PREVIEW CRIMINAL LAW II
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
- 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;
- 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… KINDLY DOWNLOAD FULL PDF