Aweke Orizu v The Queen:
AWEKE ABYSSINIA NWAFOR ORIZU & ANOR. v. THE QUEEN answer What happens when a person receives money for a particular purpose but later uses or converts that money as he wishes, even though he intends to repay it eventually?Can a person still be guilty of stealing if he intends to return the money later?These questions were considered by the West African Court of Appeal in Aweke Abyssinia Nwafor Orizu & Anor. v. The Queen.The case provides an important interpretation of section 383 of the Criminal Code, particularly the rule that a person may fraudulently take or convert money even where he intends to repay it afterwards.
FACTS OF THE CASE OF AWEKE ABYSSINIA NWAFOR ORIZU & ANOR. v. THE QUEEN
The appellants were involved with an organisation known as the American Council on African Education Incorporated.The first appellant was the President-General of the organisation in Nigeria and America and was involved in sponsoring scholarships for students.Persons who wished to obtain scholarships were required to make deposits of money in connection with the scholarship arrangements.
The evidence showed that the money paid by the applicants was deposited for specific purposes.The first appellant therefore had a duty either:to send the particular students, for whose benefit the money had been deposited, to America as agreed; orto return the money to the persons who had deposited it.
However, the court found that he did neither.The money was not refunded even after demands had been made for its return, nor was it refunded within a reasonable period.
The first appellant was consequently convicted on several counts of stealing, while both appellants were convicted on a count of conspiracy to defraud.They appealed against their convictions.
ISSUE BEFORE THE COURT AWEKE ABYSSINIA NWAFOR ORIZU & ANOR. v. THE QUEEN
Whether the use or conversion of money deposited for a specific purpose could amount to stealing under section 383(2)(f) of the Criminal Code where the person taking or converting the money intended eventually to repay it.
DECISION OF THE COURT AWEKE NWAFOR ORIZU & ANOR. v. THE QUEEN
The West African Court of Appeal dismissed the appeals.The Court held that section 383(2)(f) of the Criminal Code clearly applied to the circumstances of the case.The convictions were therefore upheld.
REASONING OF THE COURT IN REASONING OF THE COURT IN AWEKE NWAFOR ORIZU & ANOR. v. THE QUEEN
1. Money Can Be Stolen By Fraudulent Conversion
Section 383(1) of the Criminal Code provides, in substance, that a person steals where he:fraudulently takes anything capable of being stolen; orfraudulently converts it to his own use or to the use of another person.Therefore, stealing is not restricted to physically taking another person’s property.A person may also commit stealing by fraudulently converting property already entrusted to him.
2.Intention To Repay Does Not Necessarily Prevent Stealing
This was the central principle in the case.Section 383(2)(f) specifically provides that, in relation to money, a person may be deemed to act fraudulently where he takes or converts the money with an intention to use it at his will, even though he may intend to repay the amount afterwards.
Therefore, the fact that a person says:”I intended to pay the money back.”does not automatically defeat a charge of stealing.The critical question is whether the money was fraudulently taken or converted in circumstances falling within the statutory provision.
3. The Purpose For Which The Money Was Deposited Was Important
The money in this case was not deposited for the unrestricted use of the appellants.Each amount was deposited for a specific purpose connected with the scholarship arrangements.The first appellant therefore had a duty to use the money in accordance with that purpose or refund it.
When he failed to carry out the agreed purpose and also failed to refund the money, the circumstances supported the finding that the money had been fraudulently converted.
Failure To Refund After Demand
The Court placed importance on the fact that the money was not refunded:
when demanded; or
within a reasonable time thereafter.
This strengthened the conclusion that the money had been improperly dealt with.
The case therefore illustrates why the circumstances surrounding the possession and subsequent treatment of money are important when determining whether a criminal conversion has occurred.
5. The Evidence Of The Witness, Moneke
Another issue raised on appeal concerned the evidence of Michael Moneke, a former employee of the organisation.The appellants argued that Moneke was sufficiently involved in the affairs of the organisation to be regarded as an accomplice and that the trial Judge ought to have treated his evidence accordingly.The Court rejected this argument.Although Moneke had taken an important role in running the organisation’s office, the Court considered him essentially an employee working under the direction and control of the appellants.
The Court therefore found that he was not an accomplice in the circumstances.More importantly, the Court held that there was sufficient evidence apart from Moneke’s testimony upon which the appellants could properly have been convicted.
THE PRINCIPLE IN THE CASE OF AWEKE NWAFOR ORIZU & ANOR. v. THE QUEEN
The central principle established by the case may be stated simply:
Where money is entrusted to a person for a specific purpose, and that person fraudulently takes or converts the money for his own use, the fact that he intends to repay it later does not necessarily prevent the conduct from constituting stealing under section 383(2)(f) of the Criminal Code.
BROADER LESSON: STEALING BY CONVERSION
The case provides an important distinction between taking and conversion.A person does not necessarily have to steal money by physically taking it from another person.He may already have lawful or authorised possession of the money and subsequently commit stealing by fraudulently converting it.
For example, if A gives B ₦500,000 specifically to pay a school fee, and B instead uses the money for his personal purposes, the legal question becomes whether B has fraudulently converted the money contrary to the terms under which it was entrusted to him.
The surrounding facts and the applicable statutory provisions must then be examined.Stealing
STEALING AND INTENTION TO REPAY
This is one of the most important examination points from the case.Students should remember:Intention to repay is not, by itself, a complete defence to stealing under section 383(2)(f).The provision expressly contemplates a situation where the person may intend to repay the money afterwards.Therefore, the correct approach is not simply to ask:
“Did the accused intend to return the money?”
The better question is:
“Did the accused fraudulently take or convert the money with the intention of using it at his will?”
Rex v. Ugo Chima (1944): Infanticide, Murder and Joinder of Charges Explained
DISTINCTION BETWEEN BORROWING AND STEALING
This case should not be misunderstood as meaning that every failure to repay borrowed money is stealing.
A mere debt or failure to repay a genuine loan does not automatically amount to the criminal offence of stealing.The prosecution must establish the elements of the offence under the applicable law.
The important feature in Orizu v. The Queen was that the money was deposited for specific purposes, and the court found that it had been fraudulently dealt with contrary to those purposes.
So you should therefore avoid treating every unpaid debt as a criminal offence.
Ingredients or Elements of the Offence of Stealing in Nigeria.
MAJOR LESSON IN AWEKE NWAFOR ORIZU & ANOR. v. THE QUEEN
The major lesson from this case is that criminal liability may arise from the manner in which entrusted property is dealt with after possession has been obtained.A person may receive property legitimately and subsequently commit an offence by converting it fraudulently.
This is why we should carefully distinguish:
Taking → Possession → Conversion → Fraudulent Intention → Criminal Liability.
The case also demonstrates the importance of reading statutory definitions carefully.Section 383(2)(f) specifically addresses money and makes it clear that an intention to repay does not necessarily prevent the conduct from being fraudulent.
The Offence of Stealing/Theft in Nigerian Legal Jurisprudence
REX v. FRANCIS OLU COKER (1947)FULL SUMMARY
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