Following the enactment of the ACJL, the defendant can now oppose the admissibility of a Confessional Statement on the grounds that the prosecution has not complied with the provisions of section 9 (3) and as such the confessional statement should not be admitted in evidence. For ease of reference, the Section provides as follows;
Where any person who is arrested with or without a warrant volunteers to make a confessional statement, the Police 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.
There are similar provisions in ACJA which are in Pari material with the above cited. For example, section 15 (4) 17(2) of ACJA 2015.
The above provisions are drafted in simple and clear language requiring no further exposition. It is a cardinal rule of interpretation that where the words used in a statute are clear and unambiguous, they should be construed to give effect to their natural meaning. It is also the duty of a judge in interpreting the statute to consider the mischief the legislation intends to cure and proceed to interpret it in order to promote the remedy it aims to provide. Ourline Ltd V. SCC (Nig.) Ltd & Ors. (2009) LPELR-2833 (SC), Abegunde V. Ondo State House of Assembly & Ors. (2015) LPELR-24588 (SC).
By the above quoted clear provisions of Section 9 (3) of ACJL, it can be garnered that:
- The police officer (this includes any officer of a law enforcement agency established by an Act of the National Assembly – Section 371(1) of the ACJL shall ensure that the making and taking of the confessional statement shall be in writing;
- Shall ensure that the making and taking of such statement is recorded on video;
- In the absence of video facility, the said statement shall be in writing in the presence of a legal practitioner of his choice.
Explaining the raison d’etre for the existence of Section 9 (3) ACJL, it aims to curtail/minimize the incongruous situation whereby the affluent in the society, unduly influence the law enforcement agents, the police, to give credence to their frivolous and phantom allegations by intimidating innocent suspects to making confessional statements. –Kadiri v State (2019) LPELR-47714 (CA)
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 the suspect is not intimidated or cowed into making the confession. It is a provision directed at promoting and ensuring that statements are voluntarily made.
The above provision has both imperative or mandatory as well as permissive or directory components as the words “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 confessional statement involuntarily.
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.
It is only where an objection has 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.
The law made provision for video recording however the Interpretation Section of the ACJL or Evidence Act or Interpretation Act did not define what a video or video recording is. According to Wikipedia, Video is an electronic medium for the recording, copying, playback, broadcasting, and display of moving visual media.
Emphatically, the Section made mention of the word video recording and not audio recording and the position of the law as aptly put often times, is that the mention of specific things is a clear intention that those not mentioned are not intended to be included. That is “Expressio unius est exclusio alterius” – i.e. the expression of one thing is the exclusion of another. Shinkafi & Anor v Yari & Ors (2016) LPELR-26050 (SC); Gov of Imo State & Ors v. DELU Ent (Nig) Ltd (2021) LPELR-54724 (CA); West African Utilities Metering & Services Ltd v. Akwa Ibom Property and Investments Co. Ltd (2019) LPELR-47089 (CA).
The position of the Court is that the conditions set out in Section 84 of the Evidence Act must be satisfied before electronically generated evidence like this video is admitted. This can be done either by oral evidence under Section 84 (1) and (2) or by a certificate under Section 84 (4). IGP & ORS v. BELLO (2021) LPELR-56343 (CA); DICKSON v. SYLVA & ORS (2016) LPELR-41257 (SC).
Since, the Prosecution failed to use video recording as provided by the Law and adopted a procedure alien to the provisions and intendment of the Law, by using Audio recording, it is our submission that the Audio recording should be discarded in the judicial waste bin for not being in compliance with the law.
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