AKPOBASA V. THE STATE

• Pages: 85-90

AKPOBASA V. THE STATE

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85

AKPOBASA V. THE STATE

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1.

DAVID AKPOBASA

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ACCUSED

2.

AKPOBASA OGRIGRI

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IN RE; DAVID AKPOBASA

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ACCUSED/APPELLANT

V

THE STATE

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COMPLAINANT/RESPONDENT

SUIT NO. SC 253/1968

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SUPREME COURT OF NIGERIA

COKER,

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J.S.C.

LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

7th March, 1969.

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Criminal Law - Murder Killing an escaping unarmed person thought to be a

thief is murder - Earlier judgments dealing with killing in defence of property

explained.

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ISSUE:

1. Whether killing an escaping person, thought to be a thief, amounts to

manslaughter or murder.

FACTS:

The accused shot an unarmed man at night, because he heard shouts of thief

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and he saw the man running away from the scene. This was what was contained

in his statement to the police. But in court the accused changed his story that the

deceased was running at him with a cutlass and he shot him in self defence. The

cutlass was not recovered. The High Court did not believe this story and convicted

him of murder. He appealed.

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HELD:

1. A person who in the night finds another in the act of committing a felony is

entitled to use force as may be necessary to apprehend the felon even to the

extent of killing him in order to prevent his escape, but the force used must be

justifiable in the particular circumstances of each case.

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2. In this case, the accused shot an unarmed man because he heard a cry of thief

and the man was running away from the spot where the cry came from. There

was no evidence that the deceased was armed or that he threatened the accused

and he was leaving the scene when the accused shot him. In those

circumstances the accused was rightly convicted of murder.

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CASES REFERRED TO IN JUDGMENT.

1.

R. Aliechem

1 F.S.C. 64.

2.

Obot v.

The Queen

14 W.A.C.A. 352.

3.

R v. Aniogo

9 W.A.C.A. 62.

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4.

R v. Ebi

3 W.A.C.A. 36.

Cole

for the Accused/Appellant.

Gbemudu, Ag.

D.P.P.

for Complainant/Respondent.