Whether Failure to Make a Video Recording of a Statement which is not Confessional in Nature and in the Absence of a Legal Practitioner makes it Inadmissible

CASE TITLE:              OBENEYE v. STATE (2022) LPELR-59112(CA)

JUDGMENT DATE:    25TH NOVEMBER, 2022

JUSTICES:                     RAPHAEL CHIKWE AGBO, JCA

                                       BALKISU BELLO ALIYU, JCA

                                       ADEMOLA SAMUEL BOLA, JCA

DIVISION:                     CALABAR

PRACTICE AREA:          CRIMINAL LAW AND PROCEDURE

FACTS:

According to the Respondent, the Prosecution at the trial Court, on the 11th July 2009, at Lishikwel Village, in Obaniliku Local Government Area of Cross River State, the Appellant, his co-accused and others at large met in a drinking spot in the village. Some girls also came into the drinking parlour including one Theresa Obi and they sat down with the Appellant and his friends also drinking. Then one Samson Utsu who was the PW1 called Theresa to come to join him and the deceased because he had sent her N200 to visit him, but she refused to leave the Appellant and his co-accused’s table. Then PW1 went over to the Appellant’s table and requested that Theresa follow him. This resulted in an altercation when the appellants co-accused broke a bottle and threaten to kill PW1.

The intervention of a man called Godfather calmed the situation and the Appellant and his co-accused left the scene. The following day, the deceased and PW1 again went to a drinking joint and it was there the Appellant co-accused met them and punched PW1, while other assailants including the Appellant came in with sticks and attacked the deceased and PW1.

They ran into the main road and in the direction of their village, and they were chased on a motorcycle that the Appellant rode. They caught the deceased on the Lishikwel bridge where they beat him with sticks leading to his collapse, while PW1 ran into the bush and escaped the same fate. The deceased was left unconscious and rushed to the hospital where he died on the 13th July 2009. Hence, the Appellant and his co-accused, Christopher Iwah were charged before the trial Court.

At the end of the trial, the learned trial Judge found and convicted the Appellant and co-accused of the offences of conspiracy to commit the offence of murder and murder of one Michael Umoru Adede, both offences contrary to Sections 516 and 319 of the Criminal Code Law of Cross River State, and they were accordingly sentenced to death by hanging. Dissatisfied with the judgment, the Appellant lodged an appeal at the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the following issues thus:

“1. Whether the trial Court was right when it admitted exhibits C1, C2, C3, C4, C5 and C6, the statements made to the police by the Appellant and his co-accused and relied on same (particularly exhibits C1, C2, C4 and C5) to convict the Appellant for the offences of conspiracy and murder.

2. Whether the trial Court was right when it admitted and relied on exhibit C7, the medical autopsy report to convict the Appellant for the offence of murder, without reading the report to the Appellant or finding out if the Appellant disagreed with any part(s) thereof and/or summoning the author of the report for cross-examination.

3. Whether having regards to the entire evidence adduced before the trial Court, the trial Court was right when it held that PW1 did not contradict himself or any other prosecution witness and went on to rely on the evidence adduced by prosecution witnesses, particularly, PW1 to convict the Appellant for the offence of murder?

4. Whether the trial Court was right to convict the Appellant for the offence of conspiracy when there was no evidence on record to establish either consensus ad idem or common intention between the Appellant and any other person(s) to kill the deceased?”

COUNSEL SUBMISSION

The learned counsel for the Appellant pointed out that the statements of the Appellant admitted as exhibits C1, C2 and C5 were not recorded in accordance with the procedure provided in the provisions of Section 7(2) of the Criminal Procedure Law of Cross River State which require a video recording of a confessional statement of an accused person in the presence of his legal representative for it to be admissible evidence and/or relied upon to convict. That non-compliance with the said law rendered the statements inadmissible in evidence.

He further relied on the case of OWHORUKE VS. C.O.P. (2015) 15 NWLR (PT. 1483) 557 to submit that the learned trial Judge was in grave error when he admitted the said exhibits and relied on them to convict the Appellant.

In response to the contention of the Appellant’s counsel, counsel for the Respondent submitted that the admissibility of statements or documents in a trial or proceeding is governed by the Evidence Act, being an Act of the National Assembly, and that being specifically made on evidence, it takes precedence and overrides the Criminal Procedure Law that the Appellant relied on. Respondent’s counsel argued that contrary to the contention of the Appellant since the Evidence Act does not stipulate making of confessional statements vide video recording before it can be admissible evidence, the trial Court’s admission and reliance on exhibits C1-C6 did not occasion a miscarriage of justice. He relied on the case of A. G. FED. VS. A. G. LAGOS STATE (2013) LPELR-SC 340/2010.

The Appellant’s counsel in reply to points of law submitted that the Criminal Procedure Law of Cross River was adopted and domesticated from the Administration of Criminal Justice Act (ACJA) 2015, which is also an Act of the National Assembly like the Evidence Act. He argued that Section 7(2) of CPL of Cross River State is not ultra vires, but complementary to Section 84 of the Evidence Act 2011.

DECISION/HELD:

In conclusion, the appeal was dismissed and the judgment of the trial Court was affirmed.

RATIO:

EVIDENCE- CONFESSIONAL STATEMENT: Whether failure to make a video recording of a statement which is not confessional in nature and in the absence of a legal practitioner makes it inadmissible

“The record of appeal shows that exhibits C1, C2 and C5 are the statements of the Appellant’s co-defendant made to the police on the 15th, 24th and 29th July 2009 respectively, as shown in pages 54 of the record of appeal. Exhibits C3, C4 and C6 are the statements of the Appellant also made to the police in the course of the investigation.

The contention is that these statements are not admissible evidence because they were not video recorded as provided by Section 7(2) of the Criminal Procedure Law (ACJL) of Cross River State, now replaced with Section 17(1) and (2) of the Administration of Criminal Justice Law of Cross River State 2016, which requires that confessional statements of accused persons shall be video recorded and in the presence of a legal practitioner; and that such recording should be filed and produced at the trial.

The Appellant referred us to the decision of the Supreme Court in OHWORUKE VS. COP (supra) where the learned Jurist Rhodes-Vivour, JSC recommended that confessional statements of suspects be recorded in the presence of a legal practitioner and where this is not done, such confessional statements should be rejected at the trial.

Starting with the statements of the Appellant made to the police on the 25th, 26th and 15th July, 2009 (marked exhibits C3, C4 and C6), the question I ask myself is, are these confessional statements within the contemplation of Section 7(2) of CPL, (now Section 17 of ACJL 2016) of Cross River State.

​To answer this question, I go back to the record of appeal, which shows on page 54 that when the prosecution counsel applied to tender exhibits C3 and C4 in evidence through PW3, the Appellant’s counsel objected on the ground that the statements were not made voluntarily. The prosecution counsel in response to that objection stated that the statements were not confessional statements and the issue of their voluntariness does not arise.

The trial Judge agreed with the prosecution and ruled on page 55 of the record that indeed these statements (exhibits C3 and C4) are not confessional statements in which voluntariness becomes an issue requiring proof before being admitted in evidence. There is no appeal against that ruling of the trial Court holding to the effect that exhibits C3 and C4 are not confessional statements. Then exhibit C6, the Appellant’s statement he made to the police on the 15th of July 2009, was also tendered through PW4 and there was no objection raised by the Appellant’s counsel as shown on page 79 of the record of appeal. The trial Court in admitting this statement Appellant ruled that:

Statement of 2nd accused person made to the police on the 15th of July, 2009 tendered here and there is no objection to same is admitted and marked “exhibit C6”.

​There is no appeal against the said ruling and again, the issue of voluntariness of this statement of the Appellant was not an issue at the trial Court simply because the statements were not confessional statements. That being the case, the provisions of Section 7(2) of CPL or 17 of ACJL of Cross River State, which specifically referred to confessional statements of the accused to the police are not applicable to these statements which were not confessional. The mischief that these provisions of CPL are meant to cure is to avoid a situation where an accused is induced by whatever means to make a confessional statement against his will, i.e., to ensure that confessional statements are voluntary.” Per ALIYU, J.C.A.