ELECTRONIC-RECORDING OF CONFESSIONAL STATEMENTS UNDER
SECTION 15 OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015
IS MANDATORY.
•BY: PROFESSOR (JUSTICE) ALABA OMOLAYE-AJILEYE.
Case Review: FRN v Nnajiofor
Case Reviewer: Professor (Justice) Alaba Omolaye-Ajileye
Case No: SC/353C/2019
Citation: [2024] 10 NWLR (Pt. 1947) 443
Date of Decision: Friday, Ist March 2024
Date of Publication: 22nd July 2024
1. Introduction
The Supreme Court of Nigeria (Coram: Okoro, Ogunwumiju, Saulawa, Abubakar, & Agim, JJ.SC.), in a unanimous decision, has finally settled a
long-standing controversial principle in a landmark decision of FRN v Nnajiofor (2024) .
1 The case centered on the interpretation of Sections 15 and 17 of the Administration of Criminal Justice Act, 2015 (hereinafter referred to as ACJA), which had been a subject of debate among legal scholars and lower courts for some years.
The central issue was whether it is mandatory or permissive for a police officer under Section 15 of ACJA to video-record a confessional statement
of a suspect. The Court of Appeal, in Nnajiofor’
s case had earlier interpreted the word “may” under Section 15(4) of ACJA as “shall”, thereby
endorsing its mandatory nature. For the avoidance of doubt, the said subsection provides:
15(4) Where a suspect who is arrested with or without a warrant, volunteers to make a confessional statement, the police officer shall ensure that making and taking of the statement shall be in writing and may be recorded electronically on a compact disc or some other audiovisual means. (Emphasis supplied).
As simple as the provision of this subsection appears to be, it has generated so much fuss within judicial circles that before now, its true application remained an illusion. The interpretation of the subsection had engendered so many conflicting
judgments, particularly, from the Court of Appeal, such that trial courts found the application of the law most frustrating on grounds of uncertainty. The unanimous decision of the Supreme Court is all the more remarkable considering the deep
divisions and sharp disagreements that existed among the lower courts (the High Court and the Court of Appeal), regarding the underlying principle.
1 [2024] 10 NWLR (Pt. 1947) 443
2. Facts of the Case
The respondent and two others were arraigned before the trial Federal High Court upon a two-count charge for conspiracy to commit an offence
to wit: failure to declare the sum of $102,885 (One Hundred and Two Thousand Eight Hundred and Eighty-Five United States of America Dollars)
to the officers and men of the Nigerian Customs Service as required under the provisions of Section 2(3) of the Money Laundering (Prohibition) Act,
2011 (as amended by Act No.1 of 2012) and also aiding Mr. Konja (at large) to commit the offence. The respondent’s objection to the admissibility of the respondent’s confessional statement led to an order for a trial-within-trial.
At the end of the trial-within-trial proceeding, the trial court delivered a ruling thereby over-ruling the respondent’s objection and admitted the
extra-judicial statement in evidence. Dissatisfied with the ruling of the trial court, the respondent appealed to the Court of Appeal which heard and
allowed the appeal. The case was remitted to the Chief Judge of the Federal High Court for assignment to another Judge for hearing and determination.
The appellant, dissatisfied with the decision of the Court of Appeal, filed an appeal at the Supreme Court thereby urging the Supreme Court to set aside the said judgment of the Court of Appeal.
3. The Court of Appeal’s Rulings in Perspectives
Series of cases exist in which the opinions of the Honourable Justices of the Court of Appeal were divided on the issue whether the application of
Section 15(4) is mandatory or permissive, with some rulings in favour of the mandatory nature of the subsection and others siding with its
permissiveness.
This led to a patchwork of conflicting decisions, creating uncertainty and confusion, until now. Two examples suffice: In Oguntoyinbo v. FRN, there was a split decision of 2-1, where Owoade, JCA and Barka, JCA, held that the use the word “may” in the subsection makes the requirement permissive. Ugo, JCA., dissented.
A similar factual situation arose in Nnajiofor FRN (2018)3 but a different conclusion was reached by another bench of the Court of Appeal (Coram: Sankey, JCA (as she then was), Otisi, & Ekanem, JJCA).
In rejecting and overruling the position of the
trial court that Section 15(4) is permissive, the Court of Appeal, per Ekanem, JCA., admirably articulated the point thus: 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… 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
2 (2018) LPELR 45218 (CA)
3 (2018) LPELR-43925(CA)
suspect and to take statements of suspects in the presence of the person/s set out in Section 17(2).4
4. Supreme Court Decision
The Supreme Court has now authoritatively endorsed the Court of Appeal’s decision in Nnajiofor’s case as representing the correct position of the law.
Saulawa, JSC who read the lead judgment held:
Undoubtedly, in the course of taking or recording the alleged confessional statement of the respondent herein, the officers of the EFCC did not deem it imperative or expedient to use electronically retrievable video compact disc, or such other visual or audio visual means of recording as envisaged by the law.
There is equally no doubt, that the purported respondent’s statements were not recorded in the presence of the respondent’s legal practitioner; even though he asked for a legal practitioner of his choice as guaranteed under the Constitution (supra). 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 a particular procedure of 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 interpretative jurisdiction to hold, that the non-compliance with the law is against the recalcitrant party.
In his contribution, Okoro, JSC explained that since the law has provided for a suspect’s extra-judicial statement to be electronically recorded and
in the presence of a legal practitioner of his choice, it would amount to a violation of the law if that provision is not followed to the letter.6
Ogunwumiju, JSC, took a comprehensive global perspective on the issue of electronic recording in police investigations and expressed bewilderment
at the persistent failure of this country to adopt best practices, despite widespread international adherence to this standard. In her words:
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 interrogation that obtains in other
jurisdictions.
5. Conclusion:
The Supreme Court’s landmark decision in Nnajiofor’s case provides clarity on a critical principle of law. The judgment reinforces the desire of the law to ensure that the Police and other agencies who have the power to arrest and obtain confessional statements from suspects exercise such power without any form of oppression or illegality.
It depicts the commitment of the law to equal protection under the law and that all suspects are treated fairly and justly. It is one of the surest indexes of a progressive and proactive jurisprudence to remember that statutes always have some purpose or object to accomplish, whose imaginative discovery, which is the primary duty of the judex, is the surest guide to its meaning. In respect of ACJA, the Supreme Court has unquestionably exercised its power of interpretation in giving effect to the objectives of ACJA in this recent judgment.
About the author; PROFESSOR (JUSTICE) ALABA OMOLAYE-AJILEYE, FORMER HIGH COURT JUDGE, VISITING PROFESSOR NATIONAL OPEN UNIVERSITY OF NIGERIA.
Electronic Recording Of Confessional Statement.
