Sunday Dabierin And Anor V The State (1968) LLJR-SC

Sunday Dabierin And Anor V The State (1968)

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These are applications for leave to appeal against the judgment of Fakayode J. given on the 5th December, 1966, by which he upheld the conviction of the applicants by the magistrate, Ife on a charge of stealing three baskets of undried cocoa, the property of Daniel Eniola.

The case for the prosecution was that two of Eniola’s labourers went to his farm to remove cocoa beans which they had harvested, and found the appellants and three other men packing the beans into baskets. When challenged the appellants and their companions said the land, and the cocoa growing on It, belonged to the appellant Adetayo. Adetayo gave evidence to this effect before the magistrate and all five accused persons also denied that they had packed or removed any cocoa and said that they had gone to the farm to watch for thieves who were stealing cocoa.

After a careful review of the evidence the magistrate held that the cocoa be-longed to Eniola and that the five accused persons had stolen it. He also considered and rejected a submission that the accused persons had acted in the exercise of a bona fide claim of right and without intention to defraud, in which case, by virtue of section 21 of the W.N. Criminal Code, they would not be criminally responsible as for an offence relating to property. Mr. Akintoye submitted in this court that these findings could not be supported having regard to the evidence but we reject this submission, and see no ground for granting leave to appeal.

We would, however, dissent from one passage in the judgment of Fakayode J. in the High Court. In considering whether there was an honest claim of right he said:-

“The other ground was that the defence of bona fide claim of right put up by the appellants was not properly considered by the lower court. In a claim of right the claimant must show that he had honest or reasonable belief in pursuing his assertion. The question of honest belief is a matter to be inferred from the facts of the case.”

Section 21 of the Criminal Code does not require that the claim shall be a reasonable one, and it differs in this from section 23, which modifies and may altogether exclude criminal responsibility for an act done or omitted under an honest and reasonable, though mistaken, belief in the existence of any state of things.

In our view section 21 lays down a rule applicable to offences relating to property to the same effect as that in the definition of “larceny” in the Larceny Act 1916, section 1, so that a claim of right exists whenever a man honestly believes that he has a lawful claim, even though it may be completely unfounded in law or in fact, as was held in R. v. Skivington [1967] 2 W.L.R. 665. It is enough If the belief is honestly held and there can be no justification for reading into section 21 of the Criminal Code any Implied requirement that it should also be a belief which it was reasonable for the accused person to hold.

The appeal judge’s misdirection does not affect the validity of the magistrate’s finding that there was no honest claim of right, and leave to appeal is refused. Leave to appeal refused.

Other Citation: (1968) LCN/1603(SC)

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