Not Guilty of Embezzlement: In Defense of Orji Uzor Kalu

 Not Guilty of Embezzlement: In Defense of Orji Uzor Kalu

By WayoGuy

The news is that former governor Orji Uzor Kalu of Abia state, along with Joshua Dariye of Plateau state and Turaki, of Jigawa were on July 13, 2007 charged with embezzlement of public funds.

I will be in court, whether in America or Nigeria , to present a defense of my brother, Orji Uzor Kalu, when he begins to present his defense. Why? Because the money he is alleged to have embezzled is really his share of the national cake.

I must remind the court that both Nigerian and American criminal laws are based on British common law (body of unwritten laws).  Under common law, it was called larceny if a man took property that belonged to someone else, with the intent to appropriate that property for himself or for a third party. By taking or withholding such property from the rightful owner, with the required intent to deprive the owner of ownership, the man committed larceny. Larceny was a felony, the most serious form of crime.

Common law larceny required that you must ‘take' the property or ‘withhold' it in order to be guilty of stealing it. In order words, if the real owner delivered the property to you in trust, for safe-keeping or for use in pursuing the goal of the owner, you were not guilty of larceny because you did not ‘take' it but instead possession was delivered to you. In such cases where you lawfully received possession of the property for safe-keeping you were only guilty of a breach of trust, a misdemeanor, which is the least serious form of crime.

It is true that today, in American state laws and Nigerian laws, statutes have been enacted so that when the real owner delivers the property to you, in trust, and you withhold or appropriate that property for yourself or for a third party, you are now guilty of embezzlement, which is now a felony, no longer a misdemeanor. Embezzlement statutes were adopted in England in 1799.

To summarize, the accused embezzler must be someone in a position of trust, that is someone such as a governor, a banker, an attorney, who is given possession of the property (money in this case) in trust, and thereafter, with a felonious intent, he appropriates the property for his own personal use or for the use of his friends, relatives, or even girlfriends. In a case of embezzlement (distinguished from robbery or larceny, which is a taking by force or threat), possession of the money was delivered to the accused lawfully (such as by federal allocations to states) and then the trusted possessor misappropriated it.

Now, it is a basic rule of evidence that the government cannot convict a man of embezzlement unless it can prove that he had the intent (a felonious intent) to permanently deprive the owner of ownership. Just the act of using the funds is not enough.

It is also an indisputable, basic, rule of law and of common sense that a man cannot steal his own property, cannot embezzle his own property. If the property is his, logically he cannot possibly have the felonious intent to embezzle it.

For these reasons, it is agreed, by jurists and recognized in the rules of evidence, in all countries that took their laws from the British common law, that a man who has a bona fide belief, even though mistakenly held, that he has a right or claim to the property (money) that he is accused of embezzling does not have the felonious intent necessary for the conviction of the crime of embezzlement.  

For example, a good faith belief by the governor that the money he appropriated for himself belongs to him, even if it is a mistaken belief, is sufficient to preclude felonious intent.  Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it. (People v. Barnett (1998) 17 Cal.4th 1044, 1142-1143.

This is where I must remind the court that the sovereign nation of Nigeria , since independence, has made hundreds of billions of dollars in oil revenue. These billions of dollars, which belong to all Nigerians, have yet to be divided. Some of that money is presently in private coffers outside Nigeria . Some are in the coffers of a few political and military families, while some are in public accounts in Nigeria .

The governor, having determined that the billions of dollars belong to all Nigerians, and having determined that the amount he was accused of embezzling was exactly what his share of the national revenue would be if the funds had been properly divided, had a good faith belief that what he appropriated to himself was his share of the national revenue.

Only the governor himself knows what he was thinking at the time of the alleged embezzlement. Consequently, only he can testify as to whether he believed that the funds he diverted were his own share of the national cake. And he did possess such belief.

I admit that as learned brothers and sisters, as jurists, as members of the bar and the bench, we may argue as to whether the governor's belief was rational or reasonable (rationality or reasonableness of the belief is not a requirement so long as the belief was held in good faith). We cannot deny that he held that belief if he states that he did (which only he can know). If he did, as he informs me, then the felonious intent required for conviction was not in existence at the time he diverted the funds.

Therefore, I submit that the governor cannot be guilty of embezzlement.



1 2 3
Re: Not Guilty of Embezzlement: In Defense of Orji Uzor Kalu
Tengallons posted on 07-14-2007, 10:22:27 AM
Brilliant, WayoGuy. E be like say na Barkin Zuwo School of Law you go
Re: Not Guilty of Embezzlement: In Defense of Orji Uzor Kalu
Frisky Larr posted on 07-14-2007, 12:44:40 PM
This is a real wayo-man who should be chased out of every Nigerian courtroom with the broom of a halloween sorcerer! The guy is simply great! "Big it up man" (as the Jamaicans would say). That was cool!
Re: Not Guilty of Embezzlement: In Defense of Orji Uzor Kalu
Faddy posted on 07-14-2007, 14:27:25 PM
Wayo Guy!!!!!!!!!!!!!

Chei na wah for you o, the paragraph below is a real "Wayo" warped logic but i love it

"This is where I must remind the court that the sovereign nation of Nigeria , since independence, has made hundreds of billions of dollars in oil revenue. These billions of dollars, which belong to all Nigerians, have yet to be divided. Some of that money is presently in private coffers outside Nigeria . Some are in the coffers of a few political and military families, while some are in public accounts in Nigeria."

If you know how i can get my own piece of "Petro dollar or nah share of the cake", i go hire you as my lawyer, make you defend me should in case Nuhu decided to prosecute me

Anyway, i enjoyed you "warped" defense or lack of "thereof". Enjoy your weekend.

Faddy
Re: Not Guilty of Embezzlement: In Defense of Orji Uzor Kalu
Tonsoyo posted on 07-14-2007, 15:25:50 PM
WayoGuy,

Because of the nature of your past writings, some people may fail to notice or know that what you have put forward here is actually a brilliant defense tenable in any court of law under the common law if Kalu was charged with larceny.

However, I begged to differ on your conclusions here:

"Now, it is a basic rule of evidence that the government cannot convict a man of embezzlement unless it can prove that he had the intent (a felonious intent) to permanently deprive the owner of ownership. Just the act of using the funds is not enough.

It is also an indisputable, basic, rule of law and of common sense that a man cannot steal his own property, cannot embezzle his own property. If the property is his, logically he cannot possibly have the felonious intent to embezzle it.

For these reasons, it is agreed, by jurists and recognized in the rules of evidence, in all countries that took their laws from the British common law, that a man who has a bona fide belief, even though mistakenly held, that he has a right or claim to the property (money) that he is accused of embezzling does not have the felonious intent necessary for the conviction of the crime of embezzlement.

For example, a good faith belief by the governor that the money he appropriated for himself belongs to him, even if it is a mistaken belief, is sufficient to preclude felonious intent. Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it. (People v. Barnett (1998) 17 Cal.4th 1044, 1142-1143"


The intention to permanently deprive the owner of ownership is only applibale in larceny cases but not in embezzlement cases.

Let's us have an hypothetical case of where a bank manager opened the bank vault took some thousands to do a quick one-week business makes a margin and return the money into the treasury. In this case you can say there was not the mens rea of intention to permanently deprive as it was the case with larceny, the manager will still be guilty of embezzlement of the money taken from the treasury, if caught, even after the money has been returned to the treasury and larceny of the interest pocketed from the quick business.

Point number two of my departure from your reasoning, will the test of "reasonable belief" of ownership be subjective or objective? simply put will an average man on the street think that government money in care of the Governor should belong to the Governor for personal use? (objective test) or it is how Kalu think it is ?(subjective test)

To my mind the test should be objective, a test of reasonableness.

Again, does Kalu have a bona fide belief that the money alleged to have been stolen belong to him? Was the money taken in good faith? We may find out by this simple analysis:

Every governmental spending are supposed to be budgeted at the beginning of the fiscal year. Therefore if Kalu reasonably believed or bona fide-ly believed that he is entitled to a part of the treasury, he would have simply put it in a budget like:

Kalu's personal entitlement of the National cake ----- $2Billion

Kalu's mum entitlement for bearing the great Kalu to the world for the deliverance of Abians ----$5Billion

Kalu's girlfriend entitlement for bending down for "Congo Shining" before seeing Aba -----$5Million and so on and so forth.

The fact that the money was not budgeted for the approval of his "co-owner of treasury" in the house of rogues negates a bonafide believe of entitlement even subjectively.

He is therefore guilty as charged.

Tonsoyo for the Federal Republic of Nigeria.
Re: Not Guilty of Embezzlement: In Defense of Orji Uzor Kalu
WayoGuy posted on 07-14-2007, 23:32:59 PM
QUOTE:
WayoGuy,

Because of the nature of your past writings, some people may fail to notice or know that what you have put forward here is actually a brilliant defense tenable in any court of law under the common law if Kalu was charged with larceny.

However, I begged to differ on your conclusions here:

\"Now, it is a basic rule of evidence that the government cannot convict a man of embezzlement unless it can prove that he had the intent (a felonious intent) to permanently deprive the owner of ownership. Just the act of using the funds is not enough.

It is also an indisputable, basic, rule of law and of common sense that a man cannot steal his own property, cannot embezzle his own property. If the property is his, logically he cannot possibly have the felonious intent to embezzle it.

For these reasons, it is agreed, by jurists and recognized in the rules of evidence, in all countries that took their laws from the British common law, that a man who has a bona fide belief, even though mistakenly held, that he has a right or claim to the property (money) that he is accused of embezzling does not have the felonious intent necessary for the conviction of the crime of embezzlement.

For example, a good faith belief by the governor that the money he appropriated for himself belongs to him, even if it is a mistaken belief, is sufficient to preclude felonious intent. Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it. (People v. Barnett (1998) 17 Cal.4th 1044, 1142-1143\"


The intention to permanently deprive the owner of ownership is only applibale in larceny cases but not in embezzlement cases.

Let's us have an hypothetical case of where a bank manager opened the bank vault took some thousands to do a quick one-week business makes a margin and return the money into the treasury. In this case you can say there was not the mens rea of intention to permanently deprive as it was the case with larceny, the manager will still be guilty of embezzlement of the money taken from the treasury, if caught, even after the money has been returned to the treasury and larceny of the interest pocketed from the quick business.

Point number two of my departure from your reasoning, will the test of \"reasonable belief\" of ownership be subjective or objective? simply put will an average man on the street think that government money in care of the Governor should belong to the Governor for personal use? (objective test) or it is how Kalu think it is ?(subjective test)

To my mind the test should be objective, a test of reasonableness.

Again, does Kalu have a bona fide belief that the money alleged to have been stolen belong to him? Was the money taken in good faith? We may find out by this simple analysis:

Every governmental spending are supposed to be budgeted at the beginning of the fiscal year. Therefore if Kalu reasonably believed or bona fide-ly believed that he is entitled to a part of the treasury, he would have simply put it in a budget like:

Kalu's personal entitlement of the National cake ----- $2Billion

Kalu's mum entitlement for bearing the great Kalu to the world for the deliverance of Abians ----$5Billion

Kalu's girlfriend entitlement for bending down for \"Congo Shining\" before seeing Aba -----$5Million and so on and so forth.

The fact that the money was not budgeted for the approval of his \"co-owner of treasury\" in the house of rogues negates a bonafide believe of entitlement even subjectively.

He is therefore guilty as charged.

Tonsoyo for the Federal Republic of Nigeria.


Learned brother Tonsoyo:

When I write on legal issues here on NVS, I try to make it as simple as possible so that all the readers may enjoy it. I have struggled to find a way to respond to your positions above in a manner that lay people can understand and enjoy since we are not in a law school classroom or in court. It is difficult for me to address your arguments without dragging in some ancient legalese that may make this presentation cumbersome to the readers and prevent their participation in the discussion. But I will try.

Although you refer to the mens rea, your reasonable man (objective standard) analysis appears to be more of an analysis of the governor’s conduct (that is actus reus) instead of the governor’s mental state (mens rea):

I think we both agree that the governor does not have to be correct in his belief for the defense to succeed and, by using the defense, he is not even claiming, at the time of prosecution, that he owns the money. He only claims that, at the time of diversion of the funds, he believed the funds to be his.

You state that it is not reasonable for him to have that belief. Your position is fine, but he did not have to be reasonable.

We both agree that in criminal law:

(a)Any mistake of fact or mistake of law, whether reasonable or unreasonable, is a defense to a specific intent crime if because of it the accused lacked the required intent.

(b)A crime is one of specific intent (as opposed to one of general intent) when its definition includes a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime;

©Embezzlement is a crime of specific intent.


Do I need to say more? The man is not guilty of embezzlement.
Re: Not Guilty of Embezzlement: In Defense of Orji Uzor Kalu
Denker posted on 07-15-2007, 01:08:00 AM
my-learned-most-honour-coupled-with-deepest-respect-from-abyss-of-my-heart-WayoGuy:


...there's a need of urge of demand deep inside me that we, you and me, arrange an audience to strategize best
possible ways and means to necessitate a smooth implementation of a litigation of my humble self against the
Federal Republic of Nigeria.

i plan to institute a unique case to retrieve and expropriate my due share of billions of oil money plus principal
interest thereof...

i'm well assured that you can coup up well along rendering a selfless legal assistence to a very dear brother of Alaigbo...!
the prove of your academical brilliance, excellence and intellectual and cerebral competence are no doubt everywhere
manifestable and can be attested to as a matter of fact as long as i'm concern as an ardent follower of
thy humble self right here on the world wide web....

...do you see possibly straight forward chance/s that i may come out of it and be strong enough to proclaim to you and the villagers that i'm a billionaire, not as a naira billionaire, am talking of DOLLARS....
my dear!
Re: Not Guilty of Embezzlement: In Defense of Orji Uzor Kalu
Ocnus posted on 07-15-2007, 01:35:35 AM
A very good point; a pre-emptive distribution of equity. How shall we classify the rendering of between 5%-6% of the derivation payments from the governors back to the occupant of Aso Rock; a pre-emptive tax on the pre-emptive distribution?
Re: Not Guilty of Embezzlement: In Defense of Orji Uzor Kalu
Enforcer posted on 07-15-2007, 04:52:03 AM
QUOTE:
This is a real wayo-man who should be chased out of every Nigerian courtroom with the broom of a halloween sorcerer! The guy is simply great! \"Big it up man\" (as the Jamaicans would say). That was cool!




Motion supported.
Re: Not Guilty of Embezzlement: In Defense of Orji Uzor Kalu
Nike posted on 07-15-2007, 06:38:58 AM
Wayoguy,
Your defence appears plausible on the surface but on a closer examination, this particular statement stood out to me

QUOTE:
For example, a good faith belief by the governor that the money he appropriated for himself belongs to him, even if it is a mistaken belief, is sufficient to preclude felonious intent. Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it. (People v. Barnett (1998) 17 Cal.4th 1044, 1142-1143.


I am of the opinion that there will be ample proof that the esteemed governor could not have had a good faith belief that the money he appropriated to himself belonged to him. I am not a lawyer but would'nt he have just written himself a check and taken out the money if he truely believed that it belonged to him rather than concoct elaborately designed money laundry mechanisms. For example if $40 million is budgeted for a project that would actually cost $1 million, and he goes ahead to pocket $39 million, there in lies the proof that he did not believe that the money belonged to him or else he would have budgeted $1 million for the project and then proceeded to write himself a check for $39 mill. There-in lies an objective proof that he did not have good faith belief that the money belonged to him or else he wouldn't take a circuitious route to get it.
Just a thought
Re: Not Guilty of Embezzlement: In Defense of Orji Uzor Kalu
Nike posted on 07-15-2007, 06:40:02 AM
Wayoguy,
Your defence appears plausible on the surface but on a closer examination, this particular statement stood out to me

QUOTE:
For example, a good faith belief by the governor that the money he appropriated for himself belongs to him, even if it is a mistaken belief, is sufficient to preclude felonious intent. Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it. (People v. Barnett (1998) 17 Cal.4th 1044, 1142-1143.


I am of the opinion that there will be ample proof that the esteemed governor could not have had a good faith belief that the money he appropriated to himself belonged to him. I am not a lawyer but would'nt he have just written himself a check and taken out the money if he truely believed that it belonged to him rather than concoct elaborately designed money laundry mechanisms. For example if $40 million is budgeted for a project that would actually cost $1 million, and he goes ahead to pocket $39 million, there in lies the proof that he did not believe that the money belonged to him or else he would have budgeted $1 million for the project and then proceeded to write himself a check for $39 mill. There-in lies an objective proof that he did not have good faith belief that the money belonged to him or else he wouldn't take a circuitious route to get it.
Just a thought
1 2 3
Please register before you can make new comment