To ground a successful action for the offence of stealing in Nigeria, the following elements must exist:
1. There must be an act of Taking or
2. Conversion
3. The property must be capable of being stolen under the law
4. Dishonest or fraudulent intention must exist
As we proceed to dissect these elements of stealing, it is important to note that the first three classes outlined above constitute the actus reus of the offence of stealing, while the last category relates to the mens rea of the offence in Nigeria.
1. TAKING.
The “act of taking”as an actus reus of stealing does not necessarily require the thief to take the property completely into physical possession. It suffices if he merely moves it or causes it to move. What is basically required is mere movement of the item stolen.Section 383(6) states:
“A person shall not be deemed to take a thing unless he moved the thing or caused it to move.”
Okonkwo and Naish illustrate this well:
“…if A, intending to steal a book from B’s briefcase, begins to take out the book whereupon B suddenly shouts at him and he drops it back into the briefcase, A’s conduct amounts to stealing and not merely an attempt to steal.”
Perhaps this scenario was influenced by the earlier decision in R v Taylor (1911) 1 K.B. 674,a landmark case on the definition of “taking” (asportation):
There the defendant inserted his hand into the victim’s pocket and partially removed her purse—dragging it to the pocket’s edge. The victim managed to prevent full removal. The issue was whether partial removal without full control constitutes “taking.” The court held that even minimal movement—drawing the purse partway out meets the standard for taking.
This decision aligns with precedents stating that “the slightest movement” of property is sufficient to establish theft.
2. CONVERSION
Don’t get it confused here: the word “converts” is often equated with “appropriates” according to Smith and Hogan, but the two terms are not entirely synonymous.
In the absence of taking, there must be a “conversion” of property. Atkin J in the locus classicus case of Lancashire and York Railway Company v. McNicol (1919) defined conversion as:
“Intentionally dealing with goods in a manner that is inconsistent with the right of the true owner.”
Conversion includes such acts as taking possession, refusing to give up possession upon demand, disposing of the goods to a third party, or destroying them. For conversion to amount to stealing, it must be done with one of the fraudulent intents under Section 383(2) of the Criminal Code.
In Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) at 428, Niki Tobi JCA stated:
“Conversion is both an offence and a tort… The definition of stealing under section 390 includes larceny, embezzlement and fraudulent conversion. It is the fraudulent nature that separates it from the tort of conversion.”
Similarly, in Ajiboye v. The State (1994) 8 NWLR (Pt. 364) at 599, Kalgo JCA stated:
“Dealing with goods in a manner inconsistent with the right of the true owner amounts to conversion, provided there is an intention to deny the owner’s right or assert a right.”
He went further:
“Under Section 383(1) of the Criminal Code, the fraudulent taking of money or its conversion to another’s use is stealing. What is essential is that the taking or conversion must be fraudulent.”
Thus, it is conversion if you treat someone else’s property as your own, assert ownership, or even retain property that came into your possession by accident. For example, in Pitman and Hehl (1977), the accused stole furniture by inviting others to buy it—an act of appropriation.
In Corcoran v. Anderton, grabbing a handbag was held to be appropriation even though the accused didn’t get away with it.
In R v. Morris, switching price labels in a supermarket was held to be an appropriation, as it involved assuming the rights of the owner.
However, in R v. Anyadiegwu (1943) 9 W.A.C.A, moving money between safes in the same room (both belonging to the employer) did not amount to stealing.
Furthermore, the fact that the converter had innocent possession or a Power of Attorney is immaterial.In Oshinye v. COP (1960) 5 FSC Note 93, the accused the accused obtained goods under deceit and later appropriated them. Both the High Court and Federal Supreme Court upheld the conviction.
3. THE PROPERTY MUST BE CAPABLE OF BEING STOLEN
A person cannot steal what is not in existence. According to Niki Tobi JCA in Onagoruwa v. The State;
“A person can only be charged with stealing what is in existence.”
From Sections 1 and 382 of the Criminal Code, only movable things that can be owned are capable of being stolen. Fixed assets like land or things not subject to ownership cannot be stolen.
4. MENS REA: DISHONEST OR FRAUDULENT INTENTION
Not every taking or conversion amounts to stealing. If someone picks up something out of curiosity or by mistake, it may not amount to stealing. A person may be exonerated under: Section 23: Claim of right Section 25: Honest and reasonable mistake of fact
Section 383(2)(a)-(f) of the Criminal Code sets out six intents, any of which makes the act of taking or conversion fraudulent.
(a) Intent to permanently deprive the owner of the thing
Refer to cases like R v. Dickson (1820), R v. Taylor (1911), R v. Williams (1953), and R v. Eason (1971) for further illustration.
(b) Intent to permanently deprive a person with special property in the thing
This provision gives individuals exclusive rights over a property, even if they are not the actual owner. A “special property” means a right of lien—someone may not have a proprietary interest but has a legal interest.
For example, if D takes his car to a mechanic and, in order to avoid paying, secretly drives it away, it amounts to stealing. The mechanic has a lien over the car.
In R v.
In R v.Turner (No. 2) [1971] 1 WLR 901, the defendant took his own car from a garage without paying. The court held this was theft because the garage had lawful possession through a lien.
Contrast this with R v. Meredith [1973] Crim LR 253, where the police impounded a car. The court held that since the police had no lawful possession, retrieving the car was not theft.
In Armoury v. Delamirie (1722) it was held that a finder of a lost article has special property in it.
(c) Intent to use the thing as a pledge or security.
It is criminal to use someone else’s property as collateral for a loan. If D pledges A’s property to C, it amounts to stealing.
(d) Intent to part with it on a condition as to its return which the accused may be unable to perform
This covers situations where someone bets or gambles with another person’s property under terms they may not be able to fulfill.
(e) Intent to deal with it so it cannot be returned in its original condition
If someone alters property significantly—e.g., reshaping a rented gown or damaging a borrowed book—it may constitute stealing.
In R v. Bailey the accused drove a car and used up the fuel. The court held that the wear and tear to the car was insufficient to amount to stealing, but he could have been convicted for stealing the fuel.
(f) Making use of another person’s money without consent, intending to repay later
In State v. Odimayo (1967) NMLR the accused took a mortgage loan to build a house but used it to contest an election. He was convicted of stealing.
In R v. Orizu the accused collected money from people under false pretenses of sending them abroad for scholarships. He was convicted of stealing.
According to Okonkwo and Naish, there must be demand and failure to repay for this provision to apply. If A gives B money in trust and B later produces it upon demand, it may not amount to stealing.
Punishment for Stealing Under Nigerian Law
Criminal Code (Section 390):
General punishment: 3 years imprisonmentIf the stolen item is a testamentary instrument (e.g., a will): Life imprisonment.
In specific cases (e.g., theft of an animal): 7 years imprisonment
Penal Code:
General punishment: 5 years imprisonment
Restitution: Section 270 allows the court to order that stolen property be returned to the rightful owner.
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