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The burden of proof in every criminal trials lies on the prosecution generally. In
a situation where the general onus lies on the prosecution to prove a case,
failure to prove any of the ingredients of the offence, will in no doubt, affect
the outcome of the trail even if the accused person kept mute without uttering
a word in the trial.

The reason why failure to prove an ingredient of an offence can affect the trial
of the case is that, the standard of proof expected of the prosecution is, ͚proof
beyond reasonable doubt͛. The West African Court of Appeal held in the case
of %&'()*" ͞where there was evidence of fight between two persons
and no evidence, one way or the other, as to what actually happened leading
to the death of one of them, the benefit of doubt thus created must be given
to the accused.͟

The criminal justice system put too much weight on the prosecution under the
guise of ͞Proof beyond reasonable doubt͟ although this does not mean proof
beyond any rota of doubt.

Another issue that places difficulty on the part of the prosecution to prove his
case is the proof of the elements of the offence in addition to the ingredients.
These elements are Ê   and  . The mere fact that an accused
person has done on unlawful act is not in itself sufficient to hold him
responsible criminally, provided that the intent and the knowledge is not there
or when the mind does not follow or comprehend the act, except in strict
liability. 2 Those factors negativing intent are defence to criminal liability under
the Nigeria criminal jurisprudence. Other defences includes: mistakes,

* Research Fellow, National Judicial Institute, Abuja.


1
(1944) 10 WACA 22
2
Ola, C.S. 

 



      

 , CS Ltd (2001) pg 172
provocation, insanity, bona fide claim of right which is our topic of discussion
in this paper e.t.c.

1.1 HISTORY

The history of the defence of bona fide claim of right in criminal responsibility
is not unconnected with the history of general defences in the criminal liability.
The general concept of liability in criminal law is based on the fact that a man is
a free agent and must be held responsible for his actions. 3 This connotes that a
man intends the natural consequences of his act and therefore must be held
accountable for them.

However, there are instances whereby a person can be exonerate d from


liability either partly or wholly despite his action constitute all the requisite
elements to hold him responsible.

The most important issue also is that, a person cannot be proceeded against
unless he is given the opportunity to defend himself. 4 This is expressed in Latin
maximum as Ê
Ê  . It is one of the principles of ͚National
Justice͛ which is an old principle in Nigerian criminal justice. This principle gives
the accused person right to defend a charge against him.

But it should be noted that, no defence is recognised in Nigerian criminal


justice except such a defence is written in our laws and recognised as such. The
defences to criminal liability are therefore not imaginary in nature.

The defence of ͚Claim of Right͛ is therefore not an exception to this rule. In


Kenya for example this offence (claim of right) is provided under section 8 of
the Kenya͛s penal laws, cap 36.

The defence of ͚Bona fide Claim of Right͛ in criminal jurisprudence is mostly


related to the offences committed against property. Bona fide claim of right
crops from the principle of bona fide purchaser. This term is used in the law of
͚real property͛ to refer to an innocent party who purchases property without
notice of any other party͛s claim to the title of that property. This principle was

3
Ocheme, P.  

 

  P. A. Ocheme & Associates, (2006) Pg 86.
4
Section 36 of the constitution Cap 149, Laws of the Federation of Nigeria, 2004.
not recognised by the common law courts. However, the courts of equity
relieved the accused person who claims bona fide intentions in their conducts.
And they held that, a bone fide purchaser will not be bound by equitable
interest of which he/she does not have actual or imputed notice, as long as
he/she made such inspection as ought reasonably to have been made. That is
why bona fide purchasers are sometimes referred to as ͚Equity darlings͛. 

The relationship between the bona fide purchaser and the courts of equity
were better characterised as being neglect. However, equity still undoubtedly
recognises the right of the beneficial owner to claim against the former legal
owner where the sale was improper.

+#   




2.1 BONAFIDE CLAIM

According to c,-* . ,)(&/ The word ͚Bona fide͛ is a Latin word


which means ͚in good faith͛ ͚without fraud or deceit͛ sincere, genuine.

According to (& . 0 ͚Bona fide͛ means standard of conduct expected of a


reasonable person especially in making contracts and similar actions, acting
without fraudulent intent or malice.

 &. 1*)-* ,)(& of the English Language 7 defines the word
͚bona fide͛ as thing ͞made, done offered e.t.c. without any intention to deceive
or defraud. Looking at the above definitions the word bona fide centred or two
words that is absence of fraudulent intent and deceit or malice.

Claim on the other hand, is to demand as a right or to prove ownership of


something. 8

5
Bryan, A. G. Eighth Ed. Thomson West, United States,(1999) Pg. 186
6
Ibid at Pg 187
7
Lexicon International Publishers, New York (1994) Pg 109
8
Ibid at Pg 181
͞c,-* . ,)(&͟9 explained the word claim as the aggregate of
operative facts giving rise to a right enforceable by court. The assertion of an
existing right.

2.2. RIGHT

The word ͚right͛ means something that is due to a person by just claim, legal
guarantee or moral principle. c,-*.,)(&"# defined the word ͚Right͛
as that which is proper under the law, morality or ethics.

The interest, claim or ownership that one has in tangible or intangible


property. It is also a power, privilege, or immunity secured to a person by law.

Right is a correlative to duty, where there is no duty there can be no right. But
the converse is not necessarily true. There may be duties without right. In
order for a duty to create a right, it must be a duty to act or forbear. Of course
it may be a duty to love our neighbour but our neighbour has no right for our
love. 11 This is because love is neither an action nor forbearance.

2.3 CRIME

The word crime is blessed with the attention of many philosophers in the
world, different opinions and perceptions.

(&&&2 who happened to be a moralist sees the word ͞Crime͟ as follows

ß
        
    

  
        
 !

But the positivist defined the word crime as ͚whatever act or omission the
rulers of the day prescribed by treat or penal consequence. ͛

The implication of the positivists definition of the word crime is that, although
some acts are not abnormal to the average reasonable man yet are made to be

9
Op. Cit. at Pg 264
10
Op. Cit. Ai 1347.
11
Op. Cit.
12
Denning, L.J.  
  112. In Chukkol, K.S.    

 

, (1988) Pg 3
or termed as offence while others that are glaringly immoral , yet are not
criminal in some jurisdictions e.g traffic offence for the former and incest for
the later.

The word ͞Crime͟ has not been expressly defined by either the criminal code
or the panel code but instead they defined the word offence which now used
intergangeably with crime.

According to ()&$"3

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A bona fide claim of right is a claim in or with good faith, honest ly and sincerely
without deceit of fraud. Actually without pretence and made innocently in the
attitude of trust and confidence and without notice of fraud. 14

It is a defence often raised in the course of criminal trials in defence of


property, the accused raises the defence relying on it to exculpate his acts on
the land on the ground that he had genuine right to be on the land and to carry
out the acts he carried out on the land. 15

Sections 19 and 20 of the magistrates court law (1978) cap 67 laws of Lagos
State holds a defence of bona fide claim of right as a complete defence when it
relates to the ownership and title to land.

A bona fide possessor of a property can also raise the defence of bona fide
claim of right in criminal trials. A bona fide possessor is one who not only
supposes himself to be the true proprietor of the land, but who is ignorant that
his title is contested by some other person claiming a better right to it.
13
John, B., ‘% 
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, Sixth Ed. In Ola C. S. Op. Cit.
14
Black͛s law Dictionary, Sixth Edition, at Pg 177
15
Akimbiyi, Sonia 
 &   ' 
 

 Streams Communications, Lagos (2006) Pg. 263.
But it is worthy of notice that, ignorance of the law does not afford any ex cuse
for any act of omission which would otherwise constitute an offence unless
knowledge of the law is an element of the offence.

5#   
  

Bona fide claim of right is a complete defence of criminal liability under the
criminal code. Section 23 of the criminal code provide s:

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As I earlier mentioned, a defence of bona fide claim of right is basically on an


offence against property. Under section of the criminal code, property is
defined to include everything animate and inanimate capable of being the
subject of ownership. Therefore, robbery, house breaking, demanding with
menaces, obtaining by false pretence, malicious damage, receiving stolen
property e.t.c.16 are all within the ambit of the provision.

Going by the above provision of the criminal code (section 23) there are two
important element that must be evidenced in the claim , that is, ͚honest belief
͚and ͚without intent to defraud͛ for the defence of bona fide claim of right to
succeed.

A. HONEST BELIEF

Honest belief means believing in the existence or non existence of a fact


without intent to defraud or mislead. Therefore, the test of honest believe in
the claim of right is always a subjective one.

16
Fakayode, E. O.  

 

  
, Etheope Publihsing Co. (1985) 227.
The claim is honest only when the accused believed he was dealing with his
own property (without intent to defraud) and not that of another. 17

B. WITHOUT INTENT TO DEFRAUD

Intention to defraud means:-

i. intention to cause unjustified economic, financial or pecuniary loss to


another

ii. to deprive another of some property by deceit, or

iii. to induce a man to act to his injury by deceit

Section 388 of the criminal code on the other hand, defined the intention to
defraud in the following circumstances, that is, where a person takes or
convert a property:

(a) When he has only a limited interest in the property like custody or
possession;
(b) When he is only one of joint owners of the property;
(c) When the property belongs to a company, a cooperation or a society
of which he is only a member or director; or
(d) When the property has already being pledged or mortgaged by him
to another.

In any of these circumstances, even if the accused tries to establish that he is


the owner of the property, the defence of bona fide claim of right will cease to
avail him from liability.

/#    

Prior to the independence of Nigerian in 1960, criminal code was of general


application in Nigeria. But the Northern Nigeria which is predominantly a
Muslim state felt it unbearable the continuance application of the code in the
region since their Muslim law is not practiced as it ought to be. As the result of
17
R. V. Williams & Anor. (1953) 37 Cr. App. Reports 71
this the Northern regional assembly came up with the ͚Penal Code͛ which
came into force on 1st October, 1960.

This code is a replica of the Pakistan penal code, though, some of the
provisions are similar to that of the criminal code.

However, unlike the criminal code, there is no clear provision for the defence
of bona fide claim of right under the penal code. Once an offence is
committed, the accused person cannot exculpate himself from liability relying
on any provision of the pena l code to claim bona fide claim of right.

Notwithstanding, there are certain provisions of the panel code from which the
defence can be inferred.

,)(&"65 of the panel code 18 provides

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18
Cap 89 Laws of Northern Nigeria 1963
 
 
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In the above provision, despite the fact that the property belongs to the
accused person he is not allowed to use the property in contravention of the
order of the court or any authority concerned. But interestingly, the code used
the words fraudulently, deceit and dishonestly as the basis of the act of the
accused person that constitutes the offence. Then, it is correct to hold, once
the act of the accused person is in good faith not having knowledge of any
encumbrance to his original title or right on the subject matter, the offence of
bona fide claim of right is open to him to exculpate his liability.

It is very clear from section 23 of the criminal code that, honesty and without
intent to defraud are the elements that constitute the proof of bona fide claim
of right. It is logical therefore, to infer the defence under the penal code once
these two elements can be proved under section 174 of the panel code.

Another offence under the panel code under which an accused can claim the
defence of bona fide claim of right is ͚receiving stolen property.͛

,)(&3"6 of the panel code 19 provides

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To constitute an offence under section 317 above, dishonest possession of the


stolen property must also couple with knowledge or at least reasonable belief
that the property was stolen. However, if the accused cannot account for the
possession of recently stolen property it is reasonable for a court to presume
guilty knowledge. 20

It is also to be noted that once the accused can account his possession of the
property, then, he avails himself from liability.

19
Ibid
20
Richardson, S. S.     -   (1967) Pg 208.
Bona fide claim of right is one of the ways through which, if proved, the
accused can escape liability, he must prove that his receipt or retention of the
property was not dishonestly made. That is to say, he lacks knowledge of the
state of the property and there was no reason for him to know.

Example, where A Is accused of receiving stolen car, he can claim the defence
of bona fide claim of right if he can prove that the car belongs to him or that
the car was mortgaged to him by B not known to him B steals the car from C
and there was no reason for A to know that B stolen the car from C.

0# 
 4 1

Section 2 of the evidence act 21 defines the word custom as a ͞rule which, in
particular district, has, long usage obtained the force of law͟ this section
suggests that not every custom can have the force of law. It is only those
customs that were in use for a long period of time and accepted as part of the
community͛s guiding principles of laws.

In (.(&7% ()(*(++ the court observed that customary law ͞is mirror of
accepted usage͟. In so doing however, it excludes spontaneous emergence of
customary law. Usage means habitual practice, that is conscious act of a man
done over several times.

Prior to the advent of the colonial masters in Nigeria, customary law was in
practice among the members of the communities. But it was very hard to
distinguish criminal law from the civil wrongs and that moral wrongs were
considered as offences.

Under the customary law, the criminal law is not written and its procedure was
not on any paper commencing from arrest of the offender, his trial up to
sentencing.  * +3 said

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21
Cap 112, Laws of the federation of Nigeria, 2004 .
22
(1961) 1 All N. L. R. 403 at 409.
23
Elias, T. O.,    Ê
   Manchester University Press, (1972) Pg. 58
     
       
 

 

       
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Having above at the back of mind, one can belief that the offender is rarely
given the opportunity to defend himself under the customary law procedure it
is therefore very difficult for the accused to have right to claim bona fide claim
of right as defence of his charge.

On the other hand, the nature of indictment will depend on the nature of the
offence. If the offence on which the accused is charged is a minor, he may be
given opportunity to defend himself under this circumstance, the offender can
raise the defence of bona fide claim of right. And whether the defence can
avail him from liability or not will dep end on the practice or usage of the
community.

6#  
 1

Islam is a religion and a way of life , based on the commandment of Allah


contained in the Holy Quran and the sunnah of the prophet of Islam,
Muhammad (SAW). Every Muslim is under an obligation to fashion his entire
life in accordance with the dictates of Quran and the sunnah of the prophet
Muhammad (SAW),24 following there dictates is following the Shariah (Islamic
Law).

͞Shariah͟ is an Arabic word which means ͚path to be followed͛ this is the path
believed by all Muslims to be the path shown by Allah (S.W.T.), the creator
through his prophet Muhammad (S.A.W.). It is believed by all Muslims that
Allah alone that is sovereign and is he who has the right to ordain a path for
the guidance of mankind. Allah (SWT) said in the Holy Quran. 25

24
Doi, A. I. '
   
, Tahah Publishers, London (1984) p.i.
25
Qur͛an, Chapter 2:1-2
ß         
    
  
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It is on the basis of these that Muslims are obliged to follow the path and not
of any other path.

But, in spite of the continuous guidance given by the creator through his
messenger prophet peace be upon him (PBUH), and no matter how purified a
society becomes, crime will still be committed though with different degrees.

Islam is a divine religion, therefore the language used for the massage is
Arabic. The Arabic word for crime is ͞Jarima͟ which literally means, to earn
what is not good, and technically it means, prohibitions imposed by Allah, the
violation of which give rise to punishment known in Arabic as ͚Uqubat͛ 27

Offenders of the specified offences that amount to crime are strictly punished.
But on the basis of the prophetic hadith, an offender of a criminal act may be
exempted from punishment if it can be proved that there was no intention to
commit the crime or that the offender is mentally deformed or that , the
commission of the offence was involuntary.

The Holy prophet says:

 
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One of the important feature of the Islamic criminal law is that the guilt of the
accused person must be proved beyond reasonable doubt. Islamic law is very
strict, like the statutes and the common law, in terms of proof, the accused
always takes the benefit of doubt in Islamic criminal trials. The holy prophet is
reported to have said:

26
Ibid, Chapter 2:145
27
Bambale, Y. Y. 
  -
   
 Second Ed. Malthous Press Ltd, (2003) Pg. 1
28
Khan M.M., '
  .,)
 Ê
.1
 Vol. III, Dar al -Arabia, Beirut Pg. 528, in Bambale Ibid.
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In another Hadith:

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  67

Another important feature of Islamic criminal law is intention.

Intention plays a vital role in the commission or omission of an act which


constitutes crime.

Generally, a person is presumed to know the consequence s of his act and


therefore, liable of the consequences. But under Islamic law, a person can be
liable of the crime he commits if he intends the consequences of his act.

The Holy Quran provides:

ß    # 


    
#  6

This provision is endorsed by the prophetic Hadith transmitted by Bukhari and


Muslim:

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 6!

Going by the above features of Islamic criminal liability , a defence of bona fide
claim of right can be inferred since it is clear that an acc used cannot be
punished on doubtful case and that the judge must look into the intention of
the offender before arriving at judgement. Therefore, once the accused can
establish how he come about the property subject matter of the offence he
can avail himself from liability.

It is on the basis of the above, Zamfara State government, in its Sharia penal
code, enacted after adoption of Sharia legal system in the state, provided
under section 66 of the code 33 as follows:

29Kareem, A.M.F 8
) 8
 vol II, Law Publishing Co, Lahore, Pakistan Pg 532. In bambale Op. Cit. At
Pg. 9
30
Naseef, A.O., 1  
   Vol. II The American School Trust, London, (1982) Pg 776
31
Ch. 53:39 op. Cit.
32
Bambale, Y.Y. Op. Cit
ß

    

     
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    *

 

 



It is obvious therefore, once the accused believes his right is legally protected
and acted in good faith without ͚fraudulent intent,͛ he can avail himself from
liability by raising the defence of bona fide claim of right.

8#    

The defence of bona fide claim of right had received a remarkable attention
from the courts as there are numerous judicial interpretations on the issues.

The following cases dealt with the issue extensively:


%  '5  35

This is an unreported case from the Appeal Court of the United States. The
question presented before the court was, whether a debt collector͛s legal error
qualifies for the bona fide error defence under the fair debt collections
practices Act (FDCPA), of the US, S. 1692.

The issue before there Lordships is whether a mistake of law made by a debt
collectors allows it to avoid liability by asserting a bona fide error defence
under the fair debt collection practice Act.

In 2006 respondents (Carlisle & 4 others) served petition (Jarman) with a


notice of collection, which include a provision requiring the debtor to dispute
the dept in writing. Carlisle based the provision on their understanding of
͚current sixth circuit case law͛ interpreting the FDCPA. The district court
concluded that the FDCPA which governs debt collection practices, does not
require the plainrift to dispute the debt in writing and subsequently the notice
violated the Act. However, the court granted Carlisle immunity under the

33
Shariah Penal Code, Laws of Zamfara State, 2000
34
United States Appeal Code, 2010
FDCPA ͞Bona fide error defence͟ which protects debt collection from penalties
for unintentional violation of FDCPA.

A Nigerian cases in which judicial interpretation is given in respect of bona fide


claim of right as a defence to criminal liability is the case of  4  
 % 3/

The appellants in this case were charge for the offence punishable under
section 451 of the criminal code law cap 48 vol.2, laws of Bendel state of
Nigeria, 1976 since they wilfully and unlawfully damaged a block wall fence
valued at N2,000.00. Properly of Madam Elisien We m Odiase.

The question before the supreme court was ͚whether the appellant͛ can rely
on the defence of bona fide claim of right (section 23 of the criminal code) at
the close of the prosecution͛s case to make a ͚no case to answer submission.͛

His lordship Walter Samuel Nkanu, JSC held that, from the provision of section
23 of the criminal code, it is clear that, for an accused person to rely or to avoid
himself of that defence he has to produce evidence in the trial to establish the
fact that the claim of right is:

a Made with all honesty and

b Without intention to defraud

He added that, it is for the trial court to then decide whether the said defence
avail the appellants particularly since a Prima Facie case has been made out
against the appellants.

Therefore, it is to be notice that the defence of Bona fide claim of right can
only succeed if the accused has proved his defence.

The decision of court in the case of (* %


))30 did not deviate from the
provision of section 23 of the criminal code in holdin g that, for the defence to
exculpate the accused person from liability there must be no intention of
depriving another of his special interest in the property.

35
Culled www.wikkipedia/law/clim-of-right
3636
(1951) 1 All E.R. 361
In this case, a purchaser of goods deposited with the vendor, as security for the
purchase price, a travelling clock, belonging to the purchaser who was to
recover the clock on paying for the goods. The purchaser took the goods away
but subsequently came back to the shop and removed the deposited clock in
the absence of the vendor. He did this in order to prevent the vendor from
selling the clock if the purchaser did not pay the price of the goods within one
month. The purchaser was found guilty of stealing the clock because by
removing it away during the pledge or security he intended to deprive the
vendor of his special interest in the clock.

One issue that require rethink from the part of the judges is, the nature of the
case the accused person is charged of, because the judicial interpretation on
this issue is needing a second look. The judges looks into the honest belief of
the accused person regardless of whether the act is wrong or right.

In the case of %&9&)(&,37 the appellant said he received a letter from his
wife authorising him to collect some wages from her employer who also was
appellant͛s employer. Appellant on the point of a Knife demanded the
payment of his wife͛s wages from the manager and later from the assistant
manager of Messrs Drawry and Edwards, the employers. The manger fled but
the assistant manager, Mr. Thurgood, on pain of the accused pointed knife,
took out two wage pockets from an open safe and handed them over to the
accused. This was on a Wednesday and wages were not due until Friday. Yet it
was held that the appellant had an honest belief that he had a right to the
wages and that accordingly the defence of claim of right was open to him in
connection with the charge of robbery with aggravation his conviction of the
charge was quashed.

 *)&27 7 In  % .((:7 38 held the view that defence of
being an owner of property could not avail an accused person charged with the
offence of wilfully and unlawfully destroying or damaging property under
section 451 of criminal code.

37
(1967) 51 Cr. Appl. Report. 137
38
(1990) L. L. R. 118
This decision of his lordship seems incorrect having regard to the provision of
section 23 of the criminal code for a defence of bona fide claim of right in
regard to any offence relating to property.

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