KEHINDE AJIBOYE v. THE STATE (2019)

KEHINDE AJIBOYE v. THE STATE

(2019)LCN/13126(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 17th day of April, 2019

CA/AK/178CA/2016

RATIO

CONSPIRACY: DEFINITION

CONSPIRACY: WHEN IS IT ESTABLISHED OR PROVED
It is also settled that conspiracy is established or proved once it is shown by evidence that the agreement alleged is common to all the people and the proof of how they connected themselves is not necessary. It does not matter who started the criminal design once there is a meeting of the minds of the conspirators to commit an offence. It is also not necessary for all the parties to a conspiracy to be in contact with each other, what is necessary is that all the parties to the conspiracy have a common purpose communicated to at least one other person to the conspiracy. See SMART V. STATE (2016) LPELR 40827 (SC); ADELEKE V. STATE (2013) LPELR 20971 (SC) and BUSARI V. STATE (2015) LPELR 24279 (SC).PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

CONSPIRACY: CONSPIRACY IS A SEPARATE AND DISTINCT OFFENCE INDEPENDENT FROM ACTUAL OFFENCE

EVIDENCE: CONTRADICTORY EVIDENCE: THE EFFECT OF CONTRADICTORY EVIDENCE WHICH HAS A MINOR DISCREPANCY

Where pieces of evidence of witnesses is seen or alleged to contradict each other and the discrepancy is minor, the difference cannot destroy the credibility of the witnesses. it is not every inconsistency of the prosecution witnesses that is fatal to its case. It is only when such contradiction are fundamental to the case and create some doubt in the mid of the trial Court that an accused is entitled to benefit therein. See ASUQUO V. STATE (2016) 14 NWLR (PT. 1532) 309; OKANLAWON V. STATE (2015) 17 (PT. 1489) 445 AND OBAKOKUYANRO V. STATE (2016) 9 NWLR (PT. 1518) 520.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

EVIDENCE: MINOR DISCREPANCY IS INCAPABLE OF VITIATING A CASE

In other words, minor discrepancy is incapable of vitiating a case, as it will not constitute dents on a party?s case. See OLATINWO V. STATE (2013) 8 NWLR (PT. 1355) 126; EMEKA V. STATE (2014) 13 NWLR (PT. 1425) 614; MOHAMMED V. STATE (2014) 12 NWLR (PT. 1421) 387.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

EVIDENCE: WITNESS EVIDENCE: THE EFFECT OF WITNESSES GIVING EVIDENCE EVEN DOWN TO THE MINUTEST DETAILS

Where witnesses give evidence on the same matter to the exact minutest details, their testimonies will be treated with circumspect as they will be guilty of evidential tutorage. See GALADIMA V. STATE (2017) LPELR 43469 (SC); EGWUMI V. STATE (2013) LPELR 20091 (SC).PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

ALIBI: WHEN THE DEFENSE BECOMES OF NO MOMENT
The law is trite that once it is found as a fact by the Court that the evidence of the prosecution positively, unequivocally and irresistibly points to the guilt of an accused as in the instant case, the defence of Alibi becomes of no moment. See AJAYI V. STATE (2013) LPELR 19941 (SC); OSUAGWU V. STATE (2013) 5 NWLR (PT. 1347) 360; AGU V. STATE (2017) 10 NWLR (PT. 1573) 171.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

WITNESSES: TAINTED WITNESS: DEFINITION OF A TAINTED WITNESS

A tainted witness is a witness who is either an accomplice or who by the evidence he gives can be regarded as a person having some interest or purpose to serve. See ALI V. STATE (2015) LPELR 24711 (SC).PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

COUNTS: SEVERAL COUNTS MUST AMOUNT TO SEVERAL VERDICTS IN A CRIMINAL TRIAL

Where there are several counts on the same information as in the instant case, several verdicts must be delivered in respect of the several counts and the trial Court must pronounce its sentences separately on all the counts of the offence. See CLARK V. STATE (1986) 4 NWLR (PT. 35) 81.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

SENTENCING: SENTENCING IN A TERM OF YEARS COULD UNLOCK DISCRETIONARY CAPACITY OF THE COURT

It is trite that where the sentence prescribed upon conviction in a criminal charge is a term of years imprisonment, then extenuating factors such as the age of the convict or that he is a first time offender, can be taken into consideration by the trial Court in passing the sentences on the convict to exercise its discretion. But in a charge where the sentence prescribed only death, it is not within the competence of a trial Court to exercise its discretion to reduce the death sentence to a term of years. Also where a statute provides for either the minimum sentence or the maximum sentence to be imposed, the Court has discretion to either impose the minimum or maximum or less than the maximum sentence prescribed. See TANKO V. STATE (2009) 4 NWLR (PT. 1131) 430.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

JUSTICES

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria

Between

KEHINDE AJIBOYE Appellant(s)

AND

THE STATE Respondent(s)

RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State holden at Osogbo delivered by Hon. A. A. Aderibigbe J. on 22nd February, 2016. By an Amended Information filed on 11th February, 2013, the appellant and six others were charged for conspiracy to commit murder, murder, attempted murder, conspiracy to commit felony and assault occasioning harm contrary to and punishable under Sections 324, 319, 516 and 355 of the Criminal Code, Cap 34 vol. 2, Laws of Osun State 2002.

The case of the prosecution was that on 10th November, 2006, PW1 took permission from his place of work to go to Igbon to take his cheque book in order to withdraw money from Bank, but as he alighted from the motorbike in front of his house, he met a lot of people, there he was attacked by irate mob, seriously beaten and his clothes were torn. Upon getting into the house he saw his father who had equally been beaten and had machete cut on him particularly the left side of his head and on the hand. He further stated in his evidence that his brother?s wives were also attacked and beaten

i.e Maria Aremu and Iyabo Adegboye. He said he recognised among the attackers, Kamoru Olaleke, Olaleke Oguntola, Momoh Oyewumi, Ilufoye Olayode, Monanse Olayode and Kehinde Ajiboye. That he wanted to report the incident at Ejigbo but he did not, instead he escape through the bush and went to Osogbo to report at the State C.I.D but was told to go back that they would come the next day which they failed.

Upon the failure/refusal of the Police to attend to the report, a petition was written by his Lawyer to the Commissioner of Police. It was the letter that made the State Robbery Squad, Oke-Baale, Osogbo to go to Igbon, the scene of the Crime, where some of the attackers were arrested. He further said that there was no fracas before he left the house in the morning for his office. He said the machete cut on his father, Late Emmanuel Adegboye was deep that he took him to the nearby Health Centre at Ejigbo.

PW2 Mrs. Iyabo Adegboye stated that on 14th November, 2006, she was at home with her father in-law Late Emmanuel Adegboye when the attackers started throwing stones on the roof of the house. She and her father in-law, came out of the house to find out

what was happening, but on getting out they were seriously beaten. She said they were overwhelmed by the accused persons, dragged, beating her father in-law and she recognized the Appellant and other accused persons among the attackers. That her father-in-law was assaulted with machetes. They tore her cloths and that of Baba Adegboye and one Maria Aremu to the extent that, she, Iyabo Adegboye was left with ordinary pant on her. She identified her torn green Kampala clothes and marked as I.D 1 which was later marked as Exhibit P4 through PW4.
?
The 3rd prosecution witness is equally a victim of the attack, testified that she is Maria Aremu, that on 14th November, 2006 that she was one of those with her father in-law, Baba Adegboye. She said she was outside the house at about 12:00pm when the mob approached their house. She recognized the Appellant and one other accused person to be among those who attacked and beat them including Baba Adegboye and her child and got their clothes torn. She testified that they reported the case at the Police Station and the accused persons were arrested. She recognized her torn clothes which was marked Exhibit 3.
PW4

was the Investigation Police Officer, Corporal Adeniji Abdulahi attached to Force C.I.D Annex Alagbon, Lagos who said that he was serving at Special Anti Robbery Aquard, Oke-Baale, Osogbo, at the time when the case was being investigated. He gave evidence of the investigation conducted and tendered I.D.1 i.e. the torn Kampala of PW2, Iyabo Adegboye and marked Exhibit P4 and the Medical Report of the treatment of Late Emmanuel Adegboye dated 15th March, 2007 which was marked Exhibit P5 and tendered the statement of the accused persons respectively. Under cross-examination he gave evidence and explained further on the death of Late Emmanuel Adegboye as one of the victims of the attack.

The appellant pleaded not guilty to the counts, the trial Court had a full-scale determination of the case. In proof of its case, the prosecution fielded four (4) witnesses and tendered some exhibits. In defence of the case, each of the accused persons testified for himself and jointly called two witnesses.
The appellant as DW4 in his defence, stated that on the 14/11/2006, oneOba Azeez Olarewaju sent him and other people to harvest palm at Igbo Adi farmland. That while

at the farm suddenly some people from Otunla Asake family numbering about 50 came to the farm and attacked them but he did not attack any one of them neither did he go to any person house to attack or assault him that farmland. In his confessional statement Exhibit P8. Confessed that there was fight between his people and that of the complainant at farmland. That when the fighting started, he came down from a palm tree with his axe and join to fight the opponent before they ran away. That those visitors that came to help them fight were brought by Kabesi Chief Azeez Oyerele. At the closure of evidence, the parties, qua counsel, addressed the lower Court. In a considered judgment, delivered on 22nd February, 2016 seen at pages 184-197 of the printed record. The learned trial judge discharged the appellant and the three other accused persons on counts 1,2,3,6,7,10,11 and 12 but were convicted on counts 4,5,8 and 9 of the charge and sentenced respectively.

The appellant was dissatisfied with the judgment, hence on 11th April, 2016, the appellant filed a eight grounds of appeal found at pages 198-203 of the record. Thereafter, the parties filed and exchange

their respective briefs of argument in line with the rules governing the hearing of criminal appeals in this Court. The appeal was heard on 21st January, 2019.

During its hearing, learned counsel for the appellant, B. A. Akande Esq. adopted the appellant?s brief of argument filed on 6th June, 2017 as representing his argument for the appeal. He urged the Court to allow it. The respondent by leave of this Court granted on 21/1/2019 filed the respondent brief dated 23rd day of October, 2017, settled by Dr. Surajudeen Ajibola Basiru (A.G Osun State). Learned counsel for the respondent M. O. Adedokun Esq. adopted the respondent?s brief of argument filed on 24th October, 2017 and deemed properly filed on 21st January, 2019, as forming his reaction against the appeal.

The learned appellant?s counsel, in the appellant?s brief of argument, donated seven issues for determination to wit:
i. Whether or not the offence of conspiracy was proved against the Appellant before the lower Court warranting the conviction and sentencing of the Appellant.
ii. Whether or not the offence of Assault occasioning harm on the person of

Ademouejo Adegboye was proved.
iii. Whether or not the offence of Assault occasioning harm on the person of Maria Aremu was proved.
iv. Whether or not the offence of Assault occasioning harm on the person of Iyabo Adegboye was proved.
v. Whether or not the lower Court was right by overlooking the principle of law as enunciated in the case of AZEEZ VS STATE (2006) ALL FWLR (PT. 337) 485 by simply convicting the Appellant without warning himself of the danger of convicting the Appellant on the uncorroborated evidence of PW1, PW2, PW3 who are all members of the same family having a hostile and protracted land dispute against the Appellant?s family.
vi. Whether or not the lower Court correctly appraised the evidence before him especially the defence of the Appellant.
vii. Whether or not the sentence of the lower Court was not punitive excessive and wrong by the importation of irrelevant matter of farmers verses Fulani herdsman.

In the respondent?s brief of argument, learned counsel for the respondent distilled a lone issue for determination as follows:
?Whether the trial Court rightly convicted the appellant on

counts 4, 5, 8 and 9 having regard to the evidence before the Court.?

This appeal shall be decided on the issues formulated by the appellant. However, the appellant?s issues would be re-formulated and I think the resolution of these issues will meet the justice of the case it will therefore be my focus in this appeal. The issues are as follows:
1. Whether or not the offence of conspiracy was proved against the appellant before the lower Court to warrant the conviction and sentencing of the appellant.
2. Whether by the evidence adduced before the lower Court, the prosecution could be said to have proved its case beyond reasonable doubt.
3. Whether or not the sentence of the lower Court was punitive, excessive and wrong by the importation of irrelevant matter of farmers verses Fulani herdsmen.

ISSUE ONE
Arguing issue one, learned counsel, for the appellant submitted that conspiracy is a complete crime that can stand on its own even if an accused person is not convicted on the substantive offence he alleged to have committed. That the Court should evaluate the evidence to decipher whether conspiracy is expressly proved or

inferable from the evidence of prosecution.

Counsel submitted that the lower Court did not appraise the evidence of the prosecution before he believed it and hold that conspiracy have been proved. He urged the Court to hold that if the substantive offence was not proved then by extension, the appellant cannot be held liable for conspiracy to commit offence he knows nothing about, since he cannot conspire with himself. He cited the case of STATE V. AJAYI (2016) ALL FWLR (PT. 854) 1830.

Learned counsel contended that having regard to the unchallenged and uncontradicted evidence of DW4 which was confirmed by PW4, it cannot be true that there was a prior conspiracy to assault PW1, PW2 and PW3 as held by the lower Court. He urged the Court to resolve this issue in favour of the appellant.

For the respondent, learned counsel submitted that conspiracy in law is the agreement of two or more persons to carry out an unlawful act or do a lawful act by unlawful means. He cited ODUNEYE V. THE STATE (2001) 2 NWLR (PT. 697) 311 for the view. That the prosecution in proving its case called PW1, PW2 and PW3 who were not only an eye witnesses but the victims of

the crime that gave an unshacking evidence of how the appellant and the other co-accused persons conspired and assaulted them. He posited that from the evidence before the Court, there was confederation or agreement among the attackers of the victims on the faithful day to carry out an unlawful act.

Learned counsel postulated that the appellant was not only seen at the scene of crime but he was recognised/identified by one of the victims as the one among those who assaulted late Emmanuel Adegboye, Iyabo and Maria and she was equally beaten, tore her clothes and was stripped naked. He argued that the offence of conspiracy is usually inferentially deduced from the acts of the parties directed toward the commission of the offence. Counsel submitted that on a charge of conspiracy, the actual commission of the offence is not necessary to ground conviction for conspiracy. What is needed is the meeting of the minds which needs not be physical. He cited NWOSU V. STATE (2004) 15 NWLR (PT. 897) 466 and OBIAKOR V. STATE (2002) NWLR (PT. 776) 612 for the point.
?
He further submitted that by the credible evidence of PW1-PW4 coupled with Exhibits P3 and P4, the

prosecution has been able to prove the offence of conspiracy to commit assault occasioning harm against the appellant and urged the Court to so hold and resolve this issue in favour of the respondent.

RESOLUTION
The crux of the appellant under this issue is that the lower Court did not appraise the evidence of the prosecution before he believed it and hold that conspiracy have been proved.

Conspiracy is an agreement by two or more persons to do an unlawful act or to do a lawful act by illegal means. To establish the offence of conspiracy, there must exist a common design or agreement by two or more persons to do or omit to do an act. It is an offence that is often deduced or inferred from certain criminal act of the parties which is not usually by direct evidence of the meeting of the minds of the person concerned. See Friday v. state (2016) NWLR (pt. 1630) 238.
In the instant case, the appellant was charged under Section 516 of the Criminal Code Law of Osun State for the offence of conspiracy to commit felony among other counts. Section 516 provides a follows:
?Any person who while in Osun State conspires with another to do any

act in the state which if done in the state would be a felony against the law of the state and which is an offence against the law of the place where it is proposed to be done, is guilty of a felony and is liable, if no other punishment is prescribed, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable to less than imprisonment for seven years, then to such lesser punishment.?
?It is clear from this provision that the offence of conspiracy involves an agreement, express or implied by two or more persons to effect any unlawful, unauthorized act. The offence being the agreement between two or more persons is very seldom proved by direct evidence but by inferences drawn from the facts and circumstances of a particular case. It is also settled that conspiracy is established or proved once it is shown by evidence that the agreement alleged is common to all the people and the proof of how they connected themselves is not necessary. It does not matter who started the criminal design once there is a meeting of the minds of the conspirators to commit an offence. It is also not

necessary for all the parties to a conspiracy to be in contact with each other, what is necessary is that all the parties to the conspiracy have a common purpose communicated to at least one other person to the conspiracy. See SMART V. STATE (2016) LPELR ? 40827 (SC); ADELEKE V. STATE (2013) LPELR ? 20971 (SC) and BUSARI V. STATE (2015) LPELR 24279 (SC).

In the instant case, PW1, PW2 and PW3 who were victims of the crime gave evidence that they were attacked, beaten, injured and had their clothes torn and stripped naked by a mob including the appellant and the other accused persons. The appellant was identified as one of the accused persons who assaulted them. The accused persons admitted that the prosecution witness could not have mistaken them for another person because they both knew themselves very well. The appellant contended that it was the members of the complainant?s family that attacked them at the farmland in dispute and there was a fight at the farm but not that they were attacked at their house. The learned trial judge after evaluating the evidence before the Court, held that the prosecution has proved the count of

conspiracy against the appellant and the other accused persons.

The offence of conspiracy is a separate and distinct offence and is independent of the actual offence to which it is related. The law is that an accused person can be convicted of conspiracy even if he is not found guilty of the substantive offence to which it relates. See SALAWU V. STATE (2015) 2 NWLR (PT. 1444); ADAMU V. STATE (2017) 7 NWLR (PT. 1562) 459. Flowing from the totality of the evidence on record, it is clear that the appellant and three other accused persons had conspired and committed the offences as charged. The respondent has proved the case of conspiracy against the appellant and other accused persons beyond reasonable doubt. I am unable to fault the decision of the learned trial judge in this regard and I so hold.
Issue one is resolved against the appellant.

ISSUE TWO
Learned counsel submitted that the lower Court did not evaluate the evidence before the Court before reaching his decision. That there was no believable evidence from PW1, PW2 and PW3 that they were beaten, assaulted and wounded as claimed. That the date the PW1 alleged to have been assaulted

conflicts with the date on the charge and equally conflicts and contradicts with that given by the PW2 and PW3. This, said counsel, is fatal to the prosecution case. He cited STATE V. OGUNGBUNJO (2001) 5 NSCQR 27.

It was the submission of the counsel that PW1, PW2 and PW3 were the complainants and victims of the alleged assault, their evidence needs corroboration from an independent evidence. That their evidence cannot be used to corroborate the evidence of each other being an accomplice and tinted witnesses. He cited ODOFIN BELLO V. THE STATE (1967) NMLR 1 AT 3. He argued that there was no any independent evidence before the Court to corroborate the evidence of PW1-PW3. He submitted that there was a farmland dispute between the family of the appellant and that of the complainant PW1, PW2 and PW3 herein. That where it is shown that there is a land dispute between the parties, the judge must warn himself that it is unsafe to convict on such uncorroborated evidence. He cited AZEEZ V. STATE (2006) ALL FWLR (PT. 337) 485.
?
Counsel contended that save the evidence of PW1, PW2 and PW3 there was no untainted evidence that PW1, PW2 and PW3 or any other

person were attached and assaulted. Therefore, according to counsel, it was wrong for the lower Court to believed the evidence of the prosecution that PW1, PW2 and PW3 were attacked and assaulted by the appellant and other accused/convicts.

Learned counsel submitted that the appellant in his extra judicial statement alluded to the fight that erupted at the farm when the complainant?s family came to attack them. That nowhere the appellant admitted attacking the PW1-3 at their home. That the appellant had no competence to admit fact not written his knowledge. Learned counsel contended that the burden of proof in a criminal cases is on the prosecution throughout and it never shift the onus of proof from the prosecution and cast it on the defence to prove his innocence. He cited ANEKWE V. STATE (2014) ALL FWLR (PT. 744) 92 SC FOR THE POINT. It was submitted that there was no believable evidence before the lower Court to warrant the conviction of the appellant for assault occasioning harm, the prosecution therefore, said counsel, did not prove the offence of assault occasioning harm against the appellant in respect of counts 5, 8 and 9 on which he was

convicted. He urged the Court to resolve this issues in favour of the appellant.

Learned counsel for the respondent submitted that assault occasioning harm is the degree of causing and or inflicting injury on the victim by way of causing physical pain on the body of the victim. He referred and reproduced the evidence of PW1, PW2 and PW3 and that of the appellant and reasoned that the prosecution proved beyond reasonable doubt that there was assault occasioning harm on the victims. That the appellant confirmed that the prosecution witness could not have been mistaken him for another person because they knew each other for a very long time.

Learned counsel argued that there are cogent, direct and eye witness evidence that positively identified the appellant as one of the attackers who assaulted the victims at the scene of the crime. That PW1, PW2 and PW3 were not only eye witness but also victims of the incidence whose evidence remained unshaken. That they were assaulted beaten and stripped naked. He contended that there is no law that says a victim of an offence without more is a tinted witness. He cited OMOLOLA V. THE STATE (2009) 3 SEM 147.<br< p=””

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Counsel submitted that contrary to the contention of the appellant, the trial Court extensively considered and evaluated the available evidence before the Court, he referred the Court to pages 193-194 of the record. Counsel opined that there is no doubt on the identification of the appellant because, according to counsel PW1, PW2 and PW3 recognized some of the attackers including the appellant. That the appellant during cross-examination testified that both he and the witnesses recognized each other very well and he could not have been mistaken for another person. He submitted that where an accused is pinned to the locus-in-quo as the one who committed the offence, the defence of Alibi no more avail the accused. He cited SOWEMIMO V. THE STATE (2009) 11 NWLR (PT. 855) 515. He argued that the evidence of PW1 to PW3 which fixed the appellant at the scene demolishes his weak Alibi.

Counsel posited that the prosecution witnesses were neither tinted nor accomplices. He defined who tinted witness is and referred to the case of OKORO V. STATE (1998) 14 NWLR (PT. 584) 181; MOSES V. THE STATE (2006) 11 NWLR (PT. 992) 458 for the view. That the evidence of the

witnesses needs no corroboration and urged the Court to so hold.

Counsel argued that evaluation of evidence and drawing of inference is the primary duty of the Court, an appellate Court will only interfere where the trial Court failed to draw correct inferences. He cited LASISI V. THE STATE (2013) 6 SCM 97 for the view. That the lower Court had carefully and creditably performed its duty and drew right inferences from the evidence adduced before the Court.

He further that on the issue of contradiction on the date of the incidence by the witnesses, he opined that failure of the witnesses to recollect the exact date of the incidence was based on the human memory and faculty. He conceded that there is minor discrepancies on the date mentioned by PW1 and that of PW2 and PW3 which does not in particular affects the material evidence before the Court. That minor discrepancies will not be allow to defeat the course of justice. He cited MUSA V. STATE (2009) 9 SCM 63; EKE V. THE STATE (20011) 1 SCM 155 and urged the Court to so hold and resolve this issue in favour of the respondent.

RESOLUTION
Where pieces of evidence of witnesses is seen or

alleged to contradict each other and the discrepancy is minor, the difference cannot destroy the credibility of the witnesses. it is not every inconsistency of the prosecution witnesses that is fatal to its case. It is only when such contradiction are fundamental to the case and create some doubt in the mid of the trial Court that an accused is entitled to benefit therein. See ASUQUO V. STATE (2016) 14 NWLR (PT. 1532) 309; OKANLAWON V. STATE (2015) 17 (PT. 1489) 445 AND OBAKOKUYANRO V. STATE (2016) 9 NWLR (PT. 1518) 520. In other words, minor discrepancy is incapable of vitiating a case, as it will not constitute dents on a party?s case. See OLATINWO V. STATE (2013) 8 NWLR (PT. 1355) 126; EMEKA V. STATE (2014) 13 NWLR (PT. 1425) 614; MOHAMMED V. STATE (2014) 12 NWLR (PT. 1421) 387.
?In the instant cases, the appellant identified some portions of the respondent?s evidence which he regard to be contradictory to include: evidence of PW1 who mentioned 10th November, 2006 as the date when the incident occurred, while PW2 and PW3 mentioned 14th November, 2006 as the date when the incident happened. I have paid a visit to the record of appeal

especially pages 99, 121 and 124 of the record where the witnesses testified. Indeed PW1 mentioned 10/11/2006 while PW2 and PW3 mentioned 14/11/2006. To my mind the difference in those pieces of evidence are minor and do not in the least, qualify as material contradiction witnesses are not expected being human to profer evidence with regimented accuracy. Human memories face with the passage of time and date even in hours. Beside, the appellant and indeed other accused/convicts mentioned 14/11/2006 as the date of the incident. Where witnesses give evidence on the same matter to the exact minutest details, their testimonies will be treated with circumspect as they will be guilty of evidential tutorage. See GALADIMA V. STATE (2017) LPELR 43469 (SC); EGWUMI V. STATE (2013) LPELR 20091 (SC). I hold the view that the contradiction is a minor contradiction which does not affect the finding of the Court.

In another breath, the appellant argued that the burden of proof in criminal cases rest on the prosecution and it does not shift even if the defence of Alibi fails. That the failure of defence of Alibi will not shift the onus from the prosecution and cast it on

the defence to prove his innocence.
The law is settled that in all criminal cases, the prosecution has the burden to prove or establish the guilt of the accused person beyond reasonable doubt. it behoves a Court of law to consider any defence available to an accused person which is disclosed in evidence before the Court. A plea of Alibi, if found to be true is complete defence which absolves the accused person of the charge. If an accused person raise a defence of Alibi, that is he was somewhere else other than the locus delicti at the time of the commission of the offence and give some facts and circumstances of his where about, the prosecution is duty bound to investigate it to verify its truthfulness or otherwise. It is not enough for the accused to boldly allege that he was somewhere else without specifically giving the address of that place, the person or persons he was with at that other place and the time he was at that place when the offence was committed. See MOHAMMED V. STATE (2015) LPELR 24397 (SC); ADEBIYI V. STATE (2016) LPELR 40008 (SC); AGU V. STATE (2017) LPELR 41664 (SC); ALIYU V. STATE (2013) LPELR 20748 (SC).
The appellant as DW4

throughout his evidence did not raise any defence of Alibi neither did he raise it in his confessional statement Exhibit P8, to warrant the investigation of same. The defence raised by the appellant was that, there was a fight at the farm but not that they assaulted the complainants at their house and nothing more. There was therefore no plea of the Alibi by the Appellant to require any consideration by the trial Court.
The law is trite that once it is found as a fact by the Court that the evidence of the prosecution positively, unequivocally and irresistibly points to the guilt of an accused as in the instant case, the defence of Alibi becomes of no moment. See AJAYI V. STATE (2013) LPELR 19941 (SC); OSUAGWU V. STATE (2013) 5 NWLR (PT. 1347) 360; AGU V. STATE (2017) 10 NWLR (PT. 1573) 171.

In the instant case, the evidence of PW1, PW2 and PW3 overwhelmingly contradicts, dispels and disposes of any possible defence of Alibi by the appellant and I so hold.

A tainted witness is a witness who is either an accomplice or who by the evidence he gives can be regarded as a person having some interest or purpose to serve. See ALI V. STATE (2015) LPELR

24711 (SC).
In the instant case, the prosecution witness. PW1, PW2 and PW3 are relatives and victims of the incident, what is necessary for the Court to do in the circumstance is to satisfy itself that the evidence is credible and reliable but not for the appellant to insist that a stranger who is unrelated to the victims must be available to give corroboration. The witnesses (PW1-PW3) in their position as victims and an eye witnesses, their evidence needs no corroboration before it would be accepted by the Court. The law is that where evidence of a witness is unassailable as in the instant case, the fact that the witness is the appellant?s long enemy would not render his evidence unreliable. See EZEUKO V. STATE (2016) 6 NWLR (PT. 1509) 529 AT 599; UDO V. ESHIET (1994) 8 NWLR (PT. 363) 483 AT 502. The fact that a witness is a blood relation of the victim of a crime or the witnesses are related per-see does not make him a tinted witness, it must be establish by evidence that the witness has any personal interest to serve. The appellant failed to show that, the prosecution witness had any interest to serve other than giving the true position and real

picture of the incident. In the circumstances the evidence of PW1, PW2 and PW3 did not required corroboration and I so hold.

The lower Court had in my respective view assessed the evidence by the prosecution and the appellant on the charge that the appellant had assaulted the victims by beating them and had their cloth torn. The evidence of the prosecution leaves no doubt that the appellant had assaulted PW1-PW3 and the lower Court was right in its assessment of the evidence in that regard. It is settled that where a trial Court which has the primary duty of evaluation of evidence and ascription of value to it had properly done so, an appellate Court would have no justification for interfering with the assessment and the inferences drawn by the Court. An appellate Court may and should interfere with the evaluation of evidence by a trial Court where it fail to properly or at all evaluate the evidence placed before it or where the inferences drawn from the evidence is against the fact on which the evidence was predicted. I find no justification to temper with the finding of the lower Court which was not shown to be perverse. I so hold.

Issue two is

resolved against the appellant.

ISSUE THREE
Whether or not the sentence of the lower Court was not punitive, excessive and wrong by the importation of irrelevant matter of famer verses Fulani herdsmen.

Arguing this issue, learned counsel for the appellant submitted that despite the failure of counts 1, 2 and 4 of the information, the appellant and other convicts were sentenced to 12 years imprisonment on the four counts on which they were convicted. That is, conspiracy to commit assault, assault occasioning harm on PW1, PW2 and PW3. That despite the allocutus, the learned trial judge considered an irrelevant matter of Fulani herdsmen and famers dispute and sentenced the appellant to 12 years.

Learned counsel conceded that it is within the discretion of the trial Court to sentence a convict in accordance of the law or impose a fine in lieu of imprisonment. He opined that this power is circumscribed by the law, rules and human compassion.

Learned counsel contended that the lower Court exercised its discretionary power by taking into consideration irrelevant matters and closed its eyes to relevant matters, there by occasioned a

miscarriage of justice. That the sentence passed on the appellant, said counsel, was punitive and excessive. He urged the Court to resolve this issue in favour of the appellant.

The learned counsel for the respondent in response to this issue, submitted that the appellant and other convicts were convicted and sentenced on conspiracy to commit felony to wit: assault occasioning harm and assault occasioning harm on Ademoyejo Adegboye, Iyabo Adegboye and Maria Aremu but not on conspiracy to murder and murder of Emmanuel Adegboye. Therefore, according to counsel, the sentencing of the appellant and other convicts by the trial Court was proper and not punitive and excessive. He urged the Court to discountenance the appellant?s contention in this regard.

RESOLUTION
The fulcrum of the appellant under this issue is that, the conviction and sentencing of the appellant to 12 years imprisonment is punitive and excessive. I will like to start by reproducing the counts upon which the appellant and the other convicts were convicted and sentenced by the learned trial judge.
COUNTS FOUR
Conspiracy to commit felony contrary to

Section 516 of the Criminal Code Cap. 34 vol. 11, Laws of Osun State.
PARTICULARS OF OFFENCE
Tiamiyi Oyegbile, Momoh Oyewumi, Ilufoye Olayode, Kehinde Ajiboye, Mananse Olayode and others still at large on or about the 14 day of November, 2006 at about 12 noon at Igbon Town in the Ejigbo Judicial Division conspired to commit a felony to wit assault occasioning harm.
COUNT FIVE
STATEMENT OF OFFENCE
Assault occasioning harm contrary to Section 355 of the Criminal Code Cap 34 Vol. 11, Laws of Osun State.
PARTICULARS OF OFFENCE
Tiamiyi Oyegbile, Momoh Oyewumi, Ilufoye Olayode, Kehinde Ajiboye, Mananse Olayode and others still at large on or about the 14 day of November, 2006 at about 12 noon at Igbon Town in the Ejigbo Judicial Division did assault occasioning harm to the person of Ademoyejo Adegboye.
COUNT EIGHT
STATEMENT OF OFFENCE
Assault occasioning harm contrary to Section 355 of the Criminal Code Cap 34 Vol. 11, Laws of Osun State.
PARTICULARS OF OFFENCE
Tiamiyi Oyegbile, Momoh Oyewumi, Ilufoye Olayode, Kehinde Ajiboye, Mananse Olayode and others still at large on or about the 14 day of November, 2006 at about 12 noon

at Igbon Town in the Ejigbo Judicial Division did assault occasioning harm to the person of Maria Aremu.
COUNT NINE
STATEMENT OF OFFENCE
Assault occasioning harm contrary to Section 355 of the Criminal Code Cap 34 Vol. 11, Laws of Osun State.
PARTICULARS OF OFFENCE
Tiamiyi Oyegbile, Momoh Oyewumi, Ilufoye Olayode, Kehinde Ajiboye, Mananse Olayode and others still at large on or about the 14 day of November, 2006 at about 12 noon at Igbon Town in the Ejigbo Judicial Division did assault occasioning harm to the person of Iyabo Adegboye.
Section 355 of the Criminal Code Cap. 34, Vol. 11, Laws of Osun State provides thus:
Any person who unlawfully assaults another and thereby does him harm is guilty of a Felony, and is liable to imprisonment for three years.?

While Section 516(1) provides as follows:
Any person who while in Osun State conspires with another to do any act not in the state which if done in the state would be a felony against the law of the state and which is an offence against the law of the place where it is proposed to be done, is guilty of a felony and is liable, if no other

punishment is prescribed, to imprisonment for seven year, or, if the greatest punishment to which a person convicted of a felony in question is liable to less than imprisonment for seven years, then to such lesser punishment.

The learned trial judge after evaluating the evidence before the Court, found the appellant and other accused persons guilty of the said offences contained in the said counts, convicted and sentenced them accordingly. The trial judge held at page 196 to 197 of the record as follows:
…in view of the above, the accused persons are sentenced as follows:
Count 4:
1st accused person 3 years imprisonment
2nd accused person 3 years imprisonment
3rd accused person 3 years imprisonment
4th accused person 3 years imprisonment
Count 5:
1st accused person 3 years imprisonment
2nd accused person 3 years imprisonment
3rd accused person 3 years imprisonment
4th accused person 3 years imprisonment
Count 8:
1st accused person 3 years imprisonment
?2nd accused person 3 years imprisonment

3rd accused person 3 years imprisonment
4th accused person 3 years imprisonment.
Count 9.
1st accused person 3 years imprisonment.
2nd accused person 3 years imprisonment
3rd accused person 3 years imprisonment
4th accused person 3 years imprisonment
The sentences are to run concurrently”

As clearly shown in the information and the sentence passed on the appellant by the lower Court, there were four offences he was accused along with three other accused persons of having committed and he was convicted and sentenced in four verdicts.

consideration by the trial Court in passing the sentences on the convict to exercise its discretion. But in a charge where the sentence prescribed only death, it is not within the competence of a trial Court to exercise its discretion to reduce the death sentence to a term of years. Also where a statute provides for either the minimum sentence or the maximum sentence to be imposed, the Court has discretion to either impose the minimum or maximum or less than the maximum sentence prescribed. See TANKO V. STATE (2009) 4 NWLR (PT. 1131) 430.

In the instant case, the learned trial judge has delivered his verdicts in respect of the several counts and passed its sentence separately in respect of each convicts as can be seen from pages 196-197 of the record. The trial Court in my view exercised its discretion in respect of count four by reducing it to 3 years imprisonment instead of seven years.
An appellate Court will not interfere with a sentence imposed by a trial Court unless it is manifestly excessive in the circumstance or wrong in principle. See OMOKUWAJO V. FRN (2013) LPELR 20184 (SC). In the case at hand, the act under which the appellant was

charged which is Section 355 and 516 prescribed that a person found guilty under the section is punishable for seven years and three years for Section 355 respectively as the prescribed sentences. I hold the considered view that the sentence passed on the appellant by the learned trial judge was proper and not excessive in the circumstances of this case.
I am unable to disturb the sentence imposed by the learned trial judge on the appellant. Beside, an error by a trial Court on the mode of sentence passed on a convict, where exist, will not without more, render the proceedings including the conviction and sentence void. See SALIU V. STATE (2014) LPELR 22998 (SC).

Issue three is resolved against the appellant.
Having resolved the three (3) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
The judgment, conviction and sentence on the appellant by A. A. Aderibigbe J. delivered on 22nd February, 2016 is hereby affirmed.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the leading Judgment of my noble Lord, RIDWAN MAIWADA ABDULLAHI, JCA and I agree that the

appeal is unmeritorious.
I dismiss same and abide by the consequential order made therein.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother RIDWAN MAIWADA ABDULLAHI, JCA. This appeal was decided on three issues namely: –
“1. Whether or not the offence of conspiracy was proved against the appellant before the lower Court to warrant the conviction and sentencing of the appellant.
2. Whether by the evidence adduced before the lower Court, the prosecution could be said to have proved its case beyond reasonable doubt.
3. Whether or not the sentence of the lower Court was punitive, excessive and wrong by the importation of irrelevant matter of farmers verses Fulani herdsmen.”

The Court can successfully convict an accused person for conspiracy to commit an offence notwithstanding that the substantive offence has not been successfully proved. This is because conspiracy to commit an offence is a separate and distinct offence which is independent of the actual commission of the offence to which the conspiracy is related. The

offence of conspiracy may therefore be fully committed even though the substantive offence may be abandoned, aborted or may have become impossible to commit. See the Supreme Court case of BALOGUN V AG OGUN STATE (2002) 6 NWLR, PT 763, 512. In the case of ERIM V STATE (1994) 5 NWLR, PT 346, 522 the Supreme Court per OGWUEGBU, JSC on proof of conspiracy held that: –
“In order to prove conspiracy; it is not necessary that there should be direct communication between each conspirator and every other. 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 also the more recent supreme Court case of IKUFORIJI V FRN (2018) LPELR – 43884.

It is for this reason and the more exhaustive reasons given by my learned brother that I too dismiss this appeal and affirm the decision of the learned trial judge, A. A. Aderibigbe J delivered on the 22nd February, 2016.

Appearances:

B. A. Akande, Esq. with him, N. Adekilekun, Esq.For Appellant(s)

M.O. Adedokun, Esq. (C.S.C., M.O.J. Osun State)For Respondent(s)

Appearances

B. A. Akande, Esq. with him, N. Adekilekun, Esq.For Appellant

AND

M.O. Adedokun, Esq. (C.S.C., M.O.J. Osun State)For Respondent