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.
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”
Former Attorney General of the Federation and a Trustee of the Body of Senior Advocate of Nigeria, BOSAN,Alhaji Abdullahi Ibrahim OFR, CON, SAN has passed away on Sunday, 24th of January, 2021.
A statement from the BOSAN Secretary, Seyi Sowemimo, SAN has confirmed.
The late Alhaji Abdullahi Ibrahim was born on the 14th day of January, 1939 (82 years old), called to the English Bar in 1963 and the following year was called to the Nigerian Bar. He was at different times legal adviser at the then Ministry of Finance, Northern region and New Nigeria Development Company; a one-time Senior State Counsel and head of prosecutions at the Ministry of Justice, Kano State.
He was elevated to the prestigious rank of Senior Advocate of Nigeria in 1982 and served as member, Privileges Committee of the Bar from 1987 to 1991. He also served as the Chairman, Legal Aid Council from 1990 to 1994. He was a Notary Public, a Life member of the Body of Benchers and its Vice Chairman and Chairman between 1999 and 2001. He thereafter served as Chairman, Legal Practitioners’ Disciplinary Committee between 2001 and 2006 and a member of the National Judicial Council (NJC) between 2004 and 2008.
He was a Fellow of the Chartered Institute of Arbitrators, Nigeria (FCIArb) and Member of the Chartered Institute of Arbitrators (UK) (MCIArb); also a Fellow of the Institute of Advanced Legal Studies, Nigeria (FINALS).
“Alhaji Abdullahi Ibrahim served the nation at various times in several capacities as Commissioner for Education in the old Kwara State, Nigeria (1973) in the cabinet of Brigadier General David Bamigboye; Federal Minister of Education, Science and Technology; Minister of Transport and Aviation (1984-1985) in the cabinet of General Muhammadu Buhari and as the Attorney-General of the Federation and Minister of Justice (1997-1999) in the cabinet of General Abdulsalami Abubakar.
“He was a Commissioner, International Boundary, National Boundary Commission from 2000 to 2006. He was a member of the Nigerian team that successfully negotiated the Maritime Boundary Treaty between Nigeria and the Republic of Equatorial Guinea and also the Unitization Agreement of the Zafiro/Ekanga oil fields. He was Nigeria’s Agent and later Co-Agent in the dispute between the Federal Republic of Nigeria and Cameroon at the International Court of Justice, the Hague Netherlands. Alhaji Abdullahi Ibrahim also led the Nigerian delegation to the United Nations conference on the establishment of the International Criminal Court.
“In acknowledgement of his contribution to the Nation, he was conferred with the National Honour/Award of Officer of the Federal Republic (OFR) and later Commander of the Order of Niger (CON). Alhaji Abdullahi Ibrahim was Chairman, Nigerian Stock Exchange, Kaduna Branch and the first Vice President of the Nigerian Stock Exchange in 1989. He was Chairman, Nigerian Institute of International Affairs from 1988 to 1994 and also Chairman of New Nigeria Development Company between 1992 and 1998. He was conferred with honorary Doctorate Degree in Law (LLD, Honoris Causa) by the University of Kogi State, Nigeria in 2008. Alhaji Abdullahi Ibrahim was a seasoned Arbitrator and a member of the Permanent Court of Arbitration at the Hague, Netherlands.
“Alhaji Abdullahi Ibrahim OFR, CON, SAN is survived by his wife, children and grandchildren.
“Alhaji Abdullahi Ibrahim SAN will be buried in Kogi State tomorrow in accordance to Muslim rites.
“May the soul of Alhaji Abdullahi Ibrahim OFR, CON, SAN and the souls of other faithful departed Rest in Peace. Amen.” The statement read.
“If My Manhood Is Found Guilty, Let It Be Cut Off, Let The Law Take Its Course” – Sallaman Kanam
We are only secured when the law is allowed to take its fullest effects on anyone among us found in the criminal act of conspiracy or directly involved in perpetuating the kidnapping of our people.
The hallmark of leadership is when those responsible to lead must dispense justice without fear nor favor.
When we were young, I used to hear Sallaman Kanam said, “idan bakin azakari na yayi laifi a yanka” (if my manhood is found to be guilty of any act against the law, it should be cut off).
One day I felt worried because at such a tender age I found the expression very vague and therefore asked him what it means. His reply was that you are my children and now I am saddled with the responsibility of leadership over the whole people of Kanam Kufai, even if you as my biological children are found going against the law, I will not spare you. I will use you to set example.
Like joke, one day his first grant son misbehaved and he ordered for his arrest and detention. Everyone in the community was shocked. Those who knows him very well said Sallama can do more than this.
We must therefore stand up and be firmed in ensuring that anyone found to be involved is allowed to face the law of the land. People should please not take laws into their own hands. We must allow law to treat anyone found including those related to us by blood, faith, or where we live accordingly.
No one should be spared!
Comrade ND Shehu Kanam Community and Rural Development Advocate
The Senior Special Assistant to the President on Media & Publicity, Office of the Vice President, Laolu Akande, is a statement issued today says. When Asks: “Why can’t we have time limits for all cases?
In what is deemed a significant contribution to the ongoing public discourse on the need to urgently reform the administration of justice system in Nigeria, President Muhammadu Buhari’s voice has brought a sharp focus to the matter especially regarding the slow pace of trials in the courts.
Represented by Vice President Yemi Osinbajo, SAN, the President entered the discourse on Wednesday at the opening session of the virtual 2020 Nigerian Bar Association’s (NBA) Annual General Conference themed “Step Forward” which coincides with the body’s 60th anniversary.
Speaking on the theme of the conference which he said translates into “taking responsibility”, President Buhari explained that the situation has become necessary given the current and pre-existing challenges confronting the system.
According to the President, “why can’t we have time limits for all cases? Why can’t we put in place the rules that will say that a criminal trial all the way up to the Supreme Court must end in 12 months, and that a civil trial must not exceed 12-15 months? I think that, for me, will be stepping forward.
“Step forward means taking responsibility. It may also mean making progress, boldly taking on the challenges of the future.”
The President listed a few areas where “I believe we need to step forward and resolve some of the nagging problems of our systems of administration of justice.”
Going personal on the issue of delay in trials, the President referred to his experience at the Presidential Election Petitions Tribunals in 2003, 2007, 2011 and 2019. He said until recently, court trials had been “terribly slow” and capable of frustrating genuine efforts aimed at promoting general progress of the society.
He said “I am not a lawyer but I have been both a casualty and a beneficiary of the judicial process. I was before the courts for two and a half years- 27 months from 2003 in the now famous case of Buhari and Obasanjo. It took me two and a half years to fight for a four-year Presidential mandate.
“In 2007, I was again in court for 20 months, almost two years, also as petitioner and later then appellant in the case of Buhari and INEC. And in 2011, again as petitioner in the case of CPC and INEC. I spent another 8 months in court. At the end, I lost all three cases. I wondered then why it needed to take so long to arrive at a verdict.
“In 2019, my status improved, I was now no longer petitioner, I became first respondent in the case of Atiku and Buhari and the whole process took barely 6 months.”
Still on the areas requiring reform, President Buhari said “the second issue for me is the multiple and sometimes conflicting orders of courts. Recently, my party, the APC, had an internal crisis. In the six-week period before I chaired the meeting of the party to resolve the issues, there were at least 10 different conflicting rulings of the courts across the country.
“Again I am not a lawyer, but surely these sort of multiple and conflicting rulings of courts sometimes ex parte, really make a mockery of the judicial process.”
Continuing, the President said “third issue is the seeming bias towards technicality over the clear common sense justice of cases. If justice is to be seen to be done, then the outcomes of cases must make sense to the average person and not just to the refined minds of learned persons alone. Justice must make sense to lawyers and non-lawyers alike.”
My fourth issue, the President said, “is on the appointment of judges. I believe that we must continuously improve on the selection processes for appointment of the men and women who serve as judges.”
“First we must cast our nets wider in search of judges, especially at the appellate level. Second we must put in place primarily merit-based selection processes including mandatory tests and interviews for all applicants for judgeships.
“While our Constitution urges Federal character for balance, this is not an excuse for mediocrity. If a particular zone is to produce a judge why can’t we find the best talents in that zone. Our country has excellent men and women everywhere,” the President said.
President noted that “Reform is urgent because the fabric of our society is stitched together by our system of justice and law enforcement. We cannot afford to have the stitches come undone.”
While urging stakeholders in the sector to further leverage technology to enhance the speed of court processes, the President said “digitization of court processes, records and services is very much the new frontier of justice delivery and will dramatically enhance access to justice and affect trial timelines.”
Speaking on his administration’s efforts at addressing security concerns, President Buhari said his government acknowledges the apprehensions of the people, and restated the commitment to address them.
He however noted that “the fight against insecurity and to establish law and order, requires the full cooperation of all especially the various structures for law enforcement and administration of justice at all levels,” referring to how both the Federal Government and the States need to work together on prosecuting criminal cases for instance.
“If like some of us, you listen to the radio, you will often hear ordinary people asking questions about why criminals have not been sent to jail. So for example, they would ask why a suspected murderer has not being prosecuted. Of course the question many will ask is, ‘so, what is Buhari doing about that?’.”
Earlier in his remarks, the Chief Justice of Nigeria, Justice Ibrahim Tanko Muhammad restated the commitment of the judiciary to adapt to changes within and around its environment, citing the adoption of virtual court proceedings as an example.
He said the judiciary under his watch will not condone practices that have, over the years, negatively impacted the image of the justice sector, noting that abuse of court processes, among others would no longer be tolerated.
The week-long event will feature discussions and presentations by distinguished personalities and scholars with a focus on the theme “Step Forward”. He concluded.
Recently there is a growing yearning and demand among young Nigerians about the need to use the only mechanism or option left in the hands of voters after electing a person into either the State House of Assembly, House of Representatives or the Senate, where there is lack of confidence.
This to me is the only weapon left in the hands of the electorate that ensure that an elected person or representative in any legislative house, remain answerable to his constituent throughout the period of his assignment as their representative.
In an attempt to provide what may look like a guide to the electorates in this regard, let me quickly consider the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria (As Amended), especially from section 69, 110, 68 and 109. Which are the sections directly connected to recall in our constitution.
Given effect to these provisions of the constitution will go a long way in reshaping our democracy and in enhancing our political culture in Nigeria going forward.
Step One: Where and how to start the recall process?
The starting point is the same whether it relate to a member of the National Assembly (House of Representatives or Senate) or a member of the House of Assembly, Section 69 of the 1999 Constitution provide in respect of the recall of a member of the National Assembly (Senate or House of Representatives) thus: “A member of the Senate or of the House Representatives may be recalled as such a member if –
(a) there is presented to the Chairman of the Independent National Electoral Commission a petition in that behalf signed by more than one-half of the persons registered to vote in that member’s constituency alleging their loss of confidence in that member and which signatures are duly verified by the Independent National Electoral Commission; and
(b) the petition is thereafter, in a referendum conducted by the Independent National Electoral Commission within ninety days of the date of receipt of the petition, approved by a simple majority of the votes of the persons registered to vote in that member’s constituency.”
While in respect of a member of the State House of Assembly section 110 provide in the same vain thus: “A member of the House of Assembly may be recalled as such a member if –
(a) there is presented to the Chairman of the Independent National Electoral Commission a petition in that behalf signed by more than one-half of the persons registered to vote in that members’ constituency alleging their loss of confidence in that member and which signatures are duly verified by the Independent Electoral Commission; and
(b) the petition is thereafter, in a referendum conducted by the Independent National Electoral Commission within ninety days of the date of the receipt of the petition, approved by a simple majority of the votes of the persons registered to vote in that member’s constituency.”
Step Two: What happens when the recall process is concluded by the INEC?
Where all the laid down procedures and requirements of recall are made, if it is in respect of a member of the National Assembly, section 68 provides thus:
“(1) A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if –
(h) the President of the Senate or, as the case may be, the Speaker of the House of Representatives receives a certificate under the hand of the Chairman of the Independent National Electoral Commission stating that the provisions of section 69 of this Constitution have been complied with in respect of the recall of that member.
2) The President of the Senate or the Speaker of the House of Representatives, as the case may be, shall give effect to the provisions of subsection (1) of this section, so however that the President of the Senate or the Speaker of the House of Representatives or a member shall first present evidence satisfactory to the House concerned that any of the provisions of that subsection has become applicable in respect of that member.”
The same thing shall applied to a member of the House of Assembly, as section 109 also provides thus:
“(1) A member of a House of Assembly shall vacate his seat in the House if –
(h) the Speaker of the House of Assembly receives a certificate under the hand of the Chairman of the Independent National Electoral Commission stating that the provisions of section 110 of this Constitution have been complied with in respect of the recall of the member.
(2) The Speaker of the House of Assembly shall give effect to subsection (1) of this section, so however that the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of the member.”
The procedure if followed will go a long way in putting all elected officials in check from the legislature down to the executive, because, where the members of the legislature became conscious of the power of the members of their Constituencies to recall them, they will refuse to allow the members of the executives from using them at the detriment of the people they supposed to represent and only then, they will be bold enough to activate their power to impeach the members of the executives if need be. Only then democracy will be a government of the people.
The recent seeming show of shame by the National Assembly in its joint Committee seating where it invited the Minister of State, Labour and Employment, Mr. Festus Keyamo (SAN) has exposed the National Assembly, especially when after raising some concern or allegation of corruption or wrong doing in public, they later while the Minister did not get the full opportunity to respond to the issues raised, called for Executive Session and the Minister in his wisdom refused the offer.
Let’s consider section 88 and 89 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) which gives the National Assembly the power to summon any member of the Executive with the view of examining the extend of their power in that regard. Section 88 provide thus:
” (1) Subject to the provisions of this Constitution, each House of the National Assembly shall have power by resolution published in its journal or in the Official Gazette of the Government of the Federation to direct or cause to be directed investigation into –
(a) any matter or thing with respect to which it has power to make laws, and
(b) the conduct of affairs of any person, authority, ministry or government department charged, or intended to be charged, with the duty of or responsibility for –
(i) executing or administering laws enacted by National Assembly, and
(ii) disbursing or administering moneys appropriated or to be appropriated by the National Assembly.
(2) The powers conferred on the National Assembly under the provisions of this section are exercisable only for the purpose of enabling it to –
(a) make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and
(b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.”
It is obvious from the provision of section 89 of the Constitution that the only reason that enable the members of the National Assembly to invite the members of the Executive is for the purpose of law making or exposing corruption and in doing so it laid down the necessary procedures for so doing. The section provide thus:
“(1) For the purposes of any investigation under section 88 of this Constitution and subject to the provisions thereof, the Senate or the House of Representatives or a committee appointed in accordance with section 62 of this Constitution shall have power to –
(a) procure all such evidence, written or oral, direct or circumstantial, as it may think necessary or desirable, and examine all persons as witnesses whose evidence may be material or relevant to the subject matter;
(b) require such evidence to be given on oath;
(c) summon any person in Nigeria to give evidence at any place or produce any document or other thing in his possession or under his control, and examine him as a witness and require him to produce any document or other thing in his possession or under his control, subject to all just exceptions; and
(d) issue a warrant to compel the attendance of any person who, after having been summoned to attend, fails, refuses or neglects to do so and does not excuse such failure, refusal or neglect to the satisfaction of the House or the committee in question, and order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his failure, refusal or neglect to obey the summons, and also to impose such fine as may be prescribed for any such failure, refused or neglect; and any fine so imposed shall be recoverable in the same manner as a fine imposed by a court of law.
(2) A summons or warrant issued under this section may be served or executed by any member of the Nigeria Police Force or by any person authorised in that behalf by the President of the Senate or the Speaker of the House of Representatives, as the case may require.”
Having a community reading between section 88 and 89 of the Constitution will only suggest that the National Assembly power under section 88 (2)(b) allow them to expose corruption, but one can hardly understand how they can expose corruption by going behind closed doors.
What Happened To The Revenues GENERATED By The Federal Government Ministries, Departments & Agencies In The Eye of The Law – Daily Watch Press
A look at the way and manner under our laws Revenue Generated by the Federal Government of Nigeria is being shared among the three (3) Federating Units; Federal, States and Local Government Areas (LGA’s).
Nigeria is a Federation with three federating units made up of the Federal, State and Local Governments. Federation revenue is therefore owned by the three federating units. Section 162 of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) defines “REVENUE” as any income or returns accruing to or derived by the Government of the Federation from any source including:
any receipt, however described, arising from the operation of any law; any return, however described, arising from or in respect of any property held by the Government of the Federation; any return by way of interest on loans and dividends in respect of shares or interest held by the government of the federation in any company or statutory body. Section 162 subsection (1) of the 1999 Constitution, states that “The Federation shall maintain a special account to be called “The Federation Account” into which shall be paid all revenues collected by the government of the Federation, except the proceeds from the Personal Income Tax of the personnel of the Armed Forces of the Federation, the Nigeria Police Force, the Ministry or Department of Government charged with responsibility for Foreign Affairs and the residents of the Federal Capital Territory, Abuja”.
Subsection (3) of the same section further states, “Any amount standing to the credit of the Federation Account shall be distributed among the Federal, States and the Local Government Councils in each State on such terms and in such manner as may be prescribed by the National Assembly”.
That’s why every month, representatives of the Federal and State Governments hold a Federation Account Allocation Committee (FAAC) Meeting. The committee is chaired by the Minister of Finance. At this meeting, revenue generated in the month is distributed among the three tiers of government, other agencies and special saving fund accounts. Revenue is shared in accordance with the vertical formula, as determined by RMAFC and approved by the National Assembly. The formula allocates 52.68%, 26.72% and 20.60% to the Federal, States and Local Governments respectively. The 52.68% to the Federal Government are paid into the Federation Account; while 26.72% and 20.60% accruing to the States and Local Governments are shared among the constituents by applying factors such as equality, population; land mass, IGR and social development. 13% is deducted as a first line charge and is further shared among the oil producing States.
Therefore, it’s worthy of note that monies generated by the NNPC, FIRS, Nigerian Customs and all revenue generating MDAs or sources of the Federal Government, except those exempted by the Constitution or any other legislations must be shared by the Federation Account Allocation Committee (FAAC).
This is to clear the misconception that many have about the funds of the Federal Government. Hope it provide some impetus for understanding.