CRIMINAL LAW 2.1 THE OFFENCE OF STEALING

• Isochukwu
• 5
• Criminal Law II

TOPIC ONE: THE OFFENCE OF STEALING.

Criminal law aims to protect property, to this end, “stealing” has been criminalized.

Section 383(1) of the Criminal Code provides; a person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or the use of another anything capable of being stolen is said to steal that thing.

The Penal Code in Section 286(1) provides; Whoever intending to take dishonestly any moveable property out of the possession of any person (and) without that person’s consent, moves that property is said to commit theft.

Unlike the Criminal Code which uses the word “fraudulently” and “steal”, The Penal code uses the words “Theft” and “dishonestly”.

In other words, stealing can be regarded as the intentional and wrongful taking/conversion of the moveable property of another.

The elements of stealing include;

• There must be a Taking OR
• Conversion
• Of a thing capable of being stolen.
• Such taking or conversion must be coupled with the “Fraudulent intent”.

The actus reus of stealing is “taking” or “conversion” of a thing capable of being stolen. The mens rea is taking with a “fraudulent intent”.

The elements shall be briefly explained.

There must be a Taking: Section 383(6) provides that a person takes a property if he moves or causes it to move. The same position can be found under the Penal Code.

Or a Conversion: Conversion means intentionally dealing with goods in a manner that is inconsistent with the right of the true owner-Atkin J in Lancashire and Yorkshire Railway Company V MacNicol. For example, selling, pledging, altering,… another person’s property.

:: The conversion must be to the use of the accused or another person who is not the owner. In R V Anyadiegwu, moving money from one safe to another for administrative convenience did not amount to stealing as both safes belonged to his employer.

:: It is immaterial that the property converted was acquired by lawful means. In R V Epenyong, the court held that the accused was guilty of conversion where he sold off the bicycle which he acquired under hire purchase.

:: It is immaterial that the accused had the power of attorney-Section 383(4). Unless such act was be authority of the owner/principal.

Note: Section 384(2) which protects a servant who takes his master’s food to feed the master’s animal.

It must be a thing Capable of being Stolen: From the interpretation of Section 1 and 382 of the Criminal Code (CC), only moveable things which are (or can be) owned by a person are capable of being stolen. Fixed assets like land cannot be stolen. Other things that are not subject of ownership cannot be stolen.

There should be an element of Fraud on the accused’s part: Not every taking or conversion would amount to stealing. There are a host of defences (like bonafide claim of right (Section 23), mistake (Section 25) and so on…

Section 383 (2) of the Criminal Code provides 6 instances that can make a “taking” or “conversion” (of anything capable of being stolen) fraudulent. They include Where it is taken to;

1. A. “Permanently deprive the owner of the thing of it”: In R V Hall, a servant was convicted for larceny of his master’s fat when he sold his master’s fat to his master (same man). This is because he had permanently deprived the master of the fat. However in R V Ninedays, a similar situation of R V Hall occurred and the court held that there was no intention to permanently deprive the owner of the bags of cocoa. This decision has been criticised. In R V Holloway, a dresser of skins made his employer to pay him for dressing a skin which he has already been paid for dressing. Held, no permanent deprivation. He was held rather to have obtained money by false pretence.

At this point, the reader may be getting confused as all these academic distinctions may be vexations. There is no need to get confused. The relevant question under this heading (A) is whether the servant denied the ownership of the owner thereby permanently depriving the owner of the thing of it. In R V Holloway, the dresser was not going to take the skin, he was only getting double pay.

:: A subsequent change of mind after “moving” or “taking” is irrelevant. Take for example Ade, intending to steal John’s phone picks it from John’s desk but quickly drops it when he notices that someone was looking (or maybe he repented after picking the phone) the elements of Section 383 have nonetheless been satisfied.

:: Motive of gain is irrelevant in permanent deprivation. This point simply emphasises that the accused cannot claim that the action (theft) was detrimental. The case of R V Cabbage is instructive to this effect. E.g. Ade takes Chima’s bic biro from his bag and puts his (Ade) own Schneider biro in Chima’s bag. He cannot claim that his Schneider is more expensive and he is losing from the theft.

B, Permanently deprive a person with a special property in the thing: Special interest may include a lien, charge or other right arising from possession of the thing in question-R V Turner. Note however Section 383 (5) which provides for lost and found situations. That a finder of a lost article has special property so long as he has attempted to and honestly believes that the owner cannot be found-Armory V Delamirie, Parker V  BAB. Check Section 388.

C, To use the thing as a pledge or security.

D, To part with it on a condition as to its return which the accused may be unable to perform: This point frowns at gambling and betting with someone else’s goods/property.

E, To deal with it in such a manner that it cannot be returned in the condition it was at the time of taking or conversion: e.g. Chinwe borrows her roommate a dinner gown. Her roommate slim fits it in such a way that Chinwe cannot wear it again. Or Ade borrows Chuka his Land Law textbook and Chuka returns it torn with more than half of the pages missing. The alteration must be substantial. In R V Bailey, the accused took and drove the victim’s car and used up the gallon of fuel in the car. He was charged for stealing the car. It was held that the wear and tear to the car was too insignificant to ground a conviction under Section 383. The court noted that he could have been properly convicted for stealing the fuel.

F, Using another person’s money for yourself/for endeavours which the owner did not agree to. Notwithstanding that you may want to pay back: In State V Odimayo, the accused obtained loan from a mortgage bank to build a house. He used the loan to contest election. Held that until he built the house and repaid the loan, the money belonged to the mortgage company. He was convicted for stealing notwithstanding that he intended to return it. In R V Orizu, the accused collected money from some people as deposit upon the assurance that he (the accused) would send them abroad on scholarship. He did not send them abroad nor did he return their money. He was convicted for stealing.

Section 383 (3)-the taking or conversion may be fraudulent even if taken without secrecy or attempt at concealment.

We move on punishment for stealing

Section 390 Criminal Code provides a general punishment of 3 years. Life imprisonment for testamentary instrument. Then 7 years in some other instances like theft of animal. Under the penal code, the general punishment for stealing is 5 years.

Section 270 provides for restitution of stolen property.