Effect Of Being In Possession Of An Item That Gives Access To A Recently Stolen Property And Not The Stolen Property Itself: A Perusal At The Doctrine Of Recent Possesion

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By Chike H Izuegbu,Esq.


1. It is a common knowledge that some people are carried away by a heavy-duty euphoria for picking up useful item(s) not belonging to them and thus assume it to be a “gift from God”. Sometimes such item(s) turns out to be a stolen property. It appears sometimes that the picking party is not in the honest Knowledge to tell whether the said property is stolen. For the purpose of this write-up such item(s) or property must not be picked. It could get to one possession by different other ways like buying it or receiving it from someone else. However, what is important is that it is in the possession of the non-owner and the property in question is stolen and capable of being stolen.


  1. Thus, the crux of the matter that now calls for determination is: What then will be the Position of the Law where the item(s) found is not the stolen property itself but an item that gives access to the stolen property found timeously in the possession of another reading from the time the item was purported to have been stolen? We shall now surf through the extant Laws and the legal jurisprudence established by the Supreme Court for this purpose.


  1. It is trite as provided in Section 167(a) of the Evidence Act, 2011 that the Court will presume the existence of fact where a man who has received the goods knowing them to be stolen unless he can account for his possession. However, it appears the silence of the Evidence Act on the veracity of “soon after the theft” is itself a puzzle still basking for an answer in the country’s legal jurisprudence. It appears the Supreme Court brought this puzzle to an end when speaking through Oputa JSC in Eze v the State (1985)12 SC at page 9 to wit:

 “The expression ‘soon after the theft” (in other words how soon will the inference be that the possessor was the thief not merely the receiver with guilt Knowledge?)will naturally depends on the nature of the goods and facility and the ease with which that type of goods can pass from hand to hand(R v Palmer Iyakwe 10 WACA 180,Kwartie Kwashie v king(1930) 13 WACA 86.In Palmer Iyakwe’s case the Appellant was found in possession of the stolen item “Five months after the theft “and the West African Court of Appeal held that the doctrine of recent possession cannot operate in such a way as to make it proper for the appellant to be convicted of burglary and stealing. A verdict of guilt was accordingly substituted by WACA.In Kwartie Kwashie’s case the appellant was found in possession of stolen article barely 90 minutes after the theft and the West African Court of Appeal held that from the circumstances it was open to the trial court to convict the appellant of house braking and stealing”


  1. From the above we note that much as a person found in possession of the stolen property is prima facie by presumption of fact is the deemed thief or the receiver of the stolen property with knowledge of guilt, the nature of the property and its movement must be well considered. It follows that what constitutes “soon after the theft” is a question of fact.


  1. Attention must however be drawn to the fact ,that presumption of fact as envisaged by s.167 of the Evidence Act, 2011 for this purpose is not the conclusive guilt of the of the possessor of the stolen item(s).Albeit, presumption of fact is not a presumption of law for it to operate as a conclusive presumption it must be presumption of law(Presumptionist jurist et de jure).It follows that the party in possession of the stolen item in rebuttal by evidence can establish the correct fact which may exculpate him successfully  from the presumed crime. The Supreme Court in Madagawa v State (1988) 12 SC Pt.1 at page 95 said:

“Although the general view is that it is not a presumption which must but may be drawn, it is one which in my opinion must be drawn where the facts are overwhelming and the accused is unable to account for his possession of goods recently stolen. This is because where the accused is not able to explain the circumstances of his possession of the stolen goods the inference that he is the thief is conclusive and must be drawn. However, where the totality of the evidence and the surrounding circumstances do not support the inference that the accused was the thief or receiver of the stolen goods, the presumption cannot be drawn.”

(7)We thus, find ourselves in considerable agreement with the position of the Supreme Court (Per Oputa JSC)(supra)@ Page 10.I beg to quote:”…But being a presumption of fact, it is inconclusive and irrebutable.”


8)There is a problem where what is in possession of the presumed thief is not the stolen property itself but an item that gives access to the stolen property i.e the key of the motor cycle and not the motor cycle itself. The authority of the Supreme Court (Oputa JSC) in Eze v State(supra) @ page 12 is worth reproducing here:

“Possession implies not only physical power or custody of the res but also (and even more importantly) the power to exclude others. How can the latter be exercised over a motor cycle) more than the possession of the ignition key? It is my humble view that the surrounding circumstances of this case, the possession of the ignition key of the stolen Motor cycle is in possession of the said motor cycle. In the Case of Jewish Maternity Trustee v Garfinkle (1926)95 LJKK.It was held that the possession of the key to unoccupied building is the possession of the building.”

In Madagawa v. State (1988) 12 SC pt. 1 @ 96 Per Karibi-White JSC quoting Eze v State (1985) 3 NWLR (Pt13) 429 with approval graphically noted:

The appellant and another robbed the victim of his Suzuki Motor cycle at about 6 a.m. They were spotted at about 5P.M.the same day at a beer palour where they had taken the motor cycle. When the son of the victim and the police man identified the motor cycle at the Beer palour, one of the two men who robbed the motor cycle at the gun point escaped. The other was arrested. In his breast pocket was found the ignition key of the motor cycle. He said he did not know how the key got into his pocket. He was on the facts held to be one of the armed robbers.

It therefore follows that being in possession of an item that gives access to the property stolen timeously suffices under the doctrine of recent possession. As such, not being in possession of the property so stolen cannot and will not defeat that presumption. Being in possession of the stolen item that gives access to the stolen property is as good as being in possession of the stolen item(s).


Author: Chike H Izuegbu,Esq.          B.Sc.(Hons),LL.B(Hons),BL,Dip. (Mgt.). AIBA.ASM, GMNIM is a Nigerian Lawyer with a bias in International Law and Diplomacy. He is a Law Practitioner with B.S.Nwankwo SAN & Co., Nnewi, chikeizuegbu01@gmail.com.



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