LEGUSC LAWS

A COMPARATIVE SYNTHESIS OF THE LAW ON DEFENCE OF PROPERTY¨

Abstract

The right to acquire and own movable property and interest in immovable property is guaranteed by the Constitution of the Federal Republic Nigeria 1999 (As amended) as well as regional and international human rights instruments. The law sees a presumptive identity between an owner’s person and his property which is external to his person, so that violent defence of property becomes justified even without a threat to bodily or personal safety. Using a diagnostic approach, this study seeks to examine comparatively the law on defence of property as a form of private defence. In doing this, the study explains the applicable laws in Nigeria to that effect and the position of the Nigerian judiciary while juxtaposing same with the various positions obtainable in other jurisdictions.  Arising from this study, it is discovered that the Nigeria Criminal Law and the Criminal Laws of most common wealth countries do not recognized a right to fatal force where the danger includes a combination of a threat to property and to person. Consequently, it is suggested that the law should recognise such rights, while also recognizing partial defence to murder where excessive force has been used in defence of property.

Keyword: Defence of Property; Private Defence; Justification Defence; Legal Framework; Nigeria; England; United State; Indian; Kenyan; Ugandan.

Introduction

Property has been regarded as the second most important possession of man next to life.[1] This is evident in the successive Nigeria constitutions, which leave no stone unturned in exonerating a person who kills in the protection of his property or someone’s property.  Thus there would be a logical inconsistency if the right to property was affirmed but the permission to use reasonable means necessary to repel aggressive threats to property refused. Section 33(2) of the 1999 Constitution of the Federal Republic of Nigeria, for example, does not regard death resulting from the use of reasonable force for the defence of property as a violation of the right to life guaranteed by the constitution.[2]

Defence of property is a common law defence which is absolutely necessary for the protection of one’s property. It is a right inherent in a man. But the kind and amount of force is minutely regulated by law. The use of force to protect one’s property is called the right of ‘defence of property’.

Defense of property falls within the rim of private defence[3] under criminal law and is a justification defence[4] by the defendant that he/she should not be held liable because the action was taken in defence of the defendant's premises or personal property. This defence is available, if one harms or threatens another when defending one's property.

In Nigeria, the defence of property is allowed under the Criminal Code,[5] the Penal Code[6] and the Criminal Law of Lagos State 2011.[7] Unlike other defences, defence of property is related only to crime against property.[8] Although the constitution does not provide for a hierarchy of rights, in the realm of private defence[9], the constitutional right to life is likely given precedence over the right to protect property. 

The right of defence of property is common to all legal systems, though its function and scope may vary with the degree of maturity attained by the system in which it finds a place.  It is in the interest of general peace and good order that society should take upon itself the task of protecting rights of individuals and prohibit use of force by them. Although a well regulated and organised society will provide general protection to all its subjects, it cannot guarantee protection at the very moment when the property of an individual is subjected to a sudden attack.

This inability of providing protection for property at all times, in all contingencies led to the recognition of the right of defence of property. The use of force in defence of property is tolerated only because state fails in its task of providing protection against aggression.[10] It means that the right is not merely an individualistic right to protect one's own interests rather it is regarded as the actualisation of legal interest in promotion of general peace.[11]

Defence of property has not been given a statutory definition in Nigeria, but has to be understood in the common law context of which there are two aspects. First, a man may in defence of property use such force as is reasonably necessary to obtain its object and which does not cause injury that is disproportionate to the injury sought to be prevented. Second, a man may use so much force as is necessary in protecting his property, but may not cause grievous bodily harm or death except in defence of life or limb or permanent liberty. Consequently, this paper seeks to critically discuss the general principle of law governing the defence of property, using the position in Nigeria, England and the United States as landmarks which may serve as barometers for possible reforms under Nigeria Criminal Jurisprudence.[12]

Defence of Property

The provisions related to defence of property are designed to protect possession and not the ownership only. When a person uses force to prevent another from dispossessing him of property, or in order to regain possession immediately after dispossession, he is acting in defence of property. Similarly, he is justified in using force against a would-be dispossessor if he reasonably believes that such force is necessary to prevent its imminent and unlawful dispossession. The special limitation imposed on the right of defence of property is that the defendant must have its possession and the dispossessor must not be legally entitled to it.[13]  This does not mean that the defence of the property is restricted to the cases of dispossession only. It extends to the situations where the aggressor threatens physical harm, trespasses, commits a crime involving danger to premises, unlawfully carries away or commits criminal mischief, burglary, tortious interference or any other unjustified encroachment on the defender's property.

The word property includes all types of property whether moveable, immovable, real, personal, premises, property that is temporary and adopted for human residence, a habitation or any other tangible thing. By allowing defence of property, society considers not only the immediate physical harms but also the societal interest in maintaining a right to hold personal property.[14]

Applicable Laws in Nigeria Regulating the Defence of Property

In Nigeria, the right of defending one’s property or the property of any other person is codified in the Criminal Code[15] applicable in the southern states of Nigeria; the Penal Code[16]  applicable in the northern states of Nigeria and the Lagos State Criminal Law 2011[17] applicable only in Lagos state. Section 289 of the Criminal Code provides, Inter alia:

It is lawful for any person who is in peaceable possession of any property or for any person acting by his authority, to use such force as is reasonable necessary in order to resist the taking of such property by a trespasser, or in order to retake it from a trespasser, provided that he does not do harm to the trespasser.

Section 60 (b) of the Penal Code which is in tandem with section 97 of the India Penal Code on the other hand reads as follows:

A person has a right, subject to the restrictions hereinafter contained, to defend….the property whether movable or immovable of himself or of any other person against any act, which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass or which is an attempt to commit theft,  robbery, mischief  or criminal trespass.

Notwithstanding the fact that the law recognises the right of defence of property, it lays down certain limitations on the exercise of the said right.[18] This is necessary if society is not to degenerate into anarchy with everybody taking the law into his hands.[19]

It is pertinent to note that the provisions of the above laws regulating private defence of property in Nigeria were tailored after the principles of defence of property under English criminal Law. This position is the same in most countries which were colonized by the British. For instance, Section 17 of the Kenyan Penal Code, Cap 62 provides thus:

Subject to any express provisions in this Code or any other law in operation in Kenyan, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.

Section 15 of the Ugandan Penal Code provides thus:

Subject to any express provisions in this Code or any other law in operation in Ugandan, criminal responsibility for the use of force in the defence of person or property; and in respect of rash, reckless or negligent acts, shall be determined according to the principles of English Law.

Thus it becomes imperative if not expedient to analyze the English principle of the defence of property while juxtaposing same with the various positions obtainable in other jurisdictions.

The Defence of Property under English Law

The basic premise of defence of property is that it is, in some circumstances, lawful to use reasonable force in protection of one’s property or to damage property for the protection of other property.  Therefore defence of property act to negate an element of the actus reus of the offence rather than operating as true defences. However, it seems clear that, in modern times, the amount of force which will be permitted as reasonable must surely be less where the motive is defence of property as opposed to defence of person.

Section 3 of the Criminal Law Act 1967 states as follows:

A person may use such force as is reasonable in the circumstances in the prevention of crime or in arresting offenders or suspects.

Under English Law, defence of property is governed by both the general common law principle in Beckford v. R[20] which stated thus: “A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property”.

Under both the common law and the statutory provision, the essence of the defence is that a person is entitled to use reasonable force in defence of his property. Insofar as an attack on property is a crime, reasonable force may be used to prevent the crime or to arrest the offender, whether it is theft of a sum of money or the damage of an object. In many cases of robbery and burglary, the threat will be to both a person and property, and this combination can be a powerful defence. In AG's Reference (No 2 of 1983)[21] Lane CJ. held that a defendant who manufactured ten petrol bombs to defend his shop during the Toxteth Riots could set up the defence of showing that he possessed an explosive substance "for a lawful purpose" if he could show he acted to protect himself or his family or property by means he believed reasonably necessary to meet the attack. In theory, the defence of property by itself cannot reasonably provide a justification for inflicting serious injury,[22] but there are a number of cases approving considerable violence to arrest criminals threatening property.[23]

It is of grave important to note that the law has to regulate the competing interests of the aggressor and the defender, although naturally the balance is tilted very much in favour of the defendant. The aggressor is the source of the problem and is to blame for threatening the defender’s protected interest, but that does not mean that he warrants no consideration from the law. It is for this reason that the law allows one to use reasonable force.[24]

In practical terms, it matters little whether the defendant uses the statutory defence or the common law defence, since the Court of Appeal in R v. Mclnnes,[25] established that the rules to be applied to the common law defence would be the same as for the statutory defence under section 3 of the Criminal Law Act 1967. However, section 3(2) supra provides that the statutory defence shall replace the rules of Common Law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

The Common Law rules permit anyone to use reasonable force to defend his property. However, it is of great importance to note that the right of private defence of prperty is only allowed against an unlawful attack. Both common law and section 3 of the Criminal Law Act 1967 impose a condition that the defendant must have used force to defend an unlawful attack or an unjustified conduct of the dispossessor/ aggressor. Though in certain conditions, like immaturity, insanity, and mistake of fact, the aggressor may not be committing an offence even then the victim has a right to defend.

Thus defendants can only rely on the defence of property if their action was necessary because of a threat of unjustified harm to, or dispossession of their property or because of a need to prevent crime in one of the ways listed above. In deciding whether or not the behavior was necessary, the court will take into account the following issues thus[26]:

1.      Whether the person could had retreated from the situation

2.      Whether the treat was imminent

3.      Whether the defender made some mistake which caused them to think the action was justified.

Possibility of Retreat

Previously under common law, it was the rule that in order for any of the form of private defence to apply, the accused must have retreated as far as possible from the situation before using force, so that a person who had a chance to run away from an aggressor but chose to fight back might not be covered by the defence. However, in case of defence of property retreat means leaving the aggressor in possession of the booty. Defence of property is justified not only because the rightful possession of the owner is endangered, but also the general stability and vitality of the rule of private possession.[27] The purpose of the law will be defeated if the defendant is liable to retreat. The major difference between self-defence and the defence of property is that the defendant need not retreat before the use of force in defence of his property for that would be giving up his property to his adversary.[28] Likewise, if a person is assailed in his own dwelling, he is not obliged to retreat and leave himself in that respect defenceless. There is no place to retreat once one has been forced out of his own house.[29] The same rule is also maintained by certain other jurisdictions.[30] The rationale for the rule is that a person who has fled into the sanctuary of his own home, or is attacked in his own home, is considered to have his back already to the wall and therefore is under no further duty to retreat. However, he has the option to avoid conflict by temporising.

Imminent Threat

A defendant will only be justified in reacting to a threat which is imminent. The balance which the courts have sought to establish in this area can be seen from the following two cases. In Attorney–General’s Reference,[31] the defendant owned a shop in an area where there had been extensive rioting. He made up some petrol bombs, and kept them ready to defend his property if required. The court found that a defence was available to him as the threat was sufficiently imminent. By contrast, in Malnik v. DPP,[32] the defendant went to visit a man who was believed to have stolen some valuable cars belonging to an acquaintance of the defendant. The suspected thief was known to be violent, so the defendant took with him a rice flail – a martial arts weapon consisting of two pieces of wood joined together by a chain. He was arrested while approaching the man’s house, and the court rejected the argument that carrying the weapon was justified because he was not in imminent danger of attack, pointing out that he had himself created the dangerous situation by choosing to go the man’s house.

However, in certain limited circumstances, the law must permit the right to strike first in protection of his proprietary right. According to Lord Griffiths in R v. Beckford,[33] “a man about to be dispossessed of his property does not have to wait for his assailant to strike the first blow or fire the first shot, circumstances may justify a pre-emptive strike”. The problem however is in defining the parameters of such a right. Allowing too much anticipatory defensive action could become a charter for vigilantism. The Criminal Code and Penal Code do not contain any similar provisions. However, section 105 of the Indian Penal Code provides that: “The right of defence of property commences when a reasonable apprehension of danger to the property commences”.

Under section 63 of the Nigerian Penal Code, there is no right of defence of property where the defendant can have recourse to the protection of public authorities. However, it must be observed that this section of the Penal Code is more likely to be complied with in the breach as the public authorities are in no position to guarantee the safety of the citizenry of this country. The English Common law along with the Nigerian Criminal Code does not have similar provisions.

Mistake

If a defendant makes a mistake which leads them to believe there are circumstances which make defensive action necessary, the court will assess the necessity of the defence on the basis of the facts as the defendant believe them to be, even if the mistake is not a reasonable one to make. In R v. Gladstone Williams,[34] it was held that the defendant’s mistake need only be an honest one and it does not matter whether it is reasonable or unreasonable. Of course, as a practical matter, the more unreasonable the defendant claimed mistake is, the less likely the court is to believe that it was a genuine mistake.

However, where the mistaken believe as a result of the voluntary intoxication, the defendant wouldn’t be allowed to rely on the mistaken believe. In R v. O’Grady,[35] it was held that a defendant is not entitled to rely, so far as private defence is concerned, upon a mistake of fact which has been induced by voluntary intoxication.

Reasonable Force

Traditionally under English Law “reasonable force” embraces two distinct ideas – necessity and proportionality. Necessity means that the force used was necessary in the sense that lesser violence would not have been adequate to defend ones property or the property of another. Proportionality means that it was reasonable to use that necessary force in the sense that it was not disproportionate to the mischief sought to be avoided.[36] The fact that an act was considered necessary does not mean that the resulting action was reasonable. See the case R v. Clegg,[37] where it was alleged that a person acted to defend himself/herself from violence, the extent to which the action taken was necessary will, of course, be integral to the reasonableness of the force used[38]. So that for example, force considered reasonable for protecting a person might be considered excessive if used to protect property. However in considering this issue, the courts while taking into consideration the entire circumstances of each case, places emphasis on the fact that defendants are not expected to perform precise calculations in the heat of the moment. See R v. Mclnnes.[39]

 This principle was reinstated in the Nigerian case of Radhe v. Emp,[40] where The view was further expressed that once it was found that their right of private defence exists, it is very difficult to expect an accused person to weigh with a golden scale the maximum force necessary to keep within the right.

This position is the same under the United States Criminal Laws,[41] which recognises the fact that a person is privileged to threaten to or intentionally use non-deadly force to protect property that is lawfully in his or her custody or care. In some instance, a verbal request is all that is needed to stop the interference with the property, except if such request would be useless; It would be dangerous to himself or another person to make the request; or substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made. Thus interference must be unlawful; force may be used only when necessary to terminate the interference; and the amount of force must be reasonable under the circumstances.[42]

Deadly force was at one time commonly used to protect property on the American frontier. This force was necessary in those times because law enforcement officers were seldom readily available. Today all states forbid the use of deadly force in the defence of property. The reasons for the change in the law can be summarised as follows:

a.       On the frontier, horses and many other items of property were important for survival. Today few items are vital for survival because they can be replaced within few days’

b.      Insurances innovation.

c.       Thanks to modern communication and transportation, law enforcement agencies are readily available to assist individuals confronted with theft. 

Under the various Criminal Laws applicable in Nigeria, the general rule is that response must be proportionate to the attack. Thus the accused may only use such force as is reasonable in the circumstances to protect his property. See Kwagshir v. State.[43]

The rule that a person cannot use deadly force to protect property applies whether the owner is present or uses a remote-control device, such as a spring gun that is triggered by opening a door or attaching a spring to property. Indeed some jurisdictions in the United State of America, such as Oregon, Wisconsin, and some countries such as England go as far as to punish separately the mere setting of the spring gun. See the English case of Pownall (1994),[44] where the court found it not reasonable for a person to protect their property using dangerous method like electrified fences and mantraps.

Mistake as to the degree of force

This issue has been subject to much recent confusion. The original position under the English Law laid down in R v. Willams,[45] was that the matter had to be decided objectively and the mistake of the defendant could not be taken into account in deciding whether reasonable force had been used. Thus the level of force was decided objectively.

A dramatic change appeared to have been brought about by the case of R v. Scarlett;[46] Scarlett was the licencee of a pub. The victim came into the bar extremely drunk, and Scarlett asked him to leave. He refused to go, and a struggle ensured. In such a situation licencees are legally entitled to use reasonable force to eject the person. Scarlett pushed the man out through a swing door, into a lobby which gave on to some stairs, the victim feel down the stairs and died. Scarlett was convicted of constructive manslaughter, but his appeal was allowed on the basis that he thought he was behaving reasonably, and he had not believed there was any risk of the victim falling down the stairs.

Beldam L.J. stated that the jury should be told to acquit “unless they were satisfied that the degree of force used was plainly more than was called for the circumstances as (the defendant) believed them to be – and, provided he believed the circumstances called for the degree of force used, he is not to be convicted even if his belief was unreasonable. This was thought to impose a subjective test; if the defendant used excessive force but, owing to a mistake, honestly believed it to be reasonable force, the defence would still be available, and the reasonableness of the force would be judged on the facts as the defendant believed them to be.

However in 2001, the objective test was confirmed in the high profile case of Anthony Martin v. R,[47] although it was watered down slightly as the court of Appeal left open the possibility of sometimes taking into account specific characteristic of the defendant when applying the test. Martin lived in a remote farm house which was broken into by three intruders, who were probably intending to carry out a burglary. He used a pump-action shotgun to shoot one of the intruders three times, including once in the back, and seriously injured another. There was some dispute as to whether Martin was on the stairs or downstairs waiting for the intruder when he fired the first shot. This issue of self-defence and defence of property was left to the jury and rejected. He was convicted of murder and wounding with intent contrary to section 18 of the Offence against the Person Act 1861. His conviction was reduced to that of manslaughter on appeal because the defence of diminished responsibility had not been left to the jury, but the defence of property and self-defence was rejected by the court of Appeal as Martin had used excessive force.

The defence barrister submitted that in determining the question of reasonable force the courts should take the same approach as the House of Lords laid sown in Smith (2001) for the objective test in provocation. This would allow the defendants characteristic to be taken into account when determining whether his response had been reasonable, which in this case will include the fact that Martin suffered from a paranoid personality disorder. The court of Appeal accepted that the jury was entitled to take into account the physical characteristics of the defendant. They also said that, in exceptional circumstances which made the evidence especially probative, the court could take into account the fact that the defendant was suffering from a psychiatric condition. But this was not such an exceptional case, and the court concluded that on the facts reasonable force had not been used.

 On a similar statutory defence, DPP v. Bayer & Ors,[48]  dealt with defence of property as a defence to aggravated trespass under Section 68 of the Criminal Justice and Public Order Act 1994. The Court held that if defendants argued they had used reasonable force to defend property from actual or imminent damage that would constitute a criminal act, then the court had to consider whether, on the facts as the defendants honestly believed them to be, the force used was reasonable in all the circumstances.

The cases highlighted concerns over how much force can be used by homeowners to protect themselves and their property against intruders.[49] It is submitted by the researcher that the subjective approach in determining the necessity of the accused person’s action is to be preferred because If a court were to rely wholly on the belief of a “reasonable man” to the exclusion of the accused person’s mistaken and honest belief of the facts, a lot of questionable decisions would be arrived at where the person who ought not to be found guilty of murder will be convicted.

Defence of Property and Use of Deadly Force

In certain circumstances the right of private defence of property may extend to cause death of the assailant. A struggle between the possessor and a trespasser can lead to violence and a threat to property may turn into a threat to human life or safety. Where the defender of the property reasonably believes that his own life is at stake he will be justified in taking the life of the assailant. It implies that stress should be laid on the element of personal danger while allowing use of deadly force.

Generally, it is not reasonable to use deadly force merely for protection of the property. Killing of a mere trespasser cannot be excused;[50] unless it amounts to a violent felony such as robbery, arson or burglary and the extreme step of causing death of the trespasser was absolutely necessary[51]Apart from a home, the nature and value of property and all surrounding circumstances must be taken into account before determining the quantum of force required for the defence. A threat to property may, in certain circumstances, be so potent to permit the use of deadly force as against physical harm. Thus a person does not commit a crime by causing death or bodily harm while defending his property or property of another provided that he inflicts no more harm than he in good faith and on reasonable grounds believes to be necessary.

Second important element is the nature of property to be defended. A home is considered to be a man's castle; if an assailant intends to evict him or break into it with intent to commit burglary or homicide the defender is entitled to use deadly force.  Thus in R. v. Hussey,[52] Hewart L.C.J. held that a man may kill a trespasser, who would forcibly dispossess him, in the same manner as defending his body.

Under the Nigerian Criminal Law, it is permissible for a defendant to kill in the defence of dwelling house where it appears reasonable necessary in the circumstance. Section 187 of the Criminal Law of Lagos State which is on all fours with section 282 of the Nigerian Criminal Code, provides thus:

It is lawful for any person or any person lawfully assisting him or acting by his authority to use such force as he believes, on reasonable grounds, to be necessary to prevent the forceful entering of his residence, by any person whom he believes on reasonable grounds, to be attempting to forcefully enter his residence with intent to commit an offence in his residence.

The Lagos State has not altered the pre-existing legal position as to whether a person can kill in the defence of dwelling house under the Nigerian Law. In R v. Ebi,[53] it was held that the defence of property was available to an accused person who shot and killed the deceased who was a member of a mob that was attempting to burn down his house. In Musa v. State,[54]it was held that the defence of property is only available where there is an attempt to enter a dwelling house or residence with a view to committing an offence.

Similarly, section 66 of the Nigerian Penal Code which is in tandem with section 103 of the India Penal Code provide for instance where the right of defence of property may extends to causing death thus:

“The right of private defence of property extends, under the restriction mention in sections 62-63, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely;

a.      Robbery;

b.      House-breaking by night;

c.       Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;

d.      Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.”

Thus if the defendant under the limits place on him by sections 62 & 63 causes the death of the deceased while trying to defend his property in repelling the acts listed in a - d, will not be liable for the offence of murder.

Aside from the provision, of section 282 of the Nigerian Criminal Code, the Code permits the use of force in the defence of property provided no harm is done.[55] Arshad Masood has rightly criticized these provisions on the ground that it is inconceivable to use force without causing some harm in the defence of property.[56]  Realizing the difficulty of application of the provision, sections 194-198 of the Lagos State Criminal Law have replaced the word “harm” with “grievous harm” and adopted the definition of “grievous harm” of the Criminal Cod.[57] The importance of this replacement is that the definition of “harm” Under the Criminal Code is so watery that it permits any kind of hurt no matter how slight, to fall within the definition so as to make it practically impossible to exercise the right of defence of property under sections 289-294 of the Criminal Code without causing some harm no matter how slight.

Similarly, under the United States Law Principles of the “Castle doctrine”, which is an exception to the duty to retreat, gives privilege to persons who are assaulted in their homes by trespassers to stand their grounds and use such force as is necessary and reasonable to defend themselves. Because a person’s home is his or her “castle” the privilege not to retreat in one’s home is known as the “Castle” doctrine. The U.S Supreme Court decided in 1895 in the case of Beard v. United States,[58] that under federal law a homeowner had no duty to retreat in the face of an unlawful assault in his home or on his property.

Furthermore, some parts of the U.S have adopted the “Make my day” Rule, which places no limit on the use of deadly force by the occupant of a dwelling.[59] For instance in State v. Anderson,[60] the Court interpreted the Oklahoma Statute[61] as intended to remove any requirement that the force use must be reasonable under the circumstance. Thus an occupant who reasonably believes the intruder intends to use some force is privilege to use any force including deadly force. (Please note that minority of the US e.g. New Jersey, have an exception to the “Castle” doctrine principle that requires a co-occupant of a home to retreat.)      

 The Effect of the Defence “the all but nothing rule”

Under English Law if the defence of property succeeds, whether common law or statutory, the defendants conduct is regarded as lawful and he is completely acquitted. It can be a defence to any crime. However it should be noted that a defendant who act in defence of property but who uses more force than is reasonable, will be convicted, although the fact that acted in defence of property will no doubt, be reflected in a lesser sentence. In the case of fixed penalty crime of murder, this is not possible. It means that private defence of property is either a complete defence or no defence at all.

Section 298 of the Nigerian Criminal Code which codifies the concept of excessive force is somewhat vague. The section does not say what the accused’s liability will be if, by making an error of judgment, he uses force in excess of what could be reasonably necessary for the defence of his property. The Courts have not made particular reference to section 298 of the Criminal Code, but it is clear that they have followed the English common law rule that an excessive use of force would defeat a plea of any form of private defence, including the defence of property.

The approach adopted under the Nigerian Penal Code is quite different. Under the Penal Code,[62] killing occasioned by the use of excessive force in the defence of property is manslaughter only, not murder. This has led to suggestions that there should be a halfway house defence in the Nigerian Criminal Law which act like provocation and reduces murder to manslaughter. Indeed, such a defence currently exists in the republic of Ireland and did exist in Australia until it was abolished in 1987. The English courts however have firmly set their face against any such partial defence and the use of excessive force completely deprives the defendant of the defence.   

It is submitted that the Penal Code of Nigeria approach to the problem of excessive force used in defence of property should be followed by the Criminal Code jurisdiction in Nigeria for where a person truly acts in private defence of property; it is difficult to see how he can regulate the force used in the exercise of such defence.

Conclusion

In conclusion, it must be said that there is every need to amend our laws especially the Nigerian criminal code to embrace the reality involved in the defence of property as observed earlier.[63]

With regard to the issue of excessive force under the Nigerian Criminal Code, it is suggested that the court in deciding cases should make use of the provision of section 298 of the Criminal Code in determining whether or not to convict defendants who have used excessive force in defence of property for murder or manslaughter. The current attitude of slavishly adopting common law decisions on this point does not augur well for the development, proper interpretation and implementation of our statutory laws. It is quite certain that if section 298 of the Criminal Code is relied upon in determining the liability of an accused for the use of excess force in the defence of property, the courts would be able to avoid the rigid stance of the common law concerning this issue.