Danjuma Abu v. The State

This is an appeal against the judgment of the Court of Appeal, Gombe Division (Coram: Jummai Hannatu Sankey, Tunde O. Awotoye and Ebiowei Tobi, JJCA) delivered on 22nd July, 2021, wherein the Court below dismissed the Appellant’s appeal arising from the judgment of the High Court of Justice, Gombe State, per Sa’ad Mohammed J. dated 9th January, 2007 which had convicted the Appellant and five other co-defendants on a two count charge of Criminal Conspiracy to commit Armed Robbery and belonging to a wandering gang for the purpose of habitually committing Armed Robbery contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act and Section 306 of the Penal Code respectively. The Appellant was sentenced to death.

The Appellant appealed to the Court of Appeal, wherein the Court below unanimously dismissed the appeal and affirmed the conviction and sentence passed by the trial Court.

Dissatisfied, the Appellant has appealed to this Court.

The brief facts of this case are as follows:
By a charge dated 5th November, 2003, the Appellant (4th defendant

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at the trial Court) alongside five (5) other defendants were charged with three (3) counts of offences viz: (i) Criminal Conspiracy to commit Armed Robbery contrary to Section 6(b) and punishable under Section 1 (2) of the Robbery and Firearms (Special Provisions) Act, LFN, 1990 as amended; (ii) Illegal possession of firearms punishable under Section 3 of the Robbery and Firearms (Special Provisions) Act, LFN, 1990 as amended-and (iii) Belonging to a wandering gang of persons associated with the purpose of habitually committing Armed Robbery punishable under Section 306 of the Penal Code Law.

The allegations in the charge were that on or about 31st March, 2000, the Appellant alongside the five (5) other defendants; Itama Jacob, Gowon Ahmadu, Isa Ibrahim, Linus Paris, Babangida Mohammed together with Aliyu Isa and Yakubu Adamu (both deceased) conspired to rob Tudun Hatsi Market Gombe. Secondly, the Appellant and the other five (5) defendants were alleged to have also been found in possession of one locally made revolver pistol and 4 rounds of 303 live ammunition without a license. Finally, on count 3, the Appellant alongside the five (5) other

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defendants were said to be at Jankai Quarters, Gombe and belonged to a (wandering) gang of persons associated for the purpose of habitually committing Armed Robbery. Upon being arraigned at the trial Court, the Appellant pleaded not guilty to the said three (3) count charge preferred against him.

The Respondent in proof of its case called six (6) witnesses while the Appellant testified in person as DW4. The six (6) Respondent witnesses are as follows: PW 1 – Mohammed Gidado; PW2 – Idi Buba; PW3 – Ismail Olayiwola Lai; PW4 – Steven Absalom; PW 5 – John Egbunu and PW6- Arabor Asimunnur.

At the end of the trial, the trial Court convicted the Appellant on the two (2) counts of Criminal Conspiracy to commit Armed Robbery and belonging to a wandering gang of persons associated with the purpose of habitually committing Armed Robbery. The Appellant was discharged and acquitted on the second count charge of illegal possession of firearms. Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court below by a Notice of Appeal filed on 10th July, 2020 containing four (4) grounds of appeal. The Court below delivered its judgment on

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22nd July, 2021, dismissed the appeal of the Appellant and affirmed the conviction and sentence of death passed by the trial Court. Against the said judgment of the Court below, the Appellant has appealed to the Supreme Court vide his Notice of Appeal dated 19th August, 2021 and filed on 20th August, 2021 containing four (4) grounds of appeal.

The Appellant filed a brief of argument settled by Adedayo G. Adesina wherein the Appellant distilled two issues for determination:
1. Whether the lower Court was right in affirming the conviction and sentence of the Appellant for the two (2) counts offences of (1) Criminal Conspiracy to commit Armed Robbery; and (ii) Belonging to a wandering gang of persons associated for the purpose of habitually committing Armed Robbery. (Grounds 2 and 4)

Without prejudice to Issue 1 and assuming Issue 1 fails, the Appellant submits Issue 2 as follows:
2. Having regard to the fact that the Appellant did not commit the offence of armed robbery but was arrested in a public place with firearms, whether the lower Court was right to have affirmed the conviction of the Appellant for the offence of conspiracy to

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commit armed robbery and also the sentence of death passed on the Appellant. (Grounds 1 and 3)

The Respondent in reply, filed a brief of argument settled by E.C. Ikeji. The respondent adopted issue one of the Appellant but chose to re-couch issue two as follows:
“Whether the lower Court was right to have affirmed the conviction and sentence of the Appellant for the offence of conspiracy to commit armed robbery and also the sentence of death having regards to the facts that the Appellant did not commit the offence of Armed Robbery but was arrested in a public place with firearms with intent to commit armed robbery”

I have carefully read the record of appeal and brief of arguments of both counsels and I adopt the issue 1 raised by the Appellant in the determination of this appeal to wit:
Whether the lower Court was right in affirming the conviction and sentence of the Appellant for the two (2) counts offences of (1) Criminal Conspiracy to commit Armed Robbery; and (ii) Belonging to a wandering gang of persons associated for the purpose of habitually committing Armed Robbery. (Grounds 2 and 4)

The Appellant argued that the

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offence of conspiracy was not proved beyond reasonable doubt against the Appellant to warrant a conviction by the trial Court. The law is trite that before a trial Court could convict a defendant, it must be certain and fully convinced that all the elements of the offence have been duly proved beyond reasonable doubt. Counsel cited SMART v. STATE (2016) 9 NWLR (Pt. 1518) 447 at 479; IREGU EJIMA HASSAN v. THE STATE (2017) 5 NWLR (Pt. 1557) 1.

Counsel contended that the findings of the two Courts below were perverse and any decision on a perverse finding will not stand on appeal. Counsel cited ATOLAGBE v. SHORUN (1985) LPELR-SC 14/1984; ABEGUNDE v. ONDO STATE HOUSE OF ASSEMBLY. Counsel argued that the two Courts below in their judgments held that the Appellant conspired with others to commit the offence of armed robbery and also belonged to a wandering gang of thieves by relying on Exhibit 1 (the confessional statement of the Appellant). Counsel contended that the alleged confessional statement of the Appellant was not a real confession and ought not to have been taken as such and not to be relied on in finding the Appellant guilty of the offences charged.

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Counsel argued that the Respondent failed to prove that the Appellant by Exhibit 1, admitted committing the offence for which he was charged in Counts 1 and 3 of the Charge dated 5th November, 2003 contrary to the finding of the Court below. Counsel cited JIMOH v. STATE (2014) 10 NWLR (Pt. 1414) 105 at 138 and 142.

Counsel submitted that to secure a conviction against a defendant on a charge of Criminal Conspiracy, it must be established beyond reasonable doubt by the Respondent that there was a meeting of the minds of the criminal actors with a joint or communal understanding and effort of committing a crime. Counsel cited FRN v. SANI (2014) 16 NWLR (Pt. 1433) 299 at 331-332; ADAMU v. STATE (1986) 3 NWLR (Pt. 32) 865; YAKUBU v. STATE (2012) 12 NWLR (Pt. 1313) 131 at 142-143; WAZIRI v. STATE (1997) 3 NWLR (Pt.496) 689.

The Appellant contended that the Respondent failed to show a nexus between the charge against the Appellant and Exhibit 1 which was the confessional statement of the Appellant. Counsel submitted that it is impossible to hold that the charge of conspiracy to commit Armed Robbery had been proved by the Respondent against the Appellant.

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Counsel contended that the Court is bound to resolve any doubt arising in a criminal proceeding in favour of the defendant, where doubt is created between the offences charged and the evidence placed before the Court as in the instant case. Counsel relied on NWEZE v. STATE (2013) NWLR (Pt. 1354) 597.

The Respondent on her part contended that the prosecution at the trial Court adduced cogent and sufficient evidence and proved beyond reasonable doubt the offences for which the Appellant was tried at the trial Court. The Respondent argued that the testimony of the Respondent’s witnesses PW1-PW6 and the Exhibits tendered at the trial Court including Exhibit 1 sufficiently linked the Appellant with the offences; commission of conspiracy to commit armed robbery and belonging to a gang of persons associated with the purpose of habitually committing armed robbery. The Respondent submitted that the four ways in which the prosecution can prove the commission of a crime are: by confessional statement; evidence of eyewitness; circumstantial evidence and admission by conduct of the defendant. Counsel cited EMEKA v. THE STATE (2001) LPELR-1125 (SC) Per Onu JSC at P.14

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Per as B-E.

The Respondent contended that the evidence led at the trial Court clearly disclosed how the Appellant and his co-defendants, carried weapons and hid themselves in an uncompleted building waiting for the time to carry out their operation before they were arrested by the team of police men. Counsel submitted that the confessional statement of the Appellant and his co-defendants were all tendered in evidence and the Appellant and all the co-defendants did not object to the admission of the statements in evidence, Counsel argued that the Appellant’s confessional statement was tendered without any objection and any objection to its voluntariness or otherwise can only be made at the point when the statement was sought to be tendered by the prosecution during the trial at the High Court. Counsel relied on SMART v. STATE (Supra); ALABI TOPE v. THE STATE (2019) LPELR- 47837 (SC) Pp 19-20, paras C-A.

The Respondent submitted that there are findings of fact by the two Courts below that Exhibit 1 is a confessional statement and urged this Court not to disturb the concurrent findings of fact by the Courts below. Counsel relied on

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AKWUOBI v. THE STATE (2016) 413389 (SC) PP 37-38 paras D-A.

Counsel contended that the Court can convict a defendant solely on his confessional statement and the Appellant’s confessional statement (Exhibit 1) was enough to ground a conviction on both counts 1 and 3 of the charge against him at the trial Court. Counsel relied on DARLINGTON v. FRN (2018) LPELR-43850 (SC) 17-18 paras D- E.

The Respondent contended that the offence of conspiracy was proved beyond reasonable doubt by the prosecution at the trial Court. Counsel argued that conspiracy is committed once two or more persons agree to do some illegal act by unlawful means. It is not necessary that anything be done beyond the agreement of the accused persons. It is not disputed that the Appellant and co-defendant were arrested in an uncompleted building at Jankal Quarters, Gombe, with the weapons tendered. The Respondent submitted that the trial Judge rightly inferred that the Appellant and co-defendants gathered there with the intention to rob the Tundu Hatsi market at Gombe. The Respondent submitted that the offence of conspiracy is complete on the agreement to rob Tundu Hatsi Market while armed. Counsel cited

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IRENE NGUMA (ALIAS IRENE OKOLI) v. AG OF IMO STATE (2014) 7 NWLR (Pt. 1404) 119 @ pg 150, para E-F and H; MORAH v. FRN (2018) LPELR-4405 (SC) PP 27-29 Paras E-A; SULE v. THE STATE LPELR-3125 (SC) PP 33-34 para E-B.

OPINION
My Lords, it is trite that to establish the offence of Conspiracy, the prosecution must prove the following:
a. An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means;
b. Where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done illegally by one or more parties in furtherance of the agreement;
C. Specifically, each of the accused individually participated in the conspiracy
See IBOJI V. STATE (2016) LPELR-40009(SC) (PP. 9-12 PARAS. D); AFOLABI V. STATE (2013) LPELR-20700(SC) (PP. 30-31 PARAS. E).
Conspiracy is an inchoate offense and it must be established that there is a meeting of the minds of the criminal actors with a joint and definite understanding to commit a crime. In other words, before two or more persons could be said to conspire, there must be a deliberate

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intention by each, to cause to be done some illegal act or some act which is not illegal by illegal means. It is indeed a near impossible task for the prosecution to prove conspiracy with hard evidence and mathematical accuracy as to the time and place the conspirators met and agreed to carry out an offence. This means that the Court must not be too eager or hasty to convict a defendant. Thus, in the circumstance, the Court must rely largely on circumstantial evidence and the confession or admission, if any, made by the conspirators to arrive at its decision. It suffices to say that what is important for the prosecution to prove in order to secure a conviction for the offence of conspiracy is that those involved in the conspiracy knew of the plan and intended to break the law. Thus, the offence of conspiracy can always be inferred from the circumstances of each case and overt acts done by the conspirators to achieve whatever crime underlies that agreement.
My Lords, deducible from the foregoing is that the two ways a Court can establish conspiracy is by the express and unequivocal confession or admission of the defendant or by circumstantial evidence.

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The question that begs to be answered now is whether in the instant appeal, there was an express and unequivocal confession and or circumstantial evidence to warrant the conviction of the Appellant for the offence of conspiracy to commit armed robbery.

My Lords, a valid confessional statement must be positive and unequivocal. The word “unequivocal” according to the Oxford Advanced Learners dictionary means “to express one’s opinion or intention very clearly and firmly”. This means that for a confessional statement to qualify as unequivocal, it must express the intention of the defendant to confess to the alleged offence in very “clear” and “firm” terms. There must be no room for ambiguity. The word “unequivocal” is synonymous to “indisputable”.

At page 147 of the record, the Appellant’s statement was set out as part of the judgment of the trial Court. Briefly, it states as follows:
“The statement of the 4th accused person Danjuma Abu is exhibit one. He on his part stated, I started Science Secondary School Gombe but left at form three. When I left I started stealing goats and beans…my first stealing was a goat I stole at Herwaga quarters.

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When I steal a goat I take it to village market like Kuri, Lariski and Kumo when I go to a village market when steal beans I sell it at the village about a month ago I stole beans at millionaire’s quarters, Gombe with my friends that we steal together they are (1) Osondu alias Linus, (2) Mohammed Kumo (3) Yunusa who is now in prison herein Gombe we were arrested because of that … my mother bailed me… when I came out I met with Linus alias Osondu. He took me to B.C.G.A where I met six persons including myself and Osondu we became eight. Among the six persons we met are (1) Malam Ali, (2) Babangida, (3) Gowon, (4) Isa Musa, (5) Yakubu Waja and (6) Tsohon Soja. The eight of us continue stealing. We once stole at trader shop at Idi quarters. Secondly, we stole beans at old market. Anytime we so go out for theft our leader Malam do hold a local made pistol and Babangida carry one cane Malam Ali carries cutter on his shoulders the one we were arrested with the rest of us carry sticks. Our leader Malam Ali resides at B.C.G.A hill. Therefore when all we want to go for stealing we used to go to this building that we were arrested in today and when it is night

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then we go out for our steaking ant that when all we steal we do take the stealing item to one women who is residing at new peg her name is Asabe Uwar Daba to sell for us or she may buy it. I can remember the provision we stole at Herwanga. I was given N1,500 and the beans we stole at old market was given N2,000, Today we were arrested at this house building, we made intention of going to the old market to steal… But before joined this organization I was with the information that they Malam Ali have been taken properties to her”

Furthermore, the Respondent argued in paragraph 4.07 and 4.08 that the Appellant did not object to the confessional statement when it was being tendered at the trial, thus it means that the maker made the statement voluntarily and it is the truth on his role in the crime. Counsel cited SMART v. STATE (supra).

My Lords, the law is settled that where the Defendant did not object to the admissibility of a supposedly confessional statement on the basis of involuntariness at the point it is sought to be admitted by the prosecution, the Defendant cannot later claim involuntariness where he resiled from the statement at trial. I

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agree with Learned Respondent’s counsel that the best time to raise any objection to a confessional statement is at the point where it is being tendered. Failure to raise necessary objections at trial may be as a result of negligence of counsel which may be detrimental to defendant who has put all his hope on his counsel. See YELLI V. STATE (2022) LPELR-57865(SC) (PP. 31- 32 PARAS. D); NASIRU V. STATE (2022) LPELR-57825(SC) (PP. 36-37 PARAS. D). It is my opinion, therefore, that even where a defendant representing himself or through a counsel fails to raise necessary objections to evidence that may be fatal to his case, even when such evidence has been admitted, the Court must consider the contents of the evidence tendered (in this instance the confessional statement) and examine the law viz a viz other pieces of evidence which corroborates the said evidence before relying on same to arrive at a decision. Especially in an offence that carries capital punishment, the trial Judge must exercise caution and due diligence before relying on any piece of evidence to convict a defendant.
This Court has held in a plethora of cases that even when a piece of evidence

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has been admitted, the weight to be ascribed to it is a different matter. The fact that a piece of evidence has been tendered and admitted does not mean that it is conclusive proof of the matter. In NATSAHA V. STATE (2017) LPELR-42359(SC) (PP. 24 PARAS. B) the Court held thus:
“In law, it must be accepted, a clear distinction exists between the question, whether a particular evidence is admissible and the question of its probative value or the weight to be attached to it. The fact that evidence, oral or documentary, is admissible does not mean that it has any probative value or weight at all. But once it is found to be of value the Court may rely on the evidence to arrive at an enduring decision. See Gbafe V. Gbafe(1996) 6 NWLR (pt 455) 417.”
All the defendant can do is to attack the credibility of the statement on the basis that he volunteered it but he was persuaded to do so and it did not tally with other facts adduced by the prosecution.
In the circumstances of this case, I agree with the two lower Courts that the confession of the Appellant was voluntary. The content, however, would determine whether it was a direct positive and unequivocal

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admission of criminal conspiracy to commit armed robbery, and belonging to a gang of thieves.

I agree with the submission of the learned Appellant’s counsel that the evidence led by the Respondent at the trial Court does not in anyway support the charge of the offence of Criminal Conspiracy to commit Armed Robbery under Section 6(b) of the Robbery and Firearms (Special Provisions) Act. The evidence led by the Respondent at the trial Court can at best be situated within Section 2(3) of the Robbery and Firearms (Special Provisions) Act which provides as follows:
“Any person found in any public place in possession of any firearms whether real or imitation and in circumstances reasonably indicating that the possession of the firearm is with intent to immediate or eventual commission by that person or any other person of any offence under Section 1 of this Act or under the foregoing provisions of this section shall upon conviction under this Act be sentenced to imprisonment for not less than fourteen years but not more than twenty years”
Against this backdrop, it is clear that the ingredients/elements of the offence under Section 2(3) of the Robbery and Firearms (Special Provisions) Act

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are as follows:
(a) The accused person or persons must be found in a public place;
(b) The accused person or persons must be in possession of firearms whether real or imitation;
(c) The possession of the firearms must be with intent to the immediate or eventual commission of an offence by the accused person or persons; and
(d) The offence to be committed must be the offence of robbery.
Juxtaposing the ingredients/elements of the offence under Section 2(3) of the Robbery and Firearms (Special Provisions) Act, and the evidence led at the trial Court will irresistibly show that the evidence supports the ingredients of the offence under Section 2(3) of the Robbery and Firearms (Special Provisions) Act. From the evidence led at the lower Court, the Appellant and other persons were arrested in a public place (an uncompleted building) allegedly in possession of offensive weapons and by way of a locally made pistol with intent to commit an offence of robbery. These facts are aptly captured by the trial Court in its judgment at page 142 of the Record of Appeal when it held as follows:

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“… a group of robbers were hiding at Jankai quarters behind police headquarters, Gombe with the intention to rob at the grains market Gombe… They Were not arrested at their various houses but in an uncompleted building.”

My Lords, the Appellant confessed mainly to stealing in his own case, but he also confessed that he stole with a gang who carried offensive weapons, precisely a locally made pistol. There is no doubt that in this instance, they planned to go and steal or rob at the market at a future time and one of them even though not the Appellant was armed with a locally made pistol. The law regards the fact that one of them was in possession of offensive weapon as possession by all the persons gathered together.
This Court cannot ignore the portion of the confessional statement favourable to the Appellant and determine this appeal based on the unfavourable portion only. The Appellant did not specifically confess that they intended to use the weapons. It has to be presumed in favour of the Appellant that he and others intended to steal at the market not in broad daylight by armed robbery, but that their intention was to go at night as they had done in

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the past to steal goats and grains.

In view of the facts and evidence before the Court and by virtue of Section 218 of the Criminal Procedure Code (CPC) which was applicable in Gombe State at the time of the trial, the trial Judge could have convicted the defendant based on Section 2(3) of the Robbery and Firearms (Special Provisions) Act which is a lesser offence and does not carry the death sentence.

Section 218 of the Criminal Procedure Code provides as follows:
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.

From the judgment of the Court below, it appears that both lower Courts mistook the charge of gathering as a gang for the charge of attempt to commit armed robbery. See page 248 of the record and the judgment of the Court below. From the reasoning of both judgements, it appears that the Appellant and his cohorts were convicted for attempted robbery even though they were not

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arrested near or enroute to Tudun Hatsi market where the “robbery” was supposed to be carried out. At page 155 of the record, the learned trial Judge without giving any specific reason refused to convict the Appellant and others for the possession of firearms in count two.

The Appellant was also charged in count 3 for belonging to a (wandering) gang of persons associated for the purpose of habitually committing armed robbery punishable under Section 306 of the Penal Code of Northern Nigeria. The said Section 306 of the Penal Code is hereunder reproduced:
“Whoever belongs to a wandering or other gang of persons associated for the purpose of habitually committing theft or robbery and not being a gang of brigands, shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine…”

My Lords, this is a provision that has caused so many problems in its misuse by law enforcement agents. In the circumstances of this case, the facts do not support the evidence adduced by the prosecution. The Appellant and his cohorts were in situ in an uncompleted building. They were not at the time of their

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arrest “wandering” by any definition of that word. “Wander” according to Dictionary.com is defined as “to ramble without a definite purpose or objective, roam, rove or stray” or to go aimlessly, indirectly or casually; to meander”. The Appellant and others were not found on the streets wandering about. They came from their different homes to gather in the uncompleted building.

The evidence adduced in support of this count is insufficient to ground a conviction. The Appellant is acquitted on this count.

The person need never have committed a specific offence before the charge would be proved. In this appeal, none of the instances where the Appellant confessed to have stolen one food item or the other were ever reported to the police. The confessional statement is not a direct and positive confession of the ingredients of the offence.

My Lords, every right constituted under Chapter IV of the 1999 CFRN (as altered) derives its foundation from the right to freedom of movement. We are born to move and our right to move is a basic right which enables human beings forage for food and greener pastures to farm or feed our cattle. Thus, the right to

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move is intertwined with the right to life and liberty and freedom of movement.
My Lords, Section 40 of the 1999 CFRN guarantees the right to peaceful assembly and association. As stated earlier, the association must be for a lawful purpose and a lawful intent. Any gathering (ab initio lawful) where an illegal act is conceived becomes an unlawful gathering and a gathering to agree and perpetrate an unlawful purpose.
Section 41(1) of the 1999 CFRN encompasses the following rights:
(a) The right of every citizen to move freely within Nigeria
(b) The right of every citizen to reside in any part of Nigeria
(c) The right of every citizen not to be expelled from Nigeria
(d) The right of every citizen not to be refused entry into Nigeria
(e) The right of every citizen not to be prevented from leaving Nigeria.
In FAITH OKAFOR V LAGOS STATE (2016) LPELR-41066 (CA), restriction of movement on monthly environmental sanitation days by Lagos State Government which led to the Appellant’s arrest on an environmental sanitation day was declared null and void being an infringement of her right to move freely within Nigeria as guaranteed by

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Section 41(1) 1999 CFRN. The right to move freely within Nigeria, as a content of the right to freedom of movement, includes movement intra-state and inter-state and relates to all corners, nooks and crannies of Nigeria.
The right to freedom of movement is circumscribed by Section 41(2) of the 1999 CFRN. In Section 41, there is restriction of the right of movement of a person who has committed or is reasonably suspected to have committed a criminal offence. This presupposes that the person has been indicted of a specific criminal offence or is suspected of having committed an offence and his movement must be restricted to ensure that the person does not escape the law.
Another definition of “wandering” is locomotion with no discernible rational purpose by an individual who behaves as one who is oblivious to his or her physical or safety needs and which locomotion presents a clear risk to the individual. At common law, the freedom to roam or “everyman’s” right is the general public’s right to access certain public or privately owned lands, lakes and rivers for recreation and exercise. The right is sometimes called the right of public access to the

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wilderness or the “right to roam”. The offence of “wandering” is in common law the same as vagrancy. The vagrancy law in this jurisdiction and some jurisdictions was created to criminalize the act of wandering from place to place with no evidence of employment or a way to support oneself. Prostitution, professional gambling and disorderly conduct, loitering, public intoxication and public defecation or urination were regarded as acts of vagrancy. “Vagrancy” or “wandering” was originally a crime targeted at homelessness and unemployment that was overarchingly and subjectively used to arrest those seen as political opponents or troublemakers. Most crimes which were covered by the law of vagrancy now have individual charges targeted at the specific offence.
I would not go so far as to say that Section 306 of the Penal Code of Northern Nigeria or its equivalent of Section 250(6) of the Criminal Code are vague. The provision of Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria enshrines the principle of legality which plays an important role in the interpretation of criminal laws. Thus, where the provision of a criminal statute is not

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clear, the Court cannot be guided by it to know the intendment of the legislature. The Courts sometimes strike out a law for being void for vagueness. I will restrain from any consideration of that legal issue at this point.
By way of obiter, I think the law against wandering has lost its relevance and is against the spirit and letters of the 1999 CFRN (as altered). However, I will NOT go as far as to hold the law unconstitutional and to strike it down or expunge it from the Penal Code of Northern Nigeria or the Criminal Code of Southern Nigeria. Most states still have this law in their Criminal Law Codes. This is principally because this Court has not been asked to do so by the Appellant’s counsel and the Court will not gratuitously strike out a criminal legislation. Apart from that, the whole essence of society is to set limits to the rights of individuals if and when they infringe on the rights of the corporate unit. Thus, Chapter IV of the 1999 Constitution in setting out these fundamental rights makes them subordinate to the overall good of the society and accordingly enables laws that are necessary for democracy, security and the general well

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being of the entire society. It appears that as William Pitt stated at that House of Commons speech in 1783; “Necessity is the plea for every infringement of human freedom. It is the arguments of tyrants, it is the creed of slaves”

The Courts have the unique duty to deal with enforcement of human rights when infringed by government or the executive or another private individual. It is the reconciliation of liberty with authority that is thus the bounden duty of the Judges.

In the circumstances, pursuant to Section 22 of the Supreme Court Act and for reasons given copiously above, I find the Appellant guilty of the lesser offence of being found in a public place in possession of offensive weapons with intent to commit an offence in the future under Section 2(3) of the Firearms (Special Provisions) Act. The judgment of the Court below in CA/G/53C/2020 is set aside. The death sentence is vacated and I impose instead the sentence of 14 years imprisonment pursuant to Section 2(3) of the Robbery & Firearms Act, which term shall start from the date of his arrest.

APPEAL ALLOWED IN PART.