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REX
V.
HAMMAR DANGAR
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
11TH DAY OF JULY, 1944
2PLR/1944/77 (WACA)
OTHER CITATION(S)
2PLR/1944/77 (WACA)
(1944) X WACA PP. 225 – 227
LEX (1944) – X WACA PP. 225 – 227
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BAKER, J.
BROOKE, J.
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BETWEEN:
REX – Respondent
AND
HAMMAR DANGAR – Appellant
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ORIGINATING COURT(S)
Appeal by the defendant from the decision of the High Court, Kaduna
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REPRESENTATION
N. G. Hay — for the Crown
Appellant in person
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Murder or Manslaughter – Homicide in course of unlawful arrest – Criminal Code ss. 317, 319, 283
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CASE SUMMARY
The defendant had been arrested by the deceased, a Native Authority policeman, and escaped; on the deceased attempting to recapture him, the defendant killed, with a knife, the deceased, who only carried a stick. The trial Judge found that the arrest was unlawful but thought, having regard to s. 283 of the Criminal Code, that as the defendant thought the deceased had authority to arrest him, his act under the law of Nigeria amounted to murder but gave the defendant a certificate that it was a fit case for appeal.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. the law on the point in Nigeria is, by virtue of section 317 of the Criminal Code, the same as the law in England, whereby if any person unlawfully arrests another and the person so provoked immediately and unjustifiably kills the other, the offence is manslaughter, and not murder.
2. Semble: s. 283 of the Criminal Cod e appears to relate to the case of a bystander who may intervene to prevent an arrest rather than to the person actually being arrested.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:-
The Appellant was charged in the Kaduna Judicial Division of the High Court sitting at Gombe with the murder of a man named Adamu Kundulum. He was convicted and sentenced to death. He has appealed to this Court upon the certificate of the trial Judge that it is a fit case for an appeal upon the following grounds:
“The appellant had been arrested by the deceased who was an N.A. Policeman, and had escaped from him, and killed him upon his (the deceased’s) attempting to recapture him. The decision involved the question of whether the appellant’s arrest was lawful or not, and if not (and I held that it was not) whether in the circumstances the killing of the deceased was murder or manslaughter.”
The facts are sufficiently stated in those grounds with the addition of the Judge’s finding.
“The killing was very savage and done with a knife against a man armed with a stick.”
The learned trial Judge having held in his judgment that the arrest of the Appellant was not lawful continued:-
“This being so, the result of this case might be a conviction for manslaughter, were it to be decided by the Law of England. It seems however that the law in force in Nigeria differs somewhat on this point of killing in resistance to unlawful arrest. Section 283 provides as follows:
An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.”
‘The accused is an illiterate Fulani rustic. He did not know that the arrest was unlawful.
I asked him:-
Did you think that the deceased had no authority to arrest you? And he replied: He has authority to do so. What actuated him was that he had not stolen (as he says, and it is not proved that he did) and so he was not going to let himself be re-arrested. That was the cause of the fight and of his killing the deceased.”
We are of opinion that the Jaw in Nigeria relative to the point in issue in this case, namely did the killing amount to murder or only to manslaughter is the same as the law in England, and that the paragraph quoted from section 283 of the Criminal Code is irrelevant. That paragraph appears to relate to the case of a bystander who may intervene to prevent an arrest rather than to the person actually being arrested, and seems to reproduce the English law as illustrated by the dicta in R. v. Allen and others (1867) 17 L.T. 222; 15 Eng. and Emp. Dig. 785; see also Roscoe Criminal Evidence (15th Ed.) p. 902-3.
In Halsbury’s Laws of England (2nd Ed.) Vol. 9 p. 439 the law in England regarding homicide by a person who is being unlawfully arrested is thus stated:-
“If any person unlawfully inflicts violent blows upon another or assaults him under circumstances of personal indignity, or unlawfully arrests or imprisons him, and the person so provoked immediately, and unjustifiably kills the other, the offence is manslaughter, and not murder.”
We are of opinion that the law as thus stated is incorporated as part of the law of Nigeria by virtue of the provisions of section 317 of the Criminal Code —
“317. A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter.”
A person who is being unlawfully arrested has an inherent right to defend his liberty by reasonable force, if he oversteps the bounds of reasonable force and thereby causes the death of the person seeking to effect the arrest the offence is manslaughter and not murder. (Reg. v. Chapman 12 Cox Criminal Cases p. 4.)
Mayne in his Criminal Law of India (3rd Ed.) at p. 442 puts the English Law very clearly thus:-
In applying the English cases upon this subject, most of which arose out of the killing of a constable or other officer, it is necessary to bear in mind the peculiar doctrines of the English law as to homicide. When a minister of justice, as a bailiff, constable, or watchman, is killed in the execution of his office, in such a case it is murder and it makes no difference that the killing was wholly unintentional, provided it occurred in the act of resistance. But where the officer is doing an act in which he is not protected by his warrant, he is in the same position as if he had none. He may be resisted to such an extent as any other man might be resisted who was doing the same act, If he is killed by violence, in excess of what the case requires, this is manslaughter, the excess rendering the killing unlawful, but the provocation arising from the illegality of the officer’s conduct reducing it below murder. In all such cases, therefore, where the killing is held to be murder, it must be taken that mere resistance was unlawful. Where the killing is only manslaughter, the mere resistance was lawful, the excess only constituting the crime.”
For these reasons there is substituted for the verdict found by the trial Judge a verdict of guilty of manslaughter, and for the sentence passed at the trial there is substituted a sentence of 5 years H.L.
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