NWAKUCHE JERRY NNAJIOFOR v. THE FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/11086(CA)
In The Court of Appeal of Nigeria
On Monday, the 19th day of March, 2018
CA/L/727C/2017
THE COURT CAN INTERPRET THE WORD ‘MAY’ AS MANDATORY
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 form or way for the benefit of a private citizen per Joseph E. Ekanem, JCA
WHEN A TRIAL-WITHIN-TRIAL WILL BE NEEDED
The need for a trial-within-trial arises when at the point of tendering the extra-judicial confession of an accused person, the defence objects to its admissibility on the ground that it was not obtained voluntarily. The trial of the substantive charge is put on hold for the sole purpose of determining the voluntariness of the making of the confessional statement and hence its admissibility or otherwise. It is not held for the purpose of testing the truthfulness of the content of the statement per Joseph E. Ekanem, JCA
COURT MUST BE CONCIOUS WHEN RULING AT AN INTERLOCUTORY STAGE
The law is that a Court must be cautious in its ruling at an interlocutory stage not to make any pronouncement or observation on the facts which might appear to determine the main issue/s or tend to prejudice the main issue per Joseph E. Ekanem, JCA
JUSTICE
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
NWAKUCHE JERRY NNAJIOFOR Appellant(s)
AND
THE FEDERAL REPUBLIC OF NIGERIA Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment):
Three persons were arraigned before the Federal High Court, Lagos Judicial Division (the trial Court) presided over by Anka, J. Appellant was/is the 3rd accused person. The charge sheet numbered FHC/L/5C/16 contains two counts of offences, viz; conspiracy to commit an offence, to wit; failure to declare the sum of $102,885 to the officers and men of the Nigerian Customs Service and failure to declare the said sum of money to the officers and men of the Nigerian Customs Service as required under Section 2(3) of the Money Laundering (Prohibition) Act 2011. Appellant was only charged in the first count of conspiracy.
The trial of the appellant and his co-accused persons commenced on 25/4/2016 presumably after they pleaded not guilty to the charge. The prosecution called two witnesses. In the course of the evidence-in-chief of the second witness for the prosecution, Hakeem Lasisi (erroneously described as PW1 by the trial Court) the prosecution sought to tender through him several documents including appellant’s statement made on 12/10/2015. Appellant’s counsel objected to them admissibility of the statement. The objection was on the basis that the statement was obtained contrary to Section 29 of the Evidence Act, id est, that it was involuntary. The trial Court directed a trial-within-trial.
During the trial-within-trial, the prosecution called four witnesses while the appellant testified for himself. Written addresses were filed in which the appellant contended, inter alia, that the respondent did not comply with Sections 15(4) and 17(2) of the Administration of Criminal Justice Act (ACJA) 2015 in taking the statement of the appellant. The prosecution took the stand that the provisions were directory and not mandatory.
In its ruling delivered on 15/5/2017, the trial Court held, inter alia, that the presence of the appellant’s legal practitioner during the taking of his confessional statement pursuant to Section 17(2) of the ACJA was not mandatory on account of the use of the word “May” therein. The trial Court ruled in favour of the respondent and accordingly admitted the statement of the appellant in evidence as exhibit.
Aggrieved by the ruling the appellant has appealed to this Court by means of a notice of appeali filed on 26/5/2017 bearing nine grounds of appeal.
Pursuant to the rules of this Court, the appellant filed his brief of argument on 20/6/2017 and a reply brief of argument on 2/1/2018 which was deemed duly filed and served on 10/1/2018. Both briefs were settled by his counsel, Edwin Anikwem, Esq.
Respondent’s brief of argument was filed on 28/1/2017 and was deemed duly filed and served on 7/12/2017. It was settled by Abba Mohammed, Esq., of counsel, for the respondent.
At the hearing of the appeal on 10/1/2018, Edwin Anikwem, Esq., for the appellant adopted and relied on the briefs filed on behalf of the appellant in urging the Court to allow the appeal.
Joy Amahian Esq., for the respondent adopted and relied on the respondent’s brief of argument in urging the Court to dismiss the appeal.
It should be quickly mentioned that in the respondent’s brief of argument, a notice of preliminary objection is given at pages 2 and 3, paragraph 2.0. Argument in respect thereof is set out at page 3 paragraphs 2. 1-2.3 of the said brief.
?During the hearing of the appeal, respondent’s counsel did not seek leave to move or argue the objection. In fact, she did not even refer to it. The preliminary objection is therefore deemed as abandoned. I accordingly strike out the same. See APGA V Anyanwu (2014) 7 NWLR (Pt. 1407) 541, 563 and Abba V Shell Petroleum Development Company (Nig) Ltd (2013) 11 NWLR (Pt. 1364), 109.
In the appellant’s brief of argument the following issues are formulated from the nine grounds of appeal:
“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 interlocutory stage is not over reaching. 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 (sic; ruling) of the lower Court can stand (Distilled from grounds 7, 8 and 9)
In the respondent’s brief of argument the followings issues are distilled for the determination of the appeal:
“1) Whether the word “may” in Sections 15(4) and 17(2) of the Administration of Criminal Justice Act, 2015 (ACJA, 2015) is permissive or mandatory?(Grounds 1 and 2).
2) Whether the learned trial judge determined the guilt of the appellant in his ruling of 15th May, 2017 (Grounds 3, 4 and 5).
3) Whether all the evidence evaluated by the learned trial judge during the trial within trial (which the appellant complained of herein) were not put forward by the appellant in support of his claim that his cautionary confessional statements were not voluntarily made? (Grounds 6,7, 8 and 9).
The issues formulated by counsel on both sides are in substance the same. I will therefore be guided by the issues formulated by appellant’s counsel in determining the appeal.
ISSUE 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.
?Appellant’s counsel submitted that having regard to Section 1 of the ACJA 2015, the learned trial judge was wrong in interpreting Sections 15(4) and 17(2) of the ACJA to be permissive. He set out the said provisions and further submitted that the law provides safeguards to guarantee transparency in the taking and making of confessional statements. Failure to comply therewith would result in the rejection of such statements, he stated. He noted that before the promulgation of the ACJA, 2015 there was no provision in our law regulating the making and taking of confessional statements, thus making room for abuse by intimidation by the investigating police officer. He contended that it is this mischief that reveals the true intention of the legislature behind Sections 15(4) and 17(2) of the ACJA, 2015. He called in aid of his position Ugwu v Ararume (2007) 12 NWLR (Pt. 1048) 367.
Counsel was of the view that the said provisions have stipulated a particular method of obtaining confessional statements from suspects which must be adopted. He relied on CCB v AG Anambra State (1992) 8 NWLR (Pt. 261) 528, among other cases, to buttress his position.
He stated that none of the prosecution witnesses testified that in the making and taking of appellant’s statements, there was recording in a retrievable compact disc or audio visual nor was there any evidence that the statements were taken in the presence of his legal practitioner, a member of the Legal Aid Council, Justice of the Peace or any member of the civil society. He stated further that the appellant testified that he demanded for the presence of his lawyer before making any statement but his request was jettisoned.
Continuing, counsel argued that the provisions under consideration were inserted for the benefit and protection of accused persons and therefore ought to be construed as imperative and mandatory. He cited in support Fabian Mathew V The State, unreported decision of this Court in Appeal No. CA/L/1126/2011 delivered on 11/12/2015, Kingsley Akhabue V The State, unreported decision of this Court in Appeal No. CA/L/1056/2011 delivered on 11/12/2015 and Ismaila Fatoki V The State, yet another unreported decision of this Court in Appeal No. CA/L/1125/2011 delivered on 11/12/2015 etc.
Counsel went on to contend that the word “may” in the provisions under scrutiny is mandatory since the provisions are aimed at the protection of the rights of citizens. He urged the Court to adopt a beneficial construction of the provisions.
On his Part, respondent’s counsel stated that the legislature deliberately used the word “may” in Sections 15(4) and 17(2) of the ACJA 2015 in order to confer discretion on and options to a police officer and other law enforcement officers in the exercise of their powers. He submitted that that position is re-inforced and made clear by the use of the word “shall” in other Sub-sections of Sections 15 and 17 of the ACJA. He urged the Court, in essence, to adopt a literal interpretation of the provisions. Citing the cases of Mokelu V Federal Commissioner for Works and Housing (1976) LPELR – 1904, Counsel submitted that the cases cited by appellant’s counsel were inapplicable to the instant matter. He referred in particular to the unreported decisions of this Court cited by appellant’s counsel and contended that the decisions were based on Section 9(3) of the Administration of Criminal Justice Law (ACJL) of Lagos State 2011 which uses the word “shall”.
Counsel submitted that a beneficial construction of a statute, as advocated by appellant’s counsel, is applicable where a Court is faced with equally open alternatives of interpretation and not, according to him, as in the present case, where there is no ambiguity in the provisions of Sections 15(4) and 17(2) of the ACJA.
He finally, on this issue, stated that the electronic recording of a suspect’s confessional statement and the presence of his legal practitioner are optional.
It is pertinent to set out the provisions of Sections 15(4) and 17(1) and (2) of the ACJA, 2015. They state as follows:
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(1)
“Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken”
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 a Civil Society Organisation 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.”
A communal reading of the foregoing provisions shows the following position in regard to the statement of a suspect arrested with or without a warrant on an allegation of having committed a crime:
(i) where he volunteers to make a confessional statement:
(a) the police officer (this includes any officer of a law enforcement agency established by an Act of the National Assembly – Section 494(1) of the ACJA (2015) shall ensure that the making and taking of the confessional statement shall be in writing;
(b) such statement may be recorded electronically on retrievable video compact disc or such other audio visual means;
(c) the statement of a suspect, confessional or not, 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 Organisation or a Justice of the Peace or any other person of his choice.
It is not in contest that in the making and taking of the statement of the appellant, which is admittedly confessional in nature, the officers of the Economic and Financial Crimes Commission (EFCC) did not record the same electronically on retrievable video compact disc or such other audio visual means and none was tendered during the trial-within-trial. It is also not in doubt that the statement of the appellant was not made and taken in the presence of appellant’s legal practitioner though he said he asked for the presence of a legal practitioner of his choice. None of the other persons listed in Section 17(2) of the ACJA was in attendance.
It was the contention of appellant’s counsel that the requirements set out above are mandatory thus rendering the confessional statement of the appellant impotent and inadmissible. The respondent’s counsel, of course, , took a contrary position. The trial Court, as earlier stated, agreed with respondent position on the basis that the word “may’ used in the provisions of Sections 15(4) and 17(2) of the ACJA 2015 is permissive and not mandatory and so their non-observance was not fatal to the admission of the statements.
In Edewor V Uwegba (1987) 1 NWLR (Pt. 50) 313, 338, Nnamani, JSC, stated as follows:
“Generally the word “may” always means “may”, It has long been settled that may is a permissive or enabling expression. In Messy V Council of the Municipality of Yass (1922) 222 SRNSW 494 per Cullen, C.J. at pp 497, 498 it was held that the use of the word “may” prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it. See also cotton, L.J. in Re Daker, Michel v Baker (1800) 44 Ch. D 282. But it has been conceded that the word may acquire a mandatory meaning from the con in which it is used. See Johnson’s Tyre Foundary Pty Ltd v Shire of Maffra (1949) A.L.R. 88. The word may also acquire a mandatory meaning from the circumstances in which it is used.”
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 form or way for the benefit of a private citizen. See R V Barlow (1693) Carth. 293 cited in R v Bishop of Oxford (1879)4 O.B.D. 245, 258, Mokelu v Federal Commissioner of Works and Housing (1976) 1 All NLR (Pt. 1) 276, 282, Edewor v Uwegba (1987) 1 NWLR (pt. 50) 313, 339, Ude V Nwara (1993) 2 NWLR (Pt. 278) 638, 661, Ogualaja v Attorney General of Rivers state (1997) 6 NWLR (pt. 508) 209, 233, Adesola v Abidoye (1999) 14 NWLR (pt. 637) 28, 56, John V Igbo-Etiti LGA (2013) 7 NWLR (Pt. 1352) 1, 16, Galaudu V Kamba (2004) 15 NWLR (Pt. 895) 31, 52, and Corporate Affairs Commission V The Registered Trustees of Celestial Church of Christ (Nigeria Diocese) (2009) 11 NWLR (pt. 1151) 40, 60.
Sections 15(4) and 17(2) of the 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 this includes the EFCC) to record electronically on retrievable video compact disc or such other audio visual means, the confessional statements of a suspect and to take 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 them in the course of taking their statements.
I should also add that the provisions also have another side to it, viz; to protect law enforcement agents from false accusation of coercion in taking statements from suspects. The use of the word “may” in those provisions are in those circumstances mandatory and not permissive.
In the cases of Fabian Mathew v State supra., Kingsley Akhabue v State supra and Joseph Zhiya v The People of Lagos State (2016) LPELR – 40562 (CA), this Court held that failure to comply with Section 9(3) of the ACJL, 2007 of Lagos State, 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, rendered such statements impotent and inadmissible.
The trial Court distinguished the above cases from the instant matter on the basis that they were decided based on Section 9(3) of the ACJL, 2007 of Lagos State which uses the word “shall”.
In the light of my holding that the word “may” in Sections 15(4) and 17(2) of the ACJA carries a mandatory meaning, the distinction made by the trial Court becomes one without a difference.
In the discharge of its interpretative function, Courts are concerned with finding the intention of the legislature and giving effect thereto. In doing so, the Court may consider the object and scope of the statute. This is so when the words used in the statute are not plain or are capable of various interpretations or the literal interpretation would result in injustice.
In the case of Ugwu V Ararume (2007) 12 NWLR (Pt, 1048) 367 (the Supreme Court quoted with approval the postulation of the Barons of the Exchequer in the sixteenth century in Heydon’s case, reported in (1584) 3 Co. Rep. 8 as follows:
“That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: (1) what was the common law before the passing of the Act; (2) what was the mischief and defect for which the common law did not provide; (3) what remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth (4) the true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress, subtle inventions and evasions for the continuance of the mischief and pro private commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Ad pro bono publico.”
That has formed the basis of the mischief rule of statutory interpretation which considers the state of the law before the enactment, the defect which the statute sets out to remedy and/or prevent, the remedy adopted by the legislature to cure the mischief and the true reason of or behind the remedy. See Ugwu V Ararume supra.
In Odgers’ “Construction of Deeds and Statutes” 5th ed by Gerald Dworkin, it is stated at p. 445 that:
“This method of approach is easy to apply when the objects and reasons of the Act are set out therein …”
Section 1(1) of the ACJA 2015 sets out the purpose or object of the Act as follows:
“The purpose of this Acts (sic; is) to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, defendant, and the victim.”
One of the objects and reasons for the Act is to protect the rights and interest of suspects and defendants for the interests and rights of suspects and defendants are as important as the interests and rights of the victims and the society. After all, the suspect or defendant is presumed by the Constitution of Nigeria to be innocent until proved to be guilty.
Before the enactment of the ACJA, 2015 there was no binding law regarding the making and taking of statements by and from suspects though there were and are still are the Judges Rules which rules are made by English Judges to guide Police officers and have no force of law. Rather they are rules of administrative practice. The rules say that when an accused person makes a confessional statement before a junior Police Officer, the statement and the accused person should be taken before a superior Police Officer for confirmation. Where the practice is not followed, the statement would not be rejected in evidence on that account nor would it necessarily be viewed with suspicion. See Nwigboke v The Queen (1959) 4 FSC 101 and Hassan v State (2017) 5 NWLR (Pt. 1557) 1. The situation left the suspect at the mercy of Police Officers who in many instances intimidated or beat the suspects into giving confessional statements.
In Owhoruke v Commissioner of Police (2015) 15 NWLR (Pt. 1483) 557,576 Rhodes – Vivour, JSC, stated as follows:
“Confessional statements are most times beaten out of suspects, and the Courts usually admit such statements as counsel and the accused are unable to prove that the statements were not made voluntarily. A fair trial presupposes that Police investigation of crime for which the accused person stands trial was transparent. In that regard it is time for safeguards to be put in place to guarantee transparency. It is seriously recommended that confessional statements should only be taken from suspect if, and only if his counsel is present, or in the presence of a legal practitioner. Where this is not done such a confessional statement should be be rejected by the Court.”
The trial Court in essence treated the above pronouncement albeit obiter dictum as not being relevant. I think with all due respect, the trial Court missed the point. The dictum was quoted by appellant’s counsel to show the state of the law or lack of it on the making and taking of a confessional statement by the Police or other investigatory authorities; and to show the mischief the Legislature set out to cure by enacting Sections 15 (4) and 17(4) of the ACJA, 2015.
Given the foregoing, to hold that the word “may” in the said provisions carry a discretionary or permissive meaning would not suppress the mischief the provisions are aimed at curing nor would it advance the remedy for it. It would also not add force and life to the cure; rather it would add strength to the mischief and that would not be pro bono publico.
Given the objective of the provisions, to give a permissive colouration to the provisions would mean that the Legislature gave a cure to the mischief with one hand and also took away the cure with the other hand. That would reduce the provisions to futility and defeat their purpose. Courts are to adopt construction that would bring out the purpose of legislation. See Coca Cola (Nig.) Ltd v Akinsanya (2017) 17 NWLR (Pt. 1593) 74, 123.
Furthermore, as was rightly argued by the appellant’s counsel, Sections 15 (7) and 17(2) of the ACJA, 2015 are procedural rules for the benefit of a suspect and therefore must be construed as being imperative. See Fabian Matthew v. The State supra in which this Court followed the decision of the Supreme Court in Okegbu v State (1979) 12 NSCC 157, 174 that:
“As is well known, enactments regulating the procedure in Courts are usually construed as imperative; and that is a cardinal principle of interpretation of statutes especially where procedural provisions … are inserted for the protection of the accused person. With respect, this accords with the views of Lord Hudson in his speech in the House of Lords in The Secretary of State of Defence v warn (1968) 3 W.L.R. 609 at 614 where he stated:
“Procedural sections are usually mandatory and there is nothing which points to the contrary in this case. Procedural provisions are, as here, often inserted for the benefit of accused persons …”
I therefore enter a negative answer to issue 1 and resolve it in favour of the appellant.
ISSUE 2 – Given the state of the law with regard to trial – within – trial whether the ruling of the trial Court at interlocutory stage is not overreaching.
Appellant’s counsel submitted that a trial-within-trial is conducted only to test the voluntariness of a confessional statement for its admissibility or rejection and that a trial Court in that circumstance should only be interested in the circumstances surrounding the making of the statement. He contended that the trial Court took into consideration extraneous facts in considering evidence (of appellant) as to what transpired at the airport when the complaint was as to torture at the EFCC’s office and thus came to the wrong conclusion that this is a case of retracted confession.
Counsel lamented that the trial judge in its ruling made findings that affect the merit of the (substantive) case and therefore disqualified himself from continuing to sit over the case. He referred to pages 204 to 209 of the record of appeal and pointed at the use the Court put the case of Nsofor v State (2003) All FWLR 1401. He noted that the trial Court went into matters like the day and time the appellant (and his co-accused persons) made statements and the implication or motive of the visit of the 2nd co-accused person to the appellant. It was his contention that the trial Court had thereby shown that it had made up its mind to convict the appellant. He also stated that the trial Court was wrong in relying on the correctness of the account details and other personal information of the appellant to determine the issue of the voluntariness of the statements of the appellant.
In his response, counsel for the respondent contended that the trial Court did not make pronouncement on the guilt or otherwise of the appellant. Rather, he submitted, it only made pronouncement on evidence presented to it in the course of the trial-within-trial to enable it decide on the voluntariness of the statements sought to be tendered. It was his view that the finding that what transpired at the airport is what is contained in one of the statements of the appellant to the EFCC flowed from the evidence before the Court. He emphasized that there was nothing in the comment of the trial Judge to suggest that his Lordship had determined appellants guilt.
He submitted that the appellant went on a “voyage of reckless castigation” of the trial Court because that Court made some “curious observation” on the testimony of the appellant and other defendants. It was his contention that it was erroneous for the appellant to characterize the observation as findings of the trial Court. He finally stated that the evidence elicited from the appellant in cross-examination as to it being impossible for his bank account and other personal details to be dictated to him was not irrelevant and inadmissible.
The need for a trial-within-trial arises when at the point of tendering the extra-judicial confession of an accused person, the defence objects to its admissibility on the ground that it was not obtained voluntarily. The trial of the substantive charge is put on hold for the sole purpose of determining the voluntariness of the making of the confessional statement and hence its admissibility or otherwise. It is not held for the purpose of testing the truthfulness of the content of the statement. See Mbang v state (2013) 7 NWLR (pt. 1352) 48.
The law is that a Court must be cautious in its ruling at an interlocutory stage not to make any pronouncement or observation on the facts which might appear to determine the main issue/s or tend to prejudice the main issue. See Globe Fishing Industries Ltd v Coker (1990) 7 NWLR (pt. 162) 265, Ogbonnaya v Adapalm (Nig.) Ltd (1993) LPELR – 2288 (SC), Oduntan v General Oil Ltd (1995) LPELR – 2249, Mbonu v Nigeria Mining Corporation (2006) 13 NWLR (pt. 998) 659 also reported in (2006) LPELR – 12911 (CA). It is my view that this position of the law applies to a trial Court’s ruling in a trial-within-trial. The trial Court must ensure that it makes no pronouncement or observation which might appear to determine the yet to be concluded substantive trial or any issue that will arise thereat no matter how much the parties by their evidence and the addresses of their counsel tempt it to do so.
In its ruling in the trial-within-trial, the trial Court remarked that the evidence the 1st defendant (appellant’s co-accused person) gave of what transpired at the airport before he was taken to the office of the EFCC is exactly what is contained in the statements he objected to and that it was a case of retracted confessional statement. I agree with appellant’s counsel that the trial Court erred in making the finding at that stage. What transpired at the airport was of little or no relevance to the voluntariness or otherwise of the written statements made at the office of the EFCC. The slip does not however amount to the trial Court pre-judging the substantive matter.
Again the trial Court’s reference to Nsofor v State supra. does not amount to the trial Court jumping the gun. Having erroneously held that it was a case of retracted confession, the trial Court only stated what the law is on retracted confessional statements. It did not express any opinion as to the weight to be attached to the statements.
At page 208 of the record, the trial Court in its ruling made the following remarks.
“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 commissioner’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 their sober reflections.”
The above statement of the trial Court was irrelevant to the determination of the issue of voluntariness of the statements of the appellant and his co-accused persons. lt must be remembered that count 1 of the charge in the substantive matter is for the offence of conspiracy by the appellant, 1st defendant and 2nd defendant. Conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by an unlawful means. The appellant and his co-defendants pleaded not guilty which implies denial of conspiring. Conspiracy is normally inferred from circumstances. The remark of the trial Court above appears to bear on the charge of conspiracy as the trial Court wondered why the 2nd defendant who claimed he never met 1st defendant before in his life decided to apply to see him while he (1st defendant) was in detention. The trial judge posed a rhetorical question as to the credibility of the story of the 2nd defendant that he had never met 1st defendant before then. After posing another question as to the motivation of the 2nd defendant in seeking to see 1st defendant, he stated that”
“This and other questions leave much to be desired. The above puzzles are meant for the Defendants at their leisure time for their sober reflections.”
The Phrase “leave much to be desired” is an idiomatic expression which shows something “to be bad or unacceptable, Oxford Advanced Learner’s Dictionary 7th Ed. page 396.
That leaves the impression that the trial judge had already made up his mind that the story of the 2nd defendant that he had never met the 1st defendant before then was bad or unacceptable. The observation of the trial Judge and his posers appear to bear on the count of conspiracy which is to be determined in the main suit. No wonder respondent’s counsel, in an understatement, described it as “curious observation” at paragraph 4.11, page 7 of his brief of argument.
I therefore enter an affirmative answer to issue 2 and resolve it in favour of the appellant.
ISSUE 3 – Having regard to the nature of the evidence led at the trial and the conclusion reached by the lower Court, whether the ruling of the lower Court can stand.
Appellant’s counsel submitted 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 the same. He complained that the trial Court imported evidence that was extraneous to the proceedings in the trial-within-trial to reach its conclusion. He specifically referred to page 209 of the record of appeal and submitted that the holding therein was not relevant to the issue at stake.
For the respondent, it was argued that the ruling of the trial Court was anchored only on the evidence put forward at the trial within-trial. He added that the evidence used by trial Court to arrive at its decision which the appellant tagged as “extraneous” was put forward by the appellant and his co-defendants in-chief and in cross-examination.
The complaint of the appellant is about the trial Court using evidence extraneous to the issue of the voluntariness of appellant’s statements to determine the trial-within-trial. Appellant’s counsel specifically referred to the following dictum of the trial Court at page 209 of the record of appeal.
“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 days period allowed by law.”
The dictum above concerned the 1st defendant and not the appellant. Besides before the trial Judge made the remark above, he had reached the conclusion that there was no evidence of any torture, force or coercion as alleged by the appellant. His subsequent statement quoted above did not influence his decision which had already been reached before then.
Therefore without prejudice to my conclusion on issues 1, I enter a negative answer to issue 3 and resolve it against the appellant.
In the light of my answers to issues 1 and 2, I reach the conclusion that the appeal has merit. It succeeds and is therefore allowed. The ruling of the trial Court admitting the extra- judicial statement of the appellant made on 12/10/2015 is hereby set aside. In its place, I direct that the said statement be rejected in evidence and shall be so marked.
Having held that the trial Court pre-judged an issue in the substantive matter, case law demands that the pending criminal charge be transferred from the trial judge to ensure compliance with the constitutional requirement of fair hearing by an impartial Court or Tribunal. See Ogbonnaya v Adapalm Nig. Ltd supra and Okomo v. Umoetuk (2004) 10 NWLR (Pt. 882) 526. Consequently, it is directed that the case file shall be remitted to the Chief Judge of the Federal High Court for assignment to another judge other than Anka, J. for hearing and determination.
JUMMAI HANNATU SANKEY, J.C.A.: My learned brother, Ekanem, J.C.A. has meticulously dealt with all the issues in the Appeal.
I rely on his Lordship’s reasoning in the lead Judgment in also allowing the Appeal for being meritorious. I endorse the consequential orders made in that regard.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read, in advance, a draft copy of the lead Judgment just delivered by my learned Brother, Joseph E. Ekanem, JCA, in which this appeal was allowed. The issues arising for determination in this appeal have been comprehensively resolved and I am in complete agreement with his resolution of the issues raised in this appeal. I will only make few comments for emphasis.
One of the primary functions of the police is to investigate all crimes which are brought to their notice and wherever possible, to bring the perpetrators before the Courts, together with all the relevant evidence. Controversies associated with methods used by law enforcement agents in the interrogation of suspected persons and the value of evidence obtained thereby has always been a source of judicial and societal concern. In an attempt to achieve a balance between the need to ensure that law enforcement agents are enabled to investigate crimes thoroughly and the need to ensure the protection of the innocent as well as the rights of the suspect, Judges in England developed what was known as ‘Judges’ Rules’ meant to guide the police on how far they should go when interrogating or taking statements from suspects or prisoners. These Rules were not rules of law but more in the nature of rules of caution. They, in effect provided a code of behaviour for the guidance of the police in investigation. The purpose of the Rules was to insure as far as possible that all statements admitted in evidence, more so if confessional in nature, were obtained freely and voluntarily. The fact that the police have adhered to these Rules in their investigation of a crime would guide the Judge in determining the weight to be attached to any confessional statement made by the accused. Nevertheless, failure to observe the Rules would not, ipso facto, render the statement inadmissible, as long as the statement in issue was made freely and voluntarily; Ojegele v The State (1988) NWLR (Pt 71) 414, (1955) LPELR 2370 (SC), Kasa v The State (1994) 6 SCNJ 1, (1994) LPELR 1671(SC); Smart v The State (2012) LPELR-8026(CA); Eyop v state (2012) LPELR-20210 (CA); Babarinde v The State (2012) LPELR-8367(CA).
Certain provisions of Administration of Criminal Justice Act, 2015 (ACJA) are in the pattern of the Judges’ Rules and are aimed at providing a guide for the law enforcement officers and ensuring the protection of the innocent as well as the rights of the suspect. Section 1 (1) thereof states that its purpose is:
To ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim.
Unlike the case with the Judges’ Rules which were cautionary, the provisions of ACJA have the force of law. Non-compliance with these provisions would automatically throw a purported confessional statement out of the window; Zhiya v People of Lagos State (2016) LPELR-40562(CA). I therefore share the view that the provisions of Sections 15(7) and 17(2), as well as Section 9(3) thereof, which are for the benefit of a suspect, are mandatory.
For these reasons and for the more comprehensive reasons given in the lead Judgment, I also allow this appeal.
I abide by the orders made in the lead Judgment, including the order that the case file be remitted to the Chief Judge of the Federal High Court for re-assignment to another Judge for the hearing and determination of the Charge against the Appellant.
Appearances
Edwin Anikwem, Esq.For Appellant
AND
Joy AmahianFor Respondent
