OUTCOMES:

At the end of this lesson students would be able to:

1. Explain how to Conduct a pre-trial investigation;
2. Participate in a police interview;
3. Discuss how alibi, statements and confessions are recorded at the police station (“Judges Rule”) how identification parade is conducted and how exhibits are handled.
4. List and explain the Constitutional rights of a suspect at the Police Station;
5. Explain how to apply for assistance for a citizen under the Legal Aid Scheme; and how to obtain a police bail.
6. Explain options available to the suspect upon refusal of police bail – habeas corpus and fundamental rights enforcement.

Who conducts pre-trial investigation?

• See s4 and 23 police act cap P19 LFN 2004
• Other law enforcement agencies such as NLEA, EFCC, NAFDAC, SSS, ICPC, NIGERIAN CUSTOMS SERVICE, etc.

Both the CPL ss 3-10; ACJL ss1-10; CPC ss 117-1333 &ACJA  ss 3-34 recognised police investigatory powers

See Onyekwerev state (1973) 8 NSCC 250; Hassan v EFCC (2014) 1 NWLR

Powers and roles of the police – s 4 and 23 police act.

• Pre-trial investigation
• Prevention/detection of crime s. 52 (1) &(2) ACJL 2011.
• Arrest of offenders. s 54 ACJL 2011
• Prosecution of offenders in court. See Onyekwere v state;

Note the cases of Olusemo v COP – this case was to the effect that police cannot prosecute in superior court except they are Legal Practitioner’s;Osahor  v Federal Republic of Nigeria – This changed the position in Nigeria and said that police have the power to prosecute in superior courts.

Can police be called into civil wrongs?

Exceptions to police powers 

The combined effects of the provisions of s 7 & 8(2) ACJA, S 4 ACJL, the police have no right to arrest in civil wrongs or breach of court.

• Debt collections: see Mclaren v Jennings (2003) FWLR (154) 528; S.8(2) ACJA 2015
• Arrest in lieu. See s 7 ACJA 2015; s 4 ACJL 2011
• Civil wrong/breach of contract. S 8(2) ACJA 2015

Scenario: if the police seeks to arrest your client for a civil matter, your response as lawyer should be to bring an action under the fundamental right laws (chapter 4 of the constitution) seeking to enforce the right of your client. You’d be suing the complainant and the police.

PRE TRIAL INVESTIGATION…

Preliminary points

• It must be carried out within the confines of the law
• It determines whether or not a suspect may be charged
• If not properly handled it may result in the conviction of an innocent person or acquittal of a guilty person

Procedure after receiving complaint

• Commence investigation s 118(1) CPC
• May effect arrest
• Police have discretion to investigate/prosecute. Fawehinmi v IGP 2002
• Police may invite any person for interview/questioning

Police questioning / interview

Who may be questioned?: Suspects, Victims, Witnesses, Experts or Complainants

Mode of questioning

• Personal (face to face)
• Telephone communication
• Written representation

Stages of police interview

• Rapport building stage
• Information exchange stage
• Challenge/ confrontation stage

Factors hindering effective police investigation in Nigeria

• Inadequate facilities
• Lack of trust
• Lack of professionalism
• Lack of motivation

Query….

• What is the difference between statements made to the police during investigation and confessional statement? S17(1) & 15(4) ACJA; s. 28 EA

Ordinary Statements are simply narration of the circumstances of a person’s participation in the case. Confessional statements are defined in s28 Evidence Act. The difference between an ordinary statement and a confessional statement is whether the statement carries with it the admission of guilt.

Igbinobia v The State (the police officer pretended to be a convict and the prisoner confessed to him orally, the court said that an oral confessional statement is admissible)

• Are such statements admissible in court? See Igbo v state (2000) 2 SCNJ 63
• Where a suspect detained at the police station refuses to make statement, what is the remedy?

Any possible remedy?

A person arrested or detained has the right to remain silent.

• S 17(1), s. 6(2) ACJA.
• 3(2)(c) ACJL says the person shall be informed of his right to “ refuse to answer any question or make or endorse any statement.”
• S 35(2) 1999 constitution

Statements by suspect

• Must be recorded in first person singular or plural – see Ahmed v State (supra)
• To be recorded in the original language used by the suspect if practicable. See Adeyemi v State (2013) 3 NWLR (PT1340) 78;Olalekan v state (2002) FWLR (pt.91) 1605 SC.

Procedure when interpreter is used – see s.17(3) ACJA 2015. SeeAdeyemi v State (2013) 3 NLWR (pt.1340) 78; Bello v state (2012) 8 NWLR  (Pt.1302) 207; R v Ogbuewu 12 WACA  483; Olalekan v State (2002) FWLR (pt 91) 1605 SC.

Procedure to tender in court where interpreter is used

• The person who wrote the statement and the interpreter is to be called. Olalekan v State (2001) 18 NWLR (pt 746) 793SC.
• Both statement and interpreted version to be tendered. See Queen v Zakwakwa of Yoro (1960) 1 NSCC; Nwali v state (1991) 3 NWLR (PT.182) 653

What happens if the interpreter is dead or cannot be found? A foundation has to be laid as to the whereabouts of the interpreter, the IPO will be led in evidence who will then state about the death of the interpreter, then the counsel will then be able to tender the statements.

• Statements made under duress, compulsion, threat or promise of an advantage may not be admitted s 29 EA
• S 29 EA states the vitiating factors, s 28 EA 2011 for definition of confession
• Confessionalstatements can only be made during investigation or close of it. SeeOnungwa v state (1976) 2 SC 169; R v Udo (1947) WACA 39; S.125-126 CPC

Forms of confessional statements

• Confession may be oral. S 15(4) ACJA; Igbinovia v state (1981) 2 SC 5; Ayobami v state 2017 All FWLR (pt.886) 1964 at 2000
• It may be in writing. See Arogundade v State (2009) all FWLR (pt.469) 409;

Types of confessional statement

• Judicial confessions / formal – this is made during the pendency of the trial
• Extra judicial confessional statement/ informal – these are ones made during the course of pre-trial investigation
• Omisade v Queen (1964) 1 All NLR

Can a confessional statement be made on another’s behalf?

Confessional statements can only be made by the person who committed the offence, it binds only the maker. It can only bind the co-defendants when they adopt it expressly or by conduct.

s.29(2) & (4) E.A. See Mbang v State (2010) All FWLR (Pt. 508) 379; R v Inyang (1931) 10 NLR 33; Olusegun v State (1968) NMLR 261

Effects of confessional statement on co-accused  s29(4)

• Confessional statement can only bind co-accused of he adopts it by word or conduct . State v Gwangwan 2016 All FWLR (pt.801) 1470; Ozaki v State (1990) ; Adebowale v State (2013) 16 NWLR (pt.1379) 104; COP v Ude (2011)
• The consequence is different if made on oath before the court. See Gbohor v State (2013) All FWLR (pt.709) 1061 at 1089. If one of the accused testifies as to his confessional statement which implicates the other and they fail to address the statement made by the other defendant (during examination) then it will be taken against them because it was on oath so the court can use the confessional statement to convict the co-accused notwithstanding s29(4) EA.
• An extra – judicial confession incriminating a co-accused, may be relied upon by the court if corroborated by other evidence. See Gbohor v State (2013) All FWLR (pt.709) 1061 at 1089

Nature of confessional statement

• The confession must be direct,
• It must be positive, and
• Irresistibly point to the guilt of the accused or the defendant. State v Enabosi (1966) 2 All NLR
• Must relate to the commission of the offence, so must relate to the actus reus and mens rea Omisade v Queen (1964)

Voluntariness of confessional statement

 The court may suomoto inquire into the voluntariness of the confession. s 29(3) EA

Counsel for the defence may also raise the involuntariness by way of preliminary objection.

When will the involuntariness be raised?

Is it during the course of the defendants opening the case or during arraignment, or when it is tendered?  - It is raised at the point of tendering

Challenge of confessional statement

1. May be challenged on grounds of involuntariness; and
2. May be challenged based on denial (retraction)

Either of these two will lead to a trial within trial

Can it be challenged on the above grounds in Lagos?S 9(3) ACJL

The evidence act does not provide for procedure for obtaining confessional statement. If prima facie it appears voluntary then it will be taken to have been made voluntarily.

Does the fact that a confession is obtained as a result of moral adjuration amount to involuntariness? Moral adjuration does not lead to involuntariness of statement.

Does the fact that a confession is obtained as a result of deception practiced on the defendant, amount to involuntariness? No, it is still relevant. See S.31 Evidence Act 2011

S 14 & 15 EA relates to evidence illegally obtained as a result of a search conducted without a search warrant. Previously Musa Sadua v state said so long it was relevant its admissible but the provisions of the Evidence Act now says no that admissibility depends on the discretion of the judge. Don’t confuse it with s28 and 29 Evidence Act on confessions, admissibility of confessional statements depends on voluntariness or involuntariness.

Recording of confessional statements in Lagos

1. Confessional statements are to be recorded on video and copies of it may be produced at the trial;
2. In the absence of video facility, the statement shall be in writing and in the presence of a legal practitioner of the suspect’s choice. See s. 9(3) ACJL

“(3) 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”

Read the cases below to understand the implication of non compliance of s9(3) of ACJL requirement of  video recording. 

• Awele v People of Lagos state (2016) LPELR 413 95
• Zhiya v People of Lagos state (2016) LPELR 405 62

Procedure to obtain confessional statements under the ACJA

1. The confessional statement shall be in writing
2. It may be recorded electronically; on a retrieval video compact disc. See s 15(4) ; 17(3) ACJA

A confessional statement made in Pidgin English, is it admissible in court?

What is the language of the court? See Olanipekun v State

Note the difference between language used during pre-trial investigations and language at trial. The case is saying pidgin statement made in pidgin doesn’t need a separate interpretation, but in open court it has to be English that is used. If a person speaks pidgin in open court an interpreter will be need. The case is referring to pre-trial statements.

Judges rule

READ UP ON IT

Rule 1: police officer

Rule 2:

Rule 3:

Rule 4:

Rule 5:

Rule 6: police officer

The rule cannot be enforced by the court. R v Voison (1982) 1 K.B 531.

Codification of judges rule

See S 6 ACJA; s 3 ACJL 2011

Trial within trial

What is the purpose of a trial within trial? The purpose is to ascertain the voluntariness and involuntariness or the admissibility of a confessional statement.

See Ibeme v State (2013) 10 NWLR (pt. 1362) 333

• Necessary only where the accused/defendant alleges involuntariness.
• Not necessary when he denies making the statement. See Mohammed v State (2007) 13 NWLR (pt. 1050) 186;
• Conviction not to be quashed because it is based on retracted confessional statement. Kazeem v State (2009) All FWLR (pt.465); Olabode v State (2009)
• In retraction the statement is admissible without conducting trial within trial,

But before acting on it the court

1. The court must establish that the accused made the statement see Oguno v State (2011) 7 NWLR (pt.1246) 314;
2. The court will ascribe probative value Isong v state (2017) All FWLR (PT.863) 1602; Ogunye V State (1999) 4 SCNJ 33

Time to raise objection

Time to raise involuntariness. See Olalekan v state (2001) 18 NWLR

Objection is to be taken at trial court, not appeal court. See Olalekan v state

Standard of proof in trial within trial

Standard of proof – Beyond reasonable doubt See Bright v state (2012) 8 NWLR (pt.1302) 297 S.C; s.29 (2)(b) EA

On whom lies the burden of proof in trial within trial? –it lies on the prosecution See Bright v State (2012); Effiong v state (1998) 5 SCNJ 158; s.29(2)(b)

Who testifies first in trial within trial? – The prosecution starts first See Effiong v State (supra)

Can the ruling in trial within trial terminate the proceedings? See Gbadamosi v State (1992). No, the main case will continue, the prosecution continues the case and if he closes the case, then the defence will be called to open their case and the defence may raise a no-case submission if they feel essential elements of the case have not been proven under any two major headings

Alibi

What is an alibi, is it a plea or defence? It’s a defence; Aplea is plea of guilty or plea of not guilty. You can’t say plea of alibi. It’s a special defence however that is to be raised before the trial, it must be raised as soon as possible, so when arrested by the police.

See Azeez v State (2008) All FWLR (Pt.424) 1432; Usufu v State (2008) All FWLR (pt. 405) 1731

When to raise alibi?

 The time must correspond with the time the offence was actually committed. Seeokosi v state (9189) 1 NWLR (pt.100) 642; Ndidi v satte (200&

Must be raised at the earliest opportunity. See Ebemehi v state (2009) All FWLR (pt. 486) 1825

 The SC held if raised for first time at the trial court, it does not merit consideration see Ebemehi v state

The evidential burden is on the suspect / accused s 136(1) EA

By adducing material evidence to convince the court that the accused was at the scene. See Azeez v state

By connecting the ….

Effect of confessional statement on plea of alibi

Confession, once voluntarily made destroys the defence of alibi; see Ogoala v state (supra)

Identification parade (when to conduct)

Conductedwhere the identity of a suspect is in issue by the victim or the eye witness to the offence. SeeAni v state (2009) 16 NWLR  (pt.1168) 443 SC; Archibong v state (2006) All FWLR (pt.323) 1747

The police will conduct the identification parade in order to determine the person that committed the offence. The person is usually not well known to the victim or witness.

Other types of identification

• Dock identification
• Video identification
• Voice identification
• Photograph identification
• Fingerprints identification

Procedure for identification parade

• There should be separate entrance and exit to minimize contact between persons
• The suspect is planted in the midst of 8 other persons

Handling of exhibits

Police may seize any incriminating items found at the premises or scene of crime

• The items are handled and kept by the exhibit keeper.
• The exhibits must be kept in an exhibit room or designated place by the exhibit keeper and properly labelled
• The police is required to draw up an exhibit register 10(1) ACJA

Constitutional rights of a suspect at the police station

• Access to counsel – s35(2) 1999 const
• S 34(1) const.  ; s 4 CPA ; s 5 ACJA
• S 35(2) const.
• S 3 ACJL; 16 LAA, s 15
• S 35 (1) const.
• S 35(6) const.
• 36(6) const.
• 36(5) const.
• Adequate time and facility to prepare for defence 36(6) (b); Uket v State
• Not to be arrested or detained in place of another s.4 ACJL 2011; s 7 ACJA

BAIL

Bail is a constitutional right – s 35(1) 1999 const. ss 17,18 CPL;ss 129 & 340 CPC. All offences are bailable, it’s a constitutional right but the nature of the offence will determine the conditions and terms for the suspect to meet up before they are released on bail.

Police bail (bail pending investigation)

However certain offences are outside the domain of some authorities to grant bail.

The police cannot grant bail to a suspect arrested for capital offence or offences punishable with death. See s.17 CPL; s.341 CPC ; S.17(10 , 19 ACJL 2011; s. 30(3) , 31,32 ACJA

NOTE: can a magistrate grant remand? Yes 293 (1) ACJA, S264 ACJL

Lufadejuv  Johnson – read the case on holding charge. Holding charge is different from remand proceedings

 S 293- 296 ACJA gives a total period of 42 days. ACJL gives a period of 60 days or 90 days

Note power of the magistrate to visit the police station – see s.34 ACJA .

The police are under a duty to a report arrest and detention – see s 6(2)(c) ACJA; s.20 (1) ACJL

Procedure to obtain police bail

There is no statutory provision for the procedure. Application for bail to be made to the Divisional Police Officer (DPO) or head of the police location investigating the case.

If the application is for more than one suspect a single application suffices for bail application at the police station. E.g. bail application for … and…. .Note however that this doesn’t apply for other types of bail application.

In practice application is in writing, by the suspect, his counsel or surety.

Police bail once granted remains in force until the suspect is arraigned in court, by which time it lapses, or unless revoked for breach of bail condition by police.

Terms of bail

• Personal recognizance
• Entering into a bond
• Provision of surety/sureties

Options available to a suspect who is denied bail

• Application in court for release from custody; s. 18(1) ACJL; s 32 (1) ACJA
• Enforcement of fundamental rights pursuant to the Fundamental Rights(enforcement procedure) rules 2009;
• Habeas corpus procedure

Fundamental right enforcement

Regulated by fundamental rights (enforcement procedure) rules 2009 and s 46(1) (3) CFRN 1999 as amended to enforce s35(1) CFRN 1999

Under this procedure you need not wait until you are detained before invoking judicial powers of the court via s.6 1999 constitution.

Application for assistance under the legal aid act 2011

Legal aid council is responsible for the operation of a scheme for the grant of free legal aid in certain proceedings to person with inadequate resources.

Main responsibilities: legal aid and advice to persons entitled in respect in criminal matters through criminal defense service s.8(2) Legal Aid Act

Beneficiaries are those whose income does not exceed the national minimum wage. S10(1) Legal Aid Act

Scope of legal aid to be given are in respect of criminal matters in 2^ndschedule to the act or as may be directed by the president s. 8(1)(2) Legal Aid Act

Legal aid practitioners

• S 14 LAA
• 16 LAA
• 17(1) LAA

Procedure for application for legal aid

• S 19(2) LAA
• Application for criminal matters shall be in the form No LAC 2