent converting of anything capable of being stolen 4 while in “theft”, it is dishonest intention 5 . Stealing being a felony is punished with imprisonment for three years6 while the punishment for theft may extend to five years or with fine or with both7. However, both “stealing” and “theft” are the same crime having a different name in a different jurisdiction in Nigeria but serving the same purpose which is: protecting the right of an owner in his property and proscribing the act of taking without consent the property of another person8.
It is settled and undisturbed that a private person is not only permitted to effect arrest of a thief committing the theft/stealing in his presence but he is also, in fact and in law, duty-bound to render assistance to appropriate and lawful authorities9.
Administration of Criminal Justice Act provides thus:
” A private person may arrest a suspect in Nigeria who in his presence commits an offence, whom he reasonably suspects of having committed an offence for which the police is entitled to arrest without a warrant 10.
Consequently, in lieu of a peace officer or police officer effecting arrest of a criminal (thief, in this case), a private person may render lawful assistance by effecting the arrest. What seems to be doubtful is in the course of arresting a thief, whether or not, a private person may use a reasonable force which is likely to result in the death of the thief or cause grievous harm to the thief, to effect arrest or to prevent the thief from escaping the arrest or to prevent the thief from taking to flight having been arrested by him.
The general rule is that the law does not authorize a private person to use any force which could lead to the death or grievous harm of any person, a thief inclusive. This is why the Constitution provides that every person has a right to life, and no one shall be deprived intentionally of his life11. “Every person” as used in this provision also includes the thief. In QUEEN v JEGEDE, the court while commenting on the Right to Life of a deceased criminal held that: “The deceased, although he may not be a decent member of the society, had a right like everybody else to live… “12
WHEN THE THIEF TAKES TO FLIGHT
Section 272 of Criminal Code provides thus:
“When a person who is not a peace office or police officer is proceeding lawfully to arrest, without warrant, another person for an offence which is such that the offender may be arrested without warrant and when any person is proceeding lawfully to arrest another person for any cause other than such an offence, and, in either case, the person sought to be arrested takes to flight in order to avoid arrest, it is lawful for the person seeking to arrest him to use such force as may be reasonably necessary to prevent his escape.”
The proviso concludes that ” But this section of this code does not authorise the use of force which is intended or is likely to cause death or grievous harm .”
The implication of the above in the writer’s view is that when a thief takes to his heel, a private person cannot in order to prevent him from running away, kill the thief. So, it will be unlawful to kill the thief in this situation or cause him grievous harm, any private person who does, may be convicted for murder13.
WHEN A THEIF AVOIDS ARREST
Section 271 of Criminal Code provides that:
“When a peace officer or police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence which is a felony, and is such that the offender may be arrested without warrant, and the person sought to be arrested takes to flight in order to avoid arrest, it is lawful for the peace officer or police officer and for any person lawfully assisting him, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested, and, if the offence is such that the offender may be punished with death or with imprisonment for seven years or more, may kill him if he cannot by any means otherwise be arrested.”
This provision authorizes the killing of a criminal (thief) who has committed a felony (stealing) provided such a felony is one that the offender may be punished with death or with imprisonment for seven years or more. However, in this provision, the private person must be assisting a peace officer or police officer. What this implies is that the private person must not be proceeding to arrest the thief independently; it must be to aid the lawful arrest of the thief that has been initiated by a police officer or peace officer and more importantly, where there is no other means to arrest the thief that tries to avoid lawful arrest, he may be killed.
WHEN THE THIEF TRIES TO RUN AWAY FROM A LAWFUL ARREST EFFECTED BY A PRIVATE PERSON
Section 273 of Criminal Code provides that:
“When any person has lawfully arrested another person for any offence, it is lawful for him to use such force as he believes, on reasonable grounds to be necessary to prevent the escape or rescue of the person arrested. But, if the offence is not one which is such that the offender may be arrested without warrant, this section of this code shall not authorise the use of force which is intended or is likely to cause death or grievous harm”.
From the foregoing, it is clear that both sections 271 and 273 authorize the killing of a thief by a private person. The reason is not far-fetched stealing pursuant to section 390 (4) of Criminal Code, attracts imprisonment for seven years. Stealing in relation to section 273 of Criminal Code is an offence that may be arrested without warrant so it is not qualified by the proviso under section 273 of CC. It is humbly submitted that in the above two immediately preceding subheadings, a private person is legally excused if he kills a thief.
The above submission is unequivocally entrenched in the Penal Code as it provides expressly that the Right to Defend Property against theft (stealing) extends to causing of death14. In clearer other words, a private person may take the life of a thief to defend his property.
In R v HUSSEY15, it was held that it is lawful for a person to kill somebody who wanted to dispossess another person of his rented house.
This may be better appreciated if expressed in an illustration: A, a female student passing by with her Toshiba laptop alone around Motion Ground at night was attacked by B who tried to hijack her laptop by threatening to stab her with a sabre, as B was about to stab A on the neck to dispossess A of her laptop, due to A’s Taekwondo skills, she overcame B by giving him aggressive kicks at his balls. B fell down and passed out, he subsequently died.
In the above illustration, A will not be liable as she is authorized to self-defend herself and property in law in such a situation as it is a felonious offence to demand property with menaces with intent to steal the property 16.
Section 287 of Criminal Code provides thus:
“…it is necessary for his preservation from death or grievous harm to use force in self-defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous harm.”
In HARRISON OWHORUKE v. COMMISSIONER OF POLICE17 , the Supreme Court held that: “The law is well settled that the raising of a defence of self defence presupposes that the accused admits that he did the act which resulted in the death of the deceased and he was justified in doing so for purpose of protecting his own life.”
The point that is being made is that a private person may be legally excused if he kills a thief who uses a force to dispossess him of his Right to his Property in self-defence. Thus, in an instance, where the thief uses force, a commensurate force used by the private person to repel the force if it results in death or grievous harm of the thief, the private person may be excused provided the death or grievous harm is reasonably necessary in the circumstance. This point is imperative because killing resulting from the use of excessive force in self-defence is murder18. Although it has been contended by some author that a man is justified in repelling force by force and if death results from such conflict, the killing is justifiable19.
The writer humbly submits that a private person does not have the right to extra-judicially kill a thief as Right to Life is jealously protected by the Constitution of Federal Republic of Nigeria, 1999 as altered. However, a private owner of property will be excused if he uses a reasonable force necessary in preventing his property from being taken away by force and as such, the private owner may use a commensurate force in self-defence even if such force may lead to the death of the assailant or hijacker or thief. This is understandably so because the Constitution makes use of the expression “in the defence of property.” It is further submitted that the provision of self-defence in defence of property cannot in anyway be extended to chasing and killing a thief after he must have dropped the property and taken to flight.
1. Even though what is provided for in Section 43 of the Constitution is Right to Acquire Immovable Property, the definition of “property” in s. 1 of Criminal Code encapsulates the right to acquire and possess Immovable and movable property. In Shari’ah, it is referred to as Hifsul Mãl (Protection of Property) See Suratul Imran verse 14 and Suratul Kahf verse 46.
2. R v Ebi (1936) 3 WACA.
3. Section 33(2)(a) of Constitution of Federal Republic of Nigeria, 1999 as altered.
4. s. 383 of Criminal Code applicable in the Southern States in Nigeria.
5. s. 286 of Penal Code applicable in the Northern States in Nigeria.
6. s. 390 of Criminal Code although there are punishments in special cases which may range from life imprisonment to imprisonment for seven years for the offence of stealing. See s. 390(1)-(11) of Criminal Code.
7. s. 287 of Penal Code
8. Oluyemisi Bamgbose and Sonia Akinbiyi “CRIMINAL LAW IN NIGERIA” pg 229.
9. s. 24 (e) of CFRN.
10. s. 20 of ACJA. See also section 39 of Police Act, 2020.
11.s. 33(1) of CFRN
12. (1955-55) WRNLR pg 33
13. See also sections 289 and 292 CC
14. See s. 66(d) of Penal Code
15. (1924) 18 Cr.Ap.
16. See sec. 406 of Criminal Code, section 32(3) and (4) of CC
17.2015) AELR 6987 (SC).
18. R v Palmer (1971) AC 814.
19. Kharisu Sufiyan Chukkol in his THE LAWS OF CRIMES IN NIGERIA citing Prof Turner at pg 191.