Revisiting Defence of Claim of Right in Nigerian Criminal Law through Elimuya v. Police

Abstract

The defence of bonafide claim of right under Nigerian criminal law is an important menu in the consideration of the defences open to a defendant in a criminal trial. In Charge No MAB/43c/2020 Commissioner of Police v. Chief Paul Idima Obi Elimuya the defence came up for consideration before the learned trial Senior Magistrate Grade 1, Edema Doris (Mrs.) sitting at the Magistrates’ Court, Abbi in Delta State, Nigeria. Because of the intricate nature of the defence and the manner in which it was considered in the above mentioned charge, this study is actuated towards revisiting the defence under the Nigerian criminal procedure law and determine whether given the factual circumstances in which the defence arose, the trial court was in the right footing in rejecting the defence as made during the trial proceedings in Elimuya’s case. This study would consider the forgoing issue in relation to the appeal which the defendant later took out against the judgment of the learned trial Magistrate to the High Court of Justice, Kwale Delta State, Nigeria. This study uses the doctrinal method relying on judicial decisions and other relevant statutory instruments in the area of the law under consideration. It uses the locus classicus on the subject area of the law in Nigeria (Nwakire v State) to interrogate both the facts yielded in Elimuya v Police and the judgment delivered by the trial court on 15th October, 2022. As this study is essentially an academic exercise, the aim is to highlight the importance of the defence in criminal procedure law, demonstrating the circumstances under which it is to be raised and upheld and the controversies surrounding its application under Nigerian law. The study finds that the facts in Elimuya v Police were on all fours with the circumstances under which the defence ought to have been upheld and the refusal of the learned trial Magistrate in upholding same led to miscarriage of justice and to the appeal. The study therefore recommends that whenever the question whether the defence of claim of right is applicable during a trial, the trial court and indeed an appellant court should look out for the essential elements of the defence as outlined in this study.