Bona Fide Claim of Right in Nigerian Criminal Law: Understanding Section 23 of the Criminal Code
When Does an Honest Belief in Ownership Prevent Criminal Liability for Property Offences?
Imagine you take your neighbor’s generator because you genuinely believe it’s yours—perhaps you lent one to them years ago, and this looks identical. You’re arrested for theft. Can you be convicted if you honestly thought the generator belonged to you?
This is where the Bona Fide Claim of Right defence comes in. It’s a legal recognition that property disputes are often messy, confusing, and honest people can genuinely disagree about who owns what. Nigerian law won’t criminalize you for taking property you honestly believe is yours—but only if your belief meets strict legal requirements.
This guide explains everything about this critical defence under Section 23 of the Criminal Code: what it means, when it applies, and how Nigerian courts have interpreted it.
1. What Is Bona Fide Claim of Right?
The Simple Definition
“Bona fide” is Latin for “in good faith.” A bona fide claim of right means you took or damaged property based on an honest belief that you had a legal right to do so.[^1]
It’s a defence that says: “Yes, I took the property, but I genuinely thought it was mine. I wasn’t stealing—I was exercising what I believed was my right.”
The Legal Definition
According to case law and legal dictionaries, a bona fide claim of right is defined as:
“A claim made in or with good faith, honestly, openly and sincerely without deceit or fraud, truly actually without simulation or pretence and made innocently in the attitude of trust and confidence, and without notice of fraud.”[^2]
This definition emphasizes two things:
- Honesty: Your belief must be genuine
- Lack of fraud: You must not intend to cheat anyone
Why This Defence Exists
The criminal law exists to punish wrongdoing—people who intend to steal, defraud, or damage property. But property ownership is often disputed. Family members disagree about inheritance. Business partners dispute assets. Land boundaries are unclear.
The law recognizes that not every property dispute involves criminal intent. Sometimes people are just honestly mistaken about their rights. This defence prevents the criminal justice system from being used to settle civil disagreements.
2. Section 23 of the Criminal Code: The Statutory Foundation
The Full Text
Section 23 of the Nigerian Criminal Code states:
“A person is not criminally responsible for an offence relating to property for an act done or omitted to be done by him with respect to any property in exercise of an honest claim of right and without intention to defraud.”[^2]
Let’s break this down:
| Element | What It Means |
|---|---|
| “A person is not criminally responsible” | This is a complete defence—if successful, you cannot be convicted |
| “for an offence relating to property” | Only applies to property crimes (theft, criminal damage, etc.) |
| “in exercise of an honest claim of right” | Your belief must be genuine and honest |
| “and without intention to defraud” | You must not be trying to cheat anyone |
What This Means Practically
If you can show that:
- You took/damaged property
- You honestly believed you had a right to it
- You weren’t trying to defraud anyone
Then you cannot be criminally convicted, even if your belief was legally wrong.
3. The Nine Essential Requirements
Based on Nigerian case law and academic analysis, the defence has nine strict requirements that must all be satisfied.[^2]
Requirement 1: Property Offences Only
Rule: This defence applies only to offences relating to property.[^2]
Examples of Property Offences:
- Theft (Section 390 Criminal Code)
- Robbery (Section 402)
- Criminal damage (Section 451)
- Obtaining by false pretences (Section 419)
- Receiving stolen property (Section 427)
Cannot Be Used For:
- Assault or battery (offences against the person)
- Murder or manslaughter
- Rape or sexual offences
- Drug offences
Case Law: Onyeulo v. Ibe (2017) confirmed this is strictly a property defence.[^2]
Requirement 2: Good Faith
Rule: The claim must be made in good faith.[^2]
What “Good Faith” Means:
- You genuinely believed in your right
- You weren’t pretending or acting a role
- You weren’t trying to deceive anyone
Case Law: Uzoke v. FRN (2010) emphasized that good faith is essential.[^2]
Example:
- Good Faith: You take land believing it’s the family land you inherited
- Bad Faith: You know it’s not yours but claim it is to force a settlement
Requirement 3: Honesty
Rule: The claim must be made with “all honesty.”[^2]
The Test: Would a reasonable person in your position, knowing what you knew, honestly believe they had that right?
Case Law: Adepoju v. State (2018) is the leading case on the honesty requirement.[^2]
Key Point: Courts look at objective circumstances to test if your subjective belief is plausible.
Example from Adepoju v. State (2018):
Facts: Adepoju was a nanny to a woman named Linda. Linda and Adepoju allegedly stole chattels from Linda’s landlady’s house. Adepoju tried to claim bona fide claim of right.
Court’s Reasoning: As a nanny who regularly visited the house, Adepoju was in a position to know the property belonged to the landlady, not to her employer Linda. She “could not reasonably plead bona fide claim of right.”[^2]
Lesson: If circumstances show you should have known the property wasn’t yours, your claim fails.
Requirement 4: Temporal Validity (The Right Must Exist Now)
Rule: Your belief must be that the right exists at the time you take the property, not in the future.[^2]
Case Law: R v. Pollard (1962)
Example:
- ❌ Future Right (Invalid): “I’ll inherit this land when my father dies, so I’m taking it now”
- ✅ Present Right (Valid): “I inherited this land when my father died last year, so I’m taking possession now”
Requirement 5: Belief of True Ownership
Rule: You must believe you are the true owner of the property.[^2]
Not Enough:
- Believing you have a right to use it temporarily
- Believing you’re entitled to compensation from it
- Believing you have an interest in it
Must Believe: “This property is mine” or “I have a legal right to this specific property”
Requirement 6: No Intention to Defraud
Rule: You must prove you had no intention to defraud.[^2]
What “Intention to Defraud” Means:
- Intending to deceive someone
- Intending to cause economic loss to the true owner
- Knowing the property isn’t yours but taking it anyway
Case Law: Adepoju v. State (2018) reinforced this requirement.[^2]
Example:
- ✅ No Fraud: You take land believing it’s your family’s ancestral land
- ❌ Fraud: You take land knowing your family sold it decades ago, but claim it’s still yours to force the buyer to pay you
Requirement 7: Ignorance of Rival Claimant
Rule: You must be ignorant that someone else also claims the property.[^2]
Why This Matters: If you know there’s a dispute, you can’t claim honest belief in exclusive ownership.
Example:
- ❌ Fails Test: You know your brother also claims to have inherited the land from your father, but you take it anyway
- ✅ Meets Test: You had no idea anyone else claimed the land until after you took possession
Requirement 8: Bona Fide Purchaser Status
Rule: If you bought the property, you must have had no prior notice of other claimants’ rights.[^2]
What This Means: When you purchased, you didn’t know someone else claimed ownership.
Example:
- ✅ Valid: You bought land from someone, checked all records, everything looked legitimate
- ❌ Invalid: The seller told you “there’s a dispute about ownership, but ignore it”
Requirement 9: Valuable Consideration (For Purchasers)
Rule: If claiming as a purchaser, you must have paid valuable consideration (something of value).[^2]
Why This Matters: The law won’t protect someone who got property for free or through a sham transaction.
Example:
- ✅ Valid: You paid ₦5 million for land at market rate
- ❌ Invalid: You “bought” land for ₦1,000 when everyone knows it’s worth ₦10 million (sham consideration)
Test Applied: This is an objective test—would reasonable people consider this adequate payment?
4. How the Defence Works: Negating Mens Rea
Understanding Mens Rea
In criminal law, mens rea means “guilty mind”—the mental element of a crime.
For theft, the prosecution must prove you intended to permanently deprive the owner of their property (called animus furandi or “intention to steal”).
How Bona Fide Claim Negates Mens Rea
If you honestly believe the property is yours, you cannot have animus furandi—you’re not “stealing” because you think you’re taking your own property.[^2]
Case Law: Spiess v. Oni (2016) stated that a successful plea “immunes a defendant from criminal liability making the required mens rea negative.”[^2]
Example:
Scenario: You take a phone from a table, believing it’s the one you lent to your friend last week. It’s actually not your phone—your friend’s identical phone.
Analysis:
- Actus Reus (Guilty Act): Yes, you took someone else’s phone
- Mens Rea (Guilty Mind): No, you didn’t intend to steal—you thought it was yours
- Result: No criminal liability if your belief was honest
5. Landmark Cases: Learning from Real Judgments
Case 1: Adepoju v. State (2018) – The Nanny Who Couldn’t Claim Ignorance
Facts:
- Adepoju was a nanny to Linda
- Linda and Adepoju took chattels from Linda’s landlady’s house
- They were charged with conspiracy and robbery
- Adepoju attempted to raise bona fide claim of right
The Court’s Reasoning:
The Supreme Court examined Adepoju’s position. As a nanny who frequented the house, she was in a position to observe and know that:
- The house belonged to the landlady
- The property inside belonged to the landlady
- Her employer (Linda) did not own the house or its contents
The Court held: She “could not reasonably plead bona fide claim of right.”[^2]
Why She Failed:
- ❌ Failed the honesty test: Given her regular presence, she should have known ownership
- ❌ Failed the ignorance of rival claimant: She knew the landlady owned the property
- ❌ Failed the no fraud test: Taking property she knew wasn’t hers/her employer’s showed intent to defraud
Lesson: The court looks at your actual circumstances to judge if your claimed belief is plausible.
Case 2: Onyeulo & Anor v. Ugochukwu Ibe (2017) – The Land Burial Dispute
Facts:
- There was a dispute over land
- The respondent (Ibe) buried his father on the disputed land
- The appellants (Onyeulo & Anor) challenged this, claiming the land was theirs
- Ibe raised bona fide claim of right
The Court’s Decision:
The court upheld the defence. The court noted:[^2]
“Once a claim of right is raised honestly and without intent to defraud, the criminal court should ‘hands off’ the matter.”
The court ruled that the successful plea shifts jurisdiction. The dispute should be resolved in civil court, not criminal court.[^2]
The parties should “settle their civil rights of claims over the property in the civil court.”[^2]
Why He Succeeded:
- ✅ He honestly believed the land was his family’s
- ✅ No evidence of intent to defraud
- ✅ The dispute was genuine and civil in nature
- ✅ No criminal mens rea could be established
Critical Principle: This case establishes that the defence acts as a barrier preventing criminalization of civil disputes.
Case 3: Uzoke v. FRN (2010) – Confirming Wide Application
Legal Principle: The Court of Appeal reaffirmed that by virtue of Section 23, “a claim of right made in good faith is a defence to all offences relating to property.”[^2]
Significance: This confirms the defence applies broadly across all property offences in the Criminal Code.
6. Practical Application: When Does It Work?
Let’s examine realistic scenarios.
Scenario 1: The Family Land Dispute
Facts:
- Your grandfather owned 10 hectares of land
- When he died, it was supposed to be divided among his 5 children
- Your father (one of the children) took you to the land as a child and said “this 2 hectares is ours”
- Years later, you build a house on that land
- Your uncle (another child) gets you arrested, claiming you built on his portion
Analysis:
Can You Raise Bona Fide Claim of Right?
✅ Yes, likely successful if:
- Your father genuinely believed that portion was his
- You grew up believing it was your family’s land
- There was no formal partition that clearly allocated portions
- You weren’t aware your uncle claimed that specific section
- You built without intent to defraud
❌ Might fail if:
- There was a court judgment or family agreement clearly giving that portion to your uncle
- You knew about the dispute before building
- Your father told you “it’s disputed, but build anyway”
Scenario 2: The Borrowed Generator
Facts:
- You lent your generator to your neighbor 2 years ago
- You never got it back
- You see a generator in your neighbor’s compound that looks identical to yours
- While he’s away, you take it, believing it’s the one you lent
- It’s actually not your generator—he bought it last month
Analysis:
Can You Raise Bona Fide Claim of Right?
✅ Possibly successful if:
- Your generator and his are truly identical in appearance
- You genuinely believed it was the one you lent
- You took it openly (not sneaking around)
- You can show you had lent a generator before
❌ Likely fails if:
- Your generator had unique markings and this one doesn’t
- Your neighbor’s generator is a different brand/model
- A reasonable person would have known it wasn’t the same generator
- You took it secretly at night
Scenario 3: The Nanny’s Mistake (Like Adepoju)
Facts:
- You work as a nanny in someone’s home
- Your employer tells you “pack these items, we’re moving”
- You pack items from throughout the house
- Turns out, your employer was stealing from the landlord
- You’re arrested alongside your employer
Analysis:
Can You Raise Bona Fide Claim of Right?
✅ Might succeed if:
- You genuinely believed your employer owned everything
- You never had reason to question ownership
- Your employer directed you explicitly
- You acted as a mere employee following instructions
❌ Likely fails if (like in Adepoju):
- You frequently worked in the house and should have known the setup
- The landlord lived there and clearly owned the property
- You had been told or should have known the ownership structure
- The items taken were clearly not your employer’s
7. The Civil-Criminal Divide: “Hands Off” Doctrine
The Fundamental Principle
One of the most important effects of a successful bona fide claim of right defence is what the court in Onyeulo v. Ibe called the “hands off” doctrine.[^2]
What This Means: When the defence succeeds, the criminal court essentially says:
“This is a civil property dispute between two people who genuinely disagree about ownership. We won’t criminalize it. Go settle it in civil court.”
Why This Makes Sense
Criminal law should punish dishonesty and fraud, not resolve honest disagreements about property.
Examples of Civil Disputes (Not Criminal):
- Two siblings disagree about which land parcel they inherited
- Business partners dispute who owns company assets after a fallout
- A buyer and seller disagree about whether a sale was completed
Examples of Criminal Conduct (No Defence):
- You know it’s not yours but take it anyway
- You forge documents to claim property
- You steal and later invent a “claim of right”
8. Common Mistakes and Misconceptions
Mistake 1: “I Needed It More”
Wrong Thinking: “The landlord has three generators. I have none. I took one because I need it more.”
Why This Fails: Need is not a claim of right. You must believe you own it, not that you deserve it.
Mistake 2: “I’ll Sort Out Ownership Later”
Wrong Thinking: “There’s a dispute, but I’ll take possession now and we’ll settle in court.”
Why This Fails: If you know there’s a dispute, you can’t claim honest belief in exclusive ownership (fails Requirement 7).
Mistake 3: “I Was Just Following Orders”
Wrong Thinking: “My boss told me to take it, so it’s his problem, not mine.”
Why This Usually Fails: Unless you genuinely believed your boss owned the property AND had no reason to doubt it, you can’t claim honest belief.
Exception: If you reasonably relied on your employer’s instruction and had no reason to question ownership, you might succeed (but Adepoju shows courts are skeptical).
Mistake 4: “But I Paid For It!”
Wrong Thinking: “I paid ₦100,000 for this land, so it’s mine even though it turned out the seller didn’t own it.”
Why This Can Succeed: This is actually a valid scenario for the defence IF:
- You paid valuable consideration (Requirement 9)
- You had no notice of defects in title (Requirement 8)
- You acted in good faith (Requirement 2)
- You honestly believed the seller owned it (Requirement 3)
This is the classic “bona fide purchaser for value without notice” scenario.
9. Strategic Considerations: Should You Raise This Defence?
When It’s a Good Strategy
✅ Raise it when:
- You genuinely believed you owned/had rights to the property
- You have evidence of that belief (documents, prior possession, inheritance claims)
- The dispute is clearly a civil disagreement, not criminal fraud
- Multiple people claim the same property with competing legitimate claims
When It’s Risky
❌ Don’t raise it when:
- You obviously knew it wasn’t yours
- There’s clear proof of ownership by someone else
- You concealed your actions (suggests guilty conscience)
- The “claim of right” sounds implausible
Why It’s Risky: If the court rejects your claim as dishonest, it damages your credibility. The court may think: “He lied about believing it was his, so he’s probably guilty of theft.”
10. Burden of Proof
Who Must Prove What?
The Prosecution’s Burden:
- Prove you took the property (actus reus)
- Prove you intended to steal/defraud (mens rea)
- Prove these beyond reasonable doubt
Your Burden (Once You Raise the Defence):
- You have an evidential burden: present enough evidence to make the defence credible
- Once you do this, the prosecution must disprove your claim beyond reasonable doubt
Important: You don’t have to prove your claim of right was valid—just that you honestly believed it was.
11. Relationship to Other Defences
Not a “Mistake of Law”
Don’t confuse bona fide claim of right with mistake of law.
Mistake of Law (Not a Defence): “I didn’t know it was illegal to take it”
Bona Fide Claim (Is a Defence): “I knew taking others’ property is illegal, but I thought this was MY property”
Different from “Claim of Right” in Other Contexts
In some jurisdictions, “claim of right” refers to a right to use force to defend property. That’s different. Section 23 is specifically about:
- Property offences
- Honest belief in ownership
- Negating intent to defraud
Conclusion: Protecting Honest Mistakes While Punishing Fraud
The bona fide claim of right defence reflects a fundamental principle of criminal justice: We punish dishonesty, not honest mistakes.
Property law is complex. Families dispute inheritances. Buyers discover their sellers lacked title. Business partners disagree on asset ownership. Not every taking of property should result in criminal conviction.
Key Principles to Remember
- Honesty is everything: Your belief must be genuinely honest, not a convenient excuse.
- The nine requirements are strict: Miss one, and the defence fails.
- Courts scrutinize your claim: They’ll look at objective circumstances to test if your belief is plausible.
- Success means no criminal liability: The dispute becomes civil, not criminal.
- Failure can hurt you: A rejected claim of right can damage your credibility.
The Golden Rule
Before taking property you believe is yours but others might dispute:
- Document your belief: Keep evidence of why you think it’s yours
- Seek legal advice: A lawyer can tell you if your claim has merit
- Consider civil action first: Sue for declaration of ownership rather than taking possession
- Be transparent: Don’t sneak or hide—honest claims are made openly
Remember Onyeulo v. Ibe: When the defence succeeds, the court will “hands off” and direct you to civil court. That’s often the right place for property disputes—not a criminal trial.
Related Topics
- Mistake in Contract Law
- Legal Reasoning in Judicial Process
- Sources of Law in Nigeria
- Privity of Contract in Nigerian Law
References
[^2]: The sources for this article are derived from the lecture materials on Bona Fide Claim of Right, with reference to Section 23 of the Criminal Code, and case law including Adepoju v. State (2018), Onyeulo & Anor v. Ugochukwu Ibe (2017), Spiess v. Oni (2016), and Uzoke v. FRN (2010). The nine requirements are drawn from Professor Bamgbose’s lecture analysis and established legal principles. The case R v. Pollard (1962) provides the temporal validity requirement.
This article is part of the LPI 301 Criminal Law series for law students. It is designed as a comprehensive study resource and should not be considered legal advice for specific situations. Always consult a qualified legal practitioner for advice on your particular circumstances.
