COURSE: CRIMINAL LAW II

OFFENCES AGAINST PROPERTY I

TUTOR: Whyte Esq.

OFFENCE OF STEALING

According to section 383(1) of the Criminal Code, when a person fraudulently takes anything
capable of being stolen, or fraudulently converts to his own use or to the use of any other person
anything capable of being stolen, is said to steal that thing. Theft, instead of stealing is used in
the Penal Code and defined in section 286(1) as:

‘whoever intending to take dishonestly any movable property out of the possession of any
person without that person’s consent, moves that property in order to take it is said to commit
theft.’

In other words, stealing can be described as the wrongful taking or conversion of property
belonging to another. It is an offence for one to unlawfully treat or deal with the property of
another person as one’s own. In the either cases of taking or converting, the intention to
permanently deprive the owner of such property or the person who is in rightful possession of it
must exist on your part; otherwise this will not amount to stealing. If you take a handset which
belongs to another person, remove the SIM card, insert yours and start to use it, this will amount
to stealing.

THINGS CAPABLE OF BEING STOLEN

One has to note that the thing stolen must be capable of being stolen and section 382 of the
Criminal Code contains several examples of such things. According to the section, every non-
living thing which is the property of another and is capable of being made movable is capable
of being stolen. Under section 286(2) of the Penal Code, electricity or electric current is capable
of being stolen by being abstracted, diverted or consumed.

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Also, living things, like animals, whether domestic, wild by nature or tamed, such as dog, ostrich
or monkey are capable being stolen, because the definition of property includes everything
animate or inanimate, capable of being the subject of ownership (See section 1 CC). You must
however note that if wild animals are in the enjoyment of their natural habitat they are not
capable of being stolen but their dead bodies are. It therefore means that if you go hunting in the
forest and captured a gorilla, you cannot be said to have stolen it, except if the forest is a
reserved one where hunting is prohibited. Going by our statement above that the thing stolen
must be capable of being stolen; it means that is not every property that is capable of being
stolen. For instance, one cannot steal land because it is an immovable property and therefore not
capable of being stolen. Also, a property which is abandoned or not capable of being owned at
all, and as such cannot be said to be owned by anybody is not capable of being stolen. You must
note also that a corpse is also not capable of being stolen because it is cannot be an issue of
ownership at common law.

WHAT CONSTITUTES STEALING?

One needs to understand that for an act to amount to stealing; some elements must be present or
follow the act. In the first place there must be either a ‘taking’ or ‘conversion’ of something
(section 383 CC).

 Taking
Taking in this sense does not mean that the person alleged to have stolen should have had in his
or her possession, the thing said to be stolen. It is sufficient if the person accused of stealing
merely moves or cause the property to be moved with the intention of stealing it. If for example,
Musa intends to steal from your luggage, opens the luggage and pulls out a camera but drops it
when he sighted you coming, this will amount to the offence of stealing. The position is the same
under the Penal Code.

 Conversion
In the absence of taking, there must be a ‘conversion’ of property. Conversion in this sense is as
defined at common law, which according to Atkin J. in Lancashire and York Railway Company
v. Mc Nicol (1919) 88 L.K. 601 at 605 is dealing with goods in a manner inconsistent with the

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right of the true owner provided there is an intention on the part of the person converting the
property to deny the owner’s right or to assert a right which is inconsistent with that of the
owner. The word ‘converts’ is therefore equated with the word ‘appropriates’ according to the
learned authors, Smith and Hogan on Criminal Law but they however stated that these words
would not be entirely synonymous.

Thus, it is conversion if you treat somebody else’s property as your own or assert ownership on
such property. It is equally conversion if you retain a property which has come into your
possession by accident. It is conversion for instance if you sell, destroy or use the property
belong to another person without that person’s authority. In Pitman and Hehl (1977) 65 Cr. App
Rep 45 it was held the accused stole the furniture of another through the act of appropriation by
inviting two people to buy the furniture.

You must however note that land cannot be converted. Also, property such as timber and crops
cannot be converted unless they have been cut down from the ground or harvested.

In addition to the ‘taking’ or ‘conversion’ of property, the intention to be fraudulent must be

present or accompany such acts on the part of the person taking or converting any property. Such
intention may not be immediately present at the initial time of taking or converting the property
but it is sufficient if the person thereafter forms that intention. See R. v. Ekpenyong (1942) 8
W.A.C.A. 140.1 The position is the same under the Penal Code, although the word ‘dishonestly’
is used instead of the ‘fraudulently’ used in the Criminal Code.

1
In R.V Ekpenyong (1942) &W.A.C.A 140 A hired a bicycle from B for five months under a
written agreement and sold the bicycle toanother person. He was convicted of stealing because
the sale amounted to a fraudulent conversion

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  Fraudulent intention
In other for you to ascertain whether the intention of the person taking or converting any
property was fraudulent or dishonest at that material time in order for such acts to amount to
stealing, any of the following intentions must be present:

I. An intent to permanently deprive the owner of the property of it: this is because an
intention to deprive the owner of the property temporarily of it will not amount to
stealing.
See R. v. Easom [1971] 2 All E.R. 945. 2 Thus if you take someone’s handset and state that you
will not return it unless the person surrenders your camera in his possession, this will not
amount to stealing. You have to note that it will still amount to stealing if you take someone’s
property with the intention to permanently deprive the owner of it notwithstanding the fact that
you thereafter changed your mind and return it.

II. An intent permanently to deprive any person who has any special property in the thing
of such property: here, any intent on the part of the person taking or converting property
to deprive any person who although is not the owner of the property but has such special
interest in it, such as in the case of a bailee (a person entrusted with goods under a
contract of bailment) or chargee, etc., in which the person holding possession is equally
entitled to benefit in the property, will amount to stealing.

III. An intent to use the thing as a pledge or security: if you use someone’s property as
security for a loan, it will be deemed that you fraudulently took the property.
IV. An intent to part with the property on a condition as to its return, which the person
taking or converting it may be unable to perform.

2
In R. v. Easom D went into a cinema and sat down next to C; he picked up C's handbag and rummaged
through it looking for money, but not finding any he replaced the bag. C was actually a plain clothes
policewoman, and D was arrested and charged with the theft of the bag and its contents. His conviction
was quashed by the Court of Appeal, who said he had no intention of permanently depriving C of any of
the property he actually took; a charge of attempted theft would have been more appropriate

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V. An intent to deal with it in such a manner that it cannot be returned in the condition in
which it was at the time of the taking or conversion. vi. In case of money, an intent to
use it at the will of the person who takes or converts it, although he may intend
afterwards to repay the amount to the owner. In the case of lost property, if you find such
property and coverts it, this will not be regarded as fraudulent if at the time of converting
it you did not know who is the true owner or if you reasonably believe that owner cannot
be found.

Punishment

The punishment for stealing where no other punishment is stipulated by law is three years
imprisonment (section 390 CC). There are however stiffer penalty of an imprisonment for life
where the thing stolen concern wills, postal matters or relating to property, etc., (section 390(1)
CC). Stealing of animals and in other circumstances such as from a dwelling house, vehicle, etc.,
can attract stiffer punishments. Under the Penal Code theft attracts maximum imprisonment for
five years or to both fine and imprisonment. See section 287. The punishment may be higher in
other cases. See sections 288, 289 and 290.In the offence of stealing there are several intents
specified by law in proving fraudulent intention on the part or anyone taking or converting the
property of another, mention three of these intents.

STEALING WITH VIOLENCE

Apart from the mere act or taking or converting a property, the law views with all seriousness
the use or threatened use of actual violence to any person or property at the time of stealing,
whether immediately before or after. Thus, stealing and the use or threatened use of violence
constitutes the offence of robbery (See sections 401 CC and 296 PC). It is important for you to
note that it is the use or threatened use of violence that is distinguishing factor between the
offences of stealing and robbery. You can see as treated above that in stealing, the use or
threatened use of violence is absent.

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In robbery, you must note that it is not a defence to the offender that the gun used at the time of
robbery was in fact not loaded, if reasonable man in the circumstances of the victim would
anticipate that violence will result to his person. See Babalola v. State [1970] 1 All N.L.R. 44.
The use of violence by one of the people who have gone to steal will not constitute robbery on
the part of others if it can be shown that the other people in that group were not party to the use
or threatened use of violence.

Punishment

The punishment for robbery is imprisonment for fourteen years (section 402 CC) and under the
Penal Code it is up to ten years imprisonment (section 298), while an attempt to commit the
offence under both codes carries the punishment of imprisonment for seven years (sections 403
CC and 299 PC). Under the Penal Code the offender is in addition liable to a fine. The
punishment for robbery is however severe both under the Criminal and the Penal Codes if at the
time of robbery, the offender is armed with dangerous weapon or offensive weapon, etc. In such
cases the punishment can extend to imprisonment for fifteen years or even for life under both
Codes. See sections 403 CC and 298(b) and (c) PC.

What distinguishes the offence of stealing from that of robbery or stealing with violence?

RECEIVING STOLEN PROPERTY

You must understand that under the law, it is not only an offence for anyone to steal but also an
offence for anyone to receive a stolen property. Section 427 of the Criminal Code thus makes
receiving anything which has been obtained through the commission of crime also a crime. It is
immaterial that the property was not obtained through such a crime in Nigeria. This offence is
itself geared towards discouraging stealing and protection of property. Under the Penal Code
receiving stolen property is covered by section 316. The important elements here are that, you
must have ‘received’ the property in question and also have ‘knowledge’ of the fact that the
property so received was stolen. To constitute ‘receiving’, it is sufficient if you are in actual

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(physical) possession of the stolen property or if it can be deemed that you are in possession (by
virtue of the fact that the stolen property is in possession of someone over whom you have
control or authority), either alone or in conjunction with others, or if you have aided the disposal
or concealment of such property. See R v. Osakwe [1963] All N.L.R. 362. In the same vein,
knowledge that the property is stolen is required before you can be guilty of the offence. You
will however be deemed to have such knowledge if judging from circumstances of the case, a
reasonable man ought to have suspected the property in question to have been stolen, for
example where the property in question is sold at a ridiculously low price. See R. v. Braimah
(1943) W.A.C.A. 197. The general condition of the property may also indicate that the accused
ought to have suspected that the property was stolen e.g. where the name written on it or other
marks of the owner has been defaced or altered. You must be very careful in purchasing second
goods on the streets and in places that are not ordinarily markets or places used in the ordinary
course of business, in order not to risk buying a stolen property. You need to appreciate that
being in possession of a property which has been stolen within twelve months before the accused
was charged or that within five years before accused was charged for the offence, he has been
convicted for an offence involving fraud or dishonesty, is sufficient to prove guilty knowledge
on the part of the accused. (See section 46 of the Evidence Act).

DOCTRINE OF RECENT POSSESSION

There is also the doctrine of recent possession contained under section 148 of the Evidence Act.
If a person is possession if a stolen goods after its theft, that person is presumed to be either the
thief or has received the goods in the knowledge that they have been stolen, except the person
can give justifiable account of such possession. See R. v. Iyakwe (1944) W.A.C.A. 180; Martins
v. State (1997) 1 NWLR (Pt. 481) 355 CA. You must realize that where the stolen property was
converted to another one, the person who received the converted property will not be guilty of
the offence of receiving stolen property. E.g. where Stephen stole a gold wristwatch sold it and
from the proceeds gave Toiru the sum of N2,000, Toiru will not be guilty of receiving stolen
property because what was stolen is not money.

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PUNISHMENT

The punishment of receiving stolen property ranges from imprisonment for seven to fourteen
years, depending on the nature of property in question.

Summarily, Stealing essentially involves the fraudulent taking or conversion of the property of
another with the intent to deprive the owner permanently of that thing. It is important that the
property in question must be capable of being stolen. Land, timber, corpses and animals in their
natural habitats cannot be stolen. In the offence of stealing, there is no use or the threatened use
of force or violence while in robbery this is present. The offence of receiving stolen property is
aimed at protecting the interest of property owners in a third party and also to discourage
stealing.

HOUSEBREAKING AND BURGLARY

HOUSEBREAKING

It is an offence for anybody to break and enter the dwelling-house of another with the intention
of committing a crime in it or having entered the dwelling-house with intent to commit a crime
in it or having committed a crime in it breaks out of the house (section 411). House breaking is
covered under section 346 of the Penal Code.

ELEMENTS OF HOUSEBREAKING

You need to note that the essential ingredients to be proved in the offence of housebreaking are,
that the building in question is a dwelling-house, intent to commit a felony (a crime), that there is
breaking in and/or out, and entry into the building.

BREAKING

The act of breaking in can be committed by the actual breaking of any external or internal part
of a building or by unlocking, pulling, pushing, lifting of a door, window shutter which are
ordinarily used for closing or opening a building or used as giving passage to the building or
from one part of the building to another. (See section 410 CC). It is also breaking in where

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entrance into a building is obtained by means of a threat or by trick. Thus, if a person intending
to commit a crime in your house knocked on your door and pretended to be looking for someone
in your premises made you to open your door and stole your things in the process, this will be
housebreaking. The situation will be different if the door is left open and a person comes in to
steal. As you cannot claim that the person breaks in, this cannot amount to housebreaking or
where the door is partially open and the thief pushes it further in order to be able to gain entrance
into the building. It will however amount to breaking in if entrance is obtained into a building by
collusion with any person in building or if entrance is gained through the chimney or any small
opening in the building left open for any use other than as a means of entrance.

ENTERING

To constitute entering, the whole body of the accused person needs not to have entered the
building. It is sufficient if any part of the accused’s body is within the building. See Collins
[1972] 2 All ER1105. Thus there will be entry where the accused person projects his hand or leg
inside the building but not of any instrument used by him.

However, if the instrument projected by the accused person into the building was actually used to
steal from the building, such as where the accused used the instrument to draw a handset or other
property from within the building, this will constitute entry except if the instrument was used
only to further the accused’s entry into the building and nothing more. This is the distinction
drawn at common law in respect of projection of instrument into the building, it is left to the
Nigerian courts whether to follow this distinction or not.

Dwelling-house

The definition of a dwelling-house includes any building or structure, or part of a building or

structure which is for the time being ordinarily used for residence. The fact that there was
nobody living in the building at the time the offence was committed or that the building is not
occupied from time to time is irrelevant. (See section 1 of the Criminal Code on interpretation of
dwelling house). The deciding factor whether a building is a dwelling-house or not is the use to
which the building in question is put to and not what it is built for. Thus, a caravan or houseboat
used as a house will qualify as a dwelling-house for this purpose. See R. v. Rose [1965] Q.W.N.
35. The same applies to a ship. See The Jupiter (No. 3) [1927] p. 122.

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Intent to commit felony

As a necessary ingredient of this offence, you need to know that the accused person must intend
to commit felony (a serious crime) within the building. It need not necessarily be the intent to
steal anything from the building but the intent to commit a crime – e.g. murder, must be present
at the time of breaking into the building. If such intent is lacking at that material time but is only
formed after the breaking in and entry into the building is completed, there is no housebreaking.

Burglary

It is important to state that the offence of burglary have the same ingredients as that of
housebreaking. The only difference between the two offences is the time when the offence was
committed. If the offence is committed during the day it is housebreaking and if committed at
night is it burglary. In order to show that the offence is committed at night, there is necessity to
prove the offence was committed between the hours of 6.30pm in the evening and 6.30am in the
morning. Thus, if the breaking and entry took place 6.00pm and after committing a crime within
the building the accused left the building at 6.45pm this will not be burglary unless after
committing the crime, the accused breaks out of the building at 6.45pm. Under section 347 of the
Penal Code, for the offence to be burglary it must be committed between sunset and sunrise.

Punishments

The punishment for housebreaking is imprisonment for fourteen years and for burglary, it is
imprisonment for life (section 411 CC). An attempt to commit the offence attracts seven years
imprisonment while that of burglary it is imprisonment for fourteen years (section 412 CC).
Breaking in/out of other buildings carries stiffer punishments. House trespass under section 349
of the Penal Code carries a maximum of one year imprisonment or with fine. Housebreaking by
night under the Code attracts three years imprisonment with fine (section 355 PC).

Summarily, In housebreaking, it is essential that there must be a breaking in and entry into a
living house with intent to commit a serious crime. Housebreaking and burglary have the same
elements except that one is committed by day and the other at night. When the acts of breaking
in and entry into a dwelling house is carried out by day it is housebreaking and if done at night it

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is burglary. The punishment for burglary is severe than that of housebreaking because the
offence is committed at night.

OBTAINING PROPERTY BY FALSE PRETENCE

The offence of obtaining property by false pretence covers acts where someone obtains anything
capable of being stolen from another person under false pretence with the intention to defraud
that person. The offence is also committed where someone by false pretence induces (influence)
any person to deliver to another person anything capable of being stolen with the intention to
defraud (See section 419 CC). Under the Penal Code, the offence is covered by the offences of
cheating (section 320) and cheating by personating (section 321). See the case of Okoro V A.G
(1976) 6 S.C 151 @ 162-163.

ELEMENTS OF OBTAINING PROPERTY BY FALSE PRETENCE

The elements of the offence are, ‘false pretence’, ‘intent to defraud’, ‘obtaining’ and ‘anything
capable of being stolen’. In other words, there must be a false representation made by someone
with the intention to defraud another through which the other person parted with his/her property
or delivers such property at the false pretence of someone to another. See also the observations
of Obaseki JSC in Ijuaka V C.O.P (1960) 5 F.S C 3 @ pg 6.3

FALSE PRETENCE OR REPRESENTATION

3
Obaseki, JSC in IJUAKA vs. COMMISSIONER OF POLICE (1976) LPELR (1466) 1 at 11,
Humphreys, J. dealing with what has to be proved in order to establish the intent to defraud stated as
follows: In order that a person may be convicted of that offence it has been said hundreds of times that it
is necessary for the prosecution to the prove to the satisfaction of the jury (Court) that there was some
mis-statement which in law amounts to a pretence, that is, a misstatement as to an existing fact made by
the accused person; that it was false and false to his knowledge; that it acted upon the mind of the person
who parted with the money; that the proceeding on the part of the accused was fraudulent.

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 You need to know that there must be a representation made by the accused person whether by
words, in writing or by words in respect of any matter either in the past or present. Such
representation will only amount to a false pretence if the person making it knows that what
he/she presents as true is false or does not believe it to be true. Issuing a cheque for the payment
of goods which the accused knew that will not be honoured, whether by reason of fact that there
is no money in the account on which it was drawn or that accused does not have overdraft
facilities on the account for the cheque to be honoured. See Halstead v. Patel [1972] 2 All E.R.
147. However where the accused merely exaggerated as to the quality of goods, beyond what is
reasonable this may not amount to a false pretence. See Bryan (1857) Dears & B 265.Note that
the false pretence must relate to a past or present matter. If it relates to the future then this will
not amount to false representation. R. v. Dent [1955]2 All E.R. 806. Although a representation
may relate to the future, if the material part of it relates to the present, this will amount to false
representation. See R. v. Jennison (1862) L & C 157.4

4
In R. v. Jennison (1862) L & C 157 however, it was held that where a representation relates to the
future but its material part relates to the present, this will constitute a false representation. In that
case the accused, who had a wife living, told the complainant that he was unmarried, and,
pretending that he intended to marry, induced her to give him eight pounds representing that he
would furnish a house for living and would then marry her but after obtaining the money, he went
away and did not return. It was contended that the money had been obtained by three
representations; that he was unmarried; that he would furnish a house, and that he would marry
the complainant; and that only the first representation made reference to an existing fact, while the
others related to things to be done in the future. Thus whether the pretence is a false promise or a
misrepresentation of fact, the accused's intent must be proved in both instances by something more
than mere proof of non-performance or actual falsity

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