LEGAL OPINION: CAN I STEAL MY OWN PROPERTY?

LEGAL OPINION: CAN I STEAL MY OWN PROPERTY?

Stealing, as old as man itself, is in every society regarded as a taboo and never condoned. In the primitive old society, the abhorrence for stealing was hinged on the rationale that, “the fact that a man has nothing should not be a justification for taking someone else’s property”. From primitive age to the modern age, no single society has taken delectation in any person who takes another’s  item(s).

The offence of stealing is believed to have originated from the old Larceny Law of England, though it has been argued by jurisprudence scholars of Nigerian criminal law that stealing is different from the old larceny law. It’s said to be the deficiency of the old law that gave birth to stealing.

The offence of stealing which is provided for in Section 383 – 390 of the Criminal Code (applicable in the Southern parts of Nigeria), is also known as offence of theft in the Penal Code(applicable in the Northern parts on Nigeria), provided for in Section 286 -290 of the Penal Code. Emphasis will be on the Criminal Code as the writer of this article is from the Southern parts.

Can I steal my own property
Handcuff

However, Section 383 of the Criminal Code which defines stealing puts it thus“ a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of other person anything capable of being stolen, is said to steal that thing”Subsection 2 of Section 383 further provides that, “a person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does it with any of the following intents- (a) an intent permanently to deprive the owner of the thing in it; (b) an intent permanently to deprive any person who has any special property in the thing of such property; (c) an intent to use the thing as pledge or security ; (d) an intent to part with it on a condition as to its return which the person taking or converting it may be able unable to perform;…”

Having established what the offence of stealing is, a likely question to pop-up is, how does that answer the question whether or not I can steal my own property?. A careful look at the one of the ingredients under paragraph (b) of Subsection 2 of Section 383 stated above (though these intent requirements/ingredients for the proof of the offence of stealing are considered jointly and not solely) suggest a clue to answer the question.

Where in the paragraph above, a person has given his property to another and the person is holding it either in Trust, Bailment, Mortgage or any other means which confers special proprietary interest in the person and as well gives him/her a right to a course of action against a third party relating to the property, if the original owner of property takes the property without the consent of the person who is having special property interest in the property is said to be guilty of the offence of stealing.

Thus, the term “special property” includes a lien, a charge or  a trust. In Ebinwe v The State (2011)  1-2 SC (Pt. 11) 43, where the court reiterated that property may be said to belong to another person in a situation where a person has special property interest in the thing or property.  Professor Bamgbose (SAN) in her book titled CRIMINAL LAW IN NIGERIA explains this when she says “ a person may also be convicted of stealing his own property if it is fraudulently taken from a person who has special interest in it.” Similarly, in R v Turner (No 2) [1971] 1 WLR 901.The defendant removed his car from outside the garage at which it had been repaired, intending to avoid having to pay for the repair. The Court of Appeal (English) held that the car could be regarded as ‘property belonging to another’ as against the owner, since it was in the possession and control of the repairer.

Can a person steal his property?
Stealing

From the provisions of Statute and decisions of the court in the above cases, an answer to the question “can I steal my own property” will be in affirmative if the conditions enumerated above as well are met. Practical examples will lie; a person who takes his or her shoe to a repairer for repairing, will be guilty of stealing the shoe if he or she goes to the repairer’s shop and takes the shoe without consent of the repairer and payment, and with the intention to permanently deprive the shoe repairer of the “ownership” of it.

Another example is for instance where Kelechi gives her phone to Kemi to hold for her for a short period of time, and she(Kelechi) goes back to Kemi’s bag and takes the phone without consent and with intention to permanently deprive Kemi of the “ownership” of it. Yet another example is where Dayo borrows Ngozi his Arbitration Law textbook and he goes back to Ngozi’s shelve and takes the textbook without consent, he will be guilty of the offence of stealing on the ground that, he intends to permanently deprive Ngozi the “ownership” of it.

In conclusion, Stealing is an offence under the Nigerian Law which attracts the punishment of seven years imprisonment for its violation. (This is only a general punishment, it depends on what has been stolen.)

Can I steal my own property by Okachi Ajaba
Okachi

Okachi Ajaba

400-level Law Student,

University of Ibadan.

Joseph Ogunmodede

Joseph Jagunmolu Ogunmodede is the Founder/CEO of THE LEGAL DIARY.
He is a Double First Class lawyer from the prestigious University of Ibadan and the Nigerian Law School. Joseph is an Attorney at Udo-Udoma and Belo-Osagie with interest in Corporate Law, Energy Law, Real Estate Law and Commercial Litigation.

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