Supreme Court Rules That Confessional Statement of a Suspect Must Be with Video Recording

NO VIDEO recording; NO VALID confession.

In a big move to uphold the supremacy of the constitutional rights of a crime suspect over the wide and potentially abusive powers of law enforcement agencies, the Supreme Court of Nigeria has in F.R.N. v. Akaeze [2024] 12 NWLR (Pt. 1951) 1 decided that the duty of the law enforcement agencies in Nigeria under sections 15(4) and 17(1) & (2) of the Administration of Criminal Justice Act 2015 (“ACJA“) to record electronically confessional statement of suspect during criminal investigation in an audio-visual format is a mandatory obligation which permits no discretion and that failure to comply with the statutory requirement invalidates the purported confessional statement. This is a sister appeal to an earlier appeal which culminated in the judgment of the Supreme Court reported in Friday Charles v. The State of Lagos (2023) 13 NWLR (Pt. 1901) 213.

The provision of section 15(4) of the ACJA 2015 (similar to section 9(3) of the Administration of Criminal Justice Law of Lagos State, 2011 (“ACJL”)), dealing with Recording of arrests, is quoted below:

15(4) Where a suspect who is arrested with or without a warrant volunteers to make a confessional statement, the police officer shall ensure that making and taking of the statement shall be in writing and may be recorded electronically on a compact disc or some other audio virtual means.

Also, Section 17(2) of ACJA, 2015, dealing with Recording of statements of suspects, states as follows:

“17(2) Such statement may be taken in the presence of a Legal Practitioner or 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 officer of a Civil Society Organization or a Justice of the Peace or any other person of his choice, provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a Legal Practitioner.“

My lord, Justice Saulawa (who delivered the lead judgment of the Supreme Court), held at page 22, paragraphs D–EE, as follows:

“In the instant case, as aptly found by the court below, the provisions of sections 15(4) and 17(2) of the ACJA/2015 (supra) have strictly provided for recording the statement of the defendant. Thus, there is no denying the fact that failure to perform the act in accordance with the dictates of those provisions of the law would be deemed to be a flagrant non-compliance with the law. In such a situation the court would be entitled to invoke its interpretative jurisdiction to hold that the non-compliance with the law is against the recalcitrant party. See Adesanoye v. Adewole (2006) 14 NWLR (Pt. 1000) 242 @ 269 paragraphs C-E.”

Also, my lord Justice Ogunwumiju (who concurred with the lead judgment) held at page 26 paragraph E-G as follows:

“The use of the imperative word “shall” in the provision underscores its mandatory nature. The mischief sought to be curbed by the law includes such unsavory situations as where an alleged confession is extracted by torture and duress imposed on a defendant, which led to the confession, to avoid miscarriage of justice and to reduce to the barest minimum the incidents of retractions and time consumed by trial within trial proceedings.

Section 9(3) ACJL is a mandatory procedural law against infractions on the constitutional rights of a defendant as enshrined in Section 35(2) of the CFRN (as altered). Any purported confessional statement recorded in breach of the said provision is of no effect. It is impotent and worthless.“

THE FACTS OF THE CASE OF F.R.N. v. AKAEZE

The respondent and two other persons were arraigned before the trial Federal High Court upon a two-count charge of conspiracy and failure to declare the sum of One Hundred and Two Thousand and Eighty Five United States Dollars ($102,885) to the officers and men of the Nigeria Customs Service (NCS) at the Murtala Muhammed International Airport, Lagos, contrary to sections 2(3), 8(5) and 18 of the Money Laundering (Prohibition) Act, 2011 (as amended) by Act No. 1 of 2012.

The case progressed to trial. On May 20, 2016, in the course of the trial, the prosecution sought to tender the extrajudicial statements of the respondent through the prosecution witness. However, the defence counsel vehemently objected, on the ground that the purported extrajudicial statement was a confessional statement made involuntarily and without complying with sections 15(4) and 17(2) of ACJA, 2015 (supra). Thus, the trial court ordered a trial-within-trial. On May 15, 2017, the trial court, presided over by Justice A. M. Anka, delivered its ruling regarding the trial-within-trial proceedings to the conclusive effect:

“I do not find any evidence of any torture, force, or rather coercion as alleged by the defendants herein. The first day the 1st defendant was brought to the commission’s office was the first day he wrote his statement. If there is any detention for more than 3 weeks thereafter, I believe the defendant has the right to file a Fundamental Rights action for the detention beyond the one or two-day period allowed by law. But in the mean time, these documents are relevant, voluntarily made in line with the law. They are accordingly admitted and marked as exhibits.” All parties have a right of appeal.

Having been utterly dissatisfied with the ruling in question, the respondent appealed to the court below (coram: J. E. Ekanem, Sankey, and Otisi, JJCA). That appeal was indeed heard and judgment delivered by the Court of Appeal (Lagos) on 19/03/2018, allowing the appeal. The ruling of the trial court admitting the extrajudicial statements of the appellant made on 9/10/2015 and 19/1/2015 was set aside. In its place, the Court of Appeal directed that the said statements be rejected in evidence and shall be so marked. Consequently, it was directed that the case file be remitted to the Chief Judge of the Federal High Court for reassignment to another judge other than Anka, J., for hearing and determination.

The appellant was dissatisfied with the decision of the Court of Appeal and therefore appealed to the Supreme Court, which unanimously dismissed the appeal.

THE RATIONALE FOR THE DECISION AND WHY “MAY” WAS INTERPRETED AS “MUST”

The rationale for the decision of the Supreme Court (affirming the decision of the Court of Appeal) is not hard to deduce. The task before my lords turned on the interpretation of the word “MAY” in the provision of section 15(4) of the ACJA on one hand and striking a delicate balance between the constitutional rights of defendants and the statutory powers of crime investigators (and determining which is supreme) on the other.

The argument of the counsel to the EFCC is that the word MAY is permissive or directory and not mandatory, and therefore leaves the law enforcement agency conducting an interrogation with the discretion to record or not to record the interrogation session in an audio-visual format. The foregoing submission appears to derive some basis in Section 15(5) of the ACJA, which provides that “(5) Notwithstanding the provision of subsection (4) of this section, an oral confession of arrested suspect shall be admissible in evidence.” It would appear that a community reading of the provisions above may make the foregoing argument attractive in leading to the conclusion that section 15(4) may not have been intended to compel a law enforcement agency accordingly and/or that the compulsion in the said provision (if any at all) appears to have been whittled down by the provision of subsection (5) of section 15.

Interestingly, however, the above argument did not impress the Supreme Court, as same was unanimously rejected by the entire panel, which held that the object and purpose of interpretations of an enactment are sometimes provided in the text of the law, regulation or Act. The Supreme Court went on to adopt the Mischief Rule, which considers the state of the law prior to the enactment, the defect which the statute sets out to eradicate or prevent, the remedy adopted by the legislature to cure the mischief, and the actual reason behind the remedy. The Supreme Court relied on Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 365; Savannah Bank of Nigeria Ltd. v. Ajilo (1989) 1 NWLR (Pt. 97) 305.

In the earlier judgment of the Supreme Court delivered on 31/3/2023, in SC/CR/503/2020 Friday Charles v. The State of Lagos (2023) LPELR-60632 (SC); (2023) 13 NWLR (Pt. 1901) 213, the Supreme Court held that:

“The provisions of Section 9(3) of the Administration of Criminal Justice Law of Lagos State, 2011, which is in pari Materia with Sections 17(2) and 15(4) of the Administration of Criminal Justice Act 2015, are very explicit. The aforementioned provisions are set out below: Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011

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 said statement shall be in writing in the presence of a legal practitioner of his choice.“

And in the current appeal against Akaeze, my lord Justice Ogunwumiju at page 26 paragraphs E-G held as follows:

“The use of the imperative word “shall” in the provision underscores its mandatory nature. The mischiefs ought to be curbed by the law, including such unsavory situations as where an alleged confession is extracted by torture and duress imposed on a defendant, which led to the confession, to avoid miscarriage of justice and to reduce to the barest minimum the incidents of retractions and time consumed by trial within trial proceedings.

Section 9(3) ACJL is a mandatory procedural law against infractions on the constitutional rights of a defendant as enshrined in Section 35(2) of the CFRN (as altered). Any purported confessional statement recorded in breach of the said provision is of no effect. It is impotent and worthless.”

The Supreme Court did not find any precedent in its previous decisions on the permissiveness or otherwise of the word “MAY” in section 15(4) of the ACJA or section 9(3) of the ACJL, as the provisions were merely existent on papers. However, my lord Justice Ogunwumiju found solace in the reasoning of the Court of Appeal, who had previously held in the case of Nnajiofor v. FRN (2018) LPELR-43925 (CA), (2019) 2 NWLR (Pt.1655) 157 as follows: “It has been established by a long line of decided cases that the courts would interpret the wordmay” 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.“

The reasoning of the Supreme Court is that Section 15(4) of the ACJA imposes a duty on a law enforcement agency, and in such circumstances, it would be contrary to the intention of the lawmaker to allow the law enforcement agency to have discretion on whether or not to comply with the duty to record confessional statements in the prescribed manner. See also the case of Friday Charles v. The State of Lagos (supra).

It is in light of the above that the Supreme Court called in aid its previously decided case of Adesanoye v. Adewole (2006) LPELR-143 at Pp. 22-23 Paras E-A; (2000) 9 NWLR (Pt. 671) 127, (though a civil case), where the same Supreme Court (per Tobi JSC) pronounced on the effect of non-compliance with a statutory provision, thus:

“Where a statute clearly provides for a particular act to be performed, failure to perform the act on the part of the party will not only be interpreted as delinquent conduct but will be interpreted as not complying with the statutory provision. In such a situation, the consequences of non-compliance with the statutory provision follow, notwithstanding that the statute did not specifically provide for a sanction. The Court can, by invocation of its interpretative jurisdiction, come to the conclusion that the failure to comply with the statutory provision is against the party in default.”

The decision of the Supreme Court in holding that the word “may” in the said provisions carry a mandatory obligation and not a discretionary or permissive meaning did justice to the respondent’s case and gave effect to the legislative intention to prevent forced confessional statements in criminal investigations. To hold otherwise would not only suppress the mischief which Section 15(4) of the ACJA seeks to cure but would also “mean that the Legislature gave a cure to the mischief with one hand and also took away the cure with the other hand” (using the exact words of my lords).

Also, a restrictive interpretation would reduce the provisions of Section 15(4) of the ACJA to futility and defeat their legislative purpose. The Nigerian Courts are enjoined to adopt construction that would bring out the purpose of legislation and not the one that would defeat it. See Nafiu Rabiu v. The State (1980) 8-11 SC 130; Coca-Cola (Nig.) Ltd v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74, 123. My lord Justice Ogunwumiju in Friday Charles v. The State of Lagos (supra) at page 245 at paragraphs A-D, held as follows:

“The essence of the video/audio-visual evidence is obviously so that the court will be able to decipher from the demeanor of the defendant and all other surrounding circumstances in the video if he or she voluntarily made the confessional statement. Alternatively, where a video facility is not available, the police must take the confessional statement in writing and must ensure that while the same was being taken, the defendant had a legal practitioner of his choice present.

However, over the years, it seems to me that these provisions are only existent on paper, as the police and other security agencies seldom comply with them. The current state of technology, where most mobile phones have a recording application that would state the time and place of making the video if there is no official police photographer at hand, makes the non-compliance inexcusable. My Lords, it is baffling, to say the least, that at this point in our criminal justice system, there is still failure to meet the minimum standards of police investigation or interrogation that are obtained in other jurisdictions.“

My lord, Justice Agim (who also concurred with the lead judgment in the appeal against Akaeze), quoted with approval, at page 31 paragraphs C – D, the views of Crawford (Construction of Statutes, page 516) as follows:

“The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern and these are to be ascertained not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it one way or another. By this teleological or purposeful approach, legislative provisions are applied to realize their objective or purpose.”

My lord, Justice Agim, then concluded at page 32 paragraphs A, C & E, that:

Ss. 15(4) and 17(2) of the Administration of Criminal JusticeAct Act have taken the guarantee of the voluntariness of a confession beyond the Judges Rules that courts apply permissively and the police in-house procedures, which consist only of assurances by the same investigating and prosecuting officers that they complied with the Judges Rules and their in-house procedures in obtaining the confession of an arrested suspect. The experience is that inmost cases, the arrested suspects disagree with these assurances, contending that the confessions were made under duress in various forms such as torture, intimidation, refusal to grant bail unless a statement or confession was made, etc, resulting in time-consuming trials-within-trials to determine if the confession was voluntary. The whole process was a contentious and uncertain landscape, with all depending on judicial discretion.……. For the foregoing reasons and the more detailed ones in the erudite lead judgment, I also dismiss this appeal.“

THE EFFECT OF A CONFESSIONAL STATEMENT

A confession to a crime is serious evidence in criminal law in Nigeria. Section 28 of the Evidence Act 2011 defines confession as ”an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.”. The Evidence Act goes further in Section 29(1) that in any proceedings, “a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this Section.”.

The quality of evidence that can be evinced from a confessional statement is so high that even without more, a person can be convicted for a crime based solely on his confession. In Mohammed v. State (2024) 8 NWLR (Pt. 1941) 385 at page 396 paragraphs D–HH, the Supreme Court held that a trial court is entitled to convict an accused person solely on his confessional statement if the judge believes that the maker of the confession made the statement voluntarily and had the opportunity to commit the offence and nothing on record contradicts the truth of the confessional statement.

Please note that the standard rule to follow by Nigerian judges in accepting or rejecting a confessional statement is laid down in R v. Sykes (1913), 8 CR. App. 233, by subjecting the confession to the following questions:

1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements of facts made in it true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is it consistent with other facts that have been ascertained and have been proved?

Please note also that even where a defendant retracts from his confession, the trial court can still convict him solely on that confession. For instance, in Garba v. State (1997) 3 NWLR (Pt. 492) 144, the Supreme Court per Iguh, JSC, observed as follows: “A trial court is entitled to accept an incriminating part of a confessional statement as established while rejecting another portion of the same statement, especially where, upon a consideration of the entire evidence before the court, there exists overwhelming credible evidence in support of such an incriminating portion of the confessional statement, as well as other pieces of evidence, which render the rejected exculpatory part clearly unreliable.”

It should be added that the Supreme Court has consistently held that the earliest time to challenge the admissibility of a confessional statement is when the prosecution seeks to tender it and not later than that. There is no gainsaying that the power of the police to investigate a reported crime has sometimes been abused in many cases where the suspect was tortured and coerced into making a confessional statement, but failure to challenge the confession timeously may be fatal to the defence of a defendant.

However, it is unclear what view the Supreme Court would hold on the validity of a confessional statement that is unchallenged when it is sought to tendered, but the defendant is able to show during cross-examination of the prosecution’s witness that the session where the confessional statement was made was not recorded in any audiovisual format, as prescribed by Section 15(4) of the ACJ, particularly in the light of Subsection 5 of Section 15 of the ACJA, which states that “Notwithstanding the provision of Subsection (4) of this section, an oral confession of an arrested suspect shall be admissible in evidence.“

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Source: KORIAT & CO.