HARUNA RAFIU V. THE STATE
(2012)LCN/5270(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of March, 2012
CA/I/305/2011
RATIO
CRIMINAL LAW: DEFINITION OF ROBBERY
What in the first place is ROBBERY?
”Robbery” is defined under the Robbery and Firearms (Special Provisions) Act Cap R 11, Laws of the Federation of Nigeria 2004 as –
“Stealing anything and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”
From this definition of robbery it is easy to discern that stealing is a necessary vital component of Robbery. The same Act defines Stealing in these words, “to take or convert to one’s use or to the use of any other person anything other than immovable property with any of the following intents:
(a) An intent permanently to deprive the owner of the thing of it;
(b) An intent permanently to deprive any person who has any special property in the thing of such property, the term “special” here including any charge or lien upon the thing in question and any right arising from or dependent upon holding possession of the thing in question, whether by the person entitled to such right or by some other person for his benefit;
(c) Any intent to use the thing as a pledge or security;
(d) An intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform;
(e) An intent to deal with the thing in such a manner that it cannot be returned in the good condition in which it was at the time of taking or conversion;
(f) In the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.” PER STANLEY SHENKO ALAGOA, J.C.A
WORDS AND PHRASES: MEANING OF ACTUAL VIOLENCE AND THREATENEND
To my mind the term actual violence can only refer to the use of or resort to some physical violence on the person of another to deprive that person of his property such as beating or physical blows. It is not necessary that the victim sustains injury in the process. In the case of threatened violence, the thief makes no physical contact with his victim. Threatened violence can either be by action or by words which leave the victim in no doubt at all that he will be severely dealt with if he refuses to part with his property to the thief. Examples are a clenched fist and/or words of threat. PER STANLEY SHENKO ALAGOA, J.C.A
COURT: WHETHER SUSPICION CAN ESTABLISH THE GUILT OF AN ACCUSED
I endorse the submission of Counsel for the Appellant along with the authorities cited namely ABIEKE V. STATE (1975) 9-11 SC 97; IBOCHI v. STATE (1993) 8 NWLR (PART 314) 697 and OKEREKE V. STATE (1998) 3 NWLR (PART 540 75 that this finding by the learned trial Judge is speculative and that suspicion no matter how strong cannot itself establish the guilt of an accused. PER STANLEY SHENKO ALAGOA, J.C.A
CRIMINAL LAW: WHETHER A PERSON CAN BE CONVICTED FOR A LESSER OFFENCE THAN HE IS CHARGED
A person can be convicted of a lesser offence than that with which he is charged. PER STANLEY SHENKO ALAGOA, J.C.A
JUSTICE
STANLEY SHENKO ALAGOA justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH justice of The Court of Appeal of Nigeria
Between
HARUNA RAFIUAppellant(s)
AND
THE STATERespondent(s)
STANLEY SHENKO ALAGOA, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Jibodu J. of the High Court of justice Abeokuta Ogun State in Suit No, AB/8R/2010 delivered on the 30th June 2011 convicting and sentencing the Appellant Haruna Rafiu to 21 years imprisonment for robbery. Dissatisfied the Appellant has appealed to the Court of Appeal.
It is instructive at this stage to say that two other persons were charged in Counts II and III with receiving stolen goods while the Appellant as 1st accused was charged in Count I with the offence of Robbery. The offence for which the Appellant stood charged reads as follows –
COUNT I
STATEMENT OF OFFENCE
Robbery contrary to section 1(1) of the Robbery and Firearms (special provisions) Act cap R 11 Laws of the Federation of Nigeria 2004.
PARTICULARS OF OFFENCE
Haruna Rafiu (M) on or about the 17th January 2007 at Oke-Ilewo along Government printing press, Abeokuta in the Abeokuta Judicial Division robbed Miss Aminat Olufade of her bag containing recharge cards valued at N370,000.00, the sum of N240, 000.00 VTU transfer on phone credit with N11,000.00 all totalling N633,000.00.
The case for the Prosecution was that on the 17th January 2007, the Complainant one Aminat Olufade who gave evidence in the court below as PW1, engaged the services of a motorcyclist to take her to Printing Corporation in Abeokuta and as she was about to alight from the motorcycle, the motorcyclist slowed down while another motorcyclist emerged beside her and forcefully picked her bag and sped off. Inside her stolen bag were the following items – MTN, GLO, V-Mobile lines as well as recharge cards of MTN, GLO, Multilinks v. Mobile and MTS. She also had phones viz: Nokia 1100 and Sagem MYX2 and a School Identity Card of Federal polytechnic, Ilaro and National Identity Card. Also in the stolen bag was a bunch of keys. The Nokia Phone contained a virtual top up
which is for buying from MTN directly to transferring to her phone so as to sell to Customers. The Complainant (pW1) was shouting “thief” “thief” and asked the rider of the motorcycle whose services she had engaged to ride faster so as to catch up with the other rider thief. When they got to CBN they lost sight of the other motorcyclist. The Mobile police at CBN helped PW1 to arrest the rider, of the motorcycle she had engaged because she (PW1) suspected that the rider of that motorcycle had planned the incident with the runaway motorcyclist. She (PW1) therefore took the rider of the motorcycle whose services she had engaged and handed him over to Ibara Police Station.
Continuing with her evidence PW1 said that two weeks after the incident, MTN brought an itemised bill which contained the list of calls, duration and numbers called. She (PW1) was able to check the last number she called and discovered that 15 minutes after her phone was stolen some calls were made. She then called the three numbers that had been called after her phone was stolen. The first two numbers did not go through but the third number went through. A lady who had picked the call informed her that she was at Isale-Ake which information she (PW1) passed on to the police. A police woman by name Sister Joy accompanied her to see the lady caller and fortunately she was arrested. At the police station the lady arrested said it was one Seyi that had called her. As the police were about to go in search of Seyi to arrest him, he (Seyi) was seen at the Police Station and was arrested. Seyi who was the 3rd accused in the court below informed the police that it was the Appellant that took PW1’s bag and that it was from the Appellant that he (Seyi) obtained the phone and the Appellant admitted collecting the bag from PW1.
Suffice it to say at this stage that the case went on to be fully heard in the court below, the Prosecution and the Defence calling evidence and tendering exhibits and at the conclusion of the trial, the learned trial Judge in a considered judgment delivered on the 30th June 2011 held that the Prosecution had proved the offence of Robbery against the Appellant (then 1st accused) beyond reasonable doubt and sentenced him to 21 years imprisonment. It is this judgment that is the subject of this appeal.
The Notice of Appeal is contained at pages 104-106 of the Record of Appeal and consists of three grounds which are reproduced hereunder with attendant particulars –
1. The Learned Trial Judge erred in law when he held as follows:
“I am of the considered view, and I so hold, in agreement with the prosecution that the 1st accused used actual violence to obtain/or retain the properties of PW1 which he stole from her.”
PARTICULARS
(a) There was no iota of evidence before the trial court that the 1st Appellant used violence within the meaning of section 11 of the Act to warrant his conviction for the offence of Robbery.
(b) The holding by the learned trial Judge to the effect that an accident could have ensured if the PW1 continued to struggle to hold on to her bag was speculation which the courts should not indulge in.
2. The learned trial Judge erred in law when he held as follows:
”I am of the firm view that the Prosecution has proved count 1 against the 1st accused beyond reasonable doubt and I so hold.”
PARTICULARS
(a) The ingredients of Robbery particularly the one relating to the fact that the 1st Appellant threatened to use or used violence before or immediately after the time of stealing the thing were not proved by the Prosecution.
(b) There was no evidence whatsoever before the trial court that the victim, the PW1 sustained injury or wound from the incident.
3. That the decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence.
4. Further grounds of Appeal will be filed on receipt of the record of proceedings.
RELIEF SOUGHT FROM THE COURT OF APPEAL:
(i) To allow the 1st Appellant’s appeal, quash his conviction and set aside the sentence of 21 years imprisonment for the offence of Robbery.
(ii) Discharging and acquitting the 1st Appellant.
It is perhaps necessary to state that further grounds of Appeal were, as can be ascertained not filed by the Appellant. Again reference to the 1st Appellant in the Appellant’s Brief of Argument is erroneous as there is only one Appellant Haruna Rafiu.
From the Grounds of Appeal contained in the Notice of Appeal, the Appellant at pages 2 and 3 of the Appellant’s Brief of Argument has distilled the following two issues for the determination by the Court of Appeal –
1. Whether the learned trial Judge was right that the Appellant used actual violence to obtain the properties stolen from PW1.
2. Whether in the circumstances of this case, the charge of Robbery could be said to have been proved beyond reasonable doubt by the Respondent.
The Respondent for its part formulated a single issue for the determination by this court viz-
”Whether the prosecution has established that the Appellant used or threatened to use actual violence to the complainant or the property stolen in order to obtain or retain it or to prevent or overcome resistance.”
This sole issue is contained at page 6 of the Respondent’s Brief of Argument dated 9th December, 2011 and filed on the 14th December, 2011.
Both Briefs of Argument were adopted by their respective Counsel who also relied on same as their arguments when this appeal came up for hearing on the 28th February, 2012. While A. A. Adedeji, Counsel for the Appellant urged us to allow the appeal and set aside the judgment of the lower court, J. K, Omotosho, Deputy Director of Public Prosecutions, Ministry of justice Abeokuta Ogun State urged us to dismiss the appeal and uphold the judgment of the High Court.
I consider the second issue formulated by the Appellant at page 3 of the Appellant’s Brief of Argument broad and adequate enough to effectively determine this appeal. That Issue reads as follows,
”Whether in the circumstances of this case, the Charge of Robbery could be said to have been proved beyond reasonable doubt by the Respondent.”
What in the first place is ROBBERY?
”Robbery” is defined under the Robbery and Firearms (Special Provisions) Act Cap R 11, Laws of the Federation of Nigeria 2004 as –
“Stealing anything and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”
From this definition of robbery it is easy to discern that stealing is a necessary vital component of Robbery. The same Act defines Stealing in these words, “to take or convert to one’s use or to the use of any other person anything other than immovable property with any of the following intents:
(a) An intent permanently to deprive the owner of the thing of it;
(b) An intent permanently to deprive any person who has any special property in the thing of such property, the term “special” here including any charge or lien upon the thing in question and any right arising from or dependent upon holding possession of the thing in question, whether by the person entitled to such right or by some other person for his benefit;
(c) Any intent to use the thing as a pledge or security;
(d) An intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform;
(e) An intent to deal with the thing in such a manner that it cannot be returned in the good condition in which it was at the time of taking or conversion;
(f) In the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.”
From the facts and evidence adduced, is the Appellant guilty of stealing? There is the legal aphorism that the devil himself does not know the intention of man. Intention is inferred from overt acts. We shall look at the various pieces of evidence adduced in arriving at a conclusion one way or the other. We had earlier virtually reproduced from the Records the examination-in-chief of PW1. Under cross-examination by Chief Apanishile at page 25 of the Records PW1 said she was carrying the bag on her hand and that after snatching her bag the person who did it sped off immediately. She said no blood came out of her body and that the blouse she was wearing did not tear. She also almost fell off the bike. One of the phones, she said is for calls while the other phone is for VTU line. There was credit on the Sagem phone on the 17th January 2007. The name of the lady apprehended at Isale-Ake is Hannah who also said the 3rd accused was her boyfriend. The Call made on the Sagem phone by the 3rd accused was made on the 17th January 2007.
On her part PW2 woman Corporal Joy Imongan with Force No.012651 attached to Divisional Crime Branch Ibara Abeokuta gave an account of how on the 17th January 2007 a case of robbery was referred to her for investigation. She went on to narrate how the lady at Isale Ake, Hannah by name had denied knowing anything about the stolen phone disclosing that it was her boyfriend Seyi by name who had called her on the line. PW2 said she asked Hannah to call her boyfriend Seyi and when Seyi came he was charged and cautioned in English after which he was arrested. He volunteered a statement which he recorded himself. While writing his statement he said it was Haruna (the Appellant) that gave him the Set he used to call his girlfriend. The Appellant he said, lived at Car Wash. PW2, PW1 and Seyi then proceeded to Car Wash where Haruna (the Appellant) was arrested. PW2 said that the statement made by the Appellant and two others charged with the Appellant were confessional in nature and she took the statements to ASP Whalil Hassan for endorsement. Citing BOZIN V. STATE (1985) 2 NWLR (PART 8) 465, Appellant’s counsel has quite rightly submitted that in a criminal charge the standard is proof beyond reasonable doubt and every ingredient of the offence must be established. The point must be made that the evidence of PW1 and PW2 have been consistent and free flowing and have not been punctured by cross-examination. The Statement of the Appellant Haruna Rafiu admitted as Exhibit P2 by the learned trial Judge is no doubt confessional in nature. It gives in graphic detail how he carried out the operation of snatching the bag of PW1 on the 17th January 2007 after which he took the bag to the house of one Alfa with whom the bag of PW1 was opened and cash and recharge cards were found in it. The Appellant even went on to say in his confessional statement that the motorcyclist who conveyed PW1 on the day in question – 17th January 2007 was innocent of the crime.
The crux of the matter at this stage is whether the evidence of the Prosecution witnesses and the confessional statement of the Appellant fit into the definition of stealing for a start. I am not in doubt from these pieces of evidence and the confessional statement of the Appellant which are not contradicted by cross-examination that at the point and time that the Appellant snatched the bag with its contents from PW1, he intended to convert same to his use or to the use of any other person and therefore to permanently deprive PW1 of the bag and its contents. The Prosecution has therefore succeeded in proving the offence of stealing against the Appellant beyond reasonable doubt. We shall now consider whether the offence of robbery was proved against the Appellant beyond reasonable doubt. Appellant’s Counsel in paragraph E4 at page 4 of the Appellant’s Brief of Argument submitted as follows.
“Robbery therefore means simply stealing plus violence used or threatened. Before an accused person could be convicted for an offence of Robbery under the Act robbery as defined in section 9 of the Act must have been proved.”
Counsel then referred to NWACHUKWU v. STATE (1985) 3 NWLR (PART 11) 218. This submission represents the true position of the law, The Robbery and Firearms (special Provisions) Act cap R 11, Laws of the Federation of Nigeria 2004 refers to ACTUAL VIOLENCE or THREATENED VIOLENCE in addition to stealing. In other words for the offence of Robbery to be established, there must not only be proof of stealing, the stealing must be accompanied by either actual violence or threatened violence. The offence of stealing has already been established by the Prosecution beyond reasonable doubt. Was the stealing by the Appellant of the bag and its contents belonging to PW1 accompanied by actual violence or threatened violence?
To my mind the term actual violence can only refer to the use of or resort to some physical violence on the person of another to deprive that person of his property such as beating or physical blows. It is not necessary that the victim sustains injury in the process. In the case of threatened violence, the thief makes no physical contact with his victim. Threatened violence can either be by action or by words which leave the victim in no doubt at all that he will be severely dealt with if he refuses to part with his property to the thief. Examples are a clenched fist and/or words of threat. If this test is applied has the offence of Robbery been proved by the Prosecution against the Appellant beyond reasonable doubt? The learned trial Judge had held as follows.
“There is evidence that the victim (PW1) let go her bag to avoid falling off. This means an accident could have ensued if she continued to struggle to hold on to her bag which I believe she had a right to.”
I endorse the submission of Counsel for the Appellant along with the authorities cited namely ABIEKE V. STATE (1975) 9-11 SC 97; IBOCHI v. STATE (1993) 8 NWLR (PART 314) 697 and OKEREKE V. STATE (1998) 3 NWLR (PART 540 75 that this finding by the learned trial Judge is speculative and that suspicion no matter how strong cannot itself establish the guilt of an accused. The evidence of PW1 does not show that there was actual violence or threatened violence employed by the Appellant in dispossessing PW1 of her bag and its contents. The charge of robbery has therefore not in my view been established by the Prosecution against the Appellant beyond reasonable doubt and must fail. Having said that, there is no gainsaying the fact that the offence of stealing was proved by the Prosecution against the Appellant beyond reasonable doubt. A person can be convicted of a lesser offence than that with which he is charged.
I find the Appellant not guilty of the offence of Robbery and hereby quash the conviction and sentence to 21 years imprisonment passed on him by the learned trial Judge in his judgment delivered on the 30th June 2011 and hereby convict him for the lesser offence of stealing and he is accordingly sentenced to 3 years I.H.L. effective from the 30th June 2011 when the Appellant was convicted and sentenced by the High Court.
ADZIRA GANA MSHELIA, J.C.A.: I have had the advantage of reading in advance the lead Judgment just delivered by my learned brother, ALAGOA, J.C.A. OFR. I agree with the reasoning and conclusion arrived thereat. I too find the Appellant not guilty of the offence of robbery and hereby quash the conviction and sentence to 21 years imprisonment passed on him by the Learned trial Judge in his Judgment delivered on the 30th June, 2011. Appellant is hereby convicted for the lesser offence of stealing and is sentenced to 3 years I.H.L. effective from the 30th June, 2011 when he was convicted and sentenced by the High court.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.
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Appearances
A. A. Adedeji Esq.For Appellant
AND
J. K. Omotosho, DDPP, Ministry of justice, Abeokuta, Ogun stateFor Respondent
