When Robbery without the Use of a Firearm Can Be Regarded as Armed Robbery

CASE TITLE: EDITI OKON EPHRAIM v. THE STATE (2022) LPELR-57806(CA)

JUDGMENT DATE: 30TH MAY, 2022

JUSTICES: RAPHAEL CHIKWE AGBO, JCA

MUHAMMED LAWAL SHUAIBU, JCA

BALKISU BELLO ALIYU, JCA

COURT DIVISION             CALABAR

PRACTICE AREA: Criminal Law and Procedure- Offence of Armed Robbery

FACTS:

One Dr. Anietie Ben Essien, a car dealer, displayed a Mazda 626 car at his premises for sale. On the 13th July 2013, he received a phone call from the Appellant who indicated interest in buying the car. The two met at the premises where the Appellant inspected the car and both parties settled the price of the car at N700,000. The Appellant insisted on test-driving the car to which Dr. Essien agreed and drove the car with the Appellant in the passenger seat. As they were returning to the office, the Appellant requested to also test-drive the car. 

Dr. Essien agreed and exited the driver’s seat while the Appellant took over. Just as Dr. Essien was about to enter the passenger’s seat, the Appellant zoomed off with the car; this caused Dr. Essien to fall off and roll over on the highway, thereby sustaining injuries. He was picked up by a good Samaritan and taken to the hospital. 

Dr. Essien subsequently made a report of the incidence to the DSS office, Uyo, and provided the telephone number that the Appellant used to call him. The Appellant was arrested through tracking of the phone number and the car was recovered at Port Harcourt where the Appellant had sold it to a car dealer with fake custom papers.

The Appellant was arraigned and charged for the offence of armed robbery, contrary to Section 1(1) of the Robbery and Firearms (Special Provisions) Act, 2004, He denied the charge and testified that it was one Eze who brought the car to him for the purpose of finding a buyer. That he drove it to Port Harcourt and sold it for the sum of N320,000. He also testified that he was paid N20,000 from the proceeds of the sale of the car and given an additional N50,000 for transport to return to Uyo from Port Harcourt.

At the conclusion of the trial, the learned trial Judge found and held that the prosecution has proved the charge of armed robbery against the Appellant beyond reasonable doubt and convicted him accordingly.

Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES: 

The appeal was determined upon consideration of the issues thus:

1. Whether Appellant was not denied his right to fair hearing as enshrined in Section 36(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended when the Respondent failed to avail him (Appellant) with the written statement of her prosecution’s witnesses and all the documents intended to be tendered as Exhibits in proof of charge against the Appellant before the actual commencement of his trial upon his plea being taken at the trial Court. 

2. Whether the offence of robbery with which the Appellant was charged was proved against the Appellant beyond reasonable doubt as required by law.

3. Whether stealing was proved as ownership of the vehicle allegedly stolen was not proved beyond reasonable doubt as required by law even as the trial Court failed to give adequate consideration to the Appellant’s case before it.

COUNSEL SUBMISSIONS

Learned Counsel for the Appellant submitted that the Appellant was charged for the offence of armed robbery contrary to Section 1(1) of the Robbery and Firearms Act. That this offence can only be complete if violence is used to facilitate the stealing, because robbery is stealing with violence as was held by the Supreme Court. He referred to the testimony of the victim of the robbery to submit that there was no violence or threat of violence against the witness by the Appellant. That the testimony only shows that he voluntarily surrendered the car key to the Appellant to test drive, which the Appellant drove off before he could enter the car. 

Learned Counsel argued that the non-use of violence by the Appellant in the course of stealing the vehicle therefore negates the commission of the offence of robbery. That it was not enough for the prosecution to prove the ownership of the vehicle and that it was stolen, but it must also prove the element of use of violence or threat of violence against the Appellant, which it did not do in this case. As such, the main element of the offence of robbery was not proved and therefore the learned trial judge erred in convicting the Appellant of that offence. 

In response, the Respondent’s Learned Counsel submitted the definition of robbery as stealing property with use of violence and with the intention to permanently deprive the owner of the use of that property. Counsel submitted that the evidence called by the prosecution showed that the Appellant snatched the car from the victim and then used fake custom papers to sell the stolen vehicle, which proved that he intended to deprive the owner of its use permanently. 

Secondly, that the manner in which the Appellant zoomed off with the stolen vehicle was intended to cause harm or serious injury, and this proved the element of violence in order to take away and retain the car against the Appellant.

DECISION/HELD

In the final analysis, the appeal was dismissed and the judgment of the trial Court was accordingly affirmed.

RATIO

1. CRIMINAL LAW AND PROCEDURE- OFFENCE OF ARMED ROBBERY:  Whether actual violence or threat of violence is necessary to establish the offence of armed robbery; circumstance(s) where it will be held that same has been proved-

“The Appellant was charged with the offence of armed robbery contrary to Section 1(1) of the Robbery and Firearms (Special Provisions) Act, 2004. Both learned counsel are correct in their submissions that the use of violence or threat of violence is an essential element of the offence to be proved by the prosecution beyond reasonable doubt in order to secure a conviction against the Appellant. See OKOBI VS. THE STATE (supra) and OTTI VS. STATE (supra) cited by the Appellant. In considering whether this ingredient of the offence has been proved, the learned trial Judge (in pages 179-180 of the record) relied on the evidence of PW1 and PW2 and Exhibit ‘9’, which he found to be unchallenged under cross-examination, and he held that: “By Section 11 of the Robbery and Firearms (Special Provisions) Act, the interpretation of robbery is stealing anything and at or immediately before or after the time of stealing it using or threatening to use 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. Why did the accused person drive away the MAXZDA 626 belonging to the PW1 so recklessly without regards to the life and limbs of PW1? The answer is simple. That violence was to enable him (the accused) to obtain and retain the vehicle in question. Was there the intention to deprive PW1 of his car? The evidence of PW2 is that it was recovered in Port Harcourt from the ultimate buyer who displayed it at a car stand. I have also carefully considered the testimonies of the prosecution’s witnesses and the documents they relied upon on record. PW1 in his evidence contained in pages 114 to 115 of the record, gave vivid description of how the Appellant actually zoomed off with the car while he was yet to completely enter the passenger’s seat as a result of which he rolled off the high and was severely wounded and was hospitalized. He was discharged from the hospital after a week, which indicated the seriousness of his injuries. He tendered the photographs of him showing the injuries he sustained during the incident. The violence envisaged by Section 15 of the Robbery and Firearms Act is not just armed violence, but include any other act of violence aimed to overcome resistance from stealing of the property in issue. In this case, the way and manner the Appellant zoomed off after stealing the car, while part of the body of PW1 was in the car, thereby forcing PW1 out of the car to roll violently on the highway was definitely meant to overcome any resistance that PW1 could put to the stealing of his car by the Appellant. It is also clear from the record of appeal that the prosecution’s evidence regarding how the car was stolen was not challenged under cross-examination. The learned trial Judge was therefore justified to accept it as proof of the element of violence of the offence of robbery. I affirm a stamp of approval to the findings of the learned trial Judge reproduced supra same having been amply supported by evidence on record and nothing has been shown to us to justify interfering with that finding of fact.” Per SHUAIBU, J.C.A.