By Folorunsho Faozy Aduagba
In recent times, following the enactment of the Administration of Criminal Justice Act (2015) (“ACJA”) in Nigeria, there have been controversies over the provisions of section 15 (4) and 17 (1) & (2) of the ACJA, as well as other similar sections in the Administration of Criminal Justice Laws of some states, as it relate to the mode of obtaining confessional statements of the accused person (now defendant). Indeed, the sections have been the subject of opposing court of appeal decisions.
Before delving into the meat of the discussion, it is necessary to define the phrase confessional statement. The term “confession” is defined in section 28 of the Evidence Act as;
“A confession is an admission made at any time by a person, charged with a crime tending to show or suggest the inference that he committed the crime.”
It follows therefore, that confessional statement is an extra judicial statement made by an accused person to a police officer or other law enforcement agency in which he admits to committing a crime.
Interestingly, in our criminal justice system, confessional statement has indeed been held to be the finest evidence the prosecution can present to secure a defendant’s guilt, because confessional statements can be relied on solely by a court to convict a defendant if the confessions are direct and positive vide the case of ADOGA v. FRN (2019) LPELR-46931(CA) where it was lucidly pointed out as follows;
“Where a Court is satisfied that a confessional statement was made voluntarily and it is clear, positive and unequivocal as to the accused person’s participation in a crime, it is sufficient without more to ground a conviction. It is trite that, an accused person can be convicted on his confessional statement if properly proved and circumstances make it probable. In criminal procedure, such confessional statement, like admission in civil procedure is the best and strongest evidence of guilt on the part of an accused person. Indeed stronger than the evidence of eye witness.”
As a result of the evidential value of confessional Statements, it is not uncommon for the defendant’s counsel to object to the admissibility of the defendant’s confessional statement on the grounds that;
- The confessional statement was made but not voluntary, or
- The defendant has retracted his confessional statement, or
- The defendant is not the maker of the statement.
However, following the enactments of the ACJA, the defendant now oppose the admissibility of a Confessional Statement on the grounds that the prosecution has not complied with the provisions of section 15(4) and 17 (1) & (2) Supra and as such the confessional statement should not be admitted in evidence. For ease of reference, the Sections provides as follows;
Section 15(4) “Where a suspect who is arrested with or without warrant volunteers to make confessional statement, the police officer shall ensure that the making and taking of the statement shall be in writing and may be recorded electronically on retrievable video compact disc or such other audio visual means”
Section 17(1) “Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken”
Section 17(2) “Such statement may be taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an official of a Civil Society Organisation or a Justice of the Peace or any other person of his choice. Provided that the legal practitioner in this subsection shall not interfere while the suspect is making his statement.” (Bold for emphasis)
There are similar provisions in ACJL of some states which are in Pari material with the above cited. For example, section 9(3) of ACJL Lagos states 2011, S. 17 of ACJL Sokoto state 2019 et al
It can be garnered from the above mentioned provisions that;
- The police officer (this includes any officer of a law enforcement agency established by an Act of the National Assembly – Section 494(1) of the ACJA 2015) SHALL ensure that the making and taking of the confessional statement shall be in writing;
- Such statement MAY BE recorded electronically on retrievable video compact disc or such other audio visual means;
- the statement of a suspect, confessional or not, MAY BE taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an official of a Civil Society Organisation or a Justice of the Peace or any other person of his choice.
It should be noted that the law givers used the words SHALL and MAY in the respective sections of the Act, as indicated by the bolded words. It’s worth noting that courts have held that the term “SHALL” in statutes denotes something that must be done, as opposed to the word “may,” which is permissive but not mandatory. see UGWU & ANOR. V. ARARUME & ANOR. (2007) 6 SC (Pt.1) 88
The lingering question at this point is should a Confessional Statement be rendered inadmissible if the prosecution fails to satisfy the forgoing provisions?.
As earlier stated it has been subject to conflicting court of appeal decision. There have been arguments in support of rejection and admission.
On the one hand, the Court of Appeal has held that such a statement should be inadmissible; the crux of the court’s reasoning is that the term MAY in the section connotes SHALL, implying that compliance with the foregoing provisions is necessary for the prosecution. Specifically in CHARLES v. THE FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43922(CA) the court reasoned as follows;
“Sections 15(4) and 17(2) of the ACJA impose a duty on public functionaries (police officers and other officers of any law enforcement agency established by an Act of the National Assembly and this includes the EFCC) to record electronically on retrievable video compact disc or such other audio visual means, the confessional statements of a suspect and to take statements of suspects in the presence of the person/s set out in Section 17(2)…… The use of the word “may” in those provisions are in those circumstances mandatory and not permissive.” See also NNAJIOFOR v. THE FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43925(CA) ; OLUWATOYIN v. STATE(2018) LPELR-44441(CA) et al
In the aforementioned case the confessional statement of the appellant was expunged from the record of appeal on the basis of non compliance with the provisions of sections 15(4) and 17(2) of the ACJA.
On the contrary, in yet another decisions of the court of appeal albeit different judicial divisions held that notwithstanding non compliance with the provisions, the confessional statement is admissible. The court reasoned that it is the Evidence Act that governs admissibility of any documents not ACJA or ACJL.. My Lord, Lawal Shuiabu, J.C.A in ENANG v. THE STATE (2019) LPELR-48682(CA) Consider the decisions in support of rejection and then ruled as thus;
“In any event, the above decisions did not as well take cognizance of the fact that Evidence is listed as Item 23 of the Exclusive legislative list, part 1, 2nd schedule to the 1999 Constitution (as amended). Also, the Evidence Act being a specific Act on evidence including admissibility takes precedence over the ACJA in matters of admissibility.”
see also OGUNTOYINBO v. FRN (2018) LPELR-45218(CA)(where the court interprets the word May in it usual meaning) ;GODWIN ELEWANNA v. THE STATE (2019) LPELR-47605(CA); et al
Moving further, Does the ACJA or ACJL determines the admissibility of confessional statements?
This writer submit that the sections under reference have no bearing on the admissibility of confessional statements. The section that governs the admissibility of a Confessional Statement is section 29 of the Evidence Act, it is also submitted that a cursory look at the section under reference there is nothing implying that the confessional statement be admitted or rejected. Therefore, as rightly held in ENANG v. THE STATE (Supra) that evidence Act takes precedence over ACJA or ACJL. The same court while considering section 9 (3) of the ACJL of Lagos state per Ogakwu, J.C.A in EMEKA IKE v. THE STATE OF LAGOS (2019) LPELR-47712(CA) was quite emphatic as follows;
“The matter does not end there. It remains to examine if a confessional statement that satisfies the admissibility requirements under Section 29 of the Evidence Act, will be rendered inadmissible if no video recording of its making and taking is produced at a trial upon an objection being raised as to its voluntariness. Without a doubt, the enactment dealing with the admissibility in evidence of a confessional statement is Section 29 of the Evidence Act. It provides the circumstances in which a confessional statement shall not be allowed to be given in evidence.”
Similarly in OLISAELOKA v. STATE (2017) LPELR-45255(CA) Obaseki-Adejumo, J.C.A in his concurring judgement also note that;
“I shall make some remarks just for emphasis. Section 9(3) of the Administration of Criminal Justice Law (ACJL) is in no way meant to take the place of the provisions of Section 29 of the Evidence Act. The provision will not by itself render inadmissible a confessional statement. It provides for procedure that should be complied with in the taking of confessional statement of an accused person at the pre-trial stage.”
Furthermore, having established that it is the Evidence Act that governs admissibility of confessional statements. This writer further submit that the provisions of the ACJA or ACJL will only come into play if the defendant’s confessional statement is challenged on the premise of involuntariness. In this wise, the prosecution may produce a recorded video of the defendant making his statement and lead evidence that the statement was taken in the presence of his legal practitioner or any other officer, as specified in section 17(2) supra. In a more recent decision, the court of appeal came to the same conclusion per Ogakwu, J.C.A in EMEKA IKE v. THE STATE OF LAGOS (Supra) wherein he admonished as follows:
“So, it is only if during trial when the confessional statement is sought to be tendered and an objection is raised that it was not made voluntarily that the stipulation requiring that the video recording may be produced at the trial kicks in. Where no such objection is raised, the prosecution is not obligated to produce the video recording, since the confessional statement is not inherently inadmissible”
As a corollary, this will only assist the trial judge in deciding whether the statement was made voluntarily. The requirements in S. 15(4) and 17(2) can not ipso facto be the only determinant whether a statement is made voluntary or otherwise. My Lord further held ;
“I still hold firmly to the views reproduced above. The absence of video recording and the fact that the statement was not made in the presence of a legal practitioner of the choice of a defendant can only be pointers, which taken along with other established evidence, can result in the inference that the statement was not voluntarily made.”
Again Ogakwu, J.C.A, in OLISAELOKA v. STATE (supra) had this to say;
“[I] shudder to think that it could be the intendment of the law that once there is no video recording of the making of a confessional statement and it was not made in the presence of a legal practitioner of the choice of an accused person, such a statement will be inadmissible. No. It cannot be! Compliance with the provision can only be a fact which with other proven facts can conduce to a finding that a confessional statement was obtained by oppression or in circumstances which make the confession unreliable.”
In sum, the provisions are designed to protect defendants in criminal cases where confessions are obtained through torture and coercion. Hence, it is a laudable provision that protects a defendant’s fundamental rights. Therefore, it is hereby recommended that Where a defendant is aware that the provisions are not being followed he should challenge the confessional statement on the basis of involuntariness in order to benefit from section 15(4) and 17(1) and (2) of the ACJA, as argued above.
Folorunsho writes from Faculty of Law, Usmanu Danfodiyo University, Sokoto. He can be reached via 08106500985 or firstname.lastname@example.org