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
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.