IFEANYI v. FRN (2020)

IFEANYI v. FRN

(2020)LCN/14289(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/L/727CB/17

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

OZOR IFEANYI APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE CARDINAL PRINCIPLE OF INTERPRETATION OF STATUTE

It is a cardinal rule of interpretation that where the words used in a statute are clear and unambiguous, they should be construed to give effect to their natural meaning. It is also the duty of a judge in interpreting the statute to consider the mischief the legislation intends to cure and proceed to interpret it in order to promote the remedy it aims to provide. See Ugwu & Anor. V. Ararume & Anor. (supra) referred to by the Appellant’s learned counsel and Ourline Ltd V. SCC (Nig.) Ltd & Ors. (2009) LPELR-2833 (SC), Abegunde V. Ondo State House of Assembly & Ors. (2015) LPELR-24588 (SC), and Fawehinmi V. I. G. P. (2000) 7 NWLR (pt. 665) 481 among others. PER ALIYU, J.C.A.

THE MEANING OF THE USE OF THE WORD “MAY”

I say so because though it is a general principle of interpretation of statute that the use of the word ‘may’, generally connotes permissive action. But like every general rule there are exceptions and the consensus of all the authorities on the issue from this Court and the Apex Court is that the word “may” in a statute can also be mandatory, depending on the particular statute the Court is considering. So that in several situations, particularly where a duty is imposed on a person or authority by a statute, the “may” will connote the duty to be mandatory, failure of which will render the action unlawful. See the case of Cole V. Jibunoh & Ors. (2016) LPELR-40662 (SC), where the Apex Court, per Okoro, JSC held that:
It has been argued that the use of the word “may” in Section 47 of the Sheriff and Civil Process Act gives a discretion on an applicant whether to apply or not. I think this is not correct as a duty is placed on the appellant herein to make the application if she wanted to save the property from being sold absolutely. This is one situation where the word “may” would connote mandatoriness. See Adesola v Abidoye (1999) 10 – 12 SC 109 at 127 – 128.
See also Nig. Navy & Ors. V. Labinjo (2012) LPELR 7868 (SC),Unilorin & Anor. V. Oluwadare (2006) LPELR-3417, Fabian Mathew V. State unreported Appeal No: CA/L/1126/2011 delivered on the 11/12/2015 and Akaeze Charles V. FRN (2018) LPELR-43922 (CA) where this Court (per. Ekanem, JCA) held that:
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 for or way for the benefit of a private citizen…. Sections 15(4) and 17(2) of 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 thus includes the EFCC) to record electronically on retrievable video disc or such other audio visual means, the confessional statements of a suspect and to take the statements of suspects in the presence of the person/s set out in Section 17(2). PER ALIYU, J.C.A.

THE CONCEPT OF A TRIAL WITHIN TRIAL

My Lords the law is trite, beyond any argument, that the trial Court has to be very careful not to determine the merit of the matter before it at an interlocutory stage, which will breach the fundamental right to fair hearing of the parties involved. Though a trial within trial is a full trial in the sense that witnesses are called and addresses of counsel filed, but the learned Appellant’s counsel was right to argue that it (trial within trial) only relates to or is concerned with or must be confined to the circumstances under which the extra judicial statement of the Appellant (the central issue in dispute) was recorded. At the end of the trial within trial, only evidence proffered regarding how the confessional statement sought to be tendered in evidence was made/obtained will be considered for the purpose of its admissibility as evidence against him, and no more. It was therefore imperative for the trial Court to avoid making any comment/pronouncement that may give the impression of predetermining the substance of the charge against the Appellant. See Lexigton Int’l Insurance Co. Ltd V. Sola Holdings Ltd (2006) LPELR- 5906 (CA), Obiegbu V. University of Abuja (2005) 9 NWLR (pt. 930) 310, and Iweka V. SCOA (Nig.) Ltd (2003) 1 NWLR (pt. 801) 371 among others. PER ALIYU, J.C.A.

WHETHER OR NOT WHERE INFERENCE DRAWN OR CONCLUSION REACHED BY THE TRIAL COURT IS UNSUPPORTED BY EVIDENCE ADDUCED BEFORE IT, THE DECISION WOULD BE PERVERSE AND LIABLE TO BE SET ASIDE ON APPEAL

The law is trite that where the inference drawn or conclusion reached by the trial Court is unsupported by the evidence adduced before it, or where the Judge took into account matters which he ought not have taken into account, that decision would be perverse and liable to be set aside on appeal. See Rabiu V. Kano State (1980) LPELR-2936 (SC), Fixity Inv. Ltd V. Gumel (2016) LPELR-41549 (CA), Iwuoha V. NIPOST Ltd & Anor. (2003) LPELR-1569 (SC), Odiba V. Azege (1998) 9 NWLR (pt. 566) 370, Atolagbe V. Shorun (1985) LPELR-592 (SC) and Ololunde V. Adeyoju (supra). PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, Lagos judicial Division (trial Court) in respect of Charge NO: FHC/L/5C/2016, delivered by the Hon. Justice A. M. Anka. The Appellant along with two others, were arraigned before the trial Court by the officers of the Economic And Financial Crime Commission (EFCC) on a two counts charge for the offences conspiracy to commit an offence and failure to declare the sum of one hundred and two thousand United States of America Dollars ($102, 885) to the men and officers of the Nigerian Customs Service as required under the provisions of Section 2(3) of the Money Laundering (Prohibition) Act 2011 (as amended), an offence contrary to and punishable under Section 2(5) of the same Act. The Appellant was charged only under count one for the offence of conspiracy.

The Appellant pleaded not guilty to the charge and trial commenced by the prosecution calling two witnesses. In the course of the testimony of PW2, (erroneously referred to as PW1 in the record of appeal), the prosecution sought to tender the extrajudicial statement of the Appellant,

made at the EFCC office. The Appellant objected to the admission of the statement on the ground that he wrote the statement involuntarily. The learned trial Judge conducted a trial within trial to determine the voluntariness or otherwise of the statement of the Appellant.

During the trial within trial, the prosecution called four witnesses and the Appellant testified for himself in defence. At the conclusion of the trial within trial, counsel on both sides filed written addresses. The case made out by the Appellant was that the Respondent’s officers failed to comply with Sections 15(4) and 17(2) of ACJA, 2015 in taking his statement, as such, the statement was inadmissible in evidence. The Respondent seemingly admitted this fact but asserted that the said provisions are directory and not mandatory, as such, the non-compliance would not make the confessional statement inadmissible in evidence.

In his ruling, the learned trial Judge held the view that the presence of a legal practitioner during the taking of the confessional statement of the Appellant pursuant to Section 17(2) of ACJA, 2015 was not mandatory in view of the use of the word

“may” therein. The objection of the Appellant was overruled and his confessional statement was admitted in evidence.

The Appellant was aggrieved with the ruling of the trial Court and filed his notice of appeal on the 1st June 2018 relying on nine (9) grounds of appeal. The record of appeal was transmitted on the 7th June 2017 after which the Appellant’s brief of argument, settled by Dominic O. Ajah Esq. was filed on the 12th June 2018 out of time, but it was deemed properly filed on the 14th October 2019. The Appellant’s learned counsel proposed three (3) issues for the determination of this appeal at page 3 paragraphs 2.0 of the Appellant’s brief thus:
1. 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. Formulated from grounds 1 & 2.
2. Given the state of the law with regards to trial within trial, whether the ruling of the trial Court at the interlocutory stage is not

overreaching. Distilled from grounds 3, 4, 5 and 6.
3. Having regard to the nature of the evidence led at the trial and the conclusion reached by the lower Court, whether the judgment of the lower Court can stand. (Distilled from grounds 7, 8 and 9).

The Respondent’s brief of argument was settled by Abba Muhammed Esq. and filed on the 28th November 2017, which means that it predates the Appellant’s brief of argument that was filed in 2019 by the order of this Court made pursuant to the Appellant’s application (motion on notice) filed on the 5th February 2019 and granted on the 14th October 2019, a period of over one year after the Respondent’s brief was filed.

The record of this Court showed that this appeal was earlier struck out, but re-listed for hearing. The proceedings of the 30th January 2020 showed that the appeal came up for hearing and Mr. I. A. Mohammed appeared for the Respondent. He informed the Court that this appeal was struck out and that the Respondent was not served with any process. He was only served with hearing notice for that date. The Court ordered that the Appellant served him with the

Appellant’s brief on that date. It means that the Respondent’s brief filed on the 28th November 2017 was abandoned in view of the Respondent’s counsel claiming that he was yet to receive the Appellant ‘s brief as late as the 30th January 2020.

The Respondent’s having been served with the Appellant’s brief on that 30th January 2020, his time began to run, for the purpose of filing Respondent’s brief from 31st January 2020. The appeal was called for hearing on the 1st June 2020 and the Respondent’s Counsel was served with hearing notice for that date, but he chose not attend Court and did not offer any explanation to the Court for his absence. The Appeal was thus heard on the Appellant’s brief alone.

Nevertheless, the fact that there is no Respondent’s brief of argument does not mean that the appeal automatically succeeds. The merit of the Appeal must be determined from the grounds of appeal and upon his brief of argument. See Eya V. Olopade (2011) 11 NWLR (pt. 1259) 505, Okeke V. Igboeri (2010) LPELR- 4712 (CA), WEMA Bank V. Crestwood Holdings Ltd (2019 LPELR-64776 (CA) and

Ajonye V. Nwachukwu (2011) LPELR-3677 (CA).

The appeal having not been contested, I will be guided by the Appellant’s three issues reproduced supra, for the determination of this appeal. The issues will be determined seriatim.

ISSUE ONE
In arguing this issue, learned Appellant’s counsel quoted the provisions of Section 1 of the ACJA 2015 upon which he argued that the learned trial Judge was wrong in interpreting the provisions of Sections 15(4) and 17(2) of the Act to be permissive. He argued that the purpose of the said provisions was to safeguard and guarantee transparency in the taking and making confessional statements from suspects and the failure to comply with the provisions will result in rejecting the statement in evidence. He relied on the decision in Ugwu V. Ararume (2007) 12 NWLR (pt. 1048) 367 in support of his submissions.

The learned Appellant’s counsel further argued that the said provisions of ACJA stipulated particular method of taking statements from persons suspected of committing offences and therefore that method and no other must be adopted. He referred us to the decision of the Apex Court

in CCB V. AG. Anambra State (1992) 8 NWLR (pt. 261) 528 where it held, (per Nneemaka-Agu JSC) that “where a statute provides a particular method of performing a duty regulated by the statute, that method and no other must have to be adopted.”

He also submitted that in this case, none of the Respondent’s witnesses testified that the statement of the Appellant was recorded in a retrievable compact disc or audio visual or was taken in the presence of a legal practitioner, a member of the Legal Aid Council or a member of the Civil Society as provided by the provisions of Sections 15(4) and 17(2) of ACJA 2015, which he posited are mandatory and are inserted for the protection of the accused person. He drew the Court’s attention to the testimony of the Appellant before the trial Court, whereby he stated that he demanded the presence of his lawyer before making any statement but he was denied. The learned Appellant’s counsel further referred us to this Court’s judgments in Charles Akaeze V. FRN (2018) LPELR-43922 CA and Nwakuche Jerry Nnajiofor V. FRN, Appeal No: CA/L/727C/2017 (unreported) delivered on the 18th March 2018 in support of

his argument, and in urging the Court to adopt a beneficial construction of the said provisions since they were made for the protection of the right of the citizens.

RESOLUTION OF ISSUE ONE
In resolving issue one distilled from grounds 1 and 2 of appeal, I will start by setting out the provisions of Sections 15(4) and 17(2) of ACJA, 2015 for guidance, thus:
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(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 the Civil Society Organization 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.”
The above provisions are drafted in simple and

clear language requiring no further exposition. It is a cardinal rule of interpretation that where the words used in a statute are clear and unambiguous, they should be construed to give effect to their natural meaning. It is also the duty of a judge in interpreting the statute to consider the mischief the legislation intends to cure and proceed to interpret it in order to promote the remedy it aims to provide. See Ugwu & Anor. V. Ararume & Anor. (supra) referred to by the Appellant’s learned counsel and Ourline Ltd V. SCC (Nig.) Ltd & Ors. (2009) LPELR-2833 (SC), Abegunde V. Ondo State House of Assembly & Ors. (2015) LPELR-24588 (SC), and Fawehinmi V. I. G. P. (2000) 7 NWLR (pt. 665) 481 among others.
By the above quoted clear provisions of Sections 15(4) and 17(2) of ACJA 2015, any person arrested upon reasonable suspicion of committing any criminal offence must have his statement taken and recorded electronically. But where the suspect volunteers to make a confessional statement, in addition to it being recorded electronically, the Act clearly made it a duty on the arresting officers to

record such voluntary confessional statement in the presence of a legal practitioner of the suspect’s choice or in the presence of officer of the Legal Aid Council of Nigeria or in the presence of an official of any civil society organization. If all these personnel mentioned are not available, the section provides that the statement can be taken in the presence of any person of the suspect’s choice, but it must be electronically recorded.
No doubt the provisions of the said Sections 15(4) and 17(2) of ACJA, 2015 are made/aimed to ensure that the confessional statement of a suspect of crime is indeed voluntary. The legislature took its time to make the provisions sufficiently wide enough to prevent/avoid any difficulty for compliance by the arresting officers or authority.
In this appeal the record show that the Respondent’s officers did not electronically record the Appellant’s alleged confessional statements that they tendered and were admitted in evidence in support of the charge of conspiracy against him. There was also no evidence from the Respondent’s officers during the trial within trial showing that the alleged

confessional statement of the Appellant was recorded in the presence of a legal practitioner of his choice or any of the officers mentioned in Section 17(4) of ACJA 2015 or indeed any person of his choice. In fact, there is no contest on these facts.
In his ruling, the learned trial Judge took the view and held at page 202 of the record that the use of the word “may” used in the Section 17(4) supra is not mandatory and the non-compliance with the provisions will not affect the admissibility of the confessional statement. With due respect to the learned trial Judge, he took a very narrow approach in the interpretation and application of the said Section. I say so because though it is a general principle of interpretation of statute that the use of the word ‘may’, generally connotes permissive action. But like every general rule there are exceptions and the consensus of all the authorities on the issue from this Court and the Apex Court is that the word “may” in a statute can also be mandatory, depending on the particular statute the Court is considering. So that in several situations, particularly where a duty is imposed

on a person or authority by a statute, the “may” will connote the duty to be mandatory, failure of which will render the action unlawful. See the case of Cole V. Jibunoh & Ors. (2016) LPELR-40662 (SC), where the Apex Court, per Okoro, JSC held that:
It has been argued that the use of the word “may” in Section 47 of the Sheriff and Civil Process Act gives a discretion on an applicant whether to apply or not. I think this is not correct as a duty is placed on the appellant herein to make the application if she wanted to save the property from being sold absolutely. This is one situation where the word “may” would connote mandatoriness. See Adesola v Abidoye (1999) 10 – 12 SC 109 at 127 – 128.
See also Nig. Navy & Ors. V. Labinjo (2012) LPELR 7868 (SC),Unilorin & Anor. V. Oluwadare (2006) LPELR-3417, Fabian Mathew V. State unreported Appeal No: CA/L/1126/2011 delivered on the 11/12/2015 and Akaeze Charles V. FRN (2018) LPELR-43922 (CA) where this Court (per. Ekanem, JCA) held that:
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 for or way for the benefit of a private citizen…. Sections 15(4) and 17(2) of 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 thus includes the EFCC) to record electronically on retrievable video disc or such other audio visual means, the confessional statements of a suspect and to take the 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 then in the course of taking their statements.
I am in total agreement with the above decision, which is the extant decision of this Court on the interpretation of the provisions of Sections 15(4) and 17(2) of ACJA 2015 and indeed I cannot depart from it. The learned Appellant’s counsel was right in his submissions that the learned trial Judge completely disregarded the

mischief that the provisions were aimed to cure by those provisions. That disregard, regrettably led him to the very narrow interpretation of the said provisions which if allowed will completely defeat the purpose of the enactment. We will not permit that to happen in the interest of the law and the public. Consequently, I resolve issue one in favour of the Appellant.

ISSUE TWO
This issue raises the question whether the ruling of the trial Court being at the interlocutory stage was not over reaching. In arguing this issue, the learned Appellant’s counsel submitted, on the authority of Mbang V. State (2013) 7 NWLR (pt. 1352) 48; that a trial within trial is conducted for the purpose only of testing the voluntariness of a confessional statement of a defendant. As such, the trial Court should only consider the circumstances surrounding the making of the statement for the purpose of its admissibility in evidence. In this case, the learned Counsel contended that the trial Court took into account facts and other unrelated issues thereby breaching one of the cardinal principles of attaining justice. He referred us to the findings of the trial Court at

page 206 of the record of appeal, where the learned trial Judge relied on what transpired at the airport before the Appellant was handed over to the officers of the EFCC. It was his contention that the learned trial Judge failed to appreciate the essence of a trial within trial, and indeed went off track and made findings that have effect on the merit of the case. Our attention was drawn to the learned trial Judge’s reliance on the case of Nsofor V. State (2003) ALL FWLR 1401 upon which he ruled that the statement of the Appellant was made voluntarily, but he proceeded to declare that the case of Nsofor V. State (supra) is meant for the Court to consider in the final judgment. It was argued that the learned trial Judge has unpretentiously jumped the gun and prejudged the outcome of the case on the merit at the interlocutory stage, which practice is against the long line of superior Court’s decisions including Makanjuola V. Ajilore (2001) 12 NWLR (pt. 727) 416 and Akpoundje V. Gov. Delta State (2003) 9 NWLR (pt. 826) 561.

The learned counsel further submitted that the trial Court was wrong to rely on the correctness of the bank account details

and other personal information of the Appellant to determine the voluntariness of his statements. The Court was urged to so hold and to resolve this issue in favour of the Appellant.

RESOLUTION OF ISSUE 2
My Lords the law is trite, beyond any argument, that the trial Court has to be very careful not to determine the merit of the matter before it at an interlocutory stage, which will breach the fundamental right to fair hearing of the parties involved. Though a trial within trial is a full trial in the sense that witnesses are called and addresses of counsel filed, but the learned Appellant’s counsel was right to argue that it (trial within trial) only relates to or is concerned with or must be confined to the circumstances under which the extra judicial statement of the Appellant (the central issue in dispute) was recorded. At the end of the trial within trial, only evidence proffered regarding how the confessional statement sought to be tendered in evidence was made/obtained will be considered for the purpose of its admissibility as evidence against him, and no more. It was therefore imperative for the trial Court to avoid making any

comment/pronouncement that may give the impression of predetermining the substance of the charge against the Appellant. See Lexigton Int’l Insurance Co. Ltd V. Sola Holdings Ltd (2006) LPELR- 5906 (CA), Obiegbu V. University of Abuja (2005) 9 NWLR (pt. 930) 310, and Iweka V. SCOA (Nig.) Ltd (2003) 1 NWLR (pt. 801) 371 among others.

The Appellant’s complaint under this issue is against the learned trial Judge’s finding at page 206 to the effect that the Appellant’s evidence on what transpired at the airport was exactly the same as the content of the statement tendered by the officers of the Respondent. The learned trial Judge also held at page 208 of the record of appeal that:
Now the 2nd Defendant in his evidence before the Court said he went to see one Ojukwu Rowland who was detained at Okotie Eboh EFCC detention office. That it was then the said Rowland told him (2nd Defendant) of one Charles Akaeze (1st Defendant) whom he never knew as at then. That he wrote an application to see the 1st Defendant and that he was allowed to see him. One wonders why 2nd Defendant whom claimed he never met the 1st Defendant before in his life

decided to apply to see him while in detention. Is this evidence of not knowing the 1st Defendant by the 2nd Defendant believable? What motivated the 2nd Defendant to come to the Commission’s office for one reason and thereafter decided to change his mission to see the 1st Defendant whom he never met. This and other questions leave much to be desired. The above puzzles are meant for the Defendants at their leisure time, for sober reflections. (Underlining supplied)

This finding showed that the learned trial Judge went into the determination or the veracity of the content of the confessional statement, which was not yet evidence before him. It is only where the admissibility of the statement is determined, that is, after it is found to be voluntary that its probative value compared to all other evidence placed before the Court can be pronounced or determined. The said finding of the learned trial Judge was really putting the cart before the horse.

Similarly, it is also clear that the learned trial Judge’s finding above is not related to the voluntariness or otherwise of the statement of the confessional statement of the Appellant (as the

2nd Defendant) that was under consideration in the trial within trial. It is pertinent to note that the Appellant was charged under count one with the offence of conspiring with the 1st and 3rd defendants to commit an offence, to which he pleaded not guilty. The above pronouncement of the learned trial Judge, particularly the underlined portion thereof clearly touches on the charge of conspiracy and the possible defence that the Appellant did not know the other co-defendants. The learned trial Judge’s pronouncement that the questions he raised in his ruling “leave more to be desired”, he indicated that he did not believe the Appellant, when the charge of conspiracy is not in issue in the trial within trial.

Therefore the Appellant having been charged with the offence of conspiracy to commit an offence, has the right to be apprehensive with the above pronouncement of the learned trial Judge. Consequently I answer issue two in the affirmative and resolve it in favour of the Appellant.

ISSUE THREE (3)
This issue distilled from grounds 7, 8 and 9 of appeal is Having regard to the nature of the evidence led at the trial and the

conclusion reached by the lower Court, whether the judgment of the lower Court can stand. The learned Appellant’s counsel submitted in the main that once a decision reached by a trial Court is not supported by credible evidence led at the trial, an appellate Court will not hesitate to upturn it. He contended that the learned trial Judge considered evidence that was extraneous to the proceedings in the trial within trial to reach its conclusion, as shown at page 209 of the record of appeal., where the learned trial Judge relied on the failure of the Appellant to challenge his detention by the officers of the Respondents for three weeks to conclude that his statement was voluntarily made. Learned counsel contended that the holding of the trial Court was baseless as far as the trial within trial is concerned. He relied for support on the cases of Olaniyi V. Aroyehun (1991) 5 NWLR (pt. 194) 652, A. G. Anambra V. A. G. Fed. & Ors. (2005) 5 SCNJ 38 at 56 and Ololunde V. Adeyoju (2000) 10 NWLR (pt. 676) 562 at 586.

RESOLUTION
The complaint of the Appellant is that the learned trial Judge used extraneous evidence to determine the issue of the

voluntariness of the Appellant’s alleged confessional statement in the trial within trial. The law is trite that where the inference drawn or conclusion reached by the trial Court is unsupported by the evidence adduced before it, or where the Judge took into account matters which he ought not have taken into account, that decision would be perverse and liable to be set aside on appeal. See Rabiu V. Kano State (1980) LPELR-2936 (SC), Fixity Inv. Ltd V. Gumel (2016) LPELR-41549 (CA), Iwuoha V. NIPOST Ltd & Anor. (2003) LPELR-1569 (SC), Odiba V. Azege (1998) 9 NWLR (pt. 566) 370, Atolagbe V. Shorun (1985) LPELR-592 (SC) and Ololunde V. Adeyoju (supra).

The Appellant specifically referred us to the pronouncement of the learned trial Judge contained in page 209 of the record of appeal thus:
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 one or two days period allowed by law.
The record of appeal shows that the

above pronouncement of the learned trial Judge was preceded by his conclusion that:
I do not find any evidence of any torture, force or rather coercion as argued by the Defendants herein.

In effect the learned trial Judge already reached his conclusion before making the remarks complained of under this issue. It means the subsequent statement did not influence the conclusion he already reached. I therefore resolve this issue against the Appellant. However in view of the resolution of issues 1 and 2 in his favour, the appeal has merit and it is allowed by me.

The Ruling of the Federal High Court, Lagos Judicial Division, delivered on the 15th May 2015 by Hon. Justice A. M. Anka is hereby set aside. The extra-judicial statements of the Appellant admitted in evidence by the said ruling are hereby rejected in evidence and they shall be so marked. Consequent upon my resolution of issue two in favour of the Appellant to the effect that the learned trial judge prejudged the substantive charge of conspiracy against the appellant, it is hereby ordered that the case file be remitted to the Chief Judge of the Federal High Court for re-assignment to

another judge other than Anka J. for hearing and determination. Appeal allowed.

MOHAMMED LAWAL GARBA, J.C.A.: I have read the lead judgment written by my Learned Brother Balkisu Bello Aliyu, JCA, in this appeal and agree that the appeal is meritorious and deserves to be allowed.

The appeal is allowed by me in terms of the lead judgment.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I was privileged to read in its draft form, the lead judgment of my learned brother, B.B. ALIYU, JCA in which he allowed the appeal and ordered that the case be remitted to the lower Court to be re-assigned to another judge to be tried de novo.

In relation to the first issue which the lead judgment resolved in favour of the Appellant, it is my view, that the provision of Sections 15 (4) and 17 (2) of the ACJA, 2015 are to be, read, having regard to the active and operative words used, to wit: “may be recorded electronically retrievable video compact disc or such that audio visual means” and in Section 17 (2) of the same Act with the words “may be taken in the presence of a legal practitioner of his choice” are such that should be construed as

merely directory and not obligatory. I am aware that the lead judgment relied on the interpretation of the same provision in the Court of Appeal decision in AKAEZE CHARLES V. FRN (2018) LPELR — 43922 (CA) per Ekanem, JCA. My view is that the interpretation given to these provisions as a “mandatory” duty may not be right because, while the focus and goal of the NASS in the making of the said provision was to prevent the extraction of “confessional statements” from suspects in a way and manner which contravenes the provisions of Sections 28 and 29 of the Evidence Act, 2011, it is my view that the new protocols which Sections 15 (4) and 17 (2) of the ACJA, supra introduced, were intended to re-emphasise the need for investigating bodies and agencies of Government such as the EFCC, to abide with the principles of due process whilst conducting its investigation.
I have expressed these opinions because, the primary, perhaps the principal legislation which specifically govern admissibility vel-non of evidence in all judicial proceedings, (see Sections 1 & 2 read with Section 256(1) of the Evidence Act, 2011) is the Evidence Act,

supra, whereas, the ACJA, 2015 is essentially a procedural or adjectival legislation even though a few of its provisions tend to veer into the arena of other substantive legislations which are meant to compliment, but sadly, in some cases, compete with other statutory enactments including the Evidence Act and even the Constitution, 1999 As Amended. See the Supreme Court’s full panel decision in SC/622C/2019: UDE JONES UDEOGU V. F.R.N. & 2 ORS- unreported judgment delivered on 8/5/2020; and the Court of Appeal unreported judgment in CA/A/767/2019: CHINAKA CHIJIOKE PROMISE V. F.R.N. delivered on 22/5/2020 in which some of the provisions of the ACJA, 2015 were nullified for being ambitiously inconsistent with the Constitution, 1999 (As Amended).
Although, the “explanatory memorandum” to the ACJA, 2015 is not to be used in its Interpretation, (see the seminal work of OBANDE FESTUS OGBUINYA, JCA In Guidelines to Interpretation of Statutes’ pages 18 — 19) but it clearly spells out, the primary object for the which Act was enacted, and it states: “This Act provides for the Administration of Criminal Justice System which

promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of society from crimes and protection of the rights and interest of the suspect, the defendant and victim in Nigeria”. With this “Explanatory Memorandum”, the primary object of ACJA, 2015 has been clearly spelt out, and it cannot be applied, being primarily a procedural criminal legislation to super-impose itself on issues which the Evidence Act, 2011- which applies to all manner of judicial proceedings, had already covered as a specific and primary legislation. See Chapter 1 of FIDELIS NWADIALO SAN of his seminal work titled: “MODERN NIGERIAN LAW OF EVIDENCE”, 2nd Edition.
I am of the view, that when Sections 28 and 29 of the Evidence Act, supra which have clearly provided for the admissibility or otherwise of a confessional statement” are carefully read, it is obvious that the provisions of Sections 15(4) & 17(2) of the ACJA, supra, can only be construed, even in the light of the active and operative words used, as a body of guidelines or protocols which investigating agencies such as the Respondent, are

required to observe in the course of their Investigation and they are to complement the provisions of Sections 28 and 29 of the Evidence Act, supra. The only mandatory aspect of the provision, is in respect of taking down the extra judicial statement in writing and nothing more.
The second part of the provision is such that the word “and” that connects with the requirement of electronic recording, is one which must be read not in its conjunctive sense, but disjunctive because, the issue of recording electronically is intended to serve as an alternative mode of preserving the statement obtained from a suspect in the course of investigation. Once these interpretation of statutes is applied, it is not difficult to see that the said provision should be read in its permissive connotation except the issue as to having the statement recorded in writing which is to generate a documentary evidence to be used in the proceedings. The second part of the provision is disjunctive, and the requirement of electronic recording is to be treated as merely missive, not mandatory.
The stark reality we are confronted with, is that there are Police posts or

stations in rural areas many of who do not have access to electricity let alone, to modern day gadgets to embark on electronic recording of a suspect’s extra-judicial statement. The truth is that crimes are also committed in such rural areas as in the urban centres where these gadgets are not available even if they have access to electricity.
Let me reproduce these provisions for clarity of the postulations I am making. Section 15(4) of the ACJA, supra, states.’
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 the making and taking of the statement shall be in writing and may be recorded electronically on a retrievable video compact disc or such other audio visual means.
Its Section 17(2) also provides:
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 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.”
In relation to Section 17 (2) of the ACJA supra, the active word “may” is intended to be interpreted in its permissive connotation and not to be construed as mandatory. The only mandatory word is the “shall” which was inserted as a proviso, and this is to clearly limit the role of the legal practitioner of his choice where present, to be an observer and not to use his presence to disrupt the process of investigation or to descend into the arena. Once these rules are used to interpret the provision of Section 17 (2) of the ACJA, 2015, it will be clear, that the presence of a legal practitioner of the suspect’s choice is only directory and not mandatory in order to validate confessional statement made by a suspect in the course of investigation.
While in relation to the Evidence Act, supra, its Sections 28 and 29(1)-(5) read thus:
S.28” A confession is an admission made at any time by a person

charged with a crime, stating or suggesting the inference that he committed that crime.
S.29 (1) In any proceeding, 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.
(2) If, any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained.
a) by oppression of the person who made it; or
b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was obtain in a manner contrary to the provisions of this section.
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its

own motion require the prosecution, as a condition of allowing It to do so, to prove that the confession was not obtained as mentioned in either paragraph (a) or (b) of subsection(2) of this section.
(4) Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless be adapted the said statement by words or conduct
(5) In this section ‘oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.
In the instant appeal, it is the provision of Section 29(2)(a) & (b) of the Evidence Act, supra that call for deeper consideration because, unless the extra-judicial statement allegedly made by the Appellant in the course of his being investigated is found, when the trial within trial was conducted, to have contravened this provision, It is in my view, idle to invoke the provisions of Sections 15(4) and 17(2) of the ACJA,

supra which in substance, prescribed protocols the Respondent was required to observe in the course of its investigation duty. My view is that, in order to invoke the provision of Sections 15(4) and 17(2) of the ACJA, supra to deny the reception of the Appellant’s extra judicial statement made in the course of the investigation, the Appellant should have by his evidence during the collateral proceedings of trial within a trial, successfully crossed the important statutory benchmark laid down and prescribed by Section 28 read in close conjunction with Section 29(2) (a) & (b) of the Evidence Act, supra. This is because, the provisions of Sections 15(4) and 17(2) of the ACJA, supra are meant, as statutory protocols to complement the more substantive provisions of the Evidence Act, supra that specifically guide the admissibility of a “confessional statement” in the course of criminal trials.
I am of the view, that it is when this threshold has been crossed on the balance of probability by the evidence led in the collateral proceedings of trial within a trial, that the Court can use and apply the provisions of Sections 15(4) and 17(2) of the ACJA, supra

as a further ground why the extra-judicial statements made by the Appellant, would remain a tainted piece of documentary evidence in which Section 29(1) of the Evidence Act, supra can be invoked to make it inadmissible. The focus of my contribution on this Issue, is that the Evidence Act, 2011 remains the primary, perhaps, the principal federal legislation that was enacted to regulate issues of evidence in all the Courts of record for the purpose of proceedings, whether in civil or criminal cases, and on no account, should any of its provisions be read in subordination to the provisions of the ACJA or any other Act or legislation except the Constitution, 1999 As Amended.
My Lords, my view is that when these considerations are borne in mind, It is clear that the provision of Section 29(2) (a) & (b) of the Evidence Act, supra when read with its subsection (5), that the lower Court was in my view, right to have over-ruled the Appellant’s objection on the admissibility of the extra-judicial statement he made in the course of the investigation and which was anchored on the failure of the Respondent to abide with the provision of

Sections 15(4) and 17(2) of the ACJA, supra which in my view, were merely complimentary provisions which prescribed statutory protocols to be observed whilst taking extra-judicial statements of suspects. The only mandatory aspect of Section 17 (2) of the ACJA, 2015 supra is in relation to the Legal Practitioner who may be present when the statement is being recorded in writing or electronically and who shall not interfere with the process except in the ‘discharge” of his role as a Legal Practitioner. The role of the Legal Practitioner is that of an observer, and nothing more.
The Evidence Act, supra remains in my view, the principal legislation which guides and regulates Issues of evidence in all Courts of record to which, by its Section 256(1) it applies. To hold otherwise, is to make the Evidence Act supra to be read and applied in subordination to the Procedural Rules of the Federal High Court and the States High Court on issues of frontloading documentary exhibits in civil or criminal causes.
The National Assembly in Section 29(5) of the Evidence Act, supra provides that: “In this section, ‘oppression’ includes torture,

inhuman or degrading treatment, arid the use of threat of violence whether or not amounting to torture”. This was to underscore in dear terms, the picture of the scenario conceived by the law maker by enacting Sections 28 and 29 (2)(a) & (b) of the Evidence Act. supra, and of the protocols statutorily prescribed by Sections 15(4) and 17(2) of the ACJA, supra.
My lords, I am of the view that these provisions are to be read, understood and contexualised against the background fact and history, that much of investigation activities by the bodies or agencies charged with investigation and prosecution of criminal matters, are often centred, if not majorly concentrated on their ability, by whatsoever means possible, to extract confessional statements from suspects which is often carried out without regard to the dictates of the due process of law including the rights guaranteed by the Constitution, 1999 As Amended by which persons charged to Court are to be presumed innocent until the contrary is proved in a fair judicial trial as prescribed by laws, including the Evidence Act. supra, ACJA, supra and of course, the Constitution as the ground norm. It

is with respect to this analysis, that I am of the view, that the issue one in the appeal, should be resolved against the Appellant as the lower Court was right by dismissing his objection to the admissibility of the extra-judicial statement he allegedly made in the course of the investigation.
The said provisions of Sections 15(4) & 17(2) of the ACJA, supra in my view, ought to be read in the permissive connotation of the active and operative words deliberately used by the law maker. See GALAUDA & ANOR V. KAMBA & ANOR (2004) 15 NWLR (pt. 895) C.A. 31 @ 52; and the Supreme Court’s decision in IFEZUE V. MBA IDUGHA & ORS (1984) 5 S.C. 79 @ 135. This approach will be proper when the provisions are read in conjunction with the provisions of Sections 28 and 29 of the Evidence Act, 2011 which I had alluded to as the primary legislation that will guide the Courts in terms of admissibility of a “confessional statement” allegedly made by a suspect prior to his formal indictment in Courts.

In view of the decision of my noble Lord in the lead judgment that the lower Court, in the course of delivering its Ruling in the trial

within trial, had made certain findings or expressed certain views which are prejudicial to a fair trial of the Appellant, see Supreme Court’s decision in AJIBOYE V. STATE (1995) 8 NWLR (pt.414) S.C. 408 @ 414, I agree that the case be remitted back to the lower Court to be re-assigned to another judge to be tried de novo.

In the light of this order, the Court to whom the case shall be re-assigned, will be able to reconsider the admissibility of the extra judicial statement of the Appellant when and if it is tendered in the course of the renewed proceedings as he is not bound by the findings or decision made in the course of the proceedings earlier conducted which birthed the instant appeal.

I allow the appeal, and I abide with the consequential order made in the judgment.

Appeal is allowed.

Appearances:

DOMINIC O. AJAH ESQ. For Appellant(s)

A. SULEIMAN ESQ. For Respondent(s)