IS SPENDING MONEY MISTAKENLY TRANSFERED TO ONE’S BANK ACCOUNT A THEFT?
A driver, Adetunji Tunde Oluwasegun, was allegedly sentenced to two years imprisonment few days ago by Kwara State High Court for spending a sum of N2 million that was erroneously transferred into his account.
He was convicted for the offence of theft which provided in Section 286 and punishable under Section 287 of the Penal Code.
You can read the news here: https://thenigerialawyer.com/court-convicts-a-man-for-spending-n2m-accidentally-sent-to-his-bank-account/
Has Oluwasegun really committed theft or any offence known to law?
Section 286 of the Penal Code in question provides as follows:
“Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to take it is said to commit theft.”
By the clear wordings of the above provision, to prove offence of theft, the following elements must be proved:
- Taking of a movable property
- out of the possession of any person
- without that person’s consent
- With dishonest intention.
Can we say therefore that by using money erroneously sent to Oluwasegun’s account, Oluwasegun has taken any persons property without that person’s consent?
In banking jurisprudence, any money deposited in bank belongs to the bank, not the depositor. Since in this case the bank willingly gave the 2million Naira to Oluwasegun upon demand, it means Oluwasegun took it with the consent of the bank (owner of the money). Therefore, the offence of theft has clearly not been committed here.
Furthermore, assuming Oluwasegun knew that he did not actually have money in his account but still went ahead to withdraw money from his account, is it not reasonable to conclude that the amount given to him by the bank is an overdraft/debt instead?
In law of banking if you withdraw money above what you have in your account, it is deemed that the excess is an overdraft/debt. See the following cases: N.D.I.C. v. Rabo Farms Ltd. (2018) 15 NWLR (Pt. 1643) 482; shola v. S.G.B. (Nig.) Ltd (1997) 2 NWLR (Pt. 488) 405; and A.C.B. Ltd. v. Egbunike (1988) 4 NWLR (Pt. 88) 350.
In my view Oluwasegun has not committed theft or any offence known to law when he withdrew that money. He simply borrowed it and is not an offence to borrow money. What the bank should have done was to ask Oluwasegun to bring back the money within a particular period of time. If he fails, he can be sued for what is called “money had and received”
By: O. G. Chukkol, ACIArb (UK)