1. Meaning of the Offence
The offence
of Receiving Stolen Property is defined in section
427(1) of the Criminal Code Act which
is ipisima verba with section 448(1) of the Criminal Code Law of Akwa Ibom State. The
provision defines the offence as follows;
Any person
who receives anything which has been obtained
by means of any act constituting a felony
or misdemeanor 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 misdemeanor, 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.
By Subsection 2 of that section, if the offence
by means of which the thing was obtained is a felony, the offender is liable to be imprisoned for 14 years, except in the case in which the
thing so 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. Subsection
3 of the section says that in any other case the offender is liable to imprisonment
for seven years.
2. Ingredients of the Offence
Subsection 4 of section
427 says that for the purpose of proving the receiving of anything, it is sufficient
to show that the accused person has either alone or jointly with some other person,
had the thing in his possession or has aided in concealing it or disposing of it.
Accordingly, the ingredients of the offence of receiving stolen property are:
a) That
the property/goods were stolen or obtained by means of an act constituting a felony
or misdemeanor (example stealing or obtaining by fraud) and this status must continue
at the time the accused received the goods/property. This must be established first.
b) That
the accused received the stolen property. This is established by proving that the accused took part in concealing
or disposing the property or had the property in his possession. Thus, mere assisting
in disposing of the property without having control or possession of it is receiving:
R v. Oni.
Also, possession
in this case may be actual or constructive. In Olujomoye v. R., the court while holding the accused liable for the
constructive possession of the pieces o f paper cut into the size of West African
Currency Note, through the wife, held that ‘it is clear that actual manual possession
of goods by a defendant is not necessary for the completion of the offence of receiving;
it is sufficient if they are in actual possession of a person over whom the defendant
has a control, so that they would be forthcoming if ordered’. Lastly, the accused
must have received the goods dishonestly, that is to say dishonest intent at the
time of receiving; he must have a guilty mind.
c) That
the accused had knowledge that the property was obtained as in (a) above. Guilty knowledge (at the time of receiving)
may be proved by the testimony of the thief
himself; the confession of the accused person, or inferred from the surrounding
circumstances such as;
i.
Any lies
told by the accused person: R v. Heron;
ii.
Any suspicious
circumstances surrounding the transaction, example that the goods were sold secretly
at night, by a person who usually would not be in a position to sell such goods:
Lawani v. Police, or that the goods were
sold at a very low price: Gfeller v. R. In
R v. Braimah, guilty knowledge was inferred
from the fact that the accused received stolen goods soon after the theft in the
neighbourhood, and sent the goods to his brothers to be sold at any price they 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 10 percent below the
fixed price at the time, that it was delivered in kerosene cases instead of original
cases in which it was imported, that negotiations for its sale were extremely tortuous
and that payment was made to a person who on the face of it had no interest in the
gin. Additionally, previous dealing, if any, between the thief and the receiver
may also be taken into account.
Furthermore,
guilty knowledge can be presumed under the doctrine of recent possession. Under
the doctrine of recent possession, guilty knowledge may be presumed by the courts
by virtue of section 149(a) of the Evidence
Act Cap 45 LFN 2004, now section 167(a) of
the new Evidence Act 2011, which provides that the court may presume the existence
of any fact which it things likely to have happened, regard being had to the common
course of natural event, human conduct and public and private business in their
relation to the facts of 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.
The elements
that are necessary to found the doctrine of recent possession to operate are possession,
goods recently stolen; and, availability of reasonable explanation. In order to determine whether an article is recently
stolen regard must be paid to;
a. The nature
of the thing stolen, as some properties change hands quickly, while others do not;
and
b. The time
lapse between the act of stealing and the coming into possession by the accused.
In Kweshile v. The King, articles stolen between
5pm and 7pm after a house breaking incident were found in the possession of the
appellant at 6pm. This raised the presumption that the appellant was either the
thief or the receiver, but she was convicted of being the receiver. Thus, evidence
of guilty knowledge by recent possession goes to show that the accused is either
the thief or the receiver. In R v. Seymour,
the English Court of Criminal Appeal held that a man cannot receive from himself.
However, in
Yongo v. COP, the Supreme Court expressed
the view that where an accused person gives a reasonable explanation as to how he came about
being in possession of stolen goods as in this case, the court should not find him
guilty, even if it is not affirmatively satisfied that such explanation is true.
The apex court further held that the raising of a presumption of guilty possession
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. Finally, the explanation
given by the accused must be examined in the context of the surrounding circumstances.
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