10th March, 2015
By Femi Bamisile
We all transact business every day. We buy. We sell. However, most times we do not even know where the goods we buy originate from. We do not know their root of title. We just walk into a store or market and buy. When buying, we do so in good faith, believing that the goods we are buying are not stolen.
Now imagine a situation where goods have been stolen from their owners and are then sold by the rogue to purchasers who are unaware that they are stolen goods. The thief then disappears. Who should have title to the goods? Whilst the original owners would argue that they deserve title to the goods as they were stolen from them, the innocent purchasers would argue that they had acted in good faith and had paid for the goods, and so should be allowed to retain them.
Under the common law principle nemodat quod non habet (the “nemodat” rule), the original owners in the scenario above would be protected. This maxim embodies the idea that no one can give what he does not have, thus the thief in the scenario above has no title to the stolen goods and has nothing to pass to the purchasers. Title therefore remains with the original owners who can reclaim the goods from the purchasers. There are, however, various exceptions to the nemodat rule. These exceptions generally seek to protect bona fide purchasers of goods in certain specified circumstances. One of such exceptions is the market overt theory, which seeks to protect innocent purchasers. A brief consideration of the relevant provisions of the Criminal and Penal Codes of Nigeriawould be apposite for this discourse. However, the main thrust of the discourse is the Sale of Goods Act (especially as it applies in Nigeria).
The Offence of Receiving Stolen Property: The Criminal and Penal Codes
The Criminal and Penal Codes of Nigeria provide for the offence known as “receiving stolen property”. Section 427 of the Criminal Code (which is applicable in the Southern States of Nigeria) provides as follows:
“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 a felony”.
Section 316 of the Penal Code (applicable in the Northern States of Nigeria) provides thus:
“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 the 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”.
From the above, there are four major elements of the offence of receiving stolen property, namely:
1) The property must be received;
2) The property must have been previously stolen;
3) The person receiving the property must know that it was stolen; and
4) The receiver must intend to deprive the owner of his or her property.
From the above, it can be deduced that where a person receives a stolen property, not being aware of the dubious nature of the possessor’s title and as long as this unawareness continues, and he did not deal with the property in manner suggesting that he wanted to deprive the real owner of his ownership, he is not guilty of an offence. However, upon becoming aware that the property was stolen, the law supposes that he should either take immediate steps to discover the real owner and return the property to him, or hand it over to the police. If, however, he retains such property even after such awareness, he is no longer seen as innocent. He then becomes guilty of the crime of receiving or retaining stolen property.
…to be continued