The Supreme Court Breathes Life into Section 9 (3) of the ACJL in Charles v. State of Lagos (2023) LPELR-60632 (SC)

Section 9 (3) of the Administration of Criminal Justice Law of Lagos State 2011 is one of the laudable provisions of criminal justice law in Nigeria by which the Police is required to ensure that the making and taking of a confessional statement is recorded on video or, in the absence of video facilities, in writing in the presence of a legal practitioner of the suspect’s choice, and that the said recording and copies of it may be produced at the trial. See also section 15 (4) and 17 (1) and (2) of the Administration of Criminal Justice Act 2015. The aim is to put an end to the practice of the police having to beat out confessions from suspects and using the said confessions to nail them during trial. As laudable as the provision is, however, its neglect and non-enforcement by the police and the courts over the years left it seemingly ‘dead.’

In Charles v. State of the Lagos (Supra), the Supreme Court upturned the concurrent judgments of the lower courts by which the Appellant was convicted for armed robbery and conspiracy to commit armed robbery. One of the issues before the Supreme Court was “whether the justices of the Court of Appeal were right to have affirmed the Appellant’s conviction based on Exhibit 4, his purported confessional statement, which, although admissible, but invalid and impotent, having breached the mandatory provision of Section 9(3) of the Administration of Criminal Law of Lagos State.”

Although the leading judgment by Justice M. D. Muhammad (JSC) did not determine the appeal on the above issue, the issue was considered and resolved in favour of the Appellant by Justice Helen Moronkeji Ogunwumiju JSC (in her concurring judgment) after rejecting the argument of the learned Respondent’s Counsel to the effect that at the Court below, the Appellant did not appeal against the ruling of the trial Court that the confessional statement was voluntarily made but appealed against the failure of the trial Court to apply the provisions of Section 9 (3) of the ACJL in arriving at its decision in the trial within trial. Justice Ogunwumiju (JSC) held that the argument is immaterial since the failure to apply extant law to a set of facts leads to perverseness in any finding of facts by any judge and is appealable as a matter of law irrespective of how the ground of appeal is couched.

In interpreting Section 9 (3) of the ACJL, the apex court per Ogunwumiju JSC held that “the use of the imperative word “shall” in the provision underscores its mandatory nature and that 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.

According to the Court, “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.”

Justice Ogunwumiju noted that unlike the ACJL which uses the word “shall”, the ACJA uses the word “may” on the procedural safeguards’ requirements for the reception of confessional statements from suspects. However, in extending her analysis to the provisions of ACJA, the Supreme Court Justice clarified howbeit obiter that the word “may” as used in ACJA is likewise mandatory and not discretionary, thus endorsing the Court of Appeal’s similar opinion in Nnajiofor v. FRN (2018) LPELR-43925(CA).

After making the above clarification, the learned justice then returned to the issue of non-compliance with section 9 (3) of the ACJL and held that the section was put in place to ensure that the Police and other agencies who have the power to arrest, obtain confessional statements from suspects without any form of oppression or illegality. The court held that the effect of the said provision is that every confessional statement must be recorded on video so that the said recording can be tendered and played in Court as evidence to prove voluntariness or a legal practitioner or any person as specified under the law must be present.

The court further explained that the essence of the video/audio-visual evidence is “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.”

The court lamented that over the years, these provisions are only existent on paper as the Police and other security agencies seldom comply with them despite 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. In this connection, the court held that non-compliance is “inexcusable.”

The court also conducted a comparative analysis, drawing lessons from other jurisdictions such as the United Kingdom and Australia, and concluded that compliance with the procedural safeguards in taking confessional statements from suspects is statutorily and judicially stamped. In Australia, for instance, the admissibility of confessions or admissions is dependent upon there being a video recording of the same, subject to certain exceptions.

According to the apex court, “encoding these provisions in our various statutes is commendable, but by failing to implement them, it is as good as if they had never been enacted in the first place.” In further demonstrating the seriousness of complying with those safeguards, the apex court “deprecated” the “cavalier manner” in which the issue was waived aside by the Court of Appeal. The Appellant’s appeal was therefore allowed.

Comments

The approach of the Supreme Court, per Ogunwumiju (JSC) to the issue of non-compliance with the requirements of section 9 (3) of the ACJL is commendable and reflects international best practice. Interestingly, Justice Rhodes-Vivour had earlier shared the same view in Owhoruke v. COP (2015) LPELR-24820 (SC) at pages 22-23 but his lordship’s view has over the years been treated as a mere recommendation without a binding force by the Court of Appeal in some cases – see Akile v. FRN (2020) LPELR-51470(CA). In Oguntoyinbo v. FRN (2018) LPELR-45218(CA), the dissenting voice of Justice Boloukuromo Moses Ugo JCA which re-echoed the dictum of Justice Rhodes-Vivour on the issue, was overwhelmed by the majority decision of the other Justices of the Court of Appeal which preferred to admit and use a confessional statement on the grounds that it is the Evidence Act (and not the ACJL or ACJA) that specifically governs the admissibility of evidence – See also Tijani v COP (2022) LPELR-58173(CA); Anene v State (2022) LPELR-57326(CA). Even though Justice Rhodes-Vivour’s dictum in Owhoruke was not referred to in Charles, his thinking was shown to be correct in the latter case.

While it may be argued that the Supreme Court in Charles (supra) did not consider the issue of whether there is any conflict between the Evidence Act and the ACJL on matters relating to the admissibility of evidence, it is submitted that a document may be relevant under the Evidence Act and still be excluded if there is in existence a law which renders it inadmissible – Suberu v. State (2010) 8 NWLR (Pt. 1197) 586 at 604, paras. C-E Per Fabiyi JSC; section 1 (b) and 2 of the Evidence Act, 2011; S.T Hon (SAN) “S.T Hons’ Law of Evidence in Nigeria” (2012) Volume 1 Pearl Publishers pg. 91.  

It is the legislature that enacted the Evidence Act and the ACJA (as well as the ACJL which was enacted by the Lagos State House of Assembly). The ACJA was enacted in 2015 (4 years after the Evidence Act of 2011 came into force). The Evidence Act is not all-encompassing, that is why section 1 (b) and 2 of the Act envisages that a person may be disentitled from giving evidence of a fact by the provision of any other Act or law validly in force in Nigeria. The argument that a confessional statement obtained in breach of the ACJL/ACJA cannot be rejected because the Evidence Act is “more superior” to those laws tends to ignore the mischief which those laws were introduced to cure, and the proliferation of that argument may have the effect of encouraging police brutality and indolence. On the other hand, breathing life into those provisions, as the apex Court did in Charles (supra) will not only ensure justice in criminal trials but also encourage development in criminal investigation since the police will have to up their game.

This article was written by Victor Obinna Chukwuma LLM, ACIArb (UK) – Associate at George Ikoli & Okagbue.

Credit – BarristerNG