TOSIN KADIRI v. THE STATE OF LAGOS
(2019)LCN/13481(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/L/1120CA/2018
RATIO
WHERE A CONFESSIONAL STATEMENT IS TENDERED IN EVIDENCE UNDER SECTION 9 (3) OF THE ADMINISTRATION OF CRIMINAL JUSTICE LAW:THE NEED TO MAKE A VIDEO RECORDING OF CONFESSIONS
This matter once again brings to the fore the application of the provisions of Section 9 (3) of the Administration of Criminal Justice Law in criminal trials where the confessional statement of a defendant is tendered in evidence. Since the unreported decision of this Court in APPEAL NO. CA/L/1125/2011: FATOKI vs. THE STATE delivered on 11th December 2015, which was followed in ZHIYA vs. PEOPLE OF LAGOS (2016) LPELR (40562), wherein it was decided that the making of a confessional statement which is not recorded on video as stipulated in the said Section 9 (3) is inadmissible; the said provision has become like an albatross around the neck of the Prosecution as the defence always resort to the same as a bulwark in contending that a confessional statement is inadmissible or ought not to have been admitted in evidence; and as the talismanic wand in seeking to expunge confessional statements that were admitted in evidence.
Equally, in AWELLE vs. PEOPLE OF LAGOS STATE (2016) LPELR (41395) 1 at 31, Abubakar, JCA stated as follows:
???The purpose of Section 9 (3) … is to provide conducive and assuring atmosphere for persons standing trial under our criminal Justice system, to obviate incidence of abuse of human rights. I also see the provisions as a positive development in granting accused person???s assurance of fair trial. It is a provision designed to check-make [sic] abuse of human rights by overzealous security officers who by all means, must ensure that an accused person is subjected to undue hardship and cowed to confession.???
It seems from the foregoing that the Section 9 (3) stipulation is directed at ensuring that confessional statements are made voluntarily and that the suspect is not intimidated (per Ogbuinya,
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JCA) or ???cowed??? (per Abubakar, JCA) into making the confession. It is a provision directed at promoting and ensuring that statements are voluntarily made. The objection raised to the admissibility of the statements at page 38 of the Records (which I have reproduced above) is clearly not one which raised the question of the voluntariness vel non of the statements in order for it to be an objection that would command inquiry into whether the requirements of Section 9 (3) had been strictly complied with. Now, the said Section 9 (3) of the Administration of Criminal Justice Law stipulates as follows:
???(3) Where any person who is arrested with or without a warrant volunteers to make a Confessional Statement, the Police Officer shall ensure that the making and taking of such statement is recorded on video and the said recording and copies of it may be produced at the trial provided that in the absence of video facility, the said statement shall be in writing in the presence of a legal practitioner of his choice.???
The above provision has both imperative or mandatory as well as permissive or directory components as the words
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???shall??? and ???may??? are therein employed in setting out the requirements to be adhered to. Firstly, it makes it mandatory that where a confessional statement is volunteered, the making and taking of such a statement is to be recorded on video. It then makes a proviso that in the absence of video facility, the statement shall be made in the presence of a legal practitioner of the choice of the person arrested. The permissive or directory aspect of the stipulation is that the video recording MAY be produced at the trial. Without equivocation, the provision does not stipulate that the video recording must be produced with the confessional statement when it is sought to tender the confessional statement in evidence. The video recording is not a sine qua non to the tendering of the statement and so the confessional statement is not inherently inadmissible. The question that consequentially arises is when would it be necessary to produce the video recording in evidence? The answer lies in the raison d???etre for the provision, which is to ensure that the defendant is not ???intimidated??? or ???cowed??? into making a
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confessional statement, id est, that the statement was not made voluntarily.
It is my deferential view that a judge should not be a servant of the words used. He should not be a mere mechanic in the power-house of semantics. He should be the man in charge of it. Therefore, the approach in deciding whether the provisions of Section 9 (3) have been complied with or not, should always bear in mind the mischief that necessitated the provision. So, it is only if during trial when the confessional statement is sought to be tendered and an objection is raised that it was not made voluntarily that the stipulation requiring that the video recording may be produced at the trial kicks in. Where no such objection is raised, the prosecution is not obligated to produce the video recording, since the confessional statement is not inherently inadmissible.
By all odds, the Appellant in his testimony in defence at page 74 of the Records stated that he did not write any statement and that a statement was read out to him, but it was a little late in the day when he raised in his evidence in chief in defence what seemed to be a plea of non est factum which in any event
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does not go to the voluntariness of a statement and a fortiori its admissibility: AIGUOREGHIAN vs. THE STATE (2004) 3 NWLR (PT 860 367 at 402 and MADJEMU vs. THE STATE (2001) 25 WRN 1 at 12-13, 23 and 25. Arguendo, if it does, it is rudimentary that an objection that a statement was not made voluntarily is to be raised when the statement is sought to be tendered in evidence, not afterwards. In OLALEKAN vs. THE STATE (2001) LPELR (2561) 1 at 14-15 it was asseverated:
???It is however noteworthy that when an accused person alleged that the confessional statement credited to him is made under duress or not made voluntarily by him, objection must then be raised to its admission when the statement is sought to be tendered in evidence and not after they have [sic] been admitted in evidence.???
See also ISONG vs. THE STATE (2016) LPELR (40609) 1 (SC), ALO vs. THE STATE (2015) LPELR (24404) 1 at 25-26 (SC), AKPAN vs. THE STATE (2008) 14 NWLR (PT 1106) 72, MOHAMMED vs. THE STATE (1991) 5 NWLR (PT 192) 438 at 457 and OKAROH vs. THE STATE (1990) LPELR (2423) 1 at 17.???
The point I have been labouring to make is that it is only where an objection has
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been raised at the time a confessional statement is sought to be tendered that it was not made voluntarily, that the stipulation for the video recording of the making and taking of the statement becomes necessary pursuant to Section 9 (3) of the Administration of Criminal Justice Law. Where the objection is not raised on the said grounds and at the appropriate time, the trial Court would rightly admit the confessional statement in evidence as the stipulation does not provide or require that a video recording must be tendered with a confessional statement for the same to be admissible. On the peculiar facts and circumstances of this matter, the lower Court was right to admit the confessional statements, Exhibit 3(a) and 3(b), in evidence since there was no objection raised that the statements were not made voluntarily, and there was nothing that would have necessitated the video recording of the making and taking of the statement to be produced at the trial when the statements were tendered.???
The matter does not end there. It remains to examine if a confessional statement that satisfies the admissibility requirements under Section 29 of the Evidence Act,
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will be rendered inadmissible if no video recording of its making and taking is produced at a trial upon an objection being raised as to its voluntariness. Without a doubt, the enactment dealing with the admissibility in evidence of a confessional statement is Section 29 of the Evidence Act. It provides the circumstances in which a confessional statement shall not be allowed to be given in evidence. I have examined the stipulations of Section 9 (3) of the Administration of Criminal Justice Law in the course of this judgment; it cannot be disputed that it does not expressly provide for when a confessional statement will be admitted in evidence or when it shall not be admitted in evidence. However, judicial interpretation of the said provision has resulted in its being held that a confessional statement, the making and taking of which is not recorded on video or which in the absence of video facility is not made in the presence of a legal practitioner of the choice of the defendant, is not admissible in evidence. The precursor of these line of authorities is the unreported decision of this court, per Ikyegh, JCA, in APPEAL NO. CA/L/1125/2011: FATOKI vs. THE STATE ???
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delivered on 11th December, 2015. The same reasoning was espoused in the unreported decisions of this Court in APPEAL NO. CA/L/1126/2011: MATTHEW vs. THE STATE and APPEAL NO CA/L/1056/2011: AKHABUE vs. THE STATE, both delivered on 11th December 2015 alongside the FATOKI case. The decision in FATOKI was followed by Oseji, JCA in ZHIYA vs. PEOPLE OF LAGOS STATE (supra). All subsequent decisions in which non-compliance with Section 9 (3) have been held to render a confessional statement inadmissible have drawn inspiration from the decisions in FATOKI and ZHIYA. This is clear from the decisions in OLUWATOYIN vs. THE STATE (supra), AGBANIMU vs. FRN (2018) LPELR (43924) (CA) and CHARLES vs. FRN (supra). The pertinent question however is whether on the peculiar facts of the FATOKI and ZHIYA cases, the application of the provision of Section 9 (3) was directly in issue. In APPEAL NO. CA/L/1173/2014: EZIKE ILECHUKWU CHIDERA OLISAELOKA vs. THE PEOPLE OF LAGOS STATE (unreported) delivered on 9th May 2018, I was privileged to state as follows:
???I have read the decisions of this Court in ZHIYA vs. THE PEOPLE OF LAGOS STATE (supra) [per Oseji, JCA] and
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FATOKI vs. THE STATE (supra) [per Ikyegh, JCA] and I make bold to hold that the views expressed on the effect of non-compliance with Section 9 (3) of the Administration of Criminal Justice Law vis-a-vis an objection to the voluntariness of a confessional statement were not directly in issue in the said cases. I will demonstrate. In ZHIYA vs. THE PEOPLE OF LAGOS STATE (supra) an objection was raised as to the admissibility of the confessional statement in the case on the ground that it was not made voluntarily. The Court adjourned for a voir dire to be conducted. On the date fixed for the voir dire, learned counsel withdrew his objection to the admissibility of the confessional statement and the same was admitted in evidence without objection. So the objection having been withdrawn, the admissibility of the confessional statement on grounds of its voluntariness was not in issue. In FATOKI vs. THE STATE (supra) the statement in the said case was not a confessional statement, so the question of Section 9 (3) of the Administration of Criminal Justice Law did not arise at all. With due deference it was an obiter dictum when my learned brother, Ikyegh, JCA
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stated thus: ???If Exhibit D3 had been a confessional statement, the non-compliance with Section 9 (3) of the Law would have rendered it impotent; in my view.??? Undoubtedly, it was held in ZHIYA vs. THE PEOPLE OF LAGOS STATE (supra) that the confessional statement which was recorded without compliance with Section 9 (3) of the Administration of Criminal Justice Law was not admissible; but as earlier stated that conclusion was not based on any voir dire at which evidence was adduced to establish if the confessional statement was obtained by oppression or in circumstances that make the confession unreliable as required by Section 29 of the Evidence Act.
In the instant case, a confessional statement was made and an objection was raised as to its voluntariness and a voir dire was conducted, which spawned this appeal. Therefore, directly in issue in this appeal is whether non-compliance with the provisions of Section 9 (3) of the Administration of Criminal Justice Law, without more, will render a confessional statement inadmissible. Let me iterate that the determinant of when a confessional statement will be allowed in evidence is as provided for in
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Section 29 of the Evidence Act, the enactment dealing with evidence in judicial proceedings in or before Courts in Nigeria. See the Long Title of the Evidence Act, 2011 which explains the general scope of the Act: BELLO vs. A-G OYO STATE (1986) LPELR (764) 1 at 71.
In FATOKI vs. THE STATE (supra) which was referred to by Oseji, JCA in ZHIYA vs. THE PEOPLE OF LAGOS STATE (supra), Ikyegh, JCA stated as follows:
???Section 9 (3) of the Law is thus a veritable tool in the administration of criminal justice. It will apply to voluntary confessions made by an accused as an adjunct to the relevant provisions of the Evidence Act.???
Ipso facto, it is my informed view that the requirements of Section 9 (3) of the Administration of Criminal Law will not by itself render inadmissible a confessional statement that was not recorded in accordance with its tenets. It can only form part of the snippets on the basis of which a Court can infer, alongside other established evidence, that a confessional statement was obtained by oppression or circumstances which may have rendered un
