Nigerian Law/Perspectives on stolen property and unlawful possession

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This paper examines the offence of receiving stolen property through a comparative appraisal of Nigerian statutory laws and that of other analogous jurisdictions. The paper focuses on the elements of the offence, various forms of receiving and how the accused’s knowledge that the property was stolen can be proved. Analysis of the Nigerian Codes on the offence reveals that the wording of these Codes particularly under the Penal Code creates indeterminate as to how those who assisted the receiver by concealing, retaining, removing or disposing of the property are to be treated.

Introduction[edit]

Receiving stolen property is a heinous offence. This is seen from the severe punishment prescribed for the offence. The hard stance of law on receiving stolen property is understandable. Receivers encourage stealing. If thieves did not find buyers of the stolen property the tendency to steal would have been curbed. But sadly the law and the punishment prescribed for the offence have not been able to deter both thieves and receivers. The major characteristics of transactions involving stolen property is that there are always elements of fraud, deceit or dishonesty: hence receiving stolen property is an offence of someone knowingly receiving goods being aware that they have been obtained by theft, extortion, breach of trust, armed robbery and misappropriation. The fact is that transactions involving receiving stolen property are rarely done with transparency. In this sense ‘important conditions’ for a valid commercial transactions such as dealings on an arm’s length or equal bargaining position in most cases does not exist in those involving receiving stolen property. This type of offence is rampant and, it is therefore essential that it should remain in the front burner of legal discourse. The objective of this paper therefore is to examine statutory laws in Nigeria and those of other analogous jurisdictions that prescribes this offence and to put in perspective the essential constituents of the offence under Nigerian Law. It is hoped that analyses in this paper will assist prosecutors to understand the nature of this offence and how its ingredients can be proved in legal proceedings.

Nature of the offence[edit]

Receiving stolen property is a crime that occurs when someone acquires goods with the knowledge that they have been stolen or unlawfully taken. The nature of the offence of receiving stolen property from statutes of five countries are as follows:

Canada

The Canada Criminal Code prescribes three conducts that amounts to possession of stolen property. These are:

  1. Possession of property obtained by crime – section 354
  2. Trafficking in property obtained by crime – section 355 sub-section (2)
  3. Possession of property obtained by crime for the purpose of trafficking – section 355 sub-section (4).

The offence as defined under section 354 of the above Code covers property involved in trafficking. The section reads: Everyone commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from –

(a) The commission in Canada of an offence punishable by indictment, or (b) An act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

Scotland

In Scotland, the crime is called reset. Under the Scotland Criminal Law (Consolidation) (Scotland) Act 1995, section 51 thereof stolen property includes property that was taken by theft or robbery as well as property taken by breaches of trust including embezzlement, fraud and willful imposition.

United States

In the United States receipt of stolen property is a federal offence. The offence is defined as knowingly receiving, concealing or disposing of stolen property with a value of at least $5,000 that also constitutes interstate commerce (i.e., has been transported across state lines). The prosecution can only secure a conviction if all the following facts are proved:

  1. The person received or concealed or stored or disposed of items of stolen property.
  2. The items were moving as, or constituted a part of interstate commerce.
  3. The items had a value in excess of $5, 000.
  4. That the person acted knowingly or willfully.
England and Wales

In England and Wales the offence is known as handling stolen goods. It is a statutory offence in these countries including Northern Ireland. In England and Wales the offence is defined by S. 22 (1) of Theft Act which reads:

A person handles stolen goods if (otherwise than in the course of stealing), knowing or believing them to be stolen goods he dishonestly receives the goods or dishonestly undertakes or assists in their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.
Nigeria

Section 427 of the Criminal Code (applicable in the Southern States of Nigeria) provides:

Any person who receives anything which has been obtained by means of any act constituting a felony or misdemeanour, or by means of any act done at a place not in Nigeria, which if it had been done in Nigeria, would have constituted a felony or misdemeanour, and which is an offence under the laws in force in the place where it was done, knowing the same to have been so obtained, is guilty of felony.

Section 316 of the Penal Code (applicable in Northern States of Nigeria) defines the offence while S. 317 of the same Code creates the offence. S. 316 of the Penal Code provides:

Property the possession whereof has been transferred by theft or by extortion or by robbery and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed is stolen property whether the transfer has been made or misappropriated or breach of trust has been committed within Northern Region or elsewhere, but if such property subsequently comes into the possession of a person legally entitled to the possession thereof it then ceases to be stolen property..

Elements of the offence[edit]

The offence consists of four elements:

  1. the property must be received,
  2. it must have been previously stolen,
  3. the person receiving the property must know it was stolen, and
  4. the receiver must intend to deprive the owner of his or her property.

The relevant question here is what is “anything” or “property”, when are they stolen and what is “receiving?” In English law, S.34(2)(b) of the Theft Act, 1968 defines “stolen goods” as “…goods, except in so far as the context otherwise requires, includes money and every other description of property except land, and includes things severed from the land by stealing.”

It is submitted that the property which can be subject of being received and stolen property must be as a result of the criminal conducts as distilled from the Nigerian Codes stated below. It is further submitted that the word “anything” in S.427 of the Criminal Code is wide to include any kind of property, tangible or intangible property. So also the word “property” in S.316 of the Penal Code can accommodate both tangible and intangible property which includes things in action. S. 1 of the Criminal Code defines ‘property’ as including everything animate or inanimate, capable of being the subject of ownership. It is submitted that the actus reus of the offence under Nigerian Codes which is ‘receiving anything’ or ‘property possession whereof has been transferred’ includes things in action, and this assertion is supported by the definition of property under the Criminal Code. If this be the case, it then means that if D opens a bank account into which he pays stolen money and thereafter assigns the balance to E, can it then be said that E receives the balance? On this, the English Court of Appeal in A.G’s Reference (No.4 of 1979) (198) said:

It is clear that a balance in a bank account, being a debt, is itself a thing in action which falls within the definition of goods and may therefore be goods which directly or indirectly represent stolen goods for the purpose of S. 24 (2) (a).
Land

While it is true that a land is not capable of being stolen but things forming part of the land can be capable of being stolen once they are made moveable or are severed from the land. It means that things attached to or forming part of the land which, are stolen under S. 383 (dealing with the offence of stealing) of the Criminal Code and 286 (dealing with the offence of theft) of the Penal Code can be subject of receiving since receiving involves severance of the thing in question.

Meaning of stolen[edit]

Again the two Nigerian Penal legislation did not define the word “stolen”. However, under S. 427 of the Criminal Code stolen property includes receiving “anything which has been obtained by means of any act constituting a felony or misdemeanour.” Thus for the purpose of S. 427 ‘stolen’ goods encompasses the following: (a) goods that are stolen contrary to S.383. (b) goods obtained through demanding with menances under S.404. (c) goods obtained through robbery under S.401. (d) goods obtained through house-breaking under S.410. (e) goods obtained by false pretence under S.419. (f) by means of an act done in a place not in Nigeria, which if it had been done in Nigeria would have constituted a felony or misdemeanour. (g) the felony or misdemeanour extends to money dishonestly withdrawn from a wrongful credit.

Under the Penal Code “stolen” goods consists of – (a) goods stolen under, S.286. (b) goods obtained through extortion, S.291. (c) robbery, S.296. (d) criminal misappropriation, S.308. (e) criminal breach of trust, S.311 (f) money dishonestly withdrawn from a wrongful credit.

Black’s Law Dictionary defines Stealing as:

A term commonly used in indictments for larceny, and denotes the commission of theft that is, the felonious taking and carrying away of the personal property of another, and without right and without leave or consent of owner, and with intent to keep or make use wrongfully.

The Criminal Code in S. 383 (1) which prescribes the offence of stealing has a similar meaning if the following statement is contextualize: ‘A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or use of any other person anything capable of being stolen is said to steal that thing.’ From the above it is submitted that it is not necessary that the property be ‘stolen’ in a narrow sense. Property obtained by any means involving the above falls within the scope of stolen property. In English law S. 24 (4) of the Theft Act 1968 states that for purposes of the provisions of this Act relating to goods which have been stolen including subsections (1) to (3) of the same Act goods obtained in England or Wales or elsewhere either by blackmail or subject to subsection (5) of the Act by fraud and that fraud (within the meaning of the Fraud Act) shall be regarded as stolen and ‘steal,’ ‘thief’ shall be construed accordingly. This section specifically enlarges the scope of the offence to include property obtained by fraud or blackmail.

The Editor to the current version of Smith and Hogan after analyzing S. 24 (4) and 28A (8) of the English Theft Act, 1968 gave the following meaning on what amounts to stolen goods for the purpose of the English Theft Act: (i) stolen contrary to S. 1 (ii) have been obtained by blackmail contrary to S. 21; (iii) have been obtained by fraud contrary to S. 1 of the Fraud Act 2006; (iv) consist of money dishonestly withdrawn from a wrongful credit; or (v) have been the subject of an act done in a foreign country which was: (a) a crime by the law of that country and which; (b) had it been done in England, would have been theft, blackmail or fraud contrary to S. 1 or S. 21 of the Theft Act 1968 or S. 1 of the Fraud Act 2006. In terms of the jurisdictional scope of the offence, it is now the case that if T steals property in, for example, Greece by performing an act that is theft in Greek law but would not be theft if performed in England, and D, in England, handles that property with mens rea, D can be convicted of handling under S. 22.

Under this law there is no room for argument on whether money withdrawn from a wrongful credit comes within the ambit of acts which can constitute handling. But under the provisions of the two Nigerian Codes above such act may be a contentious issue that may be determined by way of analogy as to whether such act can properly come within the scope of the above provisions having regard to the explicit words used in them. In this Writer’s opinion if money withdrawn from a wrongful credit constitutes theft or stealing, then it is submitted that any person who subsequently receives such money from the thief can be proceeded against criminally for receiving under the two Nigerian Codes.

Innocent receipt and guilty knowledge[edit]

Where a person received a stolen property not knowing of the dubious nature of the possessor’s title and as long as this ignorance persists and he did not deal with the property in manner prejudicial to the real owner’s proprietary interest he is not guilty of an offence. But once he becomes aware of the criminality involved i.e. that the property is stolen in any of the ways highlighted above. Professor Chukkol argued that the law expects him to do two things in the alternative: a. to take urgent steps to discover the owner and return the property to him; or b. to hand over the property to the police. The implication of this is that a person who is in possession of stolen property may metamorphose into a receiver with guilty knowledge if he retains the property after learning of the questionable state of the property. This is the import of the words “received” or “retains” under S.317 of the Penal Code. It means that where a person retains a stolen property, his initial innocence will give way and he will be adjudged guilty for failure to act in a manner expected from an innocent person. It should also be noted that receiving or retaining the property is not synonymous with physical handling of the property, for the accused to be liable as a receiver of stolen property. This is because S.20 of the Penal Code anticipates constructive possession. The section states: ‘When property is in the possession of a person’s wife, clerk or servant on account of that person, it is in that person’s possession within the meaning of this Penal Code.’ A person is said to have received stolen property …by acquiring or taking manual possession of it. Physical possession, however, is not always required. Under some statutes, it is sufficient if the accused has exercised control over the property. For example, a statute may declare that paying for the property constitutes control, regardless of whether the accused has handled it.

The import of S. 20 of the Penal Code and the quotation in the above passage are illustrative in the sense that possession for the purpose of the offence of receiving is broad. This means that physical possession of the stolen goods should not be a basis for the accused to escape from justice in circumstances where there are sufficient evidence that the accused either took the stolen property under his control or a servant or an agent does so acting at his behest. This explains why the accused in the case of R v Olujomoye was found guilty of possessing stolen property though actual possession of the property was with the wife. Also the case of R v Uko illustrates the point that where two persons are acting in concert and one has knowledge that the other is in possession of stolen goods the other too is deemed to be in possession. In construing S. 427 of the Criminal Code Ames, Ag. S.P.J. said in R v Oni & Another that since one of the ways of proving the receiving of anything under that section is to prove that ‘accused person…has aided in… disposing of it’ and that ‘…it would seem that the offence of receiving stolen property can be committed in this country by a person who is proved to have aided in disposing of the stolen property although he has not, either alone or jointly with another, had it in his possession, provided, of course, he know it to have been stolen.’ If the property is in physical possession of the accused he is said to be in direct control of the stolen property. But being close to the property or merely access to the stolen property is insufficient to amount to being in possession to ground a charge. If the thing is still in the possession of the thief, D cannot be guilty of receiving. In R v Osakwe 3 persons A, B, C stole a car and X agreed to get them a dealer to buy it if it was in good order. He gave some money to A to take a taxi for the purpose of fetching the car. The car was eventually brought. It was packed inside A’s house when the police arrived. A, B and C were also in the house. The court held that X was not guilty of receiving because the car was not in his possession nor was there evidence which showed that he aided in concealing it or disposing it.

A more difficult issue of possession arose in the case of King where a parcel containing the stolen goods (a fur coat) was handled by E, the thief, to a policeman who was in the course of examining the contents when the proposed receiver D, called on the telephone. This prompted the policeman to discontinue his examination. He told D to come along as arranged. D did so and received the coat. It was held that D was guilty of receiving stolen goods since possession of the coat did not pass to the police. The court found however that but for the telephone which rang at the material time the possession of the coat would have passed to the Police. In situations where the police is involved in cases involving receiving stolen goods, whether or not the goods had passed to the police at the relevant time, depends on their intentions. This was pointed out in Re A.G’s Reference (No.1 of 1974) In that case a Police Officer who reasonably suspected that a car was carrying stolen goods, immobilized the car by removing the rotor arm and kept watch until D returned to the car. When D returned, the Police Officer questioned him and, not being satisfied with his answers, he arrested him. The question was who was in possession of the goods suspected to be stolen. The court held that the proper direction to have been given to the jury was whether the officer had decided before D’s appearance to take possession of the goods or whether he was entirely open mind, intending to decide when he had questioned D. The issue of possession in the offence of theft and receiving is not all that a settled issue. For example in the English case of Atakpu it was held that an appropriation continued as long as the thief was “on the job”. The question here is whether a burglar can still be said to be “on the job” if he steals some valuables and hands them to his “fence” in a car parked on the street. If he is still on the job, certainly no offence is committed.

The goods must be stolen at the time of receiving[edit]

The goods must be stolen at the time the receiving occurs. The thief must also be guilty. Mere belief by D that the goods are stolen is not enough, because the contrary may be the case. Hearsay evidence is inadmissible to proof that the goods were in fact stolen. But such evidence may be relevant only as to mens rea. The jury should be directed to discount hearsay evidence as to whether the goods are stolen. However an admission of fact by D that the goods were bought at ridiculously low price is prima facie evidence that the goods were stolen. Where D is charged with receiving stolen goods, it must be proved that another person E is guilty of stealing the goods. There must be a thief, a robber, a person committing any of the offences which can be subject to receiving. Failure to get any of these persons is fatal to a charge of receiving or retaining stolen property.

But the case Okoroji v State seems to suggest that a person can be prosecuted for receiving stolen property in the absence of another person – the thief. In that case which was tried by a High Court of Abeokuta, Ogun State, Coram Oduyemi J, during the trial it was revealed that certain unknown persons removed 172 Packets of Septrin valued N6, 207, 48k, and 2890 Packets of Brinerdine valued N15, 634. 38k property of Ogun State. The accused was charged of receiving them knowing them to be stolen property. Following an investigation conducted by a Pharmacist and a Police Officer, P.W. 1, the drugs were recovered from the shops of two men at Enugu Main Market and Onitsha Bridge-Head market. This was possible through the batch numbers of the drugs which the manufacturers customize for the Government of Ogun State.

The accused admitted that he was the one that sold the drugs to the two men whom he claimed were his customers. The accused denied the allegation but claimed that it was one Alhaji M.A. Yusuf who brought the drugs to his shop. He claimed that he was unable to purchase the drugs from the said Yusuf because the price was on the high side. He also claimed that it was the said Yusuf that sold the drugs to the two men and, that it was the Yusuf that issued his receipts to the two men. It was impossible to trace the said Yusuf through the address he left which turned out to be fictitious. The learned trial Judge found the accused guilty for receiving the drugs with knowledge that they were stolen property.

The accused being dissatisfied with that judgment appealed to the Court of Appeal. Of the grounds of appeal filed on behalf of the accused none challenged the judgment on the ground that absence of a person who committed any of the offences through which a property can be received under Nigerian Criminal Code was fatal to the judgment. Adekeye, O.O. (JCA) held inter-alia that:

Going by the doctrine of recent possession the court may presume that a man in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.

In this Writer’s opinion this presumption should be invoked where the explanation of the accused is bizarre or a cock and bull story but in that case the explanation of the persons found in the possession of the goods were credible and, since the title in the goods had completely passed on to them, the appropriate charge should have been that of stealing against the accused, and in particular, the stolen goods were not found in his possession.

But the fact that the thief has been acquitted of stealing the goods is not a bar to the prosecution of the handler. In fact such evidence is inadmissible. If the receiver believes that D was wrongly convicted, the burden is on him to proof it on balance of probabilities. The English Theft Act, 1968, S. 22 thereof makes it explicit that the handling of the stolen goods must be committed ‘otherwise than in the course of the stealing’ (i.e., the original stealing). The effect of this limitation is that thieves can only be liable for the offence of stealing. But in some cases evidence adduced may be unclear as to whether the person found in possession of the stolen property acquired the goods innocently or whether the person is the original thief or a subsequent receiver. Where such circumstances exist it has been suggested that ‘whatever the accused has done to the property will inevitably amount to an appropriation of property belonging to another and therefore…theft.’ The English Court of Appeal went on to suggest the following guidelines in the case of Shelton:

As we have asked by counsel to do so, for the guidance of judges and counsel we make the following comments. Firstly that the long established practice of charging theft and handling as alternatives should continue whenever there is a real possibility, not a fanciful one, that at trial the evidence might support one rather than the other. Secondly, that there is a danger that juries may be confused by reference to second or later appropriations since the issue in every case is whether the defendant has in fact appropriated property belonging to another. If he has done so, it is irrelevant how he came to make the appropriation provided it was in the course of theft. Thirdly, that a jury should be told that a handler can be a thief, but he cannot be convicted of being both a thief and a handler. Fourthly, that handling is the more serious offence, carrying a heavier penalty because those who knowingly have dealings with thieves encourage stealing. Fifthly, in the unlikely event of the jury not agreeing amongst themselves whether theft or handling has been proved, they should be discharged. Finally, and perhaps most importantly, both judges and counsel when directing and addressing juries should avoid intellectual subtleties which some jurors may have difficulty in grasping; the golden rule should be ‘Keep it short and simple.’

Under the two Nigerian Codes it seems that stolen goods remains stolen until as under the Penal Code it comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property. This means that if the goods are taken from the thief by the owner or someone acting at the behest of the owner or by the police and, thereafter returned to the thief who in turn handed it over to a receiver, the receiver in such circumstances, is not guilty of receiving because the goods had ceased to be a stolen property. In English law, a line has clearly been drawn as to when stolen goods are no longer regarded as stolen. This is by virtue of S.24(3) of the Theft Act:

But no goods shall be regarded as having continued to be stolen goods after they have been restored to the person from whom they were stolen or to other lawful possession or custody, or after that person and any other person claiming through him have otherwise ceased as regards those goods to have any right to restitution in respect of the thief.

This means that once an owner of a stolen property lost his right to restitution such goods ceases to be regarded as stolen. The right to restitution being a civil law right is to be determined in criminal proceedings in purely civil law atmosphere. This means that where the proprietary right of a person whose goods have been stolen is such as to entitle him for an order of restitution a criminal court may so order.

Stolen goods changing character[edit]

At times a difficult situation arises with regards to stolen goods, which no longer possesses its original character. This assertion can be explained with an illustration. Suppose D steals a Toyota car and in the process the car passes, by way of sale or exchange to or otherwise, through the hands of E,F and G. The position of the law is that the Toyota remains stolen until it ceases to be stolen, that is, until it is restored to the owner or until the owner’s right to restitution extinguishes. The implication of this is that anyone buying the Toyota may be guilty of receiving if he does so knowingly or believing it to be stolen. The position remains unchanged if A from whom B bought the Toyota acquires it innocently.

As regards the exchange of stolen goods different consideration applies. For example, if D exchanges the Toyota with say Nissan. The Nissan is now notionally stolen because it represents the proceeds of the stolen Toyota in the hands of the thief, D. If D sells the Toyota to F who bought it at a reasonable price and in good faith at N800,000, the Toyota ceases to be stolen goods and can no longer be notionally regarded as stolen in that F is unaware of its provenance. But the sum of N800,000 in the hands of D, the thief notionally represents the proceeds of the stolen Toyota and, a person receiving it from D if he is aware of its provenance, would be guilty of receiving.

The N800,000 proceeds of the Toyota remains stolen goods even if D decides to deposit it in his bank account. If the N800,000 represents all that D has in that account, any amount drawn from this account is stolen goods and a receiver of it with knowledge, would be guilty of receiving. But if D has other innocent money in that account some problems may be encountered if he draws a cheque of N20,000 from that account. The problem here is how to determine that the sum of N20,000 represent the proceeds of the stolen N800,000. In Forsyth T stole funds in a company’s bank account and transferred them to a series of other banks in which he had accounts. It was held that “in the hands of” means “in the possession or control of” and the new credit balances remained under T’s control. The balances were new property, distinct from that stolen, but they ‘represented’ it and, ‘being’ in the hands of the thief, were accordingly stolen goods.

Forms of receiving[edit]

Under the Larceny Act 1916, the word used for the offence is receiving which is the word used under the Criminal Code and the Penal Code. Under the English Theft Act 1968, the word used is handling. This word was adopted because “receiving which was the only way the offence can be committed under the Larceny Act 1916, is now one of the several ways in which the offence can be committed in English law.” These are: (a) Receiving the goods. (b) Undertaking the retention, removal, disposal or realization of the goods by or for the benefit of another person. (c) Assisting in the retention, removal, disposal or realization of the goods by or for the benefit of another person. (d) Arranging to do (i) (ii) (iii).

It should be noted that the offence still remains one although it may be committed in a variety of ways. And these various ways may all be regarded as receiving under the Nigerian Codes. Receiving in this context can be proved by an evidence that D took possession or control of the stolen property or joined with others to share possession or control of it. But the thief and the receiver may share possession and, in that case it is pointless to prove that the thief parted with possession. In Smith it was held that if a watch is in the custody of a person over whom a prisoner had control so that the watch would be forthcoming if the prisoner so ordered the watch is in possession or control of the prisoner.

The various ways the offence can be committed makes the actus reus of receiving or handling very wide. For instance, in the English case of R v Kanwar a man brought stolen goods into the matrimony and, his wife, the accused, lied to the police concerning the goods, it was held that this constituted ‘assisting in the retention’ of those goods. In another English case of Walter v Lunt it was held that since a child under seven years is incapable of committing an offence, a person, even the father who received such stolen property from the child cannot be liable for receiving stolen property based on the reasoning that such property would not be adjudged a stolen property. In that case, a husband and wife were charged with receiving from their son (aged seven years) a child’s tricycle, knowing it to have been stolen, it was held that they must be acquitted on the ground that since the child could not steal, the tricycle was not stolen. This is because the child was held to be a doli incapax.

Under the English Theft Act, 1968 the word ‘doli incapax’ is retained and, it is conclusively presumed under that Act that a child under the age of ten years cannot be guilty of an offence. The same is the position under S.50 (a) of the Penal Code and S.30 of the Criminal Code. Under these Codes the age is seven years. However under S.50 (b) of the Penal Code and proviso to S.30 of the Criminal Code a child under twelve years may be criminally responsible if it is shown that such a child has developed a mischievous or serious disposition.

Proof that the accused knew that the goods were stolen[edit]

It must be proved that the goods were stolen and that the accused received them knowing or believing them to be stolen goods. Knowledge is the mens rea of the offence of receiving or handling under the two Nigerian Codes and under section 22 of the English Theft Act. What is the distinction between knowledge and belief? The difference is thus: if D had direct evidence, he knows, if he has circumstantial evidence, he believes. The distinction is further explained in Hall A man may be said to know that goods are stolen when he is told by someone with first-hand knowledge (someone such as the thief or the burglar) that such is the case. Belief, of course, is something short of knowledge. It may be said to be the state of mind of a person who says to himself ‘I cannot say I know for certain that these goods are stolen but there can be no other reasonable conclusion in the light of all the circumstances, in the light of all that I have heard and seen.

The accused’s knowledge as to the nature of the goods is vital but at times this creates some interpretative problems. The knowledge may be based on what the accused says or may be gathered from other positive information. However, belief is said to be less than knowledge and more than suspicion. In Hall Boreham, J said:

Belief…is something short of knowledge. It may be said to be the state of mind of a person who says to himself ‘I cannot say that I know for certain that these goods are stolen, but there can be no other reasonable conclusion in the light of all the circumstances, in the light of all that I have heard and seen.

Guilty knowledge of the receiver under S.316 of the Penal Code may be established from the circumstance of the case. In R v Adebowale & Ors in holding that knowledge that the property was stolen can be inferred from the circumstances of the case, West African Court of Appeal (WACA) said:

On behalf of the three appellants who were convicted of receiving it was urged that there was insufficient evidence to support a finding of guilty knowledge. As to this we are satisfied that there was evidence to support this part of the jury’s finding. The gin was sold at approximately ten percent below the fixed price at the time. It was delivered in kerosene case instead of the original cases in which it was imported. The negotiations for its sale were extremely tortuous and payment was made to a person who on the face of it had no interest in the gin. The quantity sold was unusually large at a time when gin was already becoming scarce. All these were circumstances which the jury were entitled to consider in coming to their verdict, and it is quite impossible to say that that verdict was wrong.
In the case of Yongo v C.O.P  it was held that:
‘…Further, the law is that the circumstances in which goods were received may themselves be evidence that they had been stolen as well as of the guilty knowledge of the accused.

It seems that the phrase ‘having reason to believe’ used under S. 317 of the Penal Code if given a literal interpretation suggests that guilty knowledge of the receiver can be inferred from the circumstances of the case. This phrase it is submitted, does not import certainty but it means that the receiver with all the information at his disposal in connection with the stolen goods is nearly certain of the fact that the goods are stolen. According to Professor Chukkol, the phrase lays down an objective test. This means that the receiver may be found guilty of receiving or retaining stolen goods if from the facts of the case a reasonable man should have taken steps to find out about the seller’s title. The same is the position under S.427 of the Criminal Code. The mens rea word used in that section is “knowing”. This is what is referred to as objective mens rea. In R v Braimah guilty knowledge was inferred from the fact that the accused received stolen goods soon after it was stolen and sent the goods to his brother to be sold “at any price he thought fit.” In R v Adebowale it was held that in considering the question of guilty knowledge the jury were entitled to take into account the fact that the gin was sold at approximately 20 per cent below the fixed price at the time.

In Yongo v Commissioner of Police four accused persons stood trial in the Magistrate’s Court in Benue State on a three count charge. The first accused was the only one who was concerned with the first count which concerned with criminal breach of trust. He pleaded guilty to the count and was convicted. PW1 the owner of the car gave evidence to the effect that he entrusted it to accused No.1. In his evidence he said that accused No.1 was his driver, and that he instructed him to drive the car from Abakaliki to his home town in the then Gongola State but that the accused No.1 diverted it to Gboko. While at Gboko accused No.1 handed over the car and its particulars to accused No.2 with instruction that he should sell the car. Accused No.2 in his evidence said he delivered the car to accused No.4 who was introduced to him by accused No.3. Accused No.4 was requested to buy the car, and he deposited the sum of N10,000.00. The purchase price was to be agreed later. Accused Nos. 3 and 4 denied in their testimonies that there was an outright sale but they claimed that the car was pledged to accused No.4 for a loan of N10,000.00. Exhibit “K” was tendered to buttress this evidence, which the parties signed. Accused No.2 denied signing Exhibit “K” and the prosecution failed to show it to him in the witness box. Exhibit “K” was also not shown to the owner of the car, PW1. His attention was not directed to it, even though Accused Nos.3 and 4 alleged that Accused No.2 produced someone who answered the name of PW1 who signed Exhibit “K” along with them.

In arriving at his conclusion that there was an outright sale of the car, the trial Magistrate placed reliance on the plea of guilty by Accused No.1 and the evidence of Accused No.2. The trial Magistrate then held that from the circumstances of the case, Accused Nos.3 and 4 had reason to know that the motor vehicle was stolen property. The trial Magistrate in arriving at this conclusion drew the following inferences from the evidence:

  1. That the vehicle was sold at a low price.
  2. The keeping of the vehicle in a garage where it was locked up.
  3. The difference between the signature of accused No.2 in his statement to the police and his signature to exhibit K.
  4. The difference in the surname of accused No.2 and the owner of the motor vehicle who was allegedly introduced to accused Nos.3 and 4 by accused No.2 as his brother.

Accused Nos. 3 and 4 were convicted of the count of dishonestly receiving or retaining stolen property, while accused No.2 was convicted of the count of concealing and disposing of stolen property. The appeal of the 1st and 2nd appellants to the High Court was dismissed and their further appeals to the Court of Appeal were dismissed. Their appeals to the Supreme Court were allowed, the convictions were set aside and the appellants were discharged and acquitted. The 1st issue formulated by the appellants for the determination of the Supreme Court was “whether there was proof that the motor vehicle the subject matter of the charge was stolen property and whether the appellant knew or had reason to believe that the motor vehicle was a stolen property.”

The Supreme Court held that “The finding to the effect that there was an outright sale of the car to accused Nos.3 and 4 (the appellants) is perverse. It is not supported by the evidence led at the trial. None of the three prosecution witnesses was present where the alleged transaction took place.”

On the reliance placed by the trial Magistrate on the confessional statement of accused No.1, the Supreme Court held. In criminal trial where an accused incriminates a co-accused in his statement to the police, the statement is evidence only against the maker and not against a co-accused. But where the prosecution or the police intend to use the statement against a co-accused then the prosecution is bound to make a copy of the incriminating statement available to the co-accused.

On presumption of guilty possession of recently stolen goods, the Supreme Court held that:

The raising of a presumption of guilty knowledge of recently stolen goods does not mean that the burden of proof is shifted to the accused so that he must prove positively that he is an innocent purchaser. It is sufficient to rebut the presumption if he gives an explanation of his possession which raises a doubt in the mind of the court as to his guilt. An accused person is always entitled to the benefit of doubt. The presumption under section 148(a) of the Evidence Act is also rebuttable one if the accused person gives a reasonable explanation of the possession of the property as in this case he should be acquitted if there is no other evidence against him.

On the essential elements of the offence which the prosecution must prove in order to secure a conviction under S.317 of the Penal Code, Karibi-Whyte, J.S.C., put it thus:

  1. That the property in question is a stolen property.
  2. That the accused received or retained such property.
  3. That he did so dishonestly.
  4. That he knew or had reason to believe that the property was stolen property.

The Contributor to the California Penal Law further gave an insight on how knowledge of the accused can be proved. The Writer said that incriminating statements (confessions and admissions) are the most obvious ways to prove that the accused knew that the property was stolen. However, where direct evidence is not available, knowledge as noted earlier can be inferred from the circumstances surrounding how the accused was arrested. Four suspicious circumstances from which knowledge can be inferred have been stated as follows:

  1. That the accused helped conceal the stolen property.
  2. That the price of the property was too good to be true.
  3. Only cash payments were accepted (and the seller couldn’t give a receipt).
  4. Identifying marks (such as serial codes) were removed.

Relationship of receiving stolen property to money laundering[edit]

Money laundering is now an offence under Money Laundering Act (as amended) 2011and, in particular S. 15 (1) (ii). The distinction between receiving stolen property and money laundering depends on whether the accused intent was to launder the proceeds of crime or merely to assist a thief. This means that in situations where some other persons acted as proxies or provided platforms or outlets for the taking away of the public funds by an official, such acts should be brought within the scope of receiving stolen property. The argument here is that ‘stereo-typical case of handling will involve receiving the goods but it will also encompass disposal (even by way of destruction) and assisting another to deal with the stolen goods.’

Laundering is an organized crime involving many people some of whom may be involved in seemingly ‘legitimate business’ with such money. It is submitted that the money used in such ‘legitimate business’ being proceeds from a criminal conduct should be categorized as money obtained through stealing or theft. But those involved in dealings with such money knowingly concealed, acquired, used, possessed or entered into an agreement which they know or have reason to know facilitates the acquisition or control of criminal property. It is submitted that such conducts should come within the ambit of the offence of receiving stolen property.

If funds obtained through official corruption should be regarded as stealing or theft ipso facto anyone who is involved in handling the proceeds of such official corruption in any way should be categorized as a receiver of such proceeds with knowledge and hence guilty of receiving stolen property. This contention accords with that of Elliott who argued that ‘…While there is only one offence of handling, there are 18 different potential ways that it can be committed, and in practice almost anything a person does with stolen goods may be classified as handling, provided it takes place after the original theft (‘otherwise than in the course of stealing)’.

Evidence of scienter upon charge of receiving stolen property[edit]

This is provided under s.47(1) of the Evidence Act:

  1. Whenever, any person is being proceeded against for receiving any property, knowing it to have been stolen, or for having in his possession stolen property, for the purpose of proving guilty knowledge there may be given in evidence at any stage of the proceedings –

(a) The fact that other property stolen within the period of twelve months preceding the date of the offence charged was found or had been in his possession. (b) The fact that within the five years preceding the date of the offence charged he was convicted of any offence involving fraud or dishonesty. 2. The last mentioned fact may not be proved unless - (a) seven days notice in writing has been given to the offender that proof of such previous conviction is intended to be given; and (b) evidence has been given that the property in respect of which the offender is being tried was found or had been in his possession.

The above is an exception to the rule against admissibility of previous criminal conduct in the offence of receiving stolen property. Under S. 27 (3) of the English Theft Act which provides a similar exception allows similar fact evidence to be given only if handling is the only charge against the accused and then evidence is allowed to prove that (a) the accused has been involved in similar conduct within the previous twelve months or (b) has a previous conviction for handling within five years.

What this then means is that the doctrine of scienter allows evidence which is highly prejudicial against the accused, and the requirement of seven days notice to the accused before such evidence can be given equally suggests that similar fact evidence is rebuttable. Unless therefore, that the accused is able to create doubts against such evidence, his conviction once such evidence is allowed becomes highly probable. The reason being that the trial procedure ceases to be accusatorial due to the huge doubt cast on the innocence of the accused by an evidence which ordinarily ought to have been disallowed under the accusatorial system. This proposition is made against the background that our criminal justice system being adversary or accusatorial which is fortified with the presumption of innocence until an allegation is proved beyond reasonable doubt ‘terminates’ at the stage where similar fact evidence is allowed and, the procedure thereafter exhibits traits of inquisitorial system which presumes against the innocence of an accused.

Dishonesty[edit]

Proof of dishonesty is a requirement under the Penal Code. The Nigerian Supreme Court stated this in the case of Yongo v C.O.P while examining the ingredients of the offence under S. 317 of the Penal Code that ‘…That the accused person or persons received or retained the stolen property dishonestly.’ Dishonesty can be proved by the prosecution by establishing that the accused knew or had reason to believe that the property was stolen. However, dishonesty becomes relevant in cases when D receives goods knowing or believing them to be stolen and yet not guilty if he took the goods inquisitively in order to discover who the owner is so that he can return the goods to him. In R v Onuoha it was held that the mere taking of goods inquisitively does not amount to dishonest handling where the intent to misappropriation is not shown.

It should be noted that where there is a successful change of ownership a subsequent receiving of the thing is not an offence although the receiver knows that the thing had previously been so obtained.

THE DOCTRINE OF RECENT POSSESSION This doctrine raises a presumption that where D is found in possession of property which has recently been stolen, he is guilty of an offence if no satisfactory explanation is given by him to account for such possession. The doctrine allows the jury to draw an inference as to the guilt of D, but the jury are not bound so to infer and must not do so unless all the inferences point to the guilt of D, as to his involvement in the commission of a particular offence. This is because the burden of proof is on the prosecution throughout, irrespective of whether D offered an explanation or not. The doctrine is a rule of evidence through which some facts may be inferred circumstantially. It enables the jury to draw two inferences where stolen goods are found in the possession of D, to wit: that D is either the thief and secondly, that D is a receiver of the goods with knowledge that they are stolen. This is provided under S.149 of the Evidence Act thus: The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the particular case, and in particular the court may presume- (a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. In R v Opara the accused was found near a burgled house just few hours after the burglary, the trial court ruled that the presumption applies and that it was left to the accused to explain how he came to be there at that very time. The problem in cases like this is that the presumption may exist but the jury is not satisfied beyond reasonable doubt that D was the one rather than the other. Such doubts entitles the accused to an acquittal, a situation which appears to be unsatisfactory. A solution developed in the case of Langmead is that in cases like that the jury should be directed that, if they are satisfied beyond reasonable doubt that D was either the thief or a receiver, they may convict of the offence which they think more probable. The Privy Council rejected such reasoning in the case of A.G. of Hong Kong v Yip Kai-Foon. In that case D was charged with robbery and with handling the goods stolen. The Privy Council held that the jury was properly directed to consider the robbery charge first. It means that once the jury was satisfied that D was not guilty of robbery he was to be presumed innocent of the theft of the goods. The second presumption as seen from S. 149 of the Evidence is that if the accused who is found in possession of recently stolen property is not the thief, he may have received the property knowing it to have been stolen. This presumption was applied in the case of Kano N.A v Ibrahim Bigidun it was held that in cases like this the onus is on the accused persons to give satisfactory explanations of how they come to possess the goods. This means that the presumption that the person found in possession of recently stolen goods is either the thief or a receiver with knowledge is rebuttable. This means that the accused in such cases bears some burden of proof which of course, is an evidential one. In the case of Salami v The State the Court held that: …The presumption is rebuttable and if the accused gives a reasonable explanation of his possession of the property, he should be acquitted if there is no other evidence against him. An explanation by an accused person of the way in which a stolen property came into his possession which might reasonably be true and which is consistent with innocence although the Court was not convinced of its truth would suffice to displace the presumption under Section 148 (a) of the Evidence Act. A reasonable explanation is one which casts doubts about the accused person’s guilt and, the Court should act upon such explanation unless a more credible, cogent explanation which irresistibly entangles the accused with offence charged is forthcoming from the prosecution. In the absence of such reliable evidence it is not the business of the Court to reject such explanation because in their opinion such explanation is untrue or false or stupid. In the case of Salami v The State the Court pointed out ‘an explanation by an accused of the way in which a stolen property came into his possession which might reasonably be true and which is consistent with innocence, although the Court may not be convinced of its truth, would displace the presumption under Section 148(a) of the Evidence Act.’ The falsity of such explanation is to be exposed by the prosecution. And the standard of proof required is a proof beyond reasonable doubt. In the case of Woolmington in distinguishing the burden on the prosecution and that placed on the accused person, the Court said: …In coming to your conclusion you must remember that, the onus of proving that the accused was in fact in unlawful possession of L.519192 on the date in question – the 12th April – and it was reasonably suspected that the lorry had been stolen is upon the prosecution and they must prove it beyond reasonable doubt. If you are satisfied about that, the burden of proof shifts to the accused to give you a satisfactory explanation of how he came by that lorry. Now, he has not got to satisfy you beyond all reasonable doubt, but he has to give you an explanation, which as a reasonable individual, you think is satisfactory. The burden of proof upon him, is not as great as the burden of proof on the prosecution to establish the unlawful possession. If you are satisfied with the accused’s explanation then, of course, that is the end of the case – you must acquit him.

The doctrine of recently stolen goods being an issue of law the Judge can raise it where the defence fails to do so. Muntaka-Comassie stated this in the case of Martins v State thus: ‘…it is therefore correct, in my respectful view for the trial Court to suo motu invoke the said section, it being a presumption of law to be applied in the light of facts and circumstances of the case. In other words, once the facts and circumstances before him point to that matter he can suo motu invoke the provisions of Section 149 (a) of the Evidence Act and apply the doctrine of recent possession.’

PROCEDURE AND PUNISHMENT

The offence of receiving stolen property as seen from the various Codes may arise from various conducts that are connected with property offences. It then means that in framing a charge against an accused for receiving stolen property care must be taken to indict him exactly with the criminal conduct which formed the basis of the receiving. For instance under the Criminal Code if the goods were obtained through demanding with menaces the charge should indict the accused for receiving goods obtained through that means. It is therefore instructive that in framing a charge the exact criminal conduct which gave rise to the receiving should be clearly indicated in the charge sheet. The Editor to the Blackstone’s Criminal Practice gave some useful guidelines that should be adopted in framing charges involving the offence of handling thus: ‘… if an accused is charged with handling items of property which are clearly the proceeds of different thefts, burglaries or robberies, and which are received or dealt with on separate occasions, there should be a separate count of handling for each occasion.’ Other guidelines as distilled from S. 27 (1) and (2) of the Theft Act, 1968 are as follows: (2) Any number of persons may be charged on one indictment, with reference to the same theft, with having at different times or at the same time handled all or any of the stolen goods, and the persons so charged may be tried together.

(3) On the trial of two or more persons indicted for jointly handling any stolen goods the jury may find any of the accused guilty if the jury are satisfied that he handled all or any of the stolen goods, whether or not he did so jointly with the other accused or any of them. Proviso to S.427 of the Criminal Code punishes the offence with fourteen years imprisonment if the means by which the thing was obtained is a felony, except in the case in which the thing is obtained was a postal matter, or any chattel, money or valuable security contained therein, in which case the offender is liable to imprisonment for life. In any other case the offender is liable to imprisonment for seven years. It can be said that punishment of the offence under this section is a wobbler. Section 317 of the Penal Code provides ‘Whoever knowingly receives or retains stolen property knowing same to be stolen property shall be punished with imprisonment for a term which may extend to fourteen years or with fine or with both’. Under English law the offence is triable either way under The Magistrates’ Courts Act 1980, S. 17 (1) thereof and schedule 1, paragraph 28. S. 22 (2) of the Theft Act 1968 punishes the offence on conviction or indictment, to imprisonment for a term not exceeding fourteen years or on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding the prescribe sum, or to both. Under S. 317 of the Penal Code it seems that proof that the accused (other than the original thief) is in possession of the stolen goods is essential. This is due to the fact that one of the ingredients of the offence under that section is the proof that the accused ‘received or retained such property.’ If this be the case it also means that there is no further burden on the prosecution to proof that the original thief was in possession of the stolen property. Likewise, under S. 427 of the Criminal Code one of the ingredients of the offence is a proof that the property was in possession of the accused or that he took part in concealing it or disposing of it. The position of the law under these two Nigerian legislation should be contrasted with that under section 22 (1) of the English Theft Act, 1968. Under this latter law there seems to be no requirement that the handler (i.e. the accused) ever comes into physical possession of the stolen goods in the sense that the concept of stolen goods carries an extended meaning under that section CONCLUDING REMARKS From the nature of the offence as revealed from the various statutes examined in this paper it is clear the wording of the offence under Nigerian statutes are imprecise with regard to the various ways in which the offence can be committed in particular under the English Theft Act, 1968. The position of the law under the Nigerian Codes creates indeterminate of words as to how any who undertakes or assists in the retention, removal, disposal or realization or who arranges to do any act for the benefit of the person who received the stolen property are to be treated. Though disposing of the stolen goods amounts to being in possession of the stolen goods under S. 427 of the Criminal Code there still exist the need for the relevant sections of the Nigerian Codes to be made more explicit as is the case with S. 22 of the English Theft Act 1968. It is hereby recommended that the word ‘handling’ used under S. 22 of the English Theft Act, 1968 should replace the word ‘receives’ under section 427 of the Nigerian Criminal Code. The reason being that the word ‘handling’ is broader than the word ‘receives.’ This is because the word ‘handling’ is wide to accommodate various types of conducts that other persons, other than the actual receiver, may do with regard to stolen goods. With this the question whether such conducts should be regarded as ‘receiving’ will no longer be left to arguments or to analogical deductions. Prosecution of a person for receiving or handling stolen property presupposes that the property or goods in question was obtained through theft or stealing or handling. A charge should therefore not be defeated due to lack of precision as to whether the person found in possession of the property is the original thief, an innocent purchaser or a receiver. It is more appropriate in such circumstances that stealing or theft should be framed against such person. This approach it is submitted ought to have been adopted in Okoroji’s Case (supra). The facts of that case did not show exactly who was the original thief of the drugs. Neither did the facts support the presumption that may arise from the doctrine of recently stolen goods found in possession of a person. If the Courts felt that the accused (or appellant) fudge the facts vis-à-vis the unidentified Alhaji M.A. Yusuf, the appropriate finding should have been that the accused (or appellant) is the thief. This point, it is submitted, carries more weight if viewed against the backdrop that the two men who allegedly bought the drugs from the said Alhaji M.A. Yusuf bought the drugs at reasonable prices. This completely ruled out guilty knowledge on their part. This perhaps was the reason why the two men were not indicted for any offence.

Further reading[edit]

  • Department of Public Law & Jurisprudence, Faculty of Law, Usmanu Danfodiyo University, Sokoto.
 In the case of Okoroji v State, Suit No. CA/J/110/95; (2002) 5 N.W.L.R (Part 759) 21 at 54 Adekeye, J.C.A said ‘It was reasonable of learned counsel to appellant not to  have appealed against the sentence because the only way to curb and reduce stealing in our society is to be strict against receivers of stolen properties once there are no receivers there shall be less stealing.’
  Wikipedia, the free encyclopedia  –  Possession of stolen goods - http://webcache.googleusercontent.com/search - visited on 5/24/2012. 
  
  Criminal Law (Consolidation) (Scotland) Act 1995 section 51Possession of stolen goods  – http://webcache.googleusercontent.com/search - visited on 5/24/2012.
 18 U.S.C. section 2315.
 Ibid
 Wikipedia, the free encyclopedia – Receiving Stolen Property – legal-dictionary-thefreedictionary.com  http://en.wikipedia.org/wiki/Possession of stolen goods - visited 5/26/2012.
 Wikipedia, free encyclopedia – http://webcache.googleusercontent.com/search - visited on5/24/2012.
 Wikipedia, free encyclopedia – http://www.statutelaw.gov.uk/content 
 Cap. 38, Laws of Federal Republic of Nigeria (LFN), 2004.
 This definition of property was recognized by Uwaifo JCA in Onwuaso Ibeziako Ors. v The State (1989) 1 C.L.R.N 123 at 134 wherein his Lordship said that ‘The notion of property, it must be noted, is also very wide as defined under section 1 of the Code to include ‘everything, animate or inanimate, capable of being the subject of ownership:’ See Onamade, P.A: Cases and Materials on Criminal Law (Philade Co. Ltd, Lagos – Nigeria, 2008), p. 1. 
  (1981) 1 ALL E.R. 1193 at 1198
 See also Forsyth (1997) 2 Cr. App. 299, (1997) Crim. L.R. 589 – where the court had no doubt
  that there would be an offence of handling of a thing in action. See Ormerod, David: Smith and Hogan: Criminal Law (Twelfth edition) (Oxford University Press, 2010), p. 928.

 See Explanation 1 to S.286 of the Penal Code.
 Campbell, Black: Black ‘s Law Dictionary (6th Edition)
 Ormerod, David: Smith and Hogan: Criminal Law (Twelfth edition) (Oxford University Press, London,  2010), p.929
 This section deals with money withdrawn from an account to which a wrongful credit has been made.
 Chukkol, K.S: The Law of Crimes in Nigeria  (Ahmadu Bello University, Press Ltd, Zaria, Nigeria, 1988), p. 235
 Wikipedia, free encyclopedia – http://webcache.googleusercontent.com/search - visited on5/24/2012.   
 See R v Smith (1855), Dears C.C. 494; 6 Cox, C.C. 554, C.C.A; R v Gleed (1916), 12 C.A.R 32 per Agoro J, in State v Felix (1979) 7 – 9 C.C.H.J 329 at 340 quoted by Sasegbon, Deji: Sasegbon’s Laws of Nigeria – An Encyclopedia of Nigerian Law and Practice (First Edition) (Vol. 7 Part III) (DSC Publications, Lagos, Nigeria, 2005), p. 1543.
 (1936) 3 WACA 71
 (1939)5 WACA 63
 (1949) 19 N.L.R 61 at 62S
 Sasegbon, Deji: Sasegbon’s Laws of Nigeria – An Encyclopedia of Nigerian Law and Practice (First Edition) (Vol. 7 Part III) (DSC Publications, Lagos, Nigeria, 2005), p. 1553. But there must be clear evidence that the property is under the control of the accused person: Commissioner of Police v Anthony Arban (1938), 4 W.A.C.A 195; R v Ernest Foreman (1914), 9 C.A.R. 216; R v Annie Lewis (1910), 4 C.A.R 96; R v Berger (1915), 11 C.A.R. 72 Osakwe v The Queen (1963) 1 ALL N.L.R 362.  But the stolen goods found  under the control of the servant or agents must be under the orders of the accused in the sense that the accused can call for them anytime he so wishes: R v Smith (1855), Dears C.C.494; 6 Cox C.C. 554, C.C.A; R v Gleed (1916), 12 C.A.R 32 – per Agoro J in State v Felix (1979) 7 – 9 C.C.H.C.J. 329 at 340 -  see Sasegbon, Deji: Sasegbon’s Laws of Nigeria – An Encyclopedia of Nigerian Law and Practice (First Edition) (Vol. 7 Part III) (DSC Publications, Lagos, Nigeria, 2005), p. 1553.
 See California Receiving Stolen Property Law Penal Code 496 PC – http://w w w.shouselaw.com/stolen-property. Html p. 3 -  visited on 5/26/2012
 (1963)1 ALL NLR 362
  (1938)2 ALL ER 662, CCA
 See the case of Re A.G’s Reference (No.1 of 1974) of ALL ER 899 at 904, wherein Lord Widgery J said that King ‘might’ be thought to be a rather bold decision.
 (1974) QB 744, (1974) 2 ALL ER 889, CA.
  (1994) Q.B. 69
 See Porter (1976)] Crim. L.R. 58.
 Hulbert (1979)] 69 Cr. App. Rep. 243.
 Supra, note 12.
 Ormerod, David: Smith and Hogan: Criminal Law (Twelfth edition) (Oxford University Press, London,  2010), p.930 
 Ormerod, David: Smith and Hogan: Criminal Law (Twelfth edition) (Oxford University Press, London,  2010), p.930
 Peter Murphy: Blackstone’s Criminal Practice (Blackstone Press Limited, London, 1994), p. 275 
 Ibid. The case of Stapylton v O’Callaghan (1973) 2 ALL E.R 782 which is an authority of a way out in such   circumstances decided that if the accused did not steal the property in the first place, he stole it when he received it.
 (1986) 83 Cr. App. R. 379 at pp.384-5 see Peter Murphy: Blackstone’s Criminal Practice (Blackstone Press Limited, London, 1994), p. 276.
 C.M.V. Clarkson and H.M. Keating: Criminal Law – Text and Materials (4th Edition) (London: Sweet and Maxwell, 1998)
  (1997)2 Cr. App. Rep. 299; (1997) Crim. L.R 589
 (1855) Dears CC 494 – see C.M.V. Clarkson and H.M. Keating: Criminal Law – Text and Materials  (4th Edition) (London: Sweet and Maxwell, 1998)
 (1982) 2 ALL E.R. 528, C.A. 161 – see http://webcache.googleusercontent.com/search - visited on 5/24/2012.
 (1939)5 WACA 63
 Note that under English law the age of criminal responsibility has been increased to ten years.
   Under common law such a child was regarded to be a doli incapax. 
 Note that in Nigeria the father who receives, or retains  such  property will nevertheless be
  guilty of stealing by conversion under S.383(4) of the Criminal Code and for Criminal
  Misappropriation under S.308 of the Penal Code.   
 (1985)81 Cr. App. Rep. 260 at 264, (1985) Crim. L.R. 377.
 see http://webcache.googleusercontent.com/search - visited on 5/24/2012.
 (1985) (81 Cr App R 260
 (1941) 7 W.A.C.A. 142 at 144 per  Butler Lloyd C.J, Brooke and Jeffrey J.J.   
 Suit No.CA/J/109/89; (1990) 5 N.W.L.R. (Part 148) 103 at 118 per Adio, J.C.A.
 Chukkol, K.S: The Law of Crimes in Nigeria  (Ahmadu Bello University, Press Ltd,  Zaria – Nigeria, 1988), p. 237.
 (1943)9 WACA 197
 (1941) 7 WACA 142.
  (1992) 9  S.C.N.J. 113 at 114
  (Supra) p.129
 Ibid, p.133.
 Ibid, pp.131-132.
 (1992) 9  S.C.N.J. 113 at 114, p.136.
 California Receiving Stolen Property Law, p. 3 -  http://w w w.shouselaw.com/stolen-property.html – visited on 5/26/2012 
 Ibid.
 Wikipedia, free encyclopedia – http://webcache.googleusercontent.com/search p. 3- visited on5/24/2012.
 C.M.V. Clarkson and H.M. Keating: Criminal Law Materials and  Cases (4th edition) (London: Sweet & Maxwell, 1988), p.837. 
 Elliott, Catherine,  Quinn, Frances: Criminal Law, (Sixth Edition) (Pearson - Longman, London) p. 215
 Cap. E14 (Laws of the Federation, 2004)
 See also s.17 of the Evidence Act (Cap. E14, Laws of the Federation, 2004). 
 Theft Act, 1968 see Handling stolen goods – Wikipedia, the free encyclopedia http://www.statutelaw.gov.uk/content.  Visited on 5/24/2012   
 See S. 35 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
 See section 16 of the Penal Code wherein the word ‘dishonesty’ is defined thus: ‘A person is said to do a thing ‘dishonestly’ who does that thing with the intention of causing a wrongful gain to himself or another or of causing wrongful loss to any other person.’
 Suit No. S.C. 225/1990; (1992) 8 N.W.L.R. (Part 257) 36 at 53, per Karibi-Whyte, J.S.C. 
 (1936)3 WACA 88
 See s.429 of the Criminal Code (Cap. C38, Laws of the Federation, 2004)
  (1961) WNLR 127
  (1864) L.C & Ca. 427
  (1864) L.C & Ca. 427
 (1961) N.N.C.N. 11.
  See also the case of Okoroji v State (2005) 1 NCC 279 at 282 para.6.
 (1969) 1 ALL N.L.R 309
 (1988) 3 N.W.L.R (part 85) 670 cited by Sasegbon, Deji: Sasegbon’s Laws of Nigeria – An Encyclopedia of Nigerian Law and Practice (First Edition) (Vol. 7 Part III) (DSC Publications, Lagos, Nigeria, 2005), p. 1543
 (1935) A.C. 462; 104 L.J. K.B. 433

The Court referred to decision of M’carthy, Ag, C.J., Ames, J. and Ewart, Ag, J. in R v Bamin (1946) 12 W.A.C.A. 8 at 9

 Suit No. CA/L/255/94; (1997) 1 N.W.L.R. (part 481) 355 at 371
 Peter Murphy: Blackstone’s Criminal Practice (Blackstone Press Limited, London, 1994), pp.269.
  • The case of Smythe (1980) 72 Cr. App.R 8 is cited by the author to support such a procedure. It is argued that section 27 (1) and (2) of the Theft Act goes further than the general rules established in the case of Director of Public Prosecutors v Merriman (1973) AC 584 to the effect that a person jointly indicted for an offence may be convicted of committing it independently of the others: see Peter Murphy: Blackstone’s Criminal Practice (Blackstone Press Limited, London, 1994), p. 270.
  • The Magistrates’ Court Act, 1980, section 32 (2) - Handling stolen goods – Wikipedia, the free encyclopedia http://www.statutelaw.gov.uk/content. Visited on 5/24/2012
  • See Sasegbon, Deji: Sasegbon’s Laws of Nigeria – An Encyclopedia of Nigerian Law and Practice (First Edition) (Vol. 7 Part III) (DSC Publications, Lagos, Nigeria, 2005), p.1543
  • Sasegbon, Deji: Sasegbon’s Laws of Nigeria – An Encyclopedia of Nigerian Law and Practice (First Edition ) (Vol. 7 Part III) (DSC Publications, Lagos, Nigeria, 2005) p. 1543.
  • See Ormerode, David: Smith and Hogan Criminal Law (Twelfth edition) (Oxford University Press, 2010), p. 927