TIMOTHY V. THE PEOPLE OF LAGOS STATE: On whether conditional appropriation of chattel constitutes stealing; An insight into the decision of the Supreme Court therein.

Citation: (2021)11 N.W.L.R PT. 1787 AT 258.

Courtesy: Moruff O. Balogun Esq.

Summary of facts:

The appellant joined the Nigerian Navy in 2002. On 1st August 2008, he was arrested for an alleged crime of armed robbery, which occurred on 5th July 2008 along Isolo Expressway, Lagos State. The appellant was alleged to have committed the said offence while armed with a rifle and in company of two other naval personnel who were armed with knives.

The respondent’s case was that PW1 imported some vehicles and goods into Nigeria which were cleared at the Apapa Wharf on 5th July 2008. The vehicles comprised a 2003 Honda Pilot jeep, a 2002 Toyota Sienna and a 2002 Toyota 4Runner Jeep, in which were laptops, computer accessories and other valuables. While PW1 and his agents, including PW2 and PW3, were driving the vehicles to his office at Ikeja from Apapa Wharf, the Toyota 4Runner Jeep ran out of fuel and the team stopped along Apapa-Oshodi Expressway. While they were making plans to tow the jeep away, some hoodlums started to harass them. The appellant and the two other naval personnel intervened and chased the hoodlums away.

Having chased the hoodlums away, the appellant and his two naval colleagues demanded that they must be compensated for their effort and timely intervention. PW1, PW2 and PW3 offered some money in appreciation to the appellant and his two colleagues which they collected, but insisted that the amount was too small and insufficient. PW1, PW2 and PW3 could not immediately meet their demands then the appellant and his colleagues seized the Toyota 4Runner Jeep, together with the items in it. The appellant and his colleagues gave PW1, PW2 and PW3 a telephone number through which they could be contacted.

The appellant and his colleagues spoke with PW1, PW2 and PW3 on phone and insisted on their demand for more compensation, claiming that the money was for the bullets expended in chasing away the hoodlums and that the bullets must be replaced. Afterwards, they broke off their communication with PW1, PW2 and PW3.

PW1 reported the matter to the police. In the course of investigation, the police gave the number to an undercover policewoman who, using the same phone number, established contact with the appellant. Both agreed to meet at a specified spot. The
appellant came to the agreed spot where he was arrested by police officers from nearby police station. By some conspiratorial arrangement, the appellant allegedly escaped from police custody.

The appellant was subsequently re-arrested and the Nigerian Navy was duly contacted. Consistent with military tradition, the Navy organised an orderly room trial and he was subsequently handed back to the Panti Police Station for further investigation and necessary action.

An identification parade was conducted at Naval Base, Ojo and the appellant was identified by PW2 and PW3 from amongst twenty Navy personnel. PW1, PW2 and PW3 picked out the passport photographs of the other two absconding accomplices of the appellant from forty passport photographs of Navy personnel displayed at an identification parade at the Naval Base. All three of them also identified the official Navy Peugeot vehicle used on 5th July 2008, by the appellant and his accomplices.

The Toyota 4Runner Jeep and the items therein were never recovered. Also, the appellant’s colleagues had disappeared and appeared to have escaped from justice.

In the appellant’s defence, DW1, the appellant’s cousin, stated that the appellant was with him on 5th July, 2008. However, under cross examination, he stated that on the day of the incident, he was not with the appellant throughout the day.

In his testimony, the appellant denied the allegation and stated that he was not at the scene of crime on 5th July 2008 but that he was with his cousin. He admitted that an identification parade was done at the Naval Base but stated that PW2 and PW3 could not identify him. He confirmed that he did not inform the police on 1st August, 2008 when he wrote his statement that he was with DW1 and DW4 on 5th July 2008.

DW3 testified that she is the appellant’s mother and that the appellant was a good boy with good behaviour. Under cross examination, she stated that she was not with the appellant on 5th July 2008 and that she did not know what happened on that day. DW4 testified that the appellant was with him on 5th July 2008 and that the appellant and DWI did not go out of the house that day.

At the conclusion of trial, the trial court held that the prosecution proved its case beyond reasonable doubt against the appellant and convicted him of armed robbery punishable under section 402(2)(a) of the Criminal Code Law of Lagos State and sentenced him to death.

Aggrieved, the appellant appealed to the Court of Appeal. The Court of Appeal dismissed the appeal. Still aggrieved, the appellant appealed to the Supreme Court.

Held: Unanimously dismissing the appeal.

The following issues were raised and determined by the Supreme Court:

On whether conditional appropriation of chattel constitutes stealing –
It is not stealing where the manifested intent at the time of taking an item was merely to deprive the owner of the item temporarily. Mere conditional appropriation of a chattel is not theft. If the appropriator had in mind merely to deprive the owner of such property and upon examination, proves not worth taking, then finding the property useless to him, leaves it, ready to be handed over to the owner, he has not committed theft.

In the instant case, the appellant’s argument predicated on temporary taking of possession was hollow as there was no evidence to back up the submission. The defence did not plead any lawful temporary taking of the possession of the Jeep for any legitimate purpose. The Jeep seized from the PW1, PW2 and PW3 on 5th July 2008 had not been found, seen nor returned.

On meaning of lien –
A lien is a legal right or interest that the creditor has in another person’s property, lasting usually until a debt or duty that it secures is satisfied. The person who violently or menacingly extorts money from his victim cannot be the creditor of his victim. Lien is a possessory right exercised over a property until certain demands of the person in possession are satisfied.

In the instant case, the appellant’s counsel contended that PW1’s vehicle was taken away by way of lien for the sum demanded and that at that time, there was no intention to permanently deprive PW1 of it. However, the extortion which appeared as a violent demand for gratification, could not be regarded as of one enforcing the appellant’s legitimate right for the sum violently and illegally demanded. The instant case was a case of extortion and conversion. The argument that the car was taken or kept as a lien could not avail the appellant when there was no evidence that a contract existed between the PW1 and the appellant.

On how proof beyond reasonable doubt is established by prosecution –
Proof beyond reasonable doubt is not deduced by the number of witnesses called by the prosecution but by the quality of evidence it proffered. In the instant case, the quality of the evidence proffered by the prosecution effectively settled the question of proof and the prosecution proved its case beyond reasonable doubt. PW1, PW2 and PW3 were eye-witnesses, as well victims of the crime and their evidence was credible and uncontroverted and the appellant failed to discredit it during cross-examination.

On when defence of alibi will not avail accused –
The defence of alibi fails when the offence was committed and the accused could not have been elsewhere. In the instant case, PW1, PW2 and PW3 placed the appellant at the scene of the crime and identified the appellant during an identification parade at the Naval Base Ojo Cantonment, without hesitation. The appellant never gave evidence as to his whereabouts at that particular time on the night of the robbery, likewise the witnesses called by the appellant. Considering the disjointed stand of the defence with the evidence proffered by the prosecution witnesses which pinned the appellant at the scene of crime at the material time, thereby logically and physically dislodged the alibi.

On duly on accused raising defence of alibi -.
There is an obligation on an accused in raising the defense of an alibi to do so with the necessary particulars to enable the prosecution carry out the duty of confirming the alibi or debunking the defense. It is not just enough for an accused to say he was not at the scene when the crime was committed. In the instant case, though the appellant raised the alibi timely, he had an obligation to do so with the necessary particulars.

Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
09121207712 [WHATSAPP]

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