Format Of Statement Of An Accused Person To The Police

In the High Court of Lagos State In the Ikeja Judicial Division Holden at Ikeja

On Friday, the 25th day of February, 2022

Before His Lordship
O.H. Oshodi
Judge, High Court of Lagos State

Suit No: ID/5970C/2017

Between

The State of Lagos State Prosecution

And

1. Chukwudumeme Onwuamadike (M) (aka Evans)
2 Uche Amadi (M)
3. Ogechi Ochechukwu (F)
4. Okwuchukwu Nwachukwu (M)
5. Chilaka Ifeanyi (M)
6. Victor Chukwunonso Aduba (M) Defendants

Facts

On 14th February 2017, along Obokun Street in Ilupeju, a certain Donatus Duru (PW 2) was kidnapped on his way home at about 7:30pm. He was shackled, blindfolded and taken to a bungalow in Igando, Lagos State. Thereafter, PW 2 was shown rifle and pistols, while demanding money from him. He was subsequently confined in a dark room and blindfolded before the group informed him that he would be required to pay the sum of $2. million for his release. He pleaded with them for a reduction, and the sum was changed to €1 million. The victim’s brother, PW 1 was contacted to arrange the ransom for the release of PW 2. The family members struggled to raise the stated sum, and when they could not raise the agreed sum, a further reduction to €500,000 was accepted. PW 2, who was tortured and made to sleep on floor tiles, pleaded with the Chairman to accept the sum of N60 million raised by his family pending his release, when he would be able to raise the remaining sum.

The Wednesday before Easter, the Chairman of the kidnap group, by the nickname – Evans – connected PW 2 to his brother (PW 1) who stated that they were able to convert the Naira raised to the sum of €223,000 which sum was eventually delivered to the group as ransom for the release of PW 2. However, PW 2 was not released as agreed. Fortunately, he was able to escape from the building . He jumped the fence and hid till daybreak, when he found his way to the Police in Idimu. Thereafter, the Police went to the camp where PW 2 was kept in Igando; broke the padlock, entered into the building and recovered some arms and ammunitions. The Defendants were subsequently arrested, and taken to the Police Station for interview. At the station, the 1st and 4th Defendant apologised to PW 2 for their actions, and there was video recording of this.

The Defendants were, therefore, arraigned before the High Court of Lagos State, on two-count Charge of conspiracy to commit felony contrary to Section 411 of the Criminal Law, 2015 and kidnapping contrary to Section 2(1) of Kidnapping Prohibition Law of 2017. The 1st, 2nd and 4th Defendant pleaded Guilty to the counts in the Charge, while the other Defendants pleaded Not Guilty. The Prosecution filed an Amended Charge on 19th October, 2017 and the Defendants took their plea to the Amended Charge, to which they all pleaded Not Guilty. At the trial, the parties called witnesses and tendered exhibits, including the extra-judicial statements of the Defendants and three compact discs showing the video recordings of the interview with some of the Defendants. Following objections to the voluntariness of some of the statements, a trial-within-trial was conducted, after which the court admitted the statements.

Upon close of the Prosecution’s case, the 3rd to 6th Defendant raised a “No Case Submission, which was dismissed by the court. The Defendants, thereafter, led evidence and were duly cross-examined. Written addresses were filed, in which parties formulated issues. Though the issue of Section 9(3) of the Administration of Criminal Justice Law, 2015 with respect to statements of the 1st and 6th Defendant were raised during trial leading to the court embarking on a trial-within-trial, counsel for the parties still raised the issue in their final written addresses.

Issues for Determination

1. Whether the non-compliance of the Police with the provisions of Section 9(3) of the Administration of Criminal Justice Law 2015 (ACJL) in obtaining the 1st and 6th Defendant’s confessional statements, does not render same inadmissible.

2. Whether the Prosecution has proved beyond reasonable doubt, the essential elements or ingredients of the offences the Defendants are charged.

Arguments
Arguing the first issue, counsel argued on behalf of the 1st and 6th Defendant that there was non-compliance with the provisions of Section 9(3) of the ACJL, which renders inadmissible the confessional statements obtained from the Defendants.

Regarding the second issue, counsel argued for the 1st Defendant that there was no identification parade conducted, which points to the 1st Defendant; he submitted that the Prosecution did not establish its case against the 1st Defendant and prayed the court to discharge and acquit him.

For the 2nd to 6th Defendant, it was submitted that the Prosecution failed to prove the ingredients of the crime alleged against them. They therefore, urged the court to discharge and acquit them.

The Prosecution countered the submissions above, stating that they had proved their case against the Defendants. With respect to the 6th Defendant, counsel faulted the defence of alibi raised in the address, arguing that the 6th Defendant did not raise the issue.

Court’s Judgement and Rationale

Deciding the first issue, the court held that all the applicable laws to admissibility of extra-judicial or “custodial statements”, comprising the 1999 Constitution (as amended), the Evidence Act and the Administration of Criminal Justice Law 2015 (which was in force as at when the statements of the Defendants were obtained), do not require that a statement by a Defendant to the Police or Investigator be in any particular form. The statement may be oral, written or even electronically recorded. Also, there is no requirement that the Defendant’s Statement must be in his own handwriting, or that the statement to the Police must be on oath. The law is settled that “custodial statements” would be admitted in evidence where the court is first satisfied that the Defendant in fact, made the statement, and that the statement was made voluntarily.

In this regard, the trial court conducted a trial-within-trial to ascertain the voluntariness of the statements of the Defendants, and came to a decision that they were made voluntarily. The 1st and 6th Defendant did not dispute that they wrote the statements in issue; their contention however, is that the statements are not admissible in evidence for failure to comply with the provisions of Section 9(3) of the ACJL. The relevant provision stipulates that where any person who is arrested with or without a warrant volunteers to make a confessional statement, the Police Officer shall ensure that the making and taking of such statement is recorded on video and the said recording and copies of it may be produced at the trial, provided that in the absence of video facility, the statement shall be in writing in the presence of a legal practitioner of his choice.

Though the word “shall” is used in the referenced provision above, that word does not command a mandatory action. This is because, there is no “punishment” stated in the law for non-compliance with the provision. In this case, the non-compliance with Section 9(3) of the ACJL, does not affect the admissibility of a confessional statement of a Defendant. The admissibility of such confessional statement is according to Section 29(2)(a) & (b) of the Evidence Act to which the court had, after the trial-within-trial, found that there was no proof of oppression or anything done or said, which would render unreliable the statements made by the Defendants.
The trial court referred to the decisions of the Court of Appeal in JOSEPH ZHIYA v THE PEOPLE OF LAGOS STATE (2016) LPELR-CA/L/6186/2015 and AKAEZE CHARLES v FRN (2018) 13 NWLR (Pt. 1635) 50; (2018) LPELR-CA/L/727A/2017, where the appellate court held that failure to comply with Section 9(3) of the ACJL, 2007, 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, renders the statement impotent and inadmissible.

Nonetheless, His Lordship identified the decision of the Court of Appeal in SUNDAY OKONDO v THE PEOPLE OF LAGOS STATE (2016) All FWLR (Pt. 851) 1308, as being apt in this instance. In this case, it was held that Section 9(3) of the ACJL, being a law made by the House of Assembly, cannot apply to admissibility and relevance of evidence, as resort should be made to the Evidence Act, 2011 on such matters. This position was affirmed in GODWIN ELEWANNA v THE STATE (2019) LPELR-47605 (CA), where the Court of Appeal held, on the effectiveness of Sections 15(4) and 17(1) and (2) of the Administration of Criminal Justice Act, 2015 (ACJA), with respect to confessional statements, that these sections of the ACJA do not apply to admissibility of confessional statements which are governed by Sections 28 and 29 of the Evidence Act, and not the ACJA. In DAIRO v STATE (2017) LPELR-43724 (SC), the Apex Court reiterated that a confessional statement is relevant and admissible in evidence, once it satisfies the conditions laid down in Sections 28 and 29 of the Evidence Act.

Deciding the second issue, the court noted that there were two counts bordering on conspiracy and kidnapping. The court went ahead to restate the provisions of Section 411 of the Criminal Law 2015, and the definition of the term in the texts and under case law. Offence of conspiracy refers to meeting of the minds of the conspirators; however, this is not easily capable of proof, as the conspirators hardly invite people to witness their assent. There must be criminal intent of two or more people, the execution of which will result in the actual crime – NELSON FRIDAY v STATE (2016) LPELR-40638 (SC). Thus, the court regarded the decision of the Supreme Court that the proper approach to an indictment containing conspiracy Charge and substantive charges is to deal with the matter first, and then proceed to see how far the conspiracy count has been made out.

By Section 2(1) of the Kidnapping Prohibition Law 2017, the key three ingredients to establish in cases of kidnapping are: (i) that the victim was seized, and taken away by the accused person; (ii) the victim was taken away against his consent; and (iii) the victim was taken away without lawful excuse – OKASHETU v STATE (2016) LPELR-40611 (SC).

From the evidence before the court, PW 2 was the victim of the kidnap, and his evidence was not contradicted by the Defendants. Though the Defendants denied any form of involvement with the kidnap, the court found that their oral testimony cannot alter the contents of their confessional statements. More so, Exhibits 2, 4 and 10 are video clips of the Defendants making their confessional statements leisurely and without torture. The court found that there were admissions, oral direct and circumstantial, all to the effect that the 1st, 2nd and 4th Defendant did partake in the kidnap of PW 2. The retraction of the Confessional Statement does not preclude the court from relying on them. Exhibits 2, 4 and 10 corroborate the contents of the statement of the witnesses.
Regarding the issue of identification raised by the 1st Defendant, the court held that the identity of who “Evans” is, is not an issue as the 1st Defendant also admitted to be the dreaded Evans. Facts admitted, need no further proof. There is evidence before the court that 1st, 2nd and 4th Defendant partook in the kidnap of PW 2, and that these Defendants conspired to carry out the kidnap of PW 2. Thus, the court found that the Prosecution proved the ingredients of the offences charged, beyond reasonable doubt. Hence, the conviction of 1st, 2nd and 4th Defendant, as charged.

1st, 2nd and 4th Defendant Convicted and Sentenced to Life Imprisonment;
3rd, 5th and 6th Defendant Discharged and Acquitted.

Representation

T.K. Shitta-Bey (Miss), Solicitor-General/Permanent Secretary with I.M. Gbadamosi-Yeye (Mrs.), Principal State Counsel and Jubril Kareem, Esq., Senior State Counsel for the Prosecution.
H.O. Ajibola, Esq. with O.O. Afolabi, Esq. for the 1st Defendant.
Miss E.B. Obogwu, Principal State Counsel for the 2nd Defendant.
Chris Obiaka, Esq. for the 3rd Defendant.
O. Ajanaku, Esq. for the 4th Defendant.
N.C. Izokwu, Esq. for the 5th Defendant.
Emmanuel Ochai, Esq. with Adeola Folarin (Miss) for the 6th Defendant.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)