ADDRESSING THE MENACE OF LAND-GRABBERS IN LAGOS STATE THROUGH THE OFFENCE OF STEALING

1.0.INTRODUCTION

Lagos State like many south-western states of Nigeria have always faced the challenge of land-grabbers also known as omoonile. These are persons who on the basis of being first settlers upon a parcel of land assert ownership right over parcels of land around them. Many times after persons have made purchases from these land-grabbers, they still have to make further payments to these land-grabbers or to rival land-grabbers. One may later find out that the land-grabber, payment was made to, does not have right over the land. These land-grabbers have become major source of concern to both governments and private individuals whose activities many times are subject to the caprices of the land-grabbers despite legal provisions that clearly place the control and management of land under the care of State Governors[1]. These land-grabbers sometimes act with impunity while maiming and harming persons they find on parcels of land without impunity. Many have lost not just money but also lives because of the activities of these land-grabbers. It is evident that land as a factor of production is finite in character and highly valuable; it is thus important that every measure that can be taken to protect landowners is explored.

The Criminal Law of Lagos State Law №11 of 2011 (hereinafter called the Law) was enacted seven years ago on the 19th of August, 2011 to great acclaims by both scholars and proponents of a criminal jurisprudence that is progressive in nature and is in tune with modern day reality. It departed in a number of ways from the former Criminal Code Act[2] that has its roots in Nigeria’s colonial experiences. Seven years down the line, this writer seeks to ponder if it were possible to steal a parcel of land in Lagos State. Such a question would have been merely academic before the enactment of the Law. Today, such a question is worth pondering on because of some marked differences in the wordings of the Criminal Code Act. This writer will consider the position of the law under the Criminal Code Act and juxtapose same with the position of the law under the Criminal Law of Lagos State 2011. The offence is covered under Sections 278–285 of the Law.

2.0.POSITION UNDER THE CRIMINAL CODE ACT

Section 383(1) of the Criminal Code Act defines stealing in these words: A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing. From this definition, it is clear that the elements of stealing includes fraudulent taking or conversion of anything capable of being stolen. The case of Ayeni v. State (2016) LPELR-40105(SC) per Kekere-Ekun JSC is instructive here:

A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing. The ingredients of the offence of stealing, which must be proved beyond reasonable doubt are:

1. The ownership of the thing stolen;

2. That the thing stolen is capable of being stolen

3. The fraudulent taking or conversion. See Adejobi v. The State (2011) 12 NWLR (Pt. 1261) 347 @ 377 C — E, Oshinye v. C.O.P . (1960) 5 SC 105: Chianugo V. the State (2002) 2 NWLR (Pt.750) 225.

Section 382 of the Act defines Things capable of being stolen to include:

· Every inanimate thing whatever which is the property of any person, and which is movable, is capable of being stolen.

· Every inanimate thing which is the property of any person, and which is capable of being made movable, is capable of being stolen as soon as it becomes movable, although it is made movable in order to steal it.

Since, a parcel of land is immovable, it is accepted in legal jurisprudence that it is not capable of being stolen. Indeed, this is one reason why a piece of land is always deemed to be unique. Thus, it cannot be fraudulently taken or converted under the Criminal Code.

3.0.THE CRIMINAL LAW OF LAGOS STATE 2011

Section 278(1) of the Law defines stealing in these words:

Any person who dishonestly:

a) takes the property of another person; or

b) converts the property of another person for his own use or to the use of any other person, is guilty of the offence of stealing.

From the foregoing, it is clear beyond any iota of doubt that the elements of the offence of stealing under the Law are DISHONEST TAKING or CONVERSION OF THE PROPERTY OF ANOTHER PERSON.

The Law did not define what amounts to property of another person, but it provides in subsection 7 thus: A person shall not be deemed to take a thing unless he moves the thing or causes it to move.

This would suggest that stealing under the Criminal Law of Lagos State would be incomplete without a moving. However, a calm view of the said law would show that stealing would be possible if there is either a dishonest taking or a dishonest conversion of another person’s property. It therefore would follow that the fact that there cannot be a taking of a thing if the thing is not moved does not mean there cannot be a conversion without moving. This writer finds support for this perspective in Section 383(6) of the Criminal Code Act which also provides that: A person shall not be deemed to take a thing unless he moves the thing or causes it to move.

This writer finds further support in Section 278(5) of The Law which provides that:

In the case of conversion, it is immaterial whether:

a) the thing converted is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it; or

b) the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of the property.

It is thus possible to convert a property which is in one’s possession or which one is the holder of a power of attorney over or which one is authorized to dispose.

The Oxford Dictionary of Law, 5th Edition defines conversion as: The tort of wrongfully dealing with a person’s goods in a way that constitutes a denial of the owner’s rights or an assertion of rights inconsistent with the owner’s. Wrongfully taking possession of goods, disposing of them, destroying them, or refusing to give them back are acts of conversion. And in equity as the changing (either actually or fictionally) of one kind of property into another. For example, if land is sold the interest of those entitled to the property changes from an interest in the land to an interest in the money that represents it. The 8th edition of the Black’s Law Dictionary at page 378 further defines the term conversion as: The wrongful possession or disposition of another’s property as if it were one’s own; an act or series of acts of willful interference, without lawful justification, with an item of property in a manner inconsistent with another’s right, whereby that other person is deprived of the use and possession of the property.

A person who thus dishonestly converts the property of another person be this land or anything capable of being moved for his own use or to the use of any other person, is guilty of the offence of stealing under the Criminal Law of Lagos State, 2011.

4.0.IMPORTANCE OF THIS UNDERSTANDING

Lagos State like many other states in the South-West of Nigeria has had to live with the menace of land-grabbers without being effectively able to caution them under the law. This writer has however advocated that this menace can be addressed through a charge of stealing being laid against land-grabbers in the State. The office of the Lagos State Director of Public Prosecution may on the strength of this argument consider charging land-grabbers for the offence of stealing. The gravity of the punishment starting with 3 years and extending to as long as 14 years depending on the circumstances of the proved stealing could make this an attractive means of deterring land-grabbers from the odious activity of preventing genuine owners of land from enjoying the fruits of their labours. Private rights will also be balanced in the light of public interest.

Many times what we need to effectively address new situations in our society may not be the enactment of new laws but a rethinking of the ambit of our existing laws.

This will align with the stated guiding principles of The Law under Section 3:

(1) The guiding principles underlying this Law are –

a) the need to balance the protection of private rights and public interest;

b) the interest of justice; and

c) the need to ensure that the sentence prescribed for an offence serves any of the following purpose:

i. Rehabilitation;

ii. Restoration;

iii. Deterrence;

iv. Prevention; and

v. Retribution.

(2) The provisions of Sections 2 and 3(1) of this Law shall guide the interpretation and the application of the provisions of this Law and any other Law, or Regulations creating offences.

[1] Section 1 of the Land Use Act 1978

[2] The Criminal Code Act is the substantive law on crimes that govern the States in the South of Nigeria.