Confessional Statement Not Obtained In The Presence Of Accused’s Counsel Is Inadmissible

Confessional Statement Not Obtained In The Presence Of Accused’s Counsel Is Inadmissible

CHARLES v. FRN (2018) LPELR-43922(CA)

In the Court of Appeal

In the Lagos Judicial Division

Holden at Lagos

ON MONDAY, 19TH MARCH, 2018

Suit No: CA/L/727A/2017

Before Their Lordships:

JUMMAI HANNATU SANKEY Justice, Court of Appeal

ONYEKACHI AJA OTISI Justice, Court of Appeal

JOSEPH EYO EKANEM Justice, Court of Appeal

Between

AKAEZE CHARLES – Appellant(s)

And

THE FEDERAL REPUBLIC OF NIGERIA – Respondent(s)

BACKGROUND FACTS

The appellant was arraigned before the Federal High Court, Lagos Judicial Division on a two-count charge of conspiracy to commit an offence and failure to declare the sum of $102,885 to the officers and men of the Nigerian Customs Service contrary to the provisions of Section 2(3) and Section 18 respectively of the Money Laundering (Prohibition) Act, 2011 (as amended by Act No 1 of 2012). He is charged along with two other persons in respect of the count on conspiracy and alone in respect of the substantive offence.

The trial of the appellant and his co-accused persons commenced on 25/4/2016 presumably after they pleaded not guilty to the charge. The prosecution called two witnesses. In the course of the evidence-in-chief of the second witness for the prosecution, Hakeem Lasisi the prosecution sought to tender through him several documents including appellant’s statement made on 9/10/2015, another statement made by appellant on the same date and a further statement made by the appellant

on 19/11/2015. Appellant’s counsel objected to their admissibility. The objection was on the basis that the statements were obtained contrary to Section 29 of the Evidence Act, id est, that they were involuntary. The trial Court directed a trial-within-trial.

During the trial-within-trial, the prosecution called four witnesses while the appellant testified for himself. Written addresses were filed in which the appellant contended, inter alia, that the respondent did not comply with Sections 15(4) and 17(2) of the Administration of Criminal Justice Act (ACJA) 2015 in taking the statements of the appellant. The prosecution took the stand that the provisions were directory and not mandatory.

In its ruling delivered on 15/5/2017, the trial Court held, inter alia, that the presence of the appellant’s legal practitioner during the taking of his confessional statements pursuant to Section 17(2) of the ACJA was not mandatory on account of the use of the word “May” therein. The trial Court ruled in favour of the respondent and accordingly admitted the statements of the appellant in evidence as exhibits.

Aggrieved by the ruling, the appellant appealed

ISSUE FOR DETERMINATION

“Whether having regard to the intendment and purpose of the Administration of Criminal Justice Act, 2015 (ACJA) the learned trial judge was right when he interpreted the provision of [Section] 17(2) of the Administration of Criminal Justice Act 2015 to be permissive and not mandatory”

ARGUMENTS ON THE ISSUE

Appellant’s counsel submitted that having regard to Section 1 of the ACJA 2015, the learned trial judge was wrong in interpreting Sections 15(4) and 17(2) of the ACJA to be permissive. He set out the said provisions and further submitted that the law provides safeguards to guarantee transparency in the taking and making of confessional statements. Failure to comply therewith would result in the rejection of such statements, he stated. He noted that before the promulgation of the ACJA, 2015 there was no provision in our law regulating the making and taking of confessional statements, thus making room for abuse by intimidation by the investigating police officer. He contended that it is this mischief that reveals the true intention of the legislature behind Sections 15(4) and 17(2) of the ACJA, 2015. He called in aid of his position Ugwu V Ararume (2007) 12 NWLR (Pt.1048) 367.

Counsel was of the view that the said provisions have stipulated a particular method of obtaining confessional statements from suspects which must be adopted. He relied on CCB V AG Anambra State (1992) 8 NWLR (Pt.261) 528, among other cases, to buttress his position.

He stated that none of the prosecution witnesses testified that in the making and taking of appellant’s statements, there was recording in a retrievable compact disc or audio visual nor was there any evidence that the statements were taken in the presence of his legal practitioner, a member of the Legal Aid Council, Justice of the Peace or any member of the civil society. He stated further that the appellant testified that he demanded for the presence of his lawyer before making any statement but his request was jettisoned.

Continuing, counsel argued that the provisions under consideration were inserted for the benefit and protection of accused persons and therefore ought to be construed as imperative and mandatory. He cited in support Fabian Mathew V The State, unreported decision of this Court in Appeal No.CA/L/1126/2011 delivered on 11/12/2015, Kingsley Akhabue V The State, unreported decision of this Court in Appeal No. CA/L/1056/2011 delivered on 11/12/2015 and Ismaila Fatoki V The State, yet another unreported decision of this Court in Appeal No.CA/L/1125/2011 delivered on 11/12/2015 etc.

Counsel went on to contend that the word “may” in the provisions under scrutiny is mandatory since the provisions are aimed at the protection of the rights of citizens. He urged the Court to adopt a beneficial construction of the provisions.

On his part, Respondent’s counsel stated that the legislature deliberately used the word “may” in Sections 15(4) and 17(2) of the ACJA 2015 in order to confer discretion on and options to a police officer and other law enforcement officers in the exercise of their powers. He submitted that, that position is re-inforced and made clear by the use of the word “shall” in other sub-sections of Sections 15 and 17 of the ACJA. He urged the Court, in essence, to adopt a literal interpretation of the provisions. Citing the cases of Mokelu

V Federal Commissioner for Works and Housing (1976) LPELR – 1904, Counsel submitted that the cases cited by appellant’s counsel were inapplicable to the instant matter. He referred in particular to the unreported decisions of this Court cited by appellant’s counsel and contended that the decisions were based on Section 9(3) of the Administration of Criminal Justice Law (ACJL) of Lagos State 2011 which uses the word “shall”.

Counsel submitted that a beneficial construction of a statute, as advocated by appellant’s counsel, is applicable where a Court is faced with equally open alternatives of interpretation and not according to him, as in the present case, where there is no ambiguity in the provisions of Sections 15(4) and 17(2) of the ACJA.

He finally, on this issue, stated that the electronic recording of a suspect’s confessional statement and the presence of his legal practitioner are optional.

DECISION OF THE COURT

It is pertinent to set out the provisions of Sections 15(4) and 17(1) and (2) of the ACJA, 2015. They state 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.”

​A communal reading of the foregoing provisions shows the following position in regard to the statement of a suspect arrested with or without a warrant on an allegation of having committed a crime:

(i) where he volunteers to make a confessional statement;

• the police officer (this includes any officer of a lawenforcement 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 onretrievable 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 is not in contest that in the making and taking of the statements of the appellant, which are admittedly confessional in nature, the officers of the Economic and Financial Crimes Commission (EFCC) did not record the same electronically on retrievable video compact disc or such other audio visual means and none was tendered during the trial-within-trial. It is also not in doubt that the statements of the appellant were not made and taken in the presence of appellant’s legal practitioner though he said he asked for the presence of a legal practitioner of his choice. None of the other persons listed in Section 17(2) of the ACJA was in attendance.

It was the contention of appellant’s counsel that the requirements set out above are mandatory thus rendering the confessional statements of the appellant impotent and inadmissible. The respondent’s counsel, of course, took a contrary position. The trial Court, as earlier stated, agreed with respondent’s position on the basis that the word “may’ used in the provisions of Sections 15(4) and 17(2) of the ACJA 2015 is permissive and not mandatory and so their non-observance was not fatal to the admission of the statements.

In Edewor V Uwegba (1987) 1 NWLR (Pt. 50) 313, 338, Nnamani, JSC, stated as follows

“Generally the word “may” always means “may”. It has long been settled that may is a permissive or enabling expression. In Messy V Council of the Municipality of Yass (1922) 222 SRNSW 494 per Cullen, C.J. at pp 497, 498 it was held that the use of the word “may” prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it. See also Cotton, L.J. in Re Daker, Michel V Baker (1800) 44 Ch. D 282. But it has been conceded that the word may acquire a mandatory meaning from the context in which it is used. See Johnson’s Tyre Foundary Pty Ltd V Shire of Maffra (1949) A.L.R. 88. The word may also acquire a mandatory meaning from the circumstances in which it is used.”

It has been established by a long line of decided cases that the Courts would interpret the word “may” as mandatory wherever it is used to impose a duty upon a public functionary to be carried out in a particular form or way for the benefit of a private citizen. See R V. Barlow (1693) Carth. 293 cited in R V. Bishop of Oxford (1879) 4 Q.B.D. 245, 258, Mokelu V Federal Commissioner of Works and Housing (1976) 1 All NLR (Pt.1) 276, 282, Edewor V Uwegba (1987) 1 NWLR (Pt.50) 313, 339, Ude V Nwara (1993) 2 NWLR (Pt.278) 638, 661, Ogualaji V Attorney General of Rivers State (1997) 6 NWLR (Pt.508) 209, 233, Adesola V Abidoye (1999) 14 NWLR (Pt. 637) 28, 56, John V Igbo-Etiti LGA (2013) 7 NWLR (Pt. 1352) 1, 16 Galaudu V Kamba (2004) 15 NWLR (Pt.895) 31, 52, and Corporate Affairs Commission V The Registered Trustees of Celestial Church of Christ (Nigeria Diocese) (2009) 11 NWLR (Pt.1151) 40, 60.

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 provisions are for the benefit of private citizens who are suspected of committing crimes so that the enormous powers of the police or other law enforcement agencies may not be abused by intimidating them or bullying them in the course of taking their statements.

I should also add that the provisions also have another side to it, viz; to protect law enforcement agents from false accusation of coercion in taking statements from suspects. The use of the word “may” in those provisions are in those circumstances mandatory and not permissive.

In the cases of Fabian Mathew V State supra., Kingsley Akhabue V State supra. and Joseph Zhiya v. The People of Lagos State (2016) LPELR – 40562 (CA), this Court held that failure to comply with Section 9(3) of the ACJL, 2007 of Lagos State, which requires video recording of the making of a confessional statement or, in its absence, the presence of the suspect’s legal practitioner, during the writing of such statement, rendered such statements impotent and inadmissible.

The trial Court distinguished the above cases from the instant matter on the basis that they were decided based on Section 9(3) of the ACJL, 2007 of Lagos State which uses the word “shall”.

In the light of my holding that the word “may” in Sections 15(4) and 17(2) of the ACJA carries a mandatory meaning, the distinction made by the trial Court becomes one without a difference.

In the discharge of its interpretative function, Courts are concerned with finding, the intention of the legislature and giving effect thereto. In doing so, the Court may consider the object and scope of the statute. This is so when the words used in the statute are not plain or are capable of various interpretations or the literal interpretation would result in injustice.

In the case of Ugwu V Ararume (2007) 12 NWLR (Pt.1048) 367 the Supreme Court quoted with approval the postulation of the Barons of the Exchequer in the sixteenth century in Heydon’s case, reported in (1584) 3 Co. Rep. 8 as follows:

“That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: (1) what was the common law before the passing of the Act; (2) what was the mischief and defect for which the common law did not provide; (3) what remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, (4) the true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro private commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Ad pro bono publico.” That has formed the basis of the mischief rule of statutory interpretation which considers the state of the law before the enactment, the defect which the statute sets out to remedy and/or prevent, the remedy adopted by the legislature to cure the mischief and the true reason of or behind the remedy. See Ugwu V Ararume supra.

In Odgers’ “Construction of Deeds and Statutes” 5th ed by Gerald Dworkin, it is stated at p. 445 that

“This method of approach is easy to apply when the objects and reasons of the Act are set out therein …” Section 1(1) of the ACJA 2015 sets out the purpose or object of the Act as follows

“The purpose of this Acts (sic; is) to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, defendant, and the victim.”

One of the objects and reasons for the Act is to protect the rights and interest of suspects and defendants for the interests and rights of suspects and defendants are as important as the interests and rights of the victims and the society. After all, the suspect or defendant is presumed by the Constitution of Nigeria to be innocent until proved to be guilty.

Before the enactment of the ACJA, 2015 there was no binding law regarding the making and taking of statement by and from suspects though there were and are still are the Judges Rules which rules are made by English Judges to guide Police officers and have no force of law. Rather they are rules of administrative practice. The rules say that when an accused person makes a confessional statement before a junior Police Officer, the statement and the accused person should be taken before a superior Police Officer for confirmation. Where the practice is not followed, the statement would not be rejected in evidence on that account nor would it necessarily be viewed with suspicion. See Nwigboke v The Queen (1959) 4 FSC 101 and Hassan v State (2017) 5 NWLR (Pt.1557) 1. The situation left the suspect at the mercy of Police Officers who in many instances intimidated or beat the suspects into giving confessional statements.

In Owhoruke v. Commissioner of Police (2015) 15 NWLR (Pt.1483) 557,575 Rhodes – Vivour, JSC, stated as follows:

“Confessional statements are most times beaten out of suspects, and the Courts usually admit such statements as counsel and the accused are unable to prove that the statements were not made voluntarily. A fair trial presupposes that Police investigation of crime for which the accused person stands trial was transparent. In that regard, it is time for safeguards to be put in place to guarantee transparency. It is seriously recommended that confessional statements should only be taken from suspect if, and only if his counsel is present, or in the presence of a legal practitioner. Where this is not done, such a confessional statement should be rejected by the Court.”

The trial Court in essence treated the above pronouncement albeit obiter dictum as not being relevant. I think with all due respect, the trial Court missed the point. The dictum was quoted by appellant’s counsel to show the state of the law or lack of it on the making and taking of a confessional statement by the Police or other investigatory authorities; and to show the mischief the Legislature set out to cure by enacting Sections 15 (4) and 17(2) of the ACJA, 2015.

Given the foregoing, to hold that the word “may” in the said provisions carry a discretionary or permissive meaning would not suppress the mischief the provisions are aimed at curing nor would it advance the remedy for it. It would also not add force and life to the cure; rather it would add strength to the mischief and that would not be pro bono publico.

Given the objective of the provisions, to give a permissive colouration to the provisions would mean that the Legislature gave a cure to the mischief with one hand and also took away the cure with the other hand. That would reduce the provisions to futility and defeat their purpose. Courts are to adopt construction that would bring out the purpose of legislation. See Coca Cola (Nig.) Ltd v Akinsanya (2017) 17 NWLR (Pt.1593) 74, 123.

Furthermore, as was rightly argued by the appellant’s counsel, Sections 15 (7) and 17(2) of the ACJA, 2015 are procedural rules for the benefit of a suspect and therefore must be construed as being imperative. See Fabian Matthew v. The State supra in which this Court followed the decision of the Supreme Court in Okegbu v State (1979) 12 NSCC 157, 174 that:

“As is well known, enactments regulating the procedure in Courts are usually construed as imperative; and that is a cardinal principle of interpretation of statutes especially where procedural provisions … are inserted for the protection of the accused person. With respect, this accords with the views of Lord Hudson in his speech in the House of Lords in The Secretary of State for Defence V Warn (1968) 3 W.L.R. 609 at 614 where he stated:

“Procedural sections are usually mandatory and there is nothing which points to the contrary in this case. Procedural provisions are, as here, often inserted for the benefit of accused persons…”

I therefore enter a negative answer to issue 1 and resolve it in favour of the appellant.

In the light of my answers to issues 1 and 2, I reach the conclusion that the appeal has merit. It succeeds and is therefore allowed. The ruling of the trial Court admitting the extra-judicial statements of the appellant made on 9/10/2015, 9/10/2015 and 19/1/2015 is hereby set aside. In its place, I direct that the said statements be rejected in evidence and shall be so marked.

Consequently, it is directed that the case file shall be remitted to the Chief Judge of the Federal High Court for assignment to another judge other than Anka, J. for hearing and determination.

APPEARANCES

Edwin Anikwem, Esq. For Appellant(s)

Joy Amahian For Respondent(s)

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