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 THE DEFENCE OF BONA FIDE CLAIM OF RIGHT
IN NIGERIA
1
By C. 0. OKONKWO

The trend of some Nigerian decisions where the defence of honest claim
of right is raised is disturbing and shows a lack of proper appreciation of its
scope. The defence is contained in section 23 of the Criminal Code which
provides as follows:
"A person is not criminally responsible, as for an offence relating to property,
for an act done or omitted to be done by him with respect to any property in
the exercise of an honest claim of right and without intention to defraud."
This defence applies to all offences relating to property: stealing, robbery,
demanding property with menaces, malicious damage to property etc.
But it features more in theft offences than in other offences relating to
property.

Theft offences
One of the most frequently cited cases in connection with claim of right is
R. v. Bernhard2 in which it was held that "a person has a claim of right if he
is honestly asserting what he believes to be a lawful claim even though it
may be unfounded in law or fact". The effect of the defence is to negative
mens ria. The test in deciding whether the belief is honest is subjective.2
It is immaterial that the belief is unreasonable. In particular, it is immaterial
also that the act done with regard to the property is unlawful provided it is
done in the exercise of an honest claim of right and without intention to
defraud. Section 23 does not qualify the nature of the act. Yet a few Nigerian
cases appear to hold that the defence is negatived if the act is unlawful.
The recent decision of the Mid-West High Court in State v. Okolo is
illustrative. An oil company entered land, part of which belonged to the
accused, and paid compensation to representatives of the community. A
sum of£45o was paid in respect of pits dug on land belonging to the accused.
As the village chief would not pay over this sum to the accused he procured
the services of an armed soldier to claim the money. Part of the money was
paid to the accused as a result of threats by the soldier. The accused was
charged with robbery in respect of the money. His counsel raised the defence
of honest claim of right, and cited R. v. Bernhard. In his judgment the judge
held Bernhard'scase inapplicable and stated that:
"The conduct of 1st accused in this case cannot be excused by section 21
of the Criminal Code. 5 Although the defence of ignorance of the law was
accepted in R. v. Bernhard (supra) it does not avail ist Accused in this case as
I am not satisfied that there is sufficient evidence to justify him procuring the
services of an armed soldier in demanding his compensation... notwith-
1
Senior Lecturer in Law, University of Nigeria.
2 [1938] 2 K.B. 264.
Onwukwalonye v. C.O.P. (1967), F.N.L.R. 44.
'UHC/15C/7o (unreported).
'This section is the same as s.23 of the Eastern Nigerian Criminal Code.
 Bona fide claim of right in Nigeria [1973] J.A.L.
standing the fact that he entertained an honest belief in his claim against
the community. In my opinion, the essence of the offence under section 3421
is the threat which is used on the victim and not the. belief in the right of the
accused to demand the property. The accused may be legally entitled to the
property and he may also feel satisfied that his demand is honest but when the
demand is accompanied by the use of some violence or threat to life, the law
negatives the legality of what may be a legitimate right in the property.
claimed."
The accused was convicted of robbery.
It is clear from the judgment that what influenced the court in reaching its
decision was the illegal manner in which the accused exercised his claim
and not that he lacked an honest belief in the propriety. of his claim. Of this
the accused stated that he believed "it was only a soldier who could help
one in those difficult days". In other words the accused also had a bonafide
belief in the method he used.
Robbery is a theft offence. It is an aggravated form of stealing-aggravated
by the use of violence or threats of it. It is defined in section 401 of the
Criminal Code as follows:
"Any person who steals anything, and, at or immediately before or immedi-
ately after the time of stealing it, uses or threatens to use actual violence to
any person or property in order to obtain or retain the thing stolen or to
prevent or overcome resistance to its being stolen or retained, is said to be
guilty of robbery."
It is seen from this definition that stealing is an essential ingredient of the
offence of robbery. If there is a defence to the stealing aspect then the offence
of robbery is not committed because an essential ingredient has not been
proved. An honest claim of right is a defence to stealing. The threat of
violence is immaterial. To hold otherwise is to say that the defence of honest
2
claim of right' does not apply to the offence of robbery or for that matter
to any other offence relating to property in which there is illegality in the
conduct of the accused.
3
In another case, Ejuren v. Commissioner of Police, the Supreme Court held
that stealing was committed Where the accused set up an illegal court to
hear a claim for return of a dowry of 5o and after hearing the complainant's
claim, without allowing the defendant to put his case before the "court",
ordered his messengers to beat the defendant and lock him up in a room and
thereafter the defendant's relative paid the money to the complainant.
Dismissing the defence of honest claim of right the court said that the accused
"cannot plead that he was acting bonafide, he did not allow Ogiri (defendant)
to state his defence to the claim". In other words the illegality of the accused's
conduct negatived the defence that the accused was exercising an honest'
4
claim of right as agent of the complainant.
5
Anyijiofor v. Commissioner of Police was an improvement on the above cases.
The appellant forcibly seized the complainant's bicycle because as he alleged
the complainant had earlier seized a bicycle belonging to the appellant's

I This is the equivalent of s. 4o of the Eastern Nigeria Criminal Code.

I in State v. Nwokoro AG/5C/7o (unreported) the Mid-West High Court (AGHOOHOVBIA, J.)
was prepared to hold that where A severely beat up B and took his money, mistakenly
believing that B was one of the thieves who had just stolen money from him (A), the defence
of honest claim of right was available to him on a charge of robbery.
3f 1964] 1 All N.L.R. 386.
' A claim of right asserted for another person is a good defence if the person asserting it
believes he is justified in doing so, See R. v. Williams (1836), 7 C. & P. 354; 173 E.R. 158;
Udu v. I.G.P. (1964), M.N.L.R. 116; Anyijiofor v. C.O.P.
60/3CA/1971 (High Court, Onitsha), (unreported).
VOL. 17. No- 3 Bona fide claim of right in Nigeria
father. He raised the defence of honest claim of right to a charge of stealing
and this was upheld by the High Court (overruling the trial magistrate).
On the method used by the appellant in asserting his claim the court rightly
said:
"The procedure may be wrong but what this court is concerned with is the
intention of the appellant."
There was inadmissible evidence that the appellant had sold the bicycle
and, on the basis of this, counsel had argued that when the appellant seized
the bicycle he intended permanently to deprive the owner of it and thus
could not be acting bonafide. On this point the court found that it had not
been "conclusively proved that the appellant by seizing the bicycle of the
complainant intended to deprive him permanently of his property". Earlier
the court had said: "As regards stealing the bicycle the only issue to be
considered is the 'intention to deprive the owner permanently of his
property'." The inference seems to be that if there is such intent the defence
of claim of right fails. But this, with respect, is wrong. To say that honest
claim of right is a defence to a charge of stealing is to say that it is a defence
where a person takes another's property intending to deprive him perma-
nently of it. It affords a defence where a person takes another's property with
any of the six intents outlined in section 383 of the Criminal Code, e.g. to
use it as a pledge or security.1 Therefore even if the appellant took the
complainant's bicycle intending to sell it (e.g. because complainant had
sold his father's bicycle) this, by itself, would not deprive him of the defence
of honest claim of right.
An examination of a few relevant English cases confirms the view that
State v. Okolo and Ejuren v. Commissioner of Police were wrongly decided. In
R. v. Hemmings2 the complainant owed some money to the accused, an
innkeeper, and promised to pay when he had money. Some time later the
complainant was at the inn drinking and showed that he had money. The
accused demanded payment without success. He then persuaded the com-
plainant to accompany him to a private room where after repeating his
demand he severely beat up the complainant until he cried out "murder"
and begged him to stop, promising to pay him the & he had on him, which
he did pay. On these facts the accused was held not guilty of robbery. "It
was rather an assault by a creditor on a debtor to enforce payment of a
debt, an unlawfuls proceeding no doubt, but very unlike a felony .... "
In R. v. Skivington4 the accused went to the offices of the employers of
himself and his wife on a Wednesday, demanded wages which he claimed he
was entitled to, brought out a knife and by means of an assault on the
manager received two wage packets. Wages were not due for payment until
Friday. His defence was bona fide claim of right. The trial judge directed the
jury that the defence would succeed only if they were satisfied that the
accused had an honest belief that he was entitled to take the money in the
way in which he did take it. On appeal it was held that the direction was
wrong. PARKXER, L.C.J. said:

1 Okoro v. G.O.P. (1972), 2 E.C.S.L.R. 230.

1(1864) 4 F. & F. 50; 176 E.R. 462. See also R. v. Boden (844), i C. & K. 395; 174 E.R.
863.
3 My italics. Brett & McLean state that "the claim of right must be made not only in
respect of the object to be attained by the act or omission but also in respect of the means
used to attain that object". See Brett & McLean, Criminal Law and Procedure of Lagos, Eastern
.Nigeria and Western Vigeria, para. 139t. This view, with respect, is wrong.
' [1967] 1 All E.R. 483 overruling R. v. KingJones and Gladdy, [1966] 1 W.L.R. 1077.
 Bona fide claim of right in Nigeria [1973] J.A.L.
"Throughout the judge was at pains to tell the jury that before they could
accept a claim of right as a defence to this charge, they must be satisfied that
the appellant had an honest belief that he was entitled to take the money in
the way in which he did. It is quite clear, and it is sufficient only to mention
R. v. Bernhard, that a claim of right exists whenever a man honestly believes
that he had a lawful claim, even though it may be completely unfounded in
law or in fact. The question is whether that defence to larceny applies equally
when the offence with which one is concerned is really an aggravated larceny,
such as in this case robbery, or whether the honest belief must extend to being
entitled to take the money by force. In the opinion of the court, both on
principle and on the cases, it is clear that it can be a defence. So far as principle
is concerned, it can be stated in the simple form that larceny is an ingredient
of robbery, and if the honest belief that a man has a claim of right is a defence
to larceny, then it negatives one of the ingredients in the offence of robbery,
without proof of which the full offence is not made out. That principle simply
stated as such has been upheld in case after case ......
There is no doubt that both in State v. Okolo and in Ejuren v. Commissioner
of Police the accused in each case could have been convicted of assault if he
had been charged with that offence.' The defence of honest claim of right
applies only to offences relating to property. An assault is not such an offence.
Therefore, even if the accused honestly believed that he had a right to use
violence or threats in enforcing his claim, that is not a defence to a charge of
assault.2 It is hoped that in future prosecutors will always include counts for
assault in such cases as above (this was done in Anyijiofor's case) and that the
courts will give full effect to the scope of the defence.

Damage to property
In some cases the applicaii6n of the defence of honest claim of right has
evoked judicial disagreement in cases where malicious damage to property is
charged. The cases are usually of two kinds.
In the first kind, D honestly believes that the property he is destroying is
his own. For example, D clears an area of bush and cuts down all the trees
on it in order to make a farm in the honest but mistaken claim that both the
land and the trees thereon belong to him. This kind of case raises no difficulty.
D's defence is that when he cut down the trees he thought he was cutting
down his own trees. There is, therefore, no guilty mind and the offence of
malicious damage is not committed.3 There is a marked similarity here
between the defences of claim of right and mistake of fact-although a
mistaken claim of right will succeed even if it is unreasonable or based on
ignorance or mistake of law. 4
In the second kind of case D knows that the property he is destroying is not
his own but believes that he has a right to destroy it (e.g. in order to protect
I Cf. R. v. Boden (z844), C. & K. 395; R. v. Skivington above.
C
2 In Anyijiofor v. C.O.P. the High Court said: "If the appellant used slight force on P.W. I
which is necessary as a means of effecting and facilitating the taking away of the bicycle
on a claim of right made honestly and in the belief he has a lawful claim, that in itself
would not constitute an assault." This sounds reasonable though perhaps difficult to justify
under the Code which protects persons in peaceable possession of movable property under a
claim of righto even against "a person who is entitled by.law to possession of the property",
see C.C. s. 29 . The implication of C.C. s. 291 is that a person entitled by law to possession of
movable property may not use force to take it from a person who is already in possession
under a claim of right.
3 Cf. R. v. Rutter (igo8), 25 T.L.R. 73; 1 Cr. App. R. 174. See Glanville Williams: Criminal
Law, The GeneralPart, 2nd ed. p. 309. D may be liable in tort (trespass to land); see Basely v.
Clarkl (1681), 3 Lev. 37.
4Ok a v. C.O.P. (1972), E.C.S.L.R. 159.
Vol. 17. No. 3 Bonafide claim of right inNigeria 275
some interest of his own). For example, C and D are disputing ownership of
a piece of land. C plants some crops on the land and D destroys them.
If D is charged with malicious damage to property and he raises the defence
of claim of right he is in effect saying: "I claim this land as mine. I also claim
a right to destroy C's crops planted on my land without my permission."
It is the second claim in this kind of case that appears to cause some difficulty.
It may be stated generally that the courts have recognized that the defence
of claim of right is not limited to cases of the first kind. It avails D where in
the exercise of an honest claim of right he wilfully destroys C's property e.g.
crops, blocks, etc. on disputed land. But the crucial question is whether there
is a limit to what D can do to property on disputed land in exercise or
assertion of his claim of right.' In Ejike v. LG.P.2 the defence excused the
destruction of 526 blocks on disputed land and in Onwukwalonye v. Com-
missioner of Polices it excused the demolition of a dwarf wall (about iofeet
long and 2j feet high) erected on disputed land.
. In Iroaghan v. Commissioner of Police4 three accused persons were charged
with malicious damage to property. They raised the defence of honest claim
of right. Two were acquitted because what they destroyed in the exercise of
their claim of right were plants. The third was convicted because he damaged
cement pillars, surveyors' blocks and a barbed wire fence. The magistrate
took the view that:
".... .where a man goes to the extent of damaging cement pillars, surveyors'
blocks and a fence of barbed-wire belonging to an individual as distinct from
plants which grow, knowing that he has no claim to the articles, that is
knowing that the cement pillars, surveyors' blocks and barbed-wire fence do
not belong to him because he believes the land to belong to him, then he is
taking the law into his own hand and he is therefore criminally liable for
wilful and malicious damage to those articles."
On:appeal, the High Court, allowing the appeal, held that the distinction
drawn by the magistrate was wrong. "Cement pillars and plants and barbed
Wire fence are properties within the section and once there is a claim to land
on which these articles are planted section 2I of the Criminal Code can
rightly be invoked." In this case, it seems that the difference of view between
the magistrate's court and the High Court concerned the issue whether the
value or nature of the property destroyed has any effect on the defence of
claim of right. The decision of the High Court must be taken to be that it
has no effect.
The issue arose again in Commissioner of Police v. Iffe. e In that case D and C
were disputing ownership of a farmland. D went on the land and destroyed
plantain stems, pineapple and cassava plants, young kolanut and rubber
trees planted on the land by C, and valued at about £200. D was charged
with malicious damage. His defence was honest claim of right and his counsel
relied on Iroaghanv. Commissioner of Police to support the argument that "once
there was a claim of right over the land in dispute on which crops were

I It is thought that the property to which the defence applies comprises things planted,
built or put on the land by C in assertion of his claim or in exercise of rights of ownership.
If C drives his car to a disputed piece of land in order to inspect the land and D wilfully
burns it he surely cannot rely on S.23. No court will believe that he entertained'an honest
belief in his right to destroy the car.
'(1961),
S(1967), 5F.N.L.R.
E.N.L.R.44.7.
(1964), M.N.L.R. 48.
'S. 21 of the Midwest Criminal Code is equivalent to s. 23 of the Eastern Nigeria Code.
4 W/14CAJ7o (unreported, Midwest High Court).
 276 Bona fide claim of right in Nigeria [i973] J.A.L.
planted an 'accused person who lays claim to such land cannot be convicted
of destroying the crops planted on it by its occupier". The High Court,
disagreeing with the decision in Iroaghan's case, rejected the argument
saying:
"If the defence set out by the provisions of section 2! of the Criminal Code
were extended to cover a case of this nature, we will sooner or later find
ourselves in anarchy. By analogy this would mean, if the submission of learned
counsel for the Accused/Appellant is accepted, that if a man has occupied
land and built a house on it, another man who later comes to lay a bona fids
claim of right to the land could, without resorting to the law courts for
remedy, pounce on the. house and destroy it completely and yet not be
criminally responsible for his act. This, certainly, cannot be the intention of
section 21 of the Criminal Code."
While it raises doubt-as to the scope of section 23, the decision falls short
of laying down any guiding principle for determining the limits, if any, of
the section. Such a principle is contained in Ejike v. Inspector-Generalof Police
in which, after considering English cases, the High Court (E.R.) put forward
the view that
" ;.. if it is shown that the appellant did what is alleged against him in the
honest belief that he was asserting a claim of right the question will then arise
whether his act in the circumstances was reasonable."
And
"If his act is unreasonable then it -goes beyond asserting a claim of right
and becomes malicious." 1
Unreasonableness of D's conduct was held to defeat the defence of bona
fide claim of'right in the recent case of Commissioner of Police v. Okpaku and
others.2 Over a period of years, a land dispute existed between the Okpaku
family and the Okari family. A series of civil suits in the native court and in
the magistrate's court having jurisdiction in the area ended in favour of the
Okpaku family. Members of the Okari family subsequently built a house on
the land. The respondents, who were members of the Okpaku family,
partially destroyed the house and were charged with malicious damage to
property. The trial magistrate upheld their defence of bonafide claim of right
and acquitted them. On appeal by the prosecutor, HOLDEN, C.J. (Rivers
State) accepted "that respondents had a sincere claim of right made in good
faith" but held that their conduct in partially destroying at completed
building was- unreasonable and that the defence of claim of right failed for
that reason.
Commenting on Ejike's case, the learned Chief Justice said:
"The main authority on this matter seems to be Ejike v. Police (i961),'
E.N.L.R. 7 where MBANiwo, C.J., held that the Appellant had been justified
in destroying about 500 cement blocks made on his land which was the subject
of litigation pending between himself and the maker of the blocks. I would
respectfully suggest that the learned Chief Justice went just about as far as
can be acceptable, in ruling that such action was not unreasonable, and that
s. 23 afforded a defence to the Appellant. In this matter, the situation is quite
different, and I find no difficulty in distinguishing this from Ejike's case.
The destruction of cement blocks could be said to represent the simplest
way of preventing the building of a house where it should not be built.
The destruction of a completed building, roofed and fitted with doors and
windows, cannot in my view be considered a reasonable way in which to
prevent unauthorised occupation of the land. The occupation has taken place
'At pp. 9-io, author's italics. Cf. Festus v. G.O.P. (196o), W.R.N.L.R. 16 at p. 17.
2 PHC1 3 CA/72 (unreported).
Vol. 17. No. 3 Bonafide claim of right in Nigeria 277
and is an established fact. Legal means are therefore the only means available
to bring that occupation to an end. I hold therefore that the Respondents
acted unreasonably in partially destroying a completed building, and cannot
seek refuge behind s. 23 of the Criminal Code."
The point does not seem to have been considered whether the land and
the house erected on it could be said to 1
belong to the respondents on the2
principle quicquidplantatursolo, solo cedit. In Ukeagbu v. Commissioner of Police
a case dealing with the defence of claim of right to a charge of malicious
damage to property, ANIAGOLU, J. stated that "the element of reasonableness
would not come into a situation in which the ownership of the land in dispute
had been declared to be in the prisoner, for in that case the ownership of the
fixtures on the land remain vested in-him. He could destroy the entire thing
at will". 3
Now, this requirement of reasonableness is not contained in section 23 of
the Criminal Code. It is therefore not part of our law for we have in Nigeria
a Criminal Code which is meant to be complete and exhaustive. If it is
desirable that for section 23 to avail in the kind of case under discussion
reasonableness should be a pre-requisite, then this is a matter for the
legislature and not for the courts. And until section 23 is amended the law
must be that if D destroys C's property in the exercise of an honest claim of
right and believes that he has a right to do so the defence succeeds no
matter the value of the property and although his conduct is unreasonable.4
Does this then mean that the problem posed by the dictum in Iffie v.
Commissioner of Police (set out above) has no answer in our law? Does it not
seem absurd that a person can with inpunity destroy another's property on
disputed land? The following observations must be made in this respect.
In the first place, the question in issue is the criminal responsibility of D.
If he genuinely believed that he'had a right to do what he did there is
absence of mens rea and he is free from criminal liability. It is immaterial
that the belief is unreasonable for the test is subjective, not objective.5
Secondly, C has the satisfactory remedy of a civil claim in tort. Thirdly,
although it is stated above that unreasonableness does not negative the
defence of claim of right, in practice, however, it would be difficult for D to
persuade a court that he honestly believed he had a right to destroy C's
property if his conduct is unreasonable. 6 Fourthly, a person who destroys
another's property in the manner and circumstances described in the dictum
(ife's case) may not entirely be free from criminal responsibility. He may be

1 Francisv. Ibitoye (1936), 13 N.L.R. is; Oso v. Olayioye 1966 N.M.L.R. 329.
'(1972), 2 E.C.S.L.R. 207.
'At p. 2o.
4 Cf. Glanville Williams: Criminal Law: the General Part, p. 31o-"The conclusion is that
reasonableness is irrelevant--except, of course, as having an evidential bearing on the
question of whether the belief existed". After considering R. v. Clemens, [1898] 1 Q.B. 556
which introduced the requirement of reasonableness and was followed in Heaven v. Cruthley
(1903), 68 J.P. 53 the learned author expressed the hope that "these decisions will one day
be reconsidered" at p. 312.
s Onwukwalonye v. C.O.P. (1967), F.N.L.R. 44 at p. 48. Quaere, whether D can successfully
invokes. 23 (on a charge of stealing) where he not only destroys C's crops on disputed land
but cuts down C's ripe pineapples, sells them and keeps the money?
6 Cf. the dictum in Ejike v. LG.P. above: "The reasonableness of his action is a pointer to
the state of his mind", at p. so. See Brett & McLean para. 1390: "though the question,
whether a claim is reasonable or not, may have a bearing on the question, whether or not
it is honestly held". See Glanville Williams op. cit. at p. 31o. Factors which may affect
the reasonableness of D's conduct will include the value of the property destroyed, the
circumstances of the claim, the hotness of the dispute and the conduct of the complainant.
278 Bona fide claim of right in Nigeria [x973] J.A.L.:
charged with and convicted of forcible entry under section 8i of the Criminal
Code. The section provides that:
"Any person who, in a manner likely to cause a breach of the peace or
reasonable apprehension of a breach of the peace, enters on land which is in
actual and peaceable possession of another is guilty of a misdemeanour, and is
liable to imprisonment for one year.
It is immaterial whether he is entitled to enter on the land or not."
This provision takes care of the fear of anarchy expressed in the above dic-
tum. 1 The gist of the offence is the likelihood of a breach of the peace. It is
designed to regulate the conduct of a rival claimant to land where the other
is in possession. The last paragraph makes it clear that it is no defence under
the section that the accused has a right to enter on the land. It seems to follow
then that an honest belief in his right to enter the land or to destroy property
is no defence i.e. section 23 does not apply to a charge under section 8i.
It is hoped that the Supreme Court will soon have an opportunity to
examine this problem-and set the law on a sound foundation.

RASUMA
LA REVENDICATION DE BONNE FOI D'UN DROIT COMME
MOYEN DE DkFENSE AU NIGARIA
L'article 23 du Code criminel nigdrian pr4voit qu'une personne n'est pas pdnale-
ment responsable d'un acte ou d'une ommission commis dans l'exercice d'une
revendication de bonne foi d'un droit sans intention de fraude. Ce moyen de defense
s'applique seulement aux infractions mettant en cause des biens, telles le vol simple
ou qualifi, l'extorsion et la destruction malveillante de propri4t. Les cours nigerianes
appliquant cet article A des vols -6nt refusd cc moyen de defense dans les cas oh la
conduite de l'accus6 qui met en 6vidence sa bonne foi est illdgale, par exemple parce
qu'il a utilis la violence pour se faire rembourser de l'argent qui lui 4tait dO.
Cette interprdtation de l'article 23 est errone parce qu'eUe lit dans cc texte des
mots qui n'y figurent pas. Le vol avec violences est une forme aggrav& du vol qui
contient deux d&ments, c.A.d. le vol et l'usage de la violence ou de menaces. Le moyen
de defense de la revendication de bonne foi peut etre invoqu6 avec succbs en cc qui
concerne l'aspect vol de l'infraction, mais pas en cc qui concerne la violence. Le
rdsultat en est qu'une personne qui utilise la violence pour afflrmer son droit peut
etre condamnte pour voies de fait mais non pour vol. Cette conclusion est confirm&
par les d&isions anglaises en la matihre.
Lorsque la meme defense est invoque en cas de d'atteinte mdchante aux biens,
certaines decisions ont estim6 qu'elle est inacceptable si la conduite de 'accusd est
ddraisonnable, par exemple si l'une des parties A un litige foncier d-truit des rcoltes
de valeur plant6es sur le terrain de 'ad, ersaire. La justification en est que nul ne.
peut se faire justice i soi-meme et qu'il en rdsulterait un ftat d'anarchie si l'homme
otait libre de d&ruire les biens d'autrui simplement parce qu'il est Ameme d'invoquer
un droit sur ces memes biens.
Cette attitude est de nouveau erron& parce qu'elle implique que l'on lise dans
l'article 23 une exigence de comportement raisonnable qui ne s'y trouve pas. Si
quelqu'un, croyant sincrement qu'il a le droit d'agir ainsi, ddtruit la propridti
d'autrui sur un terrain faisant l'objet d'un conflit et cc afin d'affirmer son honnete
revendication d'un droit, cette personne peut invoquer le moyen de ddfense meme
si sa croyance est ddraisonnable. Le crit&re dans ce cas est subjectif et non objectif.
1 suffit qu'il ait cru honnetement avoir un droit Afaire cc qu'il a fait, encore que le
caract&e ddraisonnable de sa conduite rende 'autant plus difficile la rdalisation de
son obligation de convaincre la cour de sa croyance.
1 In C.O.P. v. Iffie, the accused was in fact charged with this offence in the first count.
For some other cases where this offence was charged see Okotie-Eboh v. D.P.P. (z962),
i All N.L.R. 353; Obot v. C.O.P. (1963), 7 E.N.L.R. 15.