CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial — not part of the judgment as delivered
Facts of the Case
The Respondent and two other persons were arraigned before the Federal High Court upon a two-count charge of conspiracy and failure to declare the sum of $102,885 to officers of the Nigeria Customs Service at the Murtala Muhammed International Airport, Lagos, contrary to the Money Laundering (Prohibition) Act, 2011. On 20 May 2016, the Prosecution sought to tender the Respondent’s extra-judicial statements. The Defence Counsel objected on the ground that the statements were made involuntarily and without compliance with Sections 15(4) and 17(2) of the Administration of Criminal Justice Act, 2015 (ACJA). A trial-within-trial was conducted. The trial Court admitted the statements as exhibits. The Respondent appealed to the Court of Appeal, which set aside the ruling and ordered that the statements be rejected. The case file was remitted to the Chief Judge of the Federal High Court for assignment to another Judge. The Appellant further appealed to the Supreme Court.
Issues for Determination
ISSUE 1:
Whether there is any ambiguity in the provisions of Sections 15(4) and 17(2) of ACJA to warrant the lower Court adopting the mischief rule of interpretation of statutes instead of the literal rule, and thereby came to the conclusion that the use of the word “may” in the aforementioned sections imposes mandatory and not permissive duty on law enforcement officers.
ISSUE 2:
Whether the learned lower Court was not wrong in holding that the extra-judicial statements of the Respondent shall be rejected in evidence for failure to comply with Sections 15(4) and 17(2) of ACJA, without having regard to the general provisions of the ACJA and the particular provisions of Sections 492(3) and 491 of ACJA.
ISSUE 3:
Whether the learned lower Court was right to conclude that the observation of the trial Court on the story of the 2nd Defendant as to how he met the 1st Defendant had a bearing on the count of conspiracy.
ISSUE 4:
Whether the learned lower Court was right to set aside the ruling of the trial Court admitting the extra-judicial statements on the ground of non-compliance with Sections 15(4) and 17(2) of ACJA without taking into account the provisions of Section 14 of the Evidence Act, 2011.
ISSUE 5:
Whether the learned lower Court was right to direct the Chief Judge of the Federal High Court to assign the case file to another Judge other than Anka J. on the grounds of partiality and lack of fair hearing.
ISSUE 6:
Whether the totality of the evidence before the trial Court and the record and arguments before the lower Court warrant the judgment of the lower Court delivered on 19 March 2018.
Decision / Holding
The Supreme Court dismissed the appeal. The Court held that the word “may” in Sections 15(4) and 17(2) of ACJA, when used to impose a duty upon a public functionary for the benefit of a private citizen, is mandatory and not permissive. The Court affirmed the Court of Appeal’s decision that the confessional statements were rightly rejected for non-compliance with the ACJA.
Ratio Decidendi / Principles
EVIDENCE LAW — Confessional Statement — Statutory Provision as to the Procedure for Recording Extra-Judicial Statement of an Accused Person “It’s provided under Section 15(4) of ACJA (supra): 15. (4) Where a suspect who is arrested with or without a warrant volunteer to make a confessional statement, the police officer shall ensure that making and taking of the statement shall be in writing and may be recorded electronically on a compact disc or some other audio virtual means. It’s equally provided under Section 17(2) of ACJA, 2015 (supra): 17. (2) such statement may be taken in the presence of a legal Practitioner or 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 officer 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.” Per Saulawa, JSC, in FRN v. Akaeze (2024) NLC-123-355-2019(SC) at pp. 8–9; Paras D–A.
INTERPRETATION OF STATUTE — Intent/Purpose of the Provision of the Law — How to Deduce Meaning and Intention of a Legislation “According to Crawford (Construction of Statutes, page 516) ‘The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it the one way or the other. By this teleological or purposive approach, legislative provisions are applied to realize their objective or purpose. The established caselaw across jurisdictions is that the purpose or objective or intendment of a legislative provision that vests a public duty on a public officer for the benefit of any person is to make the execution or performance of the duty mandatory, irrespective of whether it is a permissive or mandatory word that is used to impose the duty.’” Per Agim, JSC, in FRN v. Akaeze (2024) NLC-123-355-2019(SC) at pp. 27–28; Paras D–A.
INTERPRETATION OF STATUTE — Mischief Rule of Interpretation — What the Mischief Rule of Interpretation Entails “One of the fundamental guidelines to interpretation is the Mischief Rule, which considers the state of the law prior to the enactment, the defect which the statute sets out to eradicate or prevent, the remedy adopted by the legislature to cure the mischief, and the actual reason behind the remedy.” Per Saulawa, JSC, in FRN v. Akaeze (2024) NLC-123-355-2019(SC) at p. 10; Paras D–A.
JUDGMENT AND ORDER — Order of Retrial/Trial De Novo — Principles That Guide the Court in Making an Order of Retrial “In the locus classicus, Abogunde v. The Queen 4 FSC @ 70, this Court laid down the fundamental guiding principles: We are of the opinion that before deciding to order a retrial, this Court be satisfied: (a) That there has been an error in law (including) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been a miscarriage of justice; (b) That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant; (c) That there are no such special circumstances as would render it oppressive to the appellant on trial a second time; (d) That the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; and (e) That to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.” Per Saulawa, JSC, in FRN v. Akaeze (2024) NLC-123-355-2019(SC) at pp. 13–14; Paras D–A.
LEGISLATION — Administration of Criminal Justice Act/Law — Essence/Purpose of the Administration of Criminal Justice Act/Law “The fundamental purpose necessitating the enactment of the Administration of Criminal Justice Act (ACJA) supra, has been unequivocally provided in section 1 of the Act itself: 1(1) The purpose of this Act is to ensure that the system of Administration of Criminal Justice in Nigeria promotes efficient management of criminal institutions, speedy disposing of justice, protection of the society from crime and protection of rights and interests of the suspect, the defendant, and the victim.” Per Saulawa, JSC, in FRN v. Akaeze (2024) NLC-123-355-2019(SC) at pp. 11–12; Paras D–A.
Obiter Dicta
INTERPRETATION OF STATUTE — Interpretation of the Words “Shall” and “May” as Used in a Statute
“It’s trite, that the meanings of the words ‘may’ and ‘shall’ have been subjected for over a century to diverse or conflicting interpretations. … ‘May’ is always means may. ‘May’ is a permissive or enabling expression; but there are cases in which for various reasons, as soon as the person who is within the statute is entrusted with the power it becomes his duty to exercise it.”
Per Ibrahim Mohammed Musa Saulawa, JSC, in Federal Republic of Nigeria v. Charles Akaeze (2024) NLC-123-355C-2019(SC) at pp. 9-10; Paras D-A.
Orders of Court
Appeal dismissed. The judgment of the Court of Appeal, Lagos Judicial Division, delivered on 19 March 2018 in Appeal No. CA/L/272C/2019 was affirmed.
APPEARANCES
Counsel for the Appellant(s)
Abba Muhammed, Esq.
Counsel for the Respondent(s)
Edwin Anikwem, Esq.
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
— (DELIVERED BY IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (DELIVERING THE LEADING JUDGMENT):)
The present appeal is consequent upon the judgment of the Court of Appeal, Lagos Judicial Division, delivered on March 19, 2018 in Appeal No. CA/L/727CA/2017. By the said judgment, the Court below, coram: Sankey, Otisi and Ekanem, JJCA, allowed the Respondent’s appeal, set aside the Ruling of the trial Federal High Court and remitted the case to the Chief Judge, Federal High Court for hearing and determination by a different judge.
BACKGROUND FACTS
The Respondent and two other persons were arraigned before the trial Federal High Court upon a two count charge of conspiracy and failure to declare the sum of One Hundred and Two thousand and Eighty Five United State of America Dollars ($102,885) to the officers and men of the Nigeria Customs Service at the Murtala Muhammed International Airport, Lagos, contrary to Sections 2(3) 8(5) and 18 of the Money Laundering (Prohibition) Act, 2011 (as amended) by Act No 1 of 2012.
The case progressed to trial. On May 20, 2016, in the course of the trial, the Prosecution sought to tender the extra- judicial
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statements of the Respondent through the prosecution witness. However, the Defence Counsel vehemently objected, on the ground that the purported extra-judicial statement was confessional statement made involuntarily and without complying with Sections 15(4) and 17(2) of ACJA, 2015 (supra). Thus, the trial Court ordered for a trial-within-trial. On May 15, 2017, the trial Court delivered its Ruling regarding the trial-within-trial proceedings to the conclusive effect:
I do not find any evidence of any torture, force, or rather coercion as alleged by the Defendants herein. 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. But in the mean time, these documents are relevant, voluntarily made in line with the law. They are accordingly admitted and marked as exhibits. All parties have a right of appeal.
Hon. Justice A.M. ANKA.
JUDGE
15/5/2017.
Having been utterly dissatisfied with
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the Ruling in question, the Respondent appealed to the Court below. That appeal was indeed heard and judgment delivered by the Court below on the said 19/03/2018, to the conclusive effect:
In the light of my answers to issue 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 statements of the Appellant made on 9/10/2015 and 19/1/2015 is hereby set aside.
In its place, I direct that the said statements be rejected in evidence and shall be so marked…
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.
JOSEPH E. EKANEM,
JUSTICE, COURT OF APPEAL
Both Sankey and Otisi, JJCA concurred with the reasoning and conclusion postulated in the lead-judgment of Ekanem, JCA.
The Appellant herein did not take kindly to the judgment of the Court below in question, thus deemed it expedient to institute the present appeal, thereby urging upon this Court to allow the appeal, set aside the
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judgment of the Court below and accordingly uphold the Ruling of the trial Federal High Court, delivered on May 15, 2017.
On December 7, 2023, when this appeal came up for hearing, the learned Counsel were cherishingly accorded the opportunity to address the Court and adopt the submissions contained in their respective briefs, thereby resulting in reserving judgment to today.
The Appellant’s brief of argument, settled by Abba Muhammed Esq. on 20/8/2019 but deemed filed on 09/01/2020, spans a total of 26 pages. At pages 3-4 of the brief, six issues have so far been nominated for determination of the appeal:
i. Whether there is any ambiguity in the provisions of Sections 15(4) and 17(2) of ACJA to warrant the lower Court adopting the mischief rule of interpretation of statutes instead of the literal rule of interpretation of statute and thereby came to the conclusion that the use of the word may in the aforementioned sections imposes mandatory and not permissive duty on law enforcement officers. (Ground 1)
ii. Whether the learned lower Court was not wrong in holding that the extra-judicial statements of the Respondent dated 9/10/2015 and
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19/1/2015 shall be rejected in evidence and be so marked foir failure to comply with sections 15(4) and 17(2) of ACJA, without having regard to the general provisions of the ACJA and the particular provisions of Sections 492(3) and 491 of ACJA. (Ground 2)
iii. Whether the learned lower Court was right to conclude that the observation of the trial Court on the story of the 2nd Defendant as to how he met the 1st Defendant (i.e. Respondent) had a bearing on the count of conspiracy.
iv. Whether the learned lower Court was right to set aside the Ruling of the trial Court admitting the extra-judicial statements of the respondent made on the 9/10/2015, and 19/1/2015 and marked them rejected on the ground of non-compliance with sections 15(4) and 17(2) of ACJA without taking into account the provisions of Section 14 of the Evidence Act, 2011. (Ground 4)
v. Whether the learned lower Court was right to direct the Chief Judge of the Federal High Court to assign the case file to another Judge other than Anka J. on the grounds of partiality and lack of fair hearing against the respondent. (Ground 5).
vi. Whether the totally of the evidence before
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the trial Court and the totality of the record and arguments before the lower Court warrant the judgment of the lower Court delivered on the 19th of March, 2018. (Ground 6).
Contrariwise, the Respondent’s brief, settled by Edwin Anikwem Esq. on 24/10/2019 but so deemed on 09/01/2020, spans a total of 40 pages. At page 2 of the brief, a couple of issues have been couched:
3.1 ISSUE ONE (1).
Whether having regards to the provision of Sections 1, 15(4) and 17(2) of ACJA the lower Court was not right in interpreting the Word “may” to be mandatory. (Grounds 1, 2, 4 & 6).
3.2 ISSUE TWO (2)
Given the nature of the comments of the learned trial judge, whether the lower Court was right in holding that the observation of the trial judge on the story of the accused bear on the offence of conspiracy yet to be determined, (distilled from grounds 3 and 5 of the grounds of appeal).
I have deemed it expedient to allude to the fact that the present appeal and Appeal No. SC/553c/2019‘. FRN VS. NWAKUCHE JERRY NNAJIOFOR’. are sister appeals. The two sister appeals have emanated from the same Ruling of the trial Federal High Court in charge
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No. FHC/L/5C/2016, thereby leading to the judgment of the Court of Appeal in APPEAL NO. CA/L/727CA/2017, delivered on 19/03/2018, to the following conclusive effect:
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 statements of the Appellant on 9/10/2015, 9/1/2015 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 prejudged an issue in the substantive matter, case 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 of tribunal… Consequently, it is directed that the case file shall ne remitted to the Chief Judge of the Federal High Court for assignment to another Judge other than Anka, J for hearing and determination.
Now, in the said sister appeal; SC/533F/2019: FRN VS. NWAKUCHEJERRYNNAJIOFOR, judgment has just been delivered by me, thereby dismissing the Appellant’s appeal, and
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affirming the judgment of the Court of Appeal delivered on 19/03/2018 in appeal No. CA/L/272C/2017.
Instructively, the kernel of the Appellant’s issue 1 in the appeal, is that the provisions of Sections 15(4) and 17(2) of the Administration of Criminal Justice Act (ACJA) 2015 (supra), are rather permissive and not mandatory. That contention is predicated upon the finding of the Court below (at pages 321-322 of the Record of Appeal):
Section 15(4) and 17(2) of ACJA impose on public functionaries (police officers and other officers of any law enforcement urgency established by an Act of the National Assembly and this includes the EFCC) to record electronically on retrievable 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 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 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.
In the light of holding that the word
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‘May’ in Sections 15(4) and 17(2) of ACJA carries a mandatory meaning, the distinction made by the trial becomes without a difference.
It’s provided under Section 15(4) of ACJA (supra):
15. (4) Where a suspect who is arrested with or without a warrant volunteer to make a confessional statement, the police officer shall ensure that making and taking of the statement shall be in writing and may be recorded electronically on a compact disc or some other audio virtual means.
It’s equally provided under Section 17(2) of ACJA, 2015 (supra):
17. (2) such statement may be taken in the presence of a legal Practitioner or 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 officer 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.
It’s trite, that the meanings of the words “may and “shall’ have been
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subjected for over a century to diverse or conflicting interpretations. I think, it was Talbo, J. who once remarked in SHEFFIELD CORPORATION VS. LUXFORD (1929) 2 KB 180:
It has often been said, and it is possibly a convenient abbreviation, but like all inaccurate expressions it often leads to misunderstanding, that in many statutes the word “may” means “must”. I think it has been pointed out once for all in Julius vs. Bishop of Oxford 5 app. case, 214, 222, 229, 235, 241 that is inaccurate expression. “May” is always means may. “May” is a permissive or enabling expression; but there are cases in which for various reasons, as soon as the person who is within the statute is entrusted with the power it becomes his duty to exercise it.
Per Talbo, J. @ 183. See also EGBO VS. LAGUMA (1988) 3 NWLR (pt. 80).
One of the fundamental guidelines to interpretation is the Mischief Rule, which considers the state of the law prior to the enactment, the defect which the statute sets out to eradicate or prevent, the remedy adopted by the legislature to cure the mischief, and the actual reason behind the remedy. See OGWU VS. ARARUME (2007) 12NWLR (pt. 1048) 367;
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SAVANNAH BANK OF NIGERIA LTD VS. AJILO (1989) 1 NWLR (pt. 97) 305.
It is equally trite, that the object and purpose of interpretations of an enactment are sometimes provided in the text of the law, regulation or Bill Act.
As I aptly postulated in the sister appeal (SC/353F/2O19), the fundamental purpose necessitating the enactment of the Administration of Criminal Justice Act (ACJA) supra, has been unequivocally provided in section 1 of the Act itself:
1(1) The purpose of this Act is to ensure that the system of Administration of Criminal Justice in Nigeria promotes efficient management of criminal institutions, speedy disposing of justice, protection of the society from crime and protection of rights and interests of the suspect, the defendant, and the victim.
(2) The Courts, law enforcement agencies and other authorities or persons involved in this Criminal Justice administration Shall ensure compliance with the provisions of this Act for the realization of its purposes.
2. (1) without prejudice to section 86 of this Act, the provision of this Act shall apply to criminal trials for offences established by an Act of the National
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Assembly and other offences punishable in the Federal Capital Territory, Abuja.
(2) The Provisions of this Act shall not apply to a Court martial.
3. (3) A suspect or defendant alleged or charged with committing an offence established by an Act of the National Assembly shall be arrested, investigated, inquired into, tried or dealt with according to the provisions of this Act, except otherwise provided under this Act.
The combined effect of the provisions of sections 1, 2 and 3 of ACJA (supra) under-scores the fundamental importance of preserving the sanctity of the lives, dignity and property of persons under the Rule of Law. As I stated in the said sister appeal (SC/353/2019) just delivered:
In the instant case, as aptly found by the Court below, the provisions of sections 15(4) and 17(2) of ACJA, 2015 (supra), have strictly provided for recording the statement of the defendant. Thus, there is no gainsaying the fact, that failure to perform the act in accordance with the dictates of those provisions of the law would be deemed to be a flagrant non-compliance with the law. In such a situation the Court would be entitled to invoke its
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interpretative jurisdiction to hold that the non-compliance with the law is against the recalcitrant party. See ADESANOYE VS. ADEWOLE (2006) 14 (pt. 1000) 242 @ 269 paragraphs C-E.
Per Saulawa, JSC.
Regarding the vexed issue of the consequential order of the Court below remitting the case to the Chief Judge of the Federal High Court for assignment to another Judge of the Court, other than Anka, J; there’s no doubt that the appeal equally ought to fail for lacking in merits.
Indeed, as aptly held in the sister appeal, the fundamental principles which ought to guide the appellate Courts in determining whether to make an order for retrial vis-a-vis remittal have been well settled and reiterated in a plethora of formidable authorities. Indeed, in the locus classicus, ABOGUNDE VS. THE QUEEN 4FSC @ 70, this Court laid down the fundamental guiding principles:
We are of the opinion that before deciding to order a retrial, this Court be satisfied:
(a) That there has been an error in law (including) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is
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unable to say that there has been a miscarriage of justice, and to invoke section 11(1) of the ordinance;
(b) That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant;
(c) That there are no such special circumstances as would render it oppressive to the appellant on trial a second time;
(d) That the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; and
(e) That to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.
See also JAMES IKHANE VS. COP (1977) AH NLR 234; (1977) 6SC 78; (1977) LPELR-1478 (SC) per Obaseki, JSC @ paragraphs A-G.
The law is fundamentally trite, as well, that there are two unique classes of cases in which a retrial cannot be ordered, unless in the opinion of the appellate Court some substantial wrong or miscarriage of justice has been occasioned. These two unique classes of cases are as regards misdirection and improper admission or rejection of evidence. In each of
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these two classes of cases, the Appellant ought to show that by the error he has lost every chance of success. See BRAY VS. FORD (1898) AC 44 @50; LIONEEL BARBER & CO. VS. DEUSHE BANK (1919) AC 304; AJAYI VS. FISHER (1956) 1 FSC 90; SHEHU VS. OGEDENGBE (1960) 5 FSC 266; EZEOKE VS. NWAGBO (1988) NWLR (pt. 72) 618, per Nnamani, JSC @ 23 paragraphs D-G.
Hence, against the backdrop of the foregoing far-reaching reasoning, the appeal ought to equally be dismissed for lacking in merits.
Thus, the instant appeal No. SC/35F/2019: FRN VS. CHARLES AKAEZE, is hereby dismissed for being devoid of merits. The judgment of the Court of Appeal, Lagos Judicial Division, delivered on March 19, 2019 in appeal No. CA/L/272C/2019, is hereby affirmed.
Appeal Dismissed.
Concurring Opinion(s)
— JOHN INYANG OKORO, J.S.C.:
I read in draft the erudite lead judgment of my learned brother, Ibrahim Mohammed Musa Saulawa, JSC just delivered. I agree entirely with reasons adduced to arrive at the conclusion therein. I find the appeal to be devoid in merit as I join my brother in dismissing it. I abide by the order contained in the lead judgment.
Appeal Dismissed.
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— HELEN MORONKEJI OGUNWUMIJU, J.S.C.:
I have had the privilege of reading in draft the judgment just delivered by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JSC and I agree with the reasoning and conclusion that this appeal has no merit. The Economic and Financial Crimes Commission authorities having failed to obey the strict letters of Sections 15(4) and 17(2) of the Administration of Criminal Justice Act, 2015, the Federal High Court per Anka J. was obliged to reject the confessional statements as having been involuntarily made. The Court of Appeal affirmed that position and that has been the position of this Court regarding the method of recording confessional statements by the Police since 2015, the promulgation of the Administration of Criminal Justice Act. In an earlier judgment of this Court delivered on 31/3/2023, in SC/CR/503/2020 FRIDAY CHARLES v. THE STATE OF LAGOS (2023) LPELR-60632(SC) this Court held that:
“The provisions of Section 9(3) of the Administration of Criminal Justice Law of Lagos State, 2011 which is in pari materia with Sections 17(2) and 15(4) of the Administration of Criminal Justice Act 2015 are very explicit. The aforementioned
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provisions are set out below: Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011 –
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.
In more elaborate terms, Section 15(4) of the Administration of Criminal Justice Act 2015 provides as follows:
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 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 may be in writing and may be recorded electronically on a retrievable video compact disc or such other audio visual means.
Section 17 (1) & (2) provides that:
(1) Where a
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suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement.
(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.
While the Lagos State Law applicable to this case uses the mandatory word “shall”, the ACJA in Section 15(4) uses the word “may”.
In ADESANOYE v. ADEWOLE (2006) LPELR – 143 at Pp. 22-23 Paras E-A, this Court, per Tobi JSC, pronounced on the effect of non-compliance with statutory provision thus: “Where a statute clearly provides for a particular act to be performed, failure to perform the act on the part of the party will not only be interpreted as delinquent conduct but will be
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interpreted as not complying with the statutory provision. In such a situation, the consequences of non-compliance with the statutory provision follows notwithstanding that the statute did not specifically provide for a sanction. The Court can by invocation of its interpretative jurisdiction, come to the conclusion that the failure to comply with the statutory provision is against the party in default.”
The use of the imperative word “shall” in the provision underscores its mandatory nature. The mischief sought to be curbed by the law includes such unsavory situations as where an alleged confession is extracted by torture and duress imposed on a defendant which led to the confession, to avoid miscarriage of justice and to reduce to the barest minimum the incidents of retractions and time consumed by trial within trial proceedings.
Section 9(3) ACJL is a mandatory procedural law against infractions on the constitutional rights of a defendant as enshrined in Section 35(2) of the CFRN (as altered). Any purported confessional statement recorded in breach of the said provision is of no effect. It is impotent and worthless. See JOSEPH ZHIYA v. THE PEOPLE OF LAGOS STATE
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(2016) LPELR – 40562 Pp. 28-29 Paras G-B, ISMAILA FATOKI v. THE STATE – unreported judgment of the Court of Appeal in Appeal No. CA/L/1125/2011 delivered on 11/12/2015, FABIAN MATHEW v. THE STATE – unreported judgment of the Court of Appeal in Appeal No. CA/L/1126/2011 delivered on 11/12/2015, KINGSLEY AKHABUE v. THE STATE – unreported judgment of the Court of Appeal in Appeal No. CA/L/1056/2011 delivered on 11/12/2015, AGBANIMU v. FRN (2018) LPELR – 43924 (CA) Pp. 11-12 Paras E-A, ENECHE v. PEOPLE OF LAGOS STATE (2018) LPELR – 45826 (CA) Pp. 27-28 which are persuasive precedents of the Court of Appeal.
On the age long debate in respect of the use of the word “may” in Sections 15(4) and 17(1) & (2) of the ACJA, I will say a few words by way of obiter. I am aware of the conflicting decisions of the Court below on this vexed issue. The general principle of interpretation is that the use of the word “may” connotes permissive action. See ORAKUL RESOURCES LTD & ANOR v. NCC & ORS (2022) LPELR- 56602(SC). However, I endorse the brilliant reasoning of the Court below in NNAJIOFOR v. FRN (2018) LPELR-43925(CA). In that case, the
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Appellant contended inter alia that the Respondent did not comply with Sections 15(4) and 17(2) of the Administration of Criminal Justice Act 2015. The trial Court held that the word “may” as used in those sections is discretionary and not mandatory. The Court of Appeal however held as follows: “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, OGUALAJI 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)
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(2009) 11 NWLR (Pt. 1151) 40, 60.” Relying on the mischief rule of interpretation, the Court of Appeal further held thus:
…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.”The Court held that the use of the word “may” in those provisions are in those circumstances mandatory and not permissive and I could not have agreed more. I adopt the above brilliant reasoning as mine.
Section 28 of the Evidence Act 2011, defines a
22
confessional statement as an admission made at any time by a person, charged with a crime tending to show or suggest the inference that he committed the crime. In our criminal justice system, a confessional statement is so potent that it is sufficient without more to ground a conviction. See STATE v. FAFURU (2022) LPELR – 58482 (SC), MUHAMMED v. STATE (2022) LPELR, OLANREWAJU v. STATE (2022) LPELR – 57788 (SC).
Usually, objections raised as to the admissibility of confessional statements pose one of the greatest challenges to criminal trials as it slows down the pace of the proceedings when there is a trial within trial. It is for this reason that Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011 and Section 17(2) and 15(4) of the Administration of Criminal Justice Act 2015 have been put in place to ensure that the Police and other agencies who have the power to arrest, obtain confessional statements from suspects without any form of oppression or illegality. The effect of the said provision is that every confessional statement must be recorded on video so that the said recording can be tendered and played in Court as evidence
23
to prove voluntariness or a legal practitioner or any person as specified under Section 17(2) of the ACJA must be present. The essence of the video/audio-visual evidence is obviously so that the Court will be able to decipher from the demeanor of the Defendant and all other surrounding circumstances in the video if he or she voluntarily made the confessional statement. Alternatively, where a video facility is not available, the Police must take the confessional statement in writing and must ensure that while same was being taken, the Defendant had a Legal Practitioner of his choice present.
However, over the years, it seems to me that these provisions are only existent on paper as the Police and other security agencies seldom comply with them. The current state of technology where most mobile phones have a recording application that would state the time and place of making the video if there is no official Police photographer at hand, makes the non-compliance inexcusable.
My Lords, it is baffling, to say the least, that at this point in our criminal justice system, there is still failure to meet with minimum standards of Police investigation or
24
interrogation- that obtains in other jurisdictions.
For instance, in the United Kingdom, apart from the general provision on confessional statements under Section 76 of the Police and Criminal Evidence Act 1984, the PACE Code C, PACE Code E and PACE Code F makes specific provisions on the Code of Practice for the detention, treatment and questioning of persons by police officers, Audio recording of suspect interviews and visual recording of suspect interviews respectively.
In Australia, by virtue of statutory requirement, statements made by an accused person will almost invariably be recorded by electronic audiovisual means (video recording). This is mandated by statutory provisions in all jurisdictions including the Criminal Investigations Act 2006 (WA) s 118 (Austl.) and the Police Administration Act 1978 (NT) s 142 (Austl.). In essence, the admissibility of confessions or admissions is dependent upon there being a video recording of the same, subject to certain exceptions. In the Australian case of NICHOLLS v. THE QUEEN (2005) 219 CLR 196, the Police failed to record an alleged off-camera admission made by an accused, as required by
25
Section 570D of the Criminal Code (WA). Under Section 570D of the Criminal Code (WA), evidence of an admission relating to a serious offence by a suspect to the police is not admissible unless it was recorded on videotape, or the prosecution proves that there was a reasonable excuse for there not being such a recording, or there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence’. By a majority decision, the Court held that the unrecorded admissions in this case were inadmissible for failure to comply with Section 570D. See also R v. McKenzie [1999] TASSC 36, [14]”.
The substantive criminal charge is yet to be determined on the merit and the Court below made the correct order in the circumstances. The judgment of the Court below is affirmed.
Appeal Dismissed.
— TIJJANI ABUBAKAR, J.S.C.:
I had a preview of the illuminating leading judgment prepared and rendered in this appeal by my Lord and learned brother, IBRAHIM M.M. SAULAWA, JSC.
I am in complete agreement with the reasoning and conclusion and therefore adopt the judgment as my own. I have nothing extra to add. I only join my Lord in holding that
26
the appeal is devoid of merit and deserves to be dismissed, it is hereby dismissed. I affirm the judgment of the lower Court delivered on the 19th day of March, 2019 in NO. CA/L/272C/2019.
— EMMANUEL AKOMAYE AGIM, J.S.C.:
I had a preview of the Judgment delivered by my learned brother, Lord Justice, IBRAHIM MOHAMMED MUSA SAULAWA, JSC. I completely agree with the reasoning, conclusions, decisions therein.
According to Crawford (Construction of Statutes, page 516) “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it the one way or the other. By this teleological or purposive approach, legislative provisions are applied to realize their objective or purpose.
The established caselaw across jurisdictions is that the purpose or objective or intendment of a legislative provision that vests a public duty
27
on a public officer for the benefit of any person is to make the execution or performance of the duty mandatory, irrespective of whether it is a permissive or mandatory word that is used to impose the duty. So that where, as in this present case, the permissive or discretionary word ‘may’ is used to impose a duty on a public officer to observe or protect the right of an arrested suspect not to be forced to confess that he committed the offence he is suspected of committing, the Courts have consistently, over time, decided that the word ‘may’ is legislatively intended to impose a mandatory duty to observe and protect the right of the arrested suspect against forced self-incrimination.
The established case law over time is that the legal and primary burden on the prosecution to prove the guilt of the accused beyond reasonable doubt includes the proof that a confession by the accused while under arrest and in their custody was made freely and voluntarily. Therefore if there is any reasonable doubt that the confession was voluntary, then the prosecution has failed to prove that it is voluntary.
Ss.15(4) and 17(2) of the Administration of Criminal Justice Act
28
has taken the guarantee of the voluntariness of a confession beyond the Judges Rules that Courts apply permissively and the police in-house procedures which consist only of assurances by the same investigating and prosecuting officers that they complied with the Judges Rules and their in-house procedures in obtaining the confession of an arrested suspect. The experience is that in most cases the arrested suspects disagree with these assurances, contending that the confessions were made under duress in various forms such as torture, intimidation, refusal to grant bail unless a statement or confession was made, etc, resulting in time consuming trials-within-trials to determine if the confession was voluntary. The whole process was a contentious and uncertain landscape with all depending on judicial discretion.
To establish more clear cut, certain, and easily verifiable criteria, S.15(4) and 17(2) AJCA prescribe that such confessions be video recorded and be taken in the presence of independent persons such as a legal practitioner of the suspect’s choice, officer of the Legal Aid Counsel, officer of a Civil Society Organization, a Justice of the Peace or
29
any other person of the suspect’s choice. In addition to the mandatory nature of those provisions, S.3 of the ACJA 2015 mandatorily requires that the suspect be arrested, investigated and tried in accordance with the ACJA.
For the foregoing reasons and the more detailed ones in the erudite lead judgment, I also dismiss this appeal.
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Dissenting Opinion(s)
None
REFERENCES
Research enhancement — dynamically linked
Referenced Judgments
Abogunde v. The Queen 4 FSC 70 — cited at p. 13
Adesanoye v. Adewole (2006) 14 NWLR (pt. 1000) 242 — cited at p. 12-13
Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) 28 — cited at p. 21
Agbanimu v. FRN (2018) LPELR-43924 (CA) — cited at p. 20
Ajayi v. Fisher (1956) 1 FSC 90 — cited at p. 14
Bray v. Ford (1898) AC 44 — cited at p. 14
Coca Cola (Nig.) Ltd v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74 — cited at p. 22
Corporate Affairs Commission v. The Registered Trustees of Celestial Church of Christ (Nigeria Diocese) (2009) 11 NWLR (Pt. 1151) 40 — cited at p. 21
Edewor v. Uwegba (1987) 1 NWLR (Pt. 50) 313 — cited at p. 21
Egbo v. Laguma (1988) 3 NWLR (pt. 80) — cited at p. 10
Eneche v. People of Lagos State (2018) LPELR-45826 (CA) — cited at p. 20
Ezeoke v. Nwagbo (1988) NWLR (pt. 72) 618 — cited at p. 14
Fabian Mathew v. The State (unreported) CA/L/1126/2011 delivered 11/12/2015 — cited at p. 20
Friday Charles v. The State of Lagos (2023) LPELR-60632(SC) — cited at p. 16
Galadud v. Kamba (2004) 15 NWLR (Pt. 895) 31 — cited at p. 21
Ismaila Fatoki v. The State (unreported) CA/L/1125/2011 delivered 11/12/2015 — cited at p. 20
James Ikhane v. COP (1977) All NLR 234; (1977) 6 SC 78; (1977) LPELR-1478 (SC) — cited at p. 14
John v. Igbo-Etiti LGA (2013) 7 NWLR (Pt. 1352) 1 — cited at p. 21
Joseph Zhiya v. The People of Lagos State (2016) LPELR-40562 — cited at p. 19
Julius v. Bishop of Oxford 5 App. Case 214 — cited at p. 10
Kingsley Akhabue v. The State (unreported) CA/L/1056/2011 delivered 11/12/2015 — cited at p. 20
Lioneel Barber & Co. v. Deushe Bank (1919) AC 304 — cited at p. 14
Mokelu v. Federal Commissioner of Works and Housing (1976) 1 All NLR (Pt. 1) 276 — cited at p. 21
Muhammed v. State (2022) LPELR — cited at p. 23
Nicholls v. The Queen (2005) 219 CLR 196 — cited at p. 25
Nnajiofor v. FRN (2018) LPELR-43925(CA) — cited at p. 20
Ogualaja v. Attorney General of Rivers State (1997) 6 NWLR (Pt. 508) 209 — cited at p. 21
Ogwu v. Ararume (2007) 12 NWLR (pt. 1048) 367 — cited at p. 10
Olanrewaju v. State (2022) LPELR-57788 (SC) — cited at p. 23
Orakul Resources Ltd & Anor v. NCC & Ors (2022) LPELR-56602(SC) — cited at p. 20
R v. Barlow (1693) Carth. 293 — cited at p. 21
R v. Bishop of Oxford (1879) 4 Q.B.D. 245 — cited at p. 21
R v. McKenzie (1999) TASSC 36 — cited at p. 26
Savannah Bank of Nigeria Ltd v. Ajilo (1989) 1 NWLR (pt. 97) 305 — cited at p. 10-11
Sheffield Corporation v. Luxford (1929) 2 KB 180 — cited at p. 10
Shehu v. Ogedengbe (1960) 5 FSC 266 — cited at p. 14
State v. Fafuru (2022) LPELR-58482 (SC) — cited at p. 23
Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638 — cited at p. 21
Referenced Statutes
Administration of Criminal Justice Act, 2015 (ACJA), Sections 1, 1(1), 1(2), 2(1), 2(2), 3, 3(3), 15(4), 17(1), 17(2), 491, 492(3) — cited at pp. 1, 4, 8, 11-12, 16-17, 29
Criminal Code (WA), Section 570D — cited at p. 25-26
Criminal Investigations Act 2006 (WA) s 118 (Austl.) — cited at p. 25
Evidence Act, 2011, Sections 14, 28 — cited at pp. 5, 22
Money Laundering (Prohibition) Act, 2011 (as amended by Act No 1 of 2012), Sections 2(3), 8(5), 18 — cited at p. 1
Police Administration Act 1978 (NT) s 142 (Austl.) — cited at p. 25
Police and Criminal Evidence Act 1984 (UK), Section 76, PACE Code C, E, F — cited at p. 25
