HARUNA JIMOH AYOMITAN v. THE STATE (2018)

HARUNA JIMOH AYOMITAN v. THE STATE

(2018)LCN/11798(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of June, 2018

CA/IL/106C/16

RATIO

THE OFFENCE OF CONSPIRACY

The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other, and concluded agreements can be inferred by what each person does, or does not do in furtherance of the offence of conspiracy. per CHIDI NWAOMA UWA, J.C.A.

TO PROVE CRIMINAL CONSPIRACY, CRIMINAL DESIGN MUST BE COMMON

In order to prove conspiracy, it is not necessary that there should be direct communication between each conspirator and every other, but the criminal design alleged must be common to all. Indeed one conspirator may be in one town and the other in another town and they may never have seen each other but there would be acts on both sides which would lead the jury or the judge sitting alone to the inference. per CHIDI NWAOMA UWA, J.C.A.

UNCORROBORATED CONFESSION GROUNDS CONVICTION

It is settled law that confession alone is sufficient to support conviction without corroboration so long as the Court is satisfied of the truth of the confession per CHIDI NWAOMA UWA, J.C.A.

THE STRENGTH OF A CONFESSION

A confession is the strongest evidence, which is stronger than that of an eye witness because the evidence is from the accused himself, first hand, who is able to state the incident as it happened, once it is positive, direct and voluntarily made without corroborative evidence, as long as the Court is satisfied as to the truth of the confession per CHIDI NWAOMA UWA, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

Between

HARUNA JIMOH AYOMITAN Appellant(s)

AND

THE STATE Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment):

The appeal is against the judgment of the High Court of Kwara State, presided over by I.A. Yusuf, J, delivered on the 12th day of May, 2014. The trial Court convicted the Appellant for the offences of attempted armed robbery and conspiracy to commit armed robbery and sentenced him to fourteen (14) years imprisonment on the offence of attempted armed robbery and seven (7) years imprisonment on the second count of conspiracy to commit armed robbery. The appellant was discharged on the offence of being a member of a secret cult.

The background facts are that the appellant and two others were arraigned before the High Court on a three count charge of conspiracy to commit armed robbery contrary to Section 97 of the Penal Code, Attempted Armed Robbery, contrary to Section 2 (a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap.R11, VOL.14, Laws of the Federation of Nigeria, 2004, being a member of a secret cult punishable under Section 11 (1) of the Secret Cult and Secret Societies in Educational Institution (Prohibition) Law 2004. The Appellant pleaded not guilty to the charges. The Respondent called six (6) witnesses and closed its case. The appellant gave evidence in defence but, did not call any witness.

The Appellant contended that the prosecution alleged that the PW2 was stabbed with a knife but the knife was neither listed nor produced in Court which was said to be enough to quash the conviction and sentence imposed on the appellant. The appellant who was unhappy with his conviction and sentence appealed to this Court. The following two issues were formulated for the determination of the appeal.
1. Whether the learned trial judge was right in his appraisal of the evidence before him which led to the conviction of the Appellant for the offence of attempted robbery. Grounds 1, 3, 4 & 5.
2. Whether from the totality of the admissible evidence, the learned trial judge was right to have convicted the Appellant with the offence of conspiracy to rob Mr. Iwanchukwu. Grounds 2 & 6.

The Respondent on its part formulated a sole issue for the determination of the appeal thus:
Whether by the evidence available before the trial Court, the trial judge was right to have convicted the Appellant for the offences of conspiracy and attempted armed robbery for which the Appellant stood trial.

In arguing his first issue, the learned counsel to the Appellant, Femi Olorunfemi appearing with Fayokemi Oladele relied on his brief of argument filed on 31/3/17 as his argument in this appeal in urging us to allow the appeal and quash the conviction and sentence of the Appellant by the trial Court. It was submitted that the burden is on the prosecution to prove the offence against an accused person beyond reasonable doubt and that the burden does not shift. Reliance was placed on Sections 36 (5) of the 1999 Constitution as amended and 136 of the Evidence Act, 2011 as amended. See SHEHU VS. STATE (2010) 8 NWLR (PT 1195) 112 at 137.

It was alleged that the learned trial judge did not properly evaluate the evidence before him before convicting the Appellant of the offences charged as there was no direct evidence showing that the Appellants mission in the house on the said date was to rob PW2 and PW3 in line with Section 2(a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004 (hereafter referred to as the Act). It was the contention of the learned counsel that for the prosecution to succeed, it must prove that the Appellant intended to steal from the PW2 and PW3 and the intention must be manifested by the use of assault on the PW2 and PW3. The assault must also be carried out with a threat to use actual violence in order to obtain the thing intended to be stolen. It was argued that the Appellants piece of evidence that he accompanied Idowu Lukman to the premises of PW2 and PW3 where he was arrested, to settle the issue of clippers which the PW2 was said to have bought from Idowu was not challenged and also not controverted. It was argued that the Appellant had no iota of intention to steal from the PW2 and PW3. It was submitted further that the evidence of the prosecution witnesses PW2, PW3 and PW4 are inconsistent and contradictory, for instance, that the PW2 stated that he was stabbed with a knife in his proof of evidence but, in his evidence in chief he said, he was stabbed with a dagger. It was submitted that the dagger or knife was not produced and no medical report was tendered. Further, on contradictions in the evidence of the prosecution witnesses, it was submitted that while the PW2 who was said to have been stabbed testified in Court that his brother (PW3) had taken him to the hospital before the arrival of the police (PW4 and PW5), the evidence of the PW3, PW4 and PW5 was that they took the PW2 to the Teaching Hospital. We were urged to discountenance the evidence of these witnesses. See AKINFE VS. THE STATE (1988) 2 N.S.C.C. PT 11 PAGE 313 at 324, EYO VS. ONUOHA (2011) NWLR (PT 1257) PAGE 1 at 21 PARAS A B, ASARIYU VS. STATE (1987) 12 SCNJ 33, SUNDAY VS. THE STATE (2004) 6 SCNJ PAGE 110, PARAS 30 35, OLADOTUN VS. STATE (2010) 15 NWLR (PT 1175) 490 at 517, AUGUSTINE ONUCHUKWU & 2 ORS VS. THE STATE (1998) 4 NWLR (PT. 547) 546 at 590 and SHEHU VS. STATE (2010) 8 NWLR (PT 1195) 112 at 137.

It was submitted that the prosecution failed to prove any of the two charges for which the Appellant was convicted, attempted armed robbery punishable under Section 2 (a) and (b) of the Act and conspiracy to commit armed robbery contrary to Section 97 of the Penal Code. It was argued that the presence of a person at the scene of crime is not sufficient to clothe him with guilt. See OMOGODO VS. STATE (1981) 5 S.C. 5 PAGE 5 at PAGE 22. Further, that the evidence of PW4 and PW5 as to what the PW2 and PW3 told them is hearsay and therefore inadmissible to establish the truth of the statement and that the statement was denied by the appellant. See EKPO VS. THE STATE (2001) 7 NWLR PT. 712 PAGE 292 at 304.

It was the contention of the learned counsel to the appellant that the trial Court did not consider the defence put up by the Appellant. For instance, that the trial Court relied on the retracted statement of the appellant in convicting him when the appellant had testified that he was tortured, beaten up and forced to sign, which should have made the trial Court to look for evidence outside the statement which corroborates the confessional statement before his conviction. See NSOFOR VS. STATE (2004) 20 NSCQR 88 – 89. It was also submitted that the evidence of the PW2, PW3, PW4 and PW5 ought not to have been relied upon.

The evidence of the PW4 and PW5 was said to be hearsay. It was argued that the confessional statement was not corroborated to confirm the appellants involvement in the commission of the offences charged. The learned counsel to the appellant contended that the confession is not only impossible but inconsistent. See WILLIAMS VS. STATE (1992) NWLR (PT. 261) 515.

The appellants second issue challenged his conviction for the offence of conspiracy to rob one Mr. Iwanchukwu, under Section 97 of the Penal Code. It was submitted that the respondent ought to have proved that the appellant agreed to commit Armed Robbery and that such agreement is manifested by some overt acts of one or more accused persons in furtherance of the commission of the alleged armed robbery. Where the agreement is not proved that the appellant should be discharged. See CHIANUGO VS. STATE (2001) FWLR (PT. 74) PAGE 242 at 251.

It was the contention of the learned counsel to the appellant that conspiracy could not be inferred in the circumstances of this case in that the prosecution did not establish the mens rea of conspiracy. It was submitted that for the prosecution to succeed, the appellants knowledge of the factual circumstances which renders the object of the agreement unlawful must be established. It was stressed that the appellant had no knowledge of the factual circumstances for him to have been part of the crime alleged to have been committed with Idowu Lukman and Jordan. It was argued that the appellant did not know the mission of Idowu Lukman and Jordan at the house where the appellant was arrested, which should have created doubt in the mind of the trial Court. It was concluded that the evidence of the Appellant that he queried Jordan for putting off the generator at the house of the PW2 showed that there was no agreement amongst them to commit an offence, in this case, conspiracy to commit armed robbery.

In response, on behalf of the Respondent, the learned Solicitor General of Kwara State, Funsho D. Lawal appearing with Abdullahi Yusuf, Assistant Chief State Counsel, and M.T. Danzaki, Senior State Counsel, 1 Kwara State Ministry of Justice relied on her brief of argument filed on 1/6/17 but deemed filed on 4/7/17 as her argument in urging us to dismiss the appeal.

In arguing her sole issue, the learned Solicitor General agreed that at all times the prosecution carries the burden to prove the case against an accused person beyond reasonable doubt but that proof beyond reasonable doubt is not proof beyond all shadow of doubt. It was submitted that the prosecution proved its case beyond reasonable doubt as required by law as stipulated by the provisions of Section 2(a) and (b) of the Armed Robbery and Firearms (Special Provisions) Act, 2004. It was submitted that all the ingredients for the offences of attempted robbery and conspiracy were established; reference was made to the evidence of the PW2, PW3, PW4, PW5 and PW6 at the trial as well as Exhibit 9, pages 8 14 of the printed records of appeal, the statement made by the appellant, tendered by the prosecution. See IBRAHIM VS. THE STATE (1995) 3 NWLR (PT. 381) 35 at 46 and AMINU VS. STATE (2005) ALL FWLR PT. 933 at 946 947. Further, that Exhibits 9 and 9A clearly show that the appellant and the other two persons at large (Idowu Lukman and Jordan) agreed to rob the house of the PW2 and PW3 on the invitation by Idowu Lukman who escaped from arrest from the scene with Jordan while the appellant was caught. The learned Solicitor General reviewed the incident that led to the arrest of the appellant at the scene to the effect that Idowu Lukman provided the toy gun held by the appellant while he was armed with the dagger/knife to be used for the operation. All three got into the premises of the PW2 and PW3 by climbing over the fence of the premises and started off by putting off a generator that was on, before the PW2 struggled with Idowu Lukman in course of which he got stabbed with the dagger. It was contended that the case of the prosecution at the trial was direct, cogent and unequivocal which shows clearly the appellants participation. Further, that contradiction in the evidence led by the prosecution can only affect conviction when doubt is raised as to the guilt of the accused person. See AKPAN VS. THE STATE (2008) 8 SCM 68 and THE STATE VS. AZEEZ & ORS (2008) SCM 175. The appellant and the two persons at large were argued to have been in agreement for a specific mission.

It was argued that Exhibit 9 alone qualified to ground the conviction of the appellant even where it is retracted.

Further, that a prima facie case was established against the appellant who was arrested at the scene. See BELLO VS. THE STATE (2010) 12 (PT. 2) 5 SCM 28. It was submitted that the trial Court properly considered the retraction of the appellants statement and his defence alongside his evidence in Court as well as the evidence of the prosecution witnesses in arriving at his decision. See EGBOGHONOME VS. STATE (1993) 9 SCNJ. It was argued that the appellant did not deny the chain of events as stated by the prosecution.

Further, on the issue of the dagger/knife allegedly used to stab the PW2 not being recovered, it was argued that the prosecution is not under any obligation to tender any object used by the accused person during the robbery operation. Failure to tender the knife/dagger was said not to be fatal to the case of the prosecution once the ingredients of the offences have been established as in the present case. See OKUDO VS. STATE (2011) 3 NWLR (PT. 1234) P. 218; THE STATE VS. AJAYI (2016) 12 SMC 1 188, PAGE 123; RATIO 10 and OLAYINKA VS. STATE (2007) 9 NWLR (PT. 1040) 561 PP. 233 234.

We were urged not to believe the appellant that he did not know the mission of Idowu Lukman when he followed him to the scene of the crime. We were urged to dismiss the appeal.

The appellants two issues are covered by the respondents sole issue. I would determine the appeal by recouching the issues into a sole issue thus:
Was the trial Court right to have convicted the appellant for the offences of conspiracy and attempted armed robbery

With the offence of criminal conspiracy, both parties rightly defined conspiracy. The question is whether the prosecution proved the offence of conspiracy against the Appellant It is trite that a conviction for conspiracy can only be achieved by circumstantial evidence or by inference from other surrounding circumstances that would point to the accused persons guilt. The meeting of the minds of two or more persons which is the ingredient for the offence of conspiracy can be inferred; they need not meet and be in direct communication. The inference can be deduced from the acts of the conspirators. In the case of SHURUMO VS. THE STATE (2010) LPELR 3069 (SC) PP. 37 38, PARAS. EA (also reported in (2010) 19 NWLR PT. 1226, P. 73) his Lordship Rhodes Vivour, JSC explained when the offence of conspiracy would be said to be complete thus:
The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other, and concluded agreements can be inferred by what each person does, or does not do in furtherance of the offence of conspiracy.
Earlier, his Lordship Ogwuegbu, JSC similarly, in ERIM VS. STATE (1994) LPELR 1159 (SC) (also reported in (1994) 5 NWLR PT. 346, P. 522) held that:
In order to prove conspiracy, it is not necessary that there should be direct communication between each conspirator and every other, but the criminal design alleged must be common to all. Indeed one conspirator may be in one town and the other in another town and they may never have seen each other but there would be acts on both sides which would lead the jury or the judge sitting alone to the inference. See R.V. MEYRICK & ANOR 21 CR. APP. R. 94: QUEEN VS. ESEGE (1962) 1 SC NLR 189; (1962) 1 ALL NLR 110; OYEDIRAN VS. REPUBLIC (1967) NMLR 122; and HARUNA & ORS VS.THE STATE (1972) ALL NLR 73 (Reprint) (1972) 8 9 SC. 172.
See alsoODUNEYE VS. THE STATE (2001) 5 NSCQR 1 at PAGE 11.
The learned counsel to the appellant had erroneously argued that there was no evidence from which it could be inferred that the appellant and other persons (his friends at large) reached an agreement anytime and anywhere to establish the mens rea of the offence of conspiracy. It was argued that the appellant had no knowledge of the intention of his friends Lukman Idowu and Jordan that night they went to the house of PW2 and PW3. From the content of Exhibit 9, the Appellant gave a clear account of his involvement in planning their movement and proposed activity at the house of PW2 and PW3 that night. He made it clear that he was invited by his friend Idowu Lukman and he agreed to follow him to the house of the PW2 and PW3, he gave account of how Lukman gave Jordan a Pink T Shirt to wear over the white singlet he was wearing and also gave him (appellant) an army/green woolen cap as a mask that he wore to cover up. The Appellant stated that he and Lukman gained entrance into the premises of PW2 and PW3 by climbing over the fence into the compound and were to let in Jordan through the gate. Also, on getting into the house, their first action was to turn off the generator that was on and Lukman seized his phone and put it off when he wanted to make a call and gave it to Jordan to hold, to prevent the light from the telephone announcing their presence in the premises. The appellant also gave a clear account of the fact that Lukman was armed with a dagger while he (appellant) had a toy gun in his hand with which to frighten the occupants of the house, further the appellant gave an account of how Lukman stabbed the PW2 with the dagger that he had, on the stomach to enable him (the appellant) to escape with him, also details of the struggle with the PW2. Lukman scaled the fence and escaped with Jordan. The appellant was unable to climb out of the premises through the fence and not having shot the PW2, the PW2 found out it was a toy gun and struggled with the Appellant who was over powered by the people around and later handed to the police. I will hereunder reproduce portions of the appellants extra judicial statement to the police-
Idowu Lukman then gave one pink coloured T-Shirt to Jordan to wear it on top of his white coloured armless singlet he was wearing and Idowu Lukman also gave me one Army/Green wool cap that I will wear during the robbery operation. Idowu Lukman then asked two of us to follow him and on getting to the front of one fenced house inside Irewole area, Ilorin Idowu Lukman told us to wait that after he might entered (sic) into the compound through the fence I should follow him while he will later opened (sic) the gate for Jordan
So when Idowu Lukman climbed fence and jumped into the compound, I immediately followed him by climbing the fence and jumped inside.
As the generator was on we decided to go and off it before opening the gate for Jordan. So myself and Idowu then went to the back of the building where the generator was kept, Idowu then off the light from the socket on the wall connecting the house to the generator. After this Idowu now give me one black toy pistol to hold while Idowu Lukman wore his Green Coloured Wool Mask.
Further, in respect of their encounter with the PW2 who was sleeping on a chair in the corridor of their house who confronted the appellant and Lukman, the appellant continued thus:

The man went straight to the generator and off it and as he was going back Idowu Lukman and I then attacked him and ordered him to lie down but, he refused. So Idowu gripped him and asked him to lie down but, the man still refused so he ordered me to shoot the man. I pointed the black toy pistol at the man to frighetened (sic) him but as I did not shoot the man discovered it to be toy gun, so he held Idowu Lukman and he started shouting Thief! Thief. At this point Idowu Lukman brought out a dagger and stab the man in the stomach and he started bleeding. So Idowu Lukman asked me to climb the fence and jumped out. I tried it but I could not climb the fence. As I was trying to climb the fence Idowu Lukman was chasing the man with the dagger to enable me have chance to climb up and as I could not climb the fence and people were coming toward us Idowu Lukman then climbed the fence and jumped out leaving me behind. When Idowu Lukman was struggling with the man he stabbed the wool mask he wore was removed by the man. I was later overpowered by the people and the black toy pistol with me fell down. I was later handed over to Police Patrol Team with the black toy pistol and Idowu Lukman wool mask together with my Army/Green Coloured Wool Cap and my house key. That same night I took police team to the house of Idowu Lukman but he was not seen.
The appellants extra judicial statement was backed up by the admission/confession form which he signed, Exhibit 9A both were made the day following the incident in the night, when the events were fresh in his memory. The statement of the appellant is without doubt clear that he knew Lukman Idowu and Jordans mission at the house of the PW2 and PW3 in the night of the incident. The learned counsel to the appellant cannot rightly argue that the appellant did not know the purpose of their visit to the house of the PW2 and PW3. In the appellants evidence during trial, he made out that he followed Lukman to the house of the PW2 and PW3 to see someone who bought a clipper from Lukman and before then that Lukman had called him (Appellant) about his flash drive, are afterthoughts, made up stories on changing his mind after confessing to his involvement the night of the incident.

The Appellant and his friends at large planned their operation and set out to actualize same but ran out of luck and was caught before actualization of their mission and purpose, to rob the household of the PW2 and PW3. The fact that the appellant later changed his mind while giving evidence in Court to tell a different story is immaterial. The story of the clipper and flash drive told by the appellant is to escape from justice. It would not be in the interest of justice or the society for an accused person who confessed to his crime to walk away, out of Court a free man simply because he had a change of mind as to his confession. If it is allowed, the entire trial would be a mockery. See EGBOGHONOME VS. STATE (1993) 7 NWLR (PT. 306) 383 (1993).
It is not enough for an accused person who has positively and directly confessed participation in a crime in his extra judicial statement to the police to be exonerated because in his oral evidence in Court he denied participation. If this is allowed, every accused person after confessing his participation would come to Court and deny same and tell a different story from the one confessed, knowing that he would go free.

That would certainly be endangering our justice system. In the present case, the appellant was caught at the scene when his two friends ran away. He has not denied being caught at scene and has not denied being in company of the others at large. In the case of ACHABUA VS. STATE (1976) LPELR 63 (SC) at P. 8, PARAS. A C his Lordship, Obaseki, JSC on the state of the law concerning a confessional statement held that:
It is settled law that confession alone is sufficient to support conviction without corroboration so long as the Court is satisfied of the truth of the confession, (R V. SYKES 8 CR APP. R. 223, R V. KANU 14 WACA 30, EDET OBOSI VS. THE STATE (1965) NNLR 119, PAUL ONOCHIE & 7 ORS VS. THE REPUBLIC 1966 NNLR 307 and JIMOH YESUFU VS. THE STATE (1976) 5 SC. (67).
Also, reported in (1996) 12 SC. 63. See OKON DAN OSUNG VS. THE STATE (2012) LPELR 9720 (SC) (2012) ALL FWLR (PT. 650) P. 1226 at 1241, MUSTAPHA MOHAMMED VS. THE STATE (2007) 11 NWLR (PT. 1045) 303 at 310 321, MILLA VS. THE STATE (1985) 3 NWLR (PT. 11) 190, UBOS VS. THE STATE (1965) 1 NMLR 129, AJALUYI VS. THE QUEEN 15 WACA 34 and more recently, the Apex Court decision in ISAH VS. STATE (2017) LPELR 43472 (SC) PP. 11 12, PARAS. E F where the Supreme Court re-emphasized that the Court can convict solely on the confessional statement of an accused person. See also PETER ILIYA AZABADA VS. THE STATE (2014) ALL FWLR (PT. 751) 1620, PARA. 13. A confession is the strongest evidence, which is stronger than that of an eye witness because the evidence is from the accused himself, first hand, who is able to state the incident as it happened, once it is positive, direct and voluntarily made without corroborative evidence, as long as the Court is satisfied as to the truth of the confession. The trial Court was satisfied as to the truth of the appellants confession when at page 140 of the printed records of appeal, it held thus:
Without mixing word, there is admission of guilt of the offences charged in Exhibit 9 when an accused person voluntarily made a confessional statement which is positive and unequivocal, like in this case, it amounts to an admission of guilt and the accused person can be convicted solely on it. See IKEMSON VS. STATE (1989) 3 NWLR P. 55 @ 65; FATILEWA VS. STATE (supra).
Also, at page 141 of the printed records, the trial Court reviewed the contents of Exhibit 9 and found as follows; concerning the confessional statement:
The evidence is consistent with and corroborated by his oral, and the evidence of prosecution witnesses.
The learned trial Courts finding cannot be faulted. The contents of Exhibit 9 were confirmed by the evidence of the PW2 and PW3 to the effect that Lukman Idowu switched off the generator on gaining entry into the premises at night and escaped from the scene by jumping over the fence of their house. Also, the fact that Lukman wore a mask which fell off and was recovered from the appellant from the scene with the toy gun that the appellant had which were tendered as Exhibits 1 and 2 respectively. The PW2 saw Lukman Idowu escape with Jordan while the appellant was unable to scale the wall and was caught at the scene.

These are facts outside the confessional statement which were not denied by the appellant. The PW5 was one of the policemen that responded to the distress call from the Police Headquarters to whom the appellant was handed over to, with a toy gun and two masks at the scene of the crime. The PW4 was also present when the call was made. Similarly, the evidence of the PW6, a mechanic that lived within the area of the incident gave clear evidence in line with Exhibit 9, thus confirming the contents. When he heard the alarm raised by the PW2, he came out of his house, saw the appellant and his two friends who were on the fence; he was also amongst those that alerted the police. He saw the wounded victim PW2 who was bleeding on the stomach.
From Exhibit 9 and the evidence of the prosecution witnesses the appellant and his friends at large entered the premises by climbing over the fence into the premises of PW2 and PW3. At the point of such entry, the appellant should have been cautioned that their mission on the invitation of Lukman (as alleged) was an unlawful one. Why would he go to demand money for a clipper and give a flash drive to his friend by entering the premises by scaling a fence at about 10.00 pm Lukman also left the premises by the same means he came in by climbing over the fence. The appellant would have also left the same way if he was able to climb out. The argument of the learned counsel to the appellant that he did not know their mission when he accompanied his friends to the house of the PW2 is not tenable. The Appellant knew the purpose for which they went to the house of the PW2 and PW3 on 25th July, 2011 at night. I hold that the prosecution proved the offence of conspiracy to commit armed robbery against the appellant.

On the charge of attempted armed robbery, to succeed in proof of a charge for attempted armed robbery, the prosecution must prove the following ingredients:
1. That, there was an attempt to rob by the accused but, he was stopped in the process or that he attempted to abet the commission of the offence.
2. That the accused was armed or was in the company of any person who was armed.
3. That the accused in the attempt did some act not of an ambiguous kind, directly towards the commission of the offence charged.

I have earlier in this judgment while considering the offence of conspiracy found that the appellant had the intention and conspired with his two friends at large to rob the PW2 and PW3 in their house but, for the confrontation by the PW2 and PW3, also the intervention of their neighbour PW6 and the police who later came to the scene following the distress call, PW4 and PW5 respectively. From the evidence of the prosecution witnesses earlier highlighted and the contents of Exhibit 9, the appellant had acted in a manner that is fully connected with the commission of the substantive offence. If the PW2 had not found out that what he had was a toy gun when he could not shoot the PW2 or PW3, when ordered to do so, the substantive offence would have been completed if he was not stopped. Thereafter, Lukman stabbed the PW2 on the stomach and took to his heels to enable the appellant escape from the scene by scaling through the fence but the appellant could not and that gave the PW2 and PW3 time to fight back by holding back the appellant and raising alarm which brought other people to the scene. The appellant did not deny that Lukman was armed with a knife and stabbed the PW2 on the stomach before escaping. It does not matter that he was not armed with any offensive weapon or firearm, what matters is that he was in the company of Lukman who was armed while attempting to rob at the premises of the PW2 and PW3. See OKON DAN OSUNG VS. THE STATE (2012) LPELR 9720 (SC); (2012) 18 NWLR (PT. 1322) P. 256. A threat to use violence to obtain or retain whatever would be stolen in the case of attempted armed robbery or to prevent or overcome resistance to the act of stealing or retaining the loot, suffices. See EDET ASUQUO BASSEY VS. THE STATE (2012) LPELR (7813) (SC); (2012) 12 NWLR (PT. 1314) P. 209 and OKOBI VS. STATE (1984) LPELR 2453 (SC). The argument of the learned counsel to the appellant that it was not the appellant that stabbed the PW2 is not tenable. Also, the lame argument that there are contradictions in the evidence led by the prosecution witnesses as to whether it was a dagger or a knife that the PW2 was stabbed with. A dagger and/or a knife, both are dangerous weapons.

The Appellant did not deny that the PW2 had a cut/wound on his stomach following the struggle with the appellant when caught at the scene and that his friend at large (Lukman) inflicted the injury. Further, the alleged contradiction as to who was present when the PW2 was taken to hospital for treatment following the cut on his stomach is immaterial, it does not matter who had arrived at the scene then and who had not, the important thing is that the PW2 sustained the injury at the scene of the attempted armed robbery at their house in the night of the incident, inflicted by Lukman in the presence of the appellant.
It is evident from the evidence of the PW2, PW3, PW4 PW5 and PW6 and the contents of Exhibit 9 that the Appellant, Lukman and Jordan agreed to rob the house of the PW2 and PW3, the appellant armed with a toy gun while Lukman had a dagger/knife to be used for the operation. As reviewed earlier in this judgment, the appellant and his colleagues gained entry into the premises by climbing over the fence and on getting in, turned off the generator to conceal their presence. The learned counsel and/or the appellant offered no explanation as to why one going for a legitimate visit to collect money for a clipper and/or to deliver a flash drive to a friend would choose to do so not using the gate entrance but decide to climb over the fence at night and turning off the generator. The Appellant and Lukman engaged the PW2 in a fight or struggle while trying to escape until the PW3 came to assist the PW2 while Lukman stabbed the PW2 with a knife to enable the appellant escape.
On the issue of contradictions in the evidence of the prosecution witnesses, contradictions can be described as opposites of the other. Contradiction, when it occurs in the evidence of the prosecution, can only affect conviction where it raises doubt as to the guilt of the accused. In this case, it is immaterial whether the PW2 was stabbed with a knife or dagger, he was stabbed with a dangerous weapon and that is all that matters. There was no contradiction as to whether he was stabbed on the stomach or not, who was present and who accompanied the PW2 to the hospital is also not material. What is important is that he was stabbed on the stomach in the encounter with the appellant and his colleagues at large and was taken to hospital for treatment. Minor discrepancies do not go to the root of the matter. See OLUWATOYIN ABOKOKUYANRO VS. THE STATE (2016) LPELR 40107 (SC), GABRIEL VS. THE STATE (1989) 5 NWLR 457 and UWAGBOE VS. STATE NCC 3 PAGE 636, IREGU EJIMA HASSAN VS. THE STATE (2016) LPELR 42554 (SC), SAMUEL ATTAH VS. THE STATE (2010) LPELR 597 (SC) UWAEKWEGHINYA VS. THE STATE (2005) 3 SCNJ 32 and OGBU VS. THE STATE (1992) 8 NWLR (PT. 259) 255. The argument that the prosecution witnesses contradicted themselves when the PW2 and PW3 were differently mentioned to have been stabbed. This argument holds no water when it is obvious and the appellant did not deny or testify that the PW2 was not the person stabbed before Lukman his colleague ran away from the scene and that the PW3 accompanied the police to take him to hospital for treatment. I hold that there were no contradictions in the case of the prosecution.

The learned counsel to the appellant had argued that the knife/dagger allegedly used to stab the PW2 was not tendered. It is not always necessary to tender the weapon used by an accused in a robbery operation, in this case attempted armed robbery, therefore the non-tendering is not fatal to the case of the prosecution where the ingredients of the offence have been held to have been established. The prosecution is not duty bound to produce the knife with which the PW2 was stabbed or to tender same in evidence. In most cases, the assailants take to their heels with the weapon of threat or attack. The fact that the prosecution did not tender the knife used to stab the PW2 on the stomach did not in any way water down the credible evidence adduced by the prosecution that, the appellant in company of his colleagues had done all that they needed to do to complete the commission of the substantive offence of armed robbery if he had not been caught and arrested at the scene. See FATAI OLAYINKA VS. THE STATE 30 NSCQR 149 AT PAGES 162 163; (2007) 9 NWLR (PT. 1040) 561 EHIME ESENE VS. THE STATE (2017) LPELR 41912 (SC) P. 41, PARAS. A E, JOEL ADAMU VS. THE STATE (2017) LPELR 41436 (SC) and PEOPLE OF LAGOS STATE VS. UMARU (2014) LPELR 22466 (SC) PP. 43 44, PARAS. D A.

I am of the humble view that the learned trial judge evaluated well the evidence before the Court before arriving at his decision which I cannot fault. The law is well settled that the appellate Court will not interfere with the findings of the trial Court, who saw and heard the witnesses unless it is perverse. I do not see any finding that is not supported by evidence which would make it perverse and that would lead to a miscarriage of justice. I also did not detect where the trial Court failed to follow or comply with any principle of law or procedure which would entail a reversal of the decision of the trial Court. See ENANG VS. ADU (1981) 11 12 SC 17 at 25; IGWE VS. STATE (1982) 9 SC 174, OSAYEMI VS. STATE (1966) NMLR 388 and JIMOH MICHAEL VS. STATE NCC 3, PAGE 666; (2008) 5 6 SC (PART II) PAGE 203. Since there is no reason to warrant an interference with the decision of the trial Court, the sole issue as reformulated is resolved against the appellant.

In sum, I find no merit in the appeal and dismiss it in its entirety. The judgment of the learned trial judge is hereby affirmed.

CROSS-APPEAL
The cross appeal is as a result of the decision of the trial Court in respect of the sentences meted out in the judgment of the High Court of Kwara State delivered on 12th May, 2014 by I.A. Yusuf, J, which has been appealed against, which gave rise to the cross appeal challenging the trial Courts discretion to vary the sentences on the accused persons conviction, to seven (7) years and fourteen (14) years imprisonment for the offences of criminal conspiracy to rob and attempted Robbery respectively pursuant to Sections 97 of the Penal Code and 2(a) and (b) of the Robbery and Firearms (Special Provisions) Act.
The background facts are that the Appellant as accused person was arraigned before the trial Court for a three (3) count charge of criminal conspiracy to rob, attempted robbery and being a member of a secret cult. The third count of being a member of a secret cult was contrary to Section 11 (1) of the Secret Cult Societies in Educational Institutions (Prohibition) Law, 2004. The appellant was found guilty on the counts of criminal conspiracy and attempted Armed Robbery and discharged and acquitted on the third count of being a member of a secret cult. In course of the delivery of the judgment, the trial Court called for allocutus in mitigation of the punishment for the offences. In the cross appeal by the prosecution, it has been contended that the offences carry a mandatory sentence for which allocutus would be of no moment and therefore not necessary. On allowing the allocutus urged by the learned counsel to the accused person (now Cross Respondent), the learned trial judge sentenced the Appellant to seven (7) years imprisonment for conspiracy and fourteen (14) years for attempted Armed Robbery as opposed to the mandatory sentence of life imprisonment upon the pronouncement of guilt and conviction of an accused person under the Robbery and Firearms (Special Provisions) Act, 2004 (hereafter referred to as the Act), thus the cross appeal in respect of only the sentencing part of the judgment.

The Cross Appellant distilled a sole issue for the determination of the Cross Appeal thus:
Whether the learned trial Judge has a right to exercise any discretion in the sentencing of the accused person for the offence of criminal conspiracy and attempted Armed Robbery under Section 2(a) and (b) of the Robbery and Firearms (Special Provision) Act under which the Accused person has been pronounced guilty and convicted as charged.

The cross respondent on his part also distilled a sole issue thus:
Whether the learned trial judge was right to have exercised his judicial discretion in the sentencing of the Appellant person (sic) for the offence of criminal conspiracy and attempted Armed Robbery.

In arguing the sole issue distilled in the cross appeal, the learned Solicitor General of Kwara State, Funsho D. Lawal appearing with Abdullahi Yusuf, Assistant Chief State Counsel and M.T. Danzaki, Senior State Counsel, 1, Kwara State Ministry of Justice relied on her brief of argument filed on 13/10/17 as her argument in the cross appeal in urging us to allow same in that the lower Court did not have the discretion to reduce the sentence on conviction of the Cross Respondent. In arguing the sole issue, it was submitted that Section 2 (a) and (b) of the Act is unambiguous and requires mandatory compliance without any exercise of discretion in mitigation of the prescribed punishment by the use of the word shall. It was argued that an allocutus ought not to remove the effect of the word shall in the pronouncement of sentence. It was the argument of the learned Solicitor General that the trial Court ought not to have reduced the punishment, reference was made to pages 114 148 of the printed records of appeal, to the effect that the offences of conspiracy under Section 97 of the Penal Code and attempted Armed Robbery had been proved by the prosecution beyond reasonable doubt and the trial Court thereafter found the cross respondent guilty of the two offences and convicted him. It was contended that having found the Cross Respondent guilty, the Court ought to have sentenced him as provided for in the Act and not exercise any discretion based on the allocutus made by learned counsel.

The discretion exercised by the trial Court was said not to have any basis in law and therefore null and void. See C.C.B. (NIG) PLC VS. A.G. ANAMBRA STATE (1992) 8 NWLR (PT. 261) 528, AMOSHIMA VS. STATE (2011) LPELR 471 (SC) PP. 21 22, PARAS. B C and F G, AFOLABI VS. STATE (2013) 13 NWLR (PT. 1371) PAGE 292 at 326, PARAS. F G and AFOR LUCKY VS. THE STATE (2016) 13 NWLR (PT. 842) PAGE 128 at 131.

In response, the learned counsel to the Cross Respondent Femi Olorunfemi appearing with Fayokemi Oladele relied on his brief of argument filed on 8/1/18, but deemed properly filed on 18/4/18, as his argument in urging us to dismiss the cross appeal. The learned counsel adopted the sole issue distilled by the Cross Appellant in response to the submissions of the learned Solicitor General. It was submitted that the learned trial judge was right to have exercised his judicial discretion in sentencing the Cross Respondent considering the allocutus made on his behalf. We were urged not to interfere with the trial Courts decision by substituting our discretion. See ENO VS. NIGERIA COPYRIGHT COMMISSION (2010) ALL FWLR (PT. 547) P. 604 at 627 628, PARAS. H A. It was further argued that the issue of sentencing is discretionary on the part of the trial Court and that all that is required is for the trial Court to state in its judgment the factors that influenced its decision. Reference was made to the cases of MUSA VS. STATE (2012) 3 NWLR (PT. 1286)

95, PARAS. F H, ISIANG VS. THE STATE (1996) 9 NWLR (PT. 473) 458, IGBOANUGO VS. THE STATE (1992) 3 NWLR (PT. 228) 176, APAMADARI VS. STATE (1997) 3 NWLR (PT. 493) 289 and ALAKE VS. STATE (1991) 7 NWLR (PT. 205) 567.

It was contended by the learned counsel that there is no laid down rule as to whether the word shall used in a statute carries mandatory or merely a directory connotation, that the real purport depends on the particular con in which it is used. See A.D.H. LT. VS. AMALGAMATED TRUSTEES LTD (2007) ALL FWLR (PT. 392) P. 1811, PARAS. A B. Also, OKPALA VS. DG., NATIONAL COMMISSION FOR MUSEUM & MONUMENTS (1996) 4 NWLR (PT. 444) 585 and ONIGA VS. GOVERNMENT OF RIVERS STATE & ANOR (2016) LPELR 40112 (CA). It was concluded that the use of the word shall in an enactment is capable of bearing many meanings, it may be implying futurity or implying a mandate or discretion or giving permission. We were urged to hold that the word shall used in Section 2(a) and (b) of the Act is not mandatory as canvassed by the learned Solicitor General.

The cross appellant in the cross appeal is only challenging the sentences meted out by the learned trial judge on the conviction of the appellant for the offences of conspiracy and attempted armed robbery under Section 97 of the Penal Code and Section 2 (a) and (b) of the Armed Robbery and Fire Arms (Special Provisions) Act, Cap R. 11, Laws of the Federation of Nigeria, 2004 respectively. No doubt the trial Court found the appellant guilty and convicted him for the two offences above when he at page 147 of the printed records held thus:
I am however satisfied from the overwhelming and believable evidence placed before the Court that the prosecution has established the ingredients of the offences of attempted armed robbery punishable under Section 2(a) of the Armed Robbery and Fire Arms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004 and conspiracy underSection 97 of the Penal Code against the accused person to the standard required in criminal cases, that is, beyond reasonable doubt. I found the accused guilty of the two offences, he is accordingly convicted.

It is apt at this juncture to reproduce the punishment provided under the statutes under which the appellant was charged and convicted. Section 97 of the Penal Code provides as follows:
97. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death or with imprisonment shall where no express provision is made in this Penal Code for the punishment of such a conspiracy be punished in the same manner as if he had abetted such offence.
While Section 2(a) and (b) of the Armed Robbery and Fire Arms (Special Provisions) Act (Supra) provide as follows:
2. (2) If-
(a) any offender mentioned in Subsection (1) of this Section is armed with any firearms or any offensive weapon or is in company with any other person so armed; or
(b) at or immediately before or immediately after the time of the assault the said offender wounds or uses any other personal violence to any person, the offender shall upon conviction under this Act be sentenced to imprisonment for life.

On the conviction of the appellant having been found guilty of criminal conspiracy and attempted armed robbery, the learned trial judge at page 148 of the printed records while sentencing held thus:
I have carefully considered the allocutus made on behalf of the convict by his counsel. On the first count of conspiracy, I hereby sentence the convict, Haruna Jimoh Ayomitan, to seven years imprisonment and on the second count of attempted armed robbery, you are sentence (sic) to 14 years imprisonment. The sentences are to commence from July 25, 2011 when he was arrested.
The operative words under the section the appellant was charged are:
the offender shall upon conviction under this Act be sentenced to imprisonment for life.
(underlined mine for emphasis).
In the interpretation of statutes, the words used must be given their ordinary meaning to give full effect to the intention of the legislature. A Court of law ought not to interpret a statute in its own way, in other words rewriting the statute. Where the word shall is used in a statute such as the Robbery and Firearms (Special Provisions) Act under which the appellant was tried and found guilty, the word is usually interpreted in a mandatory manner. The word is usually used to denote or express a command of a mandatory nature. See ONOCHIE VS. ODOGWU (2006) 6 NWLR (PT. 975) 65; MOKELU VS. FED. MIN. FOR WORKS & HOUSING (1976) 3 SC 35; AROYEWUN VS. ADEBANJI (1976) 11 SC 33; AMOKEODO VS. I.G.P. (1999) 6 NWLR (PT. 607) 467 and CHIEF AWOLOWO VS. ALHAJI SHAGARI (1979) 6 – 9 SC PAGE 51.
Following the allocutus of the learned counsel to the appellant at the trial Court, the learned trial judge at his discretion reduced the sentences. In the charge, there is a mandatory sentence for each of the offences. Where there is a mandatory sentence imposed, the Courts have no jurisdiction to impose anything less than the mandatory sentence, as no discretion exists that could be exercised in the matter. The sentence must be pronounced as provided without any reservation or sentiment, the Court is duty bound to perform its role within the ambit of the law. On the duty of the Court to impose mandatory sentence, the Supreme Court in AMOSHIMA VS. STATE (2011) 14 NWLR (PT. 1268) PAGE 530 at PAGE 561, PARAS. A B, his Lordship Fabiyi, JSC held thus:
Where a mandatory sentence is provided as in this matter, same must be pronounced without any reservation. There is no escape route.
His Lordship Onnoghen, JSC (as he then was) in the above case also clarified the position of the law as to when and where the Court could exercise its discretion where the sentence is not mandatory but provides a minimum and maximum sentence. In AMOSHIMA VS. STATE (supra) at PAGE 553, PARAS A C thus:
The above situation is different from the one in which the statute provides for either the minimum sentence as in Section 1(1) of the Robbery and Firearms (Special Provisions) Act or the maximum sentence to be imposed. In either case, the Court is clothed with the discretion to either impose more than the minimum or less than maximum sentence prescribed.
On when the Court can reduce the prescribed sentence and when it cannot, his Lordship further at page 554, paras. A C held that: Where the sentence prescribed upon conviction in a criminal charge is a term of years of imprisonment, then some extenuating factors such as the age of the convict, whether he is a first offender etc, can be taken into consideration by the trial Judge in passing the sentence on the convict. Indeed, the trial Judge, in my humble view, has the discretion to employ these factors to reduce the years of sentence. But, in a charge, like the one at hand, where the sentence prescribed is Death only it is not within the competence of a trial Judge to exercise any judicial discretion to reduce the Death sentence to Term of Years. Let me say it loud that a Judge must always possess judicial discretion which he is to exercise only when the interest of justice so demands.
Further, on the duty of the Court in respect of a mandatory sentence the Supreme Court in AFOLABI VS. STATE (2013) 13 NWLR PAGE 292 at 326, PARAS. F G, per Peter Odili, JSC held that where:

The sentence is mandatory and does not admit of the discretion of the Court to reduce or to go backwards as to the commencement of the term of imprisonment in which the period spent awaiting trial up to the judgment day could be factored.
In the present case, the mandatory punishment under Section 2(a) and (b) of the Armed Robbery and Firearms (Special Provisions) Act is life imprisonment, nothing less was provided under the Act. The trial Court had no discretion to exercise as to reduce the sentences to fourteen (14) years and seven (7) years for attempted armed robbery and conspiracy respectively. Further, the trial Court had no power to backdate the commencement date to the date the appellant was taken into custody while awaiting conclusion of his trial. Commencement date of sentence is from the date of conviction.
As argued by the learned counsel to the appellant, the Court can use its discretionary power to reduce a sentence fixed by statute. Yes, but, in cases where, for instance the punishment has a minimum and/or a maximum sentence. The Court can rightly give the minimum sentence and not exceed the maximum or give less than the maximum whatever the case may be. The cases cited and relied upon by the learned counsel to the Cross Respondent fall under this category whereas, the cross appellants case here falls under convictions with mandatory sentences that cannot be discretionarily reduced by the trial Court. The Court cannot where a mandatory sentence is prescribed by law as in the instant case, life imprisonment; impose a lesser sentence of term of years. See BALOGUN VS. A G, OGUN STATE (2002) 6 NWLR (PT. 1029) 1, AKPODEE SIMON VS. THE STATE (2013) LPELR 21953 (CA) PP. 35 37, PARAS. F E and DANSO VS. FRN (2013) LPELR 20165 (CA).
This Court has the power to increase or reduce the sentence imposed by the trial Court depending on the circumstances of the case. In the instant case, the power to pass the appropriate sentence as mandatorily provided by law, which is life imprisonment. In the case of HENRY ODEH VS. FEDERAL REPUBLIC OF NIGERIA (2008) 13 NWLR (PT. 1103) P. 1; (2008) 3 4 SC P. 147 also reported in (2008) LPELR 2205 (SC) PP. 18 19, PARAS. E A his Lordship, Musdapher, JSC (as he then was) held thus:

The Court of Appeal would have the power to pass appropriate sentence permitted by law. See OVU VS. C.O.P. (1960) 5 FSC 124, (1960) SCNLR 251; OGIDI VS. C.O.P. (1960) 5 FSC 251; (1960) SCNLR 551; NWOBU VS. C.O.P. (1962) ALL NLR 382; (1962) 2 SCNLR 93. An Appeal Court may, where the ends of justice may be properly met, reduce or increase the sentence imposed by the trial Court. See also EKPEYONG VS. THE STATE (1967) ALL NLR 283. GANO VS. THE STATE (1968) 2 ALL NLR 352, MOHAMMADU VS. C.O.P. (1969) 1 ALL NLR 465. EKPO VS. THE STATE (1982) 6 SC 22.
The learned trial judge was wrong to have convicted the Cross Respondent of the offences of conspiracy and attempted armed robbery and reduced the sentences to seven (7) years and fourteen (14) years respectively. Also, to have made the effective date of the sentences to run from July 25, 2011 when the Cross Respondent was arrested. The trial Court had no power to exercise its discretion in the sentencing, where the sentence is mandatory, that is, life imprisonment. The resultant effect is that the appeal in respect of the sentences imposed by the learned trial judge succeeds.

In the final analysis, the sentences imposed by the trial Court was wrong, same is hereby set aside. Instead, I impose a sentence of life imprisonment for each of the charges of conspiracy and attempted armed robbery on the Appellant/Cross Respondent.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the draft Judgment of my learned brother CHIDI NWAOMA UWA, J.C.A. in the Appeal and Cross-Appeal in this case. I do agree with my learned brother that the Appeal lacks merit and in relation to the Cross-Appeal, when a statute provides a statutory minimum for an offence, a trial Judge is not permitted to impose a sentence below the statutory minimum. The discretion of a trial Judge in sentencing operates only when the statute provides for a statutory maximum in sentencing. In such a case, there is a degree of flexibility in the range of the sentencing pendulum between a discretionary minimum and a maximum sentence that could not be exceeded. In the instant case, it was wrong of the trial Judge to exercise any form of discretionary reduction in sentencing where the statute imposes a statutory minimum. For these and the fuller reasons contained in the lead Judgment of my learned brother CHIDI NWAOMA UWA, J.C.A. I also dismiss the Appeal and allow the Cross-Appeal. I abide with the consequential Orders

HAMMA AKAWU BARKA, J.C.A.: Having studied the arguments and the record of appeal and Cross appeal, and diligently studied the case law cited by both counsel, I am satisfied with the resolution of the appeal and the Cross appeal in the lead judgment of my learned brother CHIDI NWAOMA UWA JCA. Whereas I see merit in the Cross appeal, the appeal in itself is bereft of same. In dismissing the appeal in its entirety, the Cross appeal is hereby allowed by me. I abide on all orders made in the lead judgment.

Appearances:

Femi Olorunfemi with him, Fayokemi Oladele – for Appellant/Cross RespondentFor Appellant(s)

Funsho D. Lawal, Solicitor General of Kwara State with him, Abdullahi Yusuf, Assistant Chief State Counsel and M.T. Danzaki, State Counsel 1, Kwara State Ministry of Justice – for Respondent/Cross Appellant.For Respondent(s)

Appearances

Femi Olorunfemi with him, Fayokemi Oladele – for Appellant/Cross RespondentFor Appellant

AND