Confession

Question 1

Why is confessions so complex

Answer 1

The topic “Confessions” is a very important one in the Law of Evidence, as it reveals the complexity and conflicting interests involved in controlling crime while also respecting individual human rights. I

Question 2

When was the evidence act last modified

Answer 2

The 2011 act was modified in 2020

Question 3

How is did black law dictionary define confession

Answer 3

Black’s Law Dictionary defines confession as “a criminal suspect’s oral or written acknowledgement of guilt, often including details about the crime”

Question 4

In KAMILA v. STATE (2018) LPELR-SC.489/2016 the Supreme court lent its support to Evidence Act 2011 definition of confession which is

Answer 4

A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime

Question 5

What was the definition in the old act

Answer 5

“an admission made by the accused stating or suggesting that he committed the crime which is the subject of the charge preferred against him. It is the acknowledgment of the crime by the accused”.

Question 6

A confession is admissible and can be the grounds for conviction when it is according to Adamu v State

Answer 6

1. Voluntary
2. Direct
3. Positive
4. And unequivocal about the guilt of the accused

Question 7

Can a court convicted a person base on his confessional statement. If why state such based on fact

Answer 7

The long held position of the law is that a free and voluntary confession which is direct and positive and properly proved is sufficient to warrant a conviction without any corroboration. See Queen v Itule (1967) 2 SC NLR p.183, Aremu v State (1991)

The following authorities are a confirmation that the Court can convict an accused person on his own confessional statement Demo Oseni v. The State (2012) 5 NWLR (Pt.1293) 351.

Question 8

What did Nikki Tobi hold about confessional statement

Answer 8

, Niki Tobi JSC stated that “the best evidence for purposes of conviction is confession to the commission of the crime by the accused person” . In other words, a free and voluntary confession provides the most satisfactory evidence of guilt, for it is generally accepted as a presumption that no rational human being will make admissions prejudicial to his interest and safety if the facts confessed are not true.

Question 9

As we know a confessional statement can be made in writing and orally but does a written confessional statement carry less weight

Answer 9

A confession is generally made in writing to the police officer or other law enforcement agent during investigation. However, it can be made orally and any oral confession does not carry less weight than that made in writing once the witness of the one to whom it was made is accepted by the court. Hence, in the case of Moses Jua v The State, the Supreme Court held that a conviction on the oral confession is proper in law . An extra-judicial confession, whether made orally or in writing carries the same weight. See: Olusegun Otufale & Ors. v. The State (1968) NMLR 261.

Question 10

Mustapha Mohammed & Ors v The State,it was held that………….

Answer 10

The Supreme Court held that once there exists a confessional statement which is direct, cogent and unequivocal to the fact that the accused committed the offence, the prosecution need not prove the offence any longer for the confession is enough proof of the offence beyond reasonable doubt.

Question 11

When must one prove the voluntariness of the confessional statement

Answer 11

It is correct that the law requires the prosecution to prove the voluntariness of a confession made by an accused person which it proposes to give in evidence but this proof only arises where the accused has challenged the admission of his confession on the ground that it was not made voluntarily; or when the court believes that by reason of anything said or done in the course of obtaining the confession, same rendered the confession unreliable. This was stated in the section 29 of the evidence act

Question 12

When should a parties raise an objection to the voluntariness of a confession statement

Answer 12

This arises where there is an objection at the point the prosecution seeks to tender a confessional statement while prosecuting its case and not after the tendering and admission of the said confessional statement, nor at the close of the prosecution’s case let alone at the end of the accused person’s evidence in chief.

Question 13

What happened in the case is Adekanbi v. A.G. western Nigeria (1994

Answer 13

Adekanbi v. A.G. western Nigeria (1994) 2 NWLR (Pt. 326) 273), where the learned Counsel for the accused raised to the admissibility of the confessional statement timeously, at the time the prosecution sought to tender the same.

Question 14

When should one object the admissibility of a confessional statement

Answer 14

The time to object to the voluntariness of a Confessional statement is at the time of tendering the statement and not when the accused opens his defence or during that defence. ‘‘In Chukwuka Ogudo v. The State , the learned counsel for the accused observed that the Confessional statement was not
signed but did not object to its admission. The apex Court held that the statement was rightly admitted in evidence although it was not signed and was also retracted by the accused. The Supreme Court also made it clear that the legal status of the unsigned confession had to do with the weight to be attached to it since its admissibility was not objected to.

Question 15

When does the burden of proving the voluntariness of the confession cease to exist

Answer 15

From the foregoing, it will be correct to hold that once an accused person’s counsel fails to object to the admission of a confessional statement and which is at the point: that the prosecution seeks to tender same; and the said statement is eventually admitted in evidence, the accused person loses the opportunity of challenging the voluntariness of his confession and the burden of proving the voluntariness of the confessional statement ordinarily placed on the prosecution ceases to exist.

Question 16

What does omnia praesumuntur rite esse acta mean.

Answer 16

which means that all acts are presumed to have been done rightly and regularly until the contrary is proved. If evidence exists to show that the Confessional statement was taken in the regular manner, and Counsel did not object to their admission at the point of tendering them in evidence, the general presumption is that the confessional statements were voluntarily made.

Question 17

Is it true that a court cannot convict a person based on a retracted confessional statement

Answer 17

Generally, a Court can convict on a retracted Confessional statement of an accused person. However, before a court does this, it must evaluate the confession and testimony of the accused and at other available evidence. For the learned trial Judge to properly convict the accused person based on his retracted confessions, he would have examined the new line of story of the events as presented by the accused at trial which is different from his retracted confessional statements and ask himself and answer in the affirmative some following questions

Question 18

Some of these questions asked by a judge to convict based on a retracted voluntary statement

Answer 18

a) Is there anything outside the confession to show that it is true? (b) Is it corroborated? (c) Are the relevant statements made in it of facts true as far as they can be tested? (d) Did the accused person have the opportunity of committing the offence charged? (e) Is the confession possible? (f) Is the confession consistent with other facts which have been ascertained and have been proved.
See Ogudo v. The State (2011) R V. Sykes (1913). Dawa v. State (1980)

Question 19

What was stated in Nwachukwu v. The State

Answer 19

The fact that the accused did subsequently retract his confession does not mean that the court cannot act on it and convict him accordingly as the circumstances of the case justify it.

Question 20

What was stated in Ogudo v. The State (supra) at page 329

Answer 20

Ogudo v. The State (supra) at page 329 said: “No matter how rampant or reprehensible armed robbery is in the society, Judges who sit to hear such cases should strive to be detached and seek justice with an open mind…. before conviction on a retracted Confessional statement, such a statement must be subjected to detailed scrutiny” On the scrutiny of the retracted confessional statement, although the learned trial Judge did not meticulously pass the confession through the tests in R V. Sykes (supra), I am convinced that the confession of the Appellant is consistent with the conditions laid down in R V. Sykes as followed by the apex Court in Oladipupo v. The State (2014) All FWLR (Pt. 712) 1727; in that: (a) the credible evidence of the prosecution that the Appellant led the police team to the sections of the bush where they recovered the dismembered body of the deceased is a clear proof that the confession is true. (b) There was credible evidence of PW1 and PW2 which corroborated the confession of the appellant. (c) The facts contained in the confession are true as far as can be tested. (d) The Appellant by the circumstances of this case had all the opportunity of committing the offence as he was last seen with the deceased in the farm. (e) The confession of the Appellant is possible. (f) The confession is consistent with the facts ascertained as proved by the evidence of PW1 and PW2 ‘’

Question 21

What are the types of confession

Answer 21

Formal and judicial or informal and extra judicial

Question 22

What are the types of formal confession

Answer 22

Judicial confessions are made in court before a Judge or Magistrate or other tribunal. An example is where the accused pleads guilty to a charge upon same being read to him by the court. Hence a judicial confession can be defined as a plea of guilty on arraignment, if made freely by a person in a fit state of mind . Once the plea of guilty is not made by the accused on arraignment, his right to remain silent is preserved by the provisions of the Constitution,

Question 23

Explain extra judicial and informal

Answer 23

Extra judicial confessions on the other hand are made out of court during investigations to police officers or other law enforcement agent. Hence, any statement made outside the court by an accused person or a suspect tending to show that he is guilty of the offence for which he is charged or suspected is called an informal confession. Extra judicial confessions, unlike the judicial confessions must pass the strict test of admissibility. Hence, in Saidu v The State, it was stated that the rules of admissibility of confessional statement of an accused are stringently observed and exclude the admission of such confessional statement by consent or from the bar even if without objection by the defence .

Question 24

Rationale for Admitting Confessional Statements in Evidence

Answer 24

Confessions, ordinarily, are not admissible because they constitute hearsay evidence. Common law however, permitted the admissibility of confessions as an exception to the hearsay rule because of the crucial role confessions play in the determination of criminal trials. The reason for this exception is that the danger of unreliability traditionally associated with hearsay evidence is outweighed by the fact that the statement so clearly adverse to the interest of the maker is unlikely to be made unless the contents are true. This proposition, definitely, is destroyed where there is any real risk that the statement was made, not because of a desire to tell the truth but because of threats, fear, unjustified hopes, weakness or any other circumstances which make it likely that, not only was the confession actually made, but any confession which might have been made may be unreliable .

Question 25

What does section 29(1) of the evidence act say what confession is relevant

Answer 25

Section 29 (1) states as follows: “In any proceedings a confession made by a defendant may be given in evidence against him in so far as it is relevant to the matter in issue in the proceedings and is not excluded by the court in the pursuit of this section”

Question 26

What does section 29(2) of the evidence say

Answer 26

Section 29 (2) gave the directive on when a confession made by a defendant shall not be allowed by the court to be given in evidence against him. This will be that case when it is represented to the court that the confession was or may have been obtained (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at that time, to render unreliable any confession which might be made by him in such consequence.

Question 27

Where the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of the Section 29 of the Evidence Act, 2011, then the court shall allow what?

Answer 27

the confession to be given in evidence. In section 29 (5) the word “oppression” was defined not restrictively but widely to include torture, inhuman or degrading treatment, and the use of threat of violence whether or not amounting to torture.

Question 28

Section 31 of the Evidence Act 2011 went further

Answer 28

Section 31 of the Evidence Act 2011 went further to state when a confession that was considered relevant cannot be vitiated by the way it was obtained. It hence clarifies that a confession that is relevant will not become irrelevant by the fact that it was made under a promise of secrecy, or in consequence of a deception practiced on the defendant for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, or because he was not warned that he was not bound to make such statement and that evidence of it might be given.

Question 29

What happened in the Igbinovia v The State

Answer 29

Igbinovia v The State explained that though deception is a mode of behavior disapproved of by society, it remains a widely accepted method used to fight and flush out criminals who wear the gab of innocence. In the Instant case, the appellant was charged with and convicted with murder. In order to elicit information from him, the police planted a police officer who disguised as a criminal suspect in the midst of suspects locked up in one of the police cells. The police officer lured the appellant by telling him his own exploits. The appellant in turn confessed that he took part in the killing of the deceased mentioning the date, and the venue of the crime. It was contended on his behalf that the confessional statement was inadmissible. In rejecting the contention, the Supreme Court held that if a policeman does not present himself s a police man but as a wild and vicious criminal, and other suspected criminals take him as such and in order to boost their ego and establish better understanding with him open their mouths and pour out stories of what to them are brave deeds of courage but which to civilized human societies are atrocious acts of violence against society and humanity, that information cannot become inadmissible only by reason of the concealment of the status of the disguised policeman who was fed with such valuable information .

Question 30

Now that section 28 of the repealed act is gone will non voluntary evidence be admissible

Answer 30

One can then say that from the intendment of Section 29(2), and (5) the new Evidence Act 2011, any confession obtained from an accused person by torture, inhuman or degrading treatment, the use or threat of violence, hence by oppression, would not be voluntary but would be classified as unreliable and inadmissible in evidence against the accused person. In other words, once such a confession is declared not to be voluntary, the effect is that the confession never existed in the eyes of the law, and so was never made by the accused person and his right to silence is thus proclaimed anew .

Question 31

Oppression was defined in n Balogun v A.G. Federation.

Answer 31

n Balogun v A.G. Federation, Uwaifo JCA (as he then was) described what can amount to an oppression: “It is an oppression for a state security agency to take a suspect or accused into custody in respect of a matter having nothing to do with the security of the state and insist on a statement being made particularly under circumstances and in an atmosphere which instil fear not only in the suspect but also in a police officer called in to take the statement. It is humbly submitted that the courts have a duty to discourage this”

Question 32

Confessions Implicating co-Accused Persons will it affect the case

Answer 32

The position of the law is well established that a confession made by one accused person is a relevant fact against the person making it only and not against any other person the confession may implicate.

Question 33

What did ozaki v the state hold

Answer 33

In Ozaki v The State, the court held that “It is an error in law to convict the accused on the statement of another accused to the police. It is a travesty of justice and gross violation of all known rules of evidence. Section 27(3) of the Evidence Act forbids the use of such statement even when it is confessional”

Question 34

Since the 2011 act is silent on the matter of a co person confession

Answer 34

The Evidence Act, 2011 is silent on this point, and it is hereby submitted that the position of the law in this regard has not changed. The reason for this is that the maker may have his own motives for implicating any other person and also for the fact that the person implicated would have no opportunity to refute what has been alleged against him

Question 35

What was held in Jimoh v state

Answer 35

Jimoh v The State (2014) 10 NWLR (Pt 1414) 105 @139 is that where more persons than one are charged with a criminal offence, and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement or words or conduct. The Supreme Court upheld this position recently in Yusuf & anor v state (2019) LPELR-SC. 166/2012 (Consolidated).

Question 36

Confessional statements may be challenged by an accused person at any of the two broad levels:

Answer 36

) That the accused did not make the statement, otherwise called a retraction.
2) That the statement was made by the accused but that it was not made voluntarily.

Question 37

What must be first settled for a confession to be voluntary

Answer 37

For a confessional statement to be admissible, it must be voluntary, and so it becomes imperative that the voluntariness of a confessional statement must first be settled before the issue of admissibility is considered; and this onus which never shifts is on the prosecution to establish beyond reasonable doubt. In the language of the new Evidence Act 2011, the prosecution is to prove beyond reasonable doubt that the confession, notwithstanding that it may be true, was not obtained by oppression or under circumstances that rendered it unreliable, and so has not been obtained in a manner contrary to the provisions of Section 29 of the Act.

Question 38

An accused person may therefore, object to a statement on the ground that it was not made by him, and where the accused denies the confessional statement, the court in Sule v The State called it a retraction . Retraction may arise in several ways:

Answer 38

a) Where the statement was not signed;
b) Where the accused denies that the signature belongs to him;
c) Where the accused alleged that the statement was not properly or accurately recorded (where the accused did not write by himself);
d) Where the accused alleges that he did not make the oral confession credited to him (in the case of oral confession);
e)Where the accused alleges that his written statement was altered by someone (that it did not represent exactly what he stated).

Question 39

The import of a retracted confession is that where an accused person denies making a confessional statement or pleads non est factum, the court has no business conducting a trial within a trial, but is to admit the statement in evidence. The denial will then be a matter to be considered in deciding the weight to be attached to the confession . In deciding the weight to be attached to a confessional statement, the judge must ask himself certain questions:

Answer 39

i. Is there anything outside the confession to show that it is true?
ii. Is the confessional statement corroborated?
iii. Are the statements made in it of facts and so far as can be tested true?
iv. Is the accused person a person who had opportunity of committing the offence?
v. Is his confession possible?
vi. Is it consistent with other facts which have been ascertained and which have been proved at the trial?

Question 40

What was stated in Osakwe v The State,

Answer 40

ever, it is noteworthy that despite the desirability of having corroborative evidence to support a confession, once a person makes a free and voluntary confession which is direct and positive, and which is properly proved, the court may convict him, without corroboration to support the conviction so long as the court is satisfied of its truth. Hence in Osakwe v The State, the court held that where a confession is retracted, corroboration may be necessary but that a conviction will not be quashed merely because it is based entirely on confession

Question 41

Why does the inconsistency rule not apply to confessions

Answer 41

It therefore becomes evident that the inconsistency rule, which is to the effect that where a statement of a witness made before a trial is inconsistent with his testimony at the trial the court should reject both as unreliable, does not apply to a confessional statement. In Emoga v The State, the Supreme Court gave the reason why the inconsistency rule cannot be extended and applied to the evidence and extra-judicial statement of an accused person: “It will be an escape route freely taken by an accused person without any hindrance to escape justice. It will not be in the interest of society to allow a man who has confessed to his crime to walk out a free man simply because he had a change of mind; the whole trial will be a mockery. It would be dangerous to apply the principle to extra judicial confession of accused person as it would open a floodgate of retractions of all statements made by accused persons before police officers” .

Question 42

What happened in Stephen John V The State,

Answer 42

In a recent case Stephen John V The State, where the Appellant was convicted of armed robbery based on his confessional statement, the Supreme Court affirmed that a retraction of a confessional statement by an accused person will not affect his conviction once it is evident to the court that he was cautioned and that the confession was voluntarily made by him: “Once there is evidence of the administration of the words of caution on a suspect in the language he understands, and he voluntarily makes his statement which is so recorded, and he signed the statement, a learned trial judge is free to act on it, and predicate a conviction on it, even if the statement has been retracted” . Also in Dele v The State, the court held that where an accused person outrightly denies making a confessional statement, the trial court is still expected to admit the statement in evidence as an exhibit and to decide in its judgment, whether or not such denial avails the accused .

Question 43

When will confession not be admissible

Answer 43

On the other hand, where an accused person objects to the admissibility of his confessional statement on the ground that the statement was not made voluntarily, the court must conduct a trial within a trial to determine whether or not the confession was voluntary as to render it admissible.

Question 44

What is a trail within a trail

Answer 44

A “trial within a trial” is hence a separate trial from the substantive trial, concerned with an interlocutory question of whether a piece of evidence sought to be tendered, in this context, a confessional statement, was obtained according to law. In other words, once objection is taken to the admissibility of a confessional statement on the ground that it was involuntarily made, or otherwise, obtained in an oppressive manner, the court must stop further proceedings and determine the question of voluntariness of the confession before taking any further step by way of admitting or rejecting the statement. Hence, in Olabode v The State, the Supreme Court held per Muntaka-Coomassie JSC that “The test of the admissibility of a confessional statement is its voluntariness and once the issue is raised, it must be resolved before its admission” [46]. In Madjemu v The State, the supreme court stated the circumstances in which a trial within a trial is usually conducted, and so held that “it is not in all cases where the confessional statement of an accused person is sought to be tendered and objected to that a trial court must conduct a mini trial or a trial within a trial before such a statement may be admitted in evidence or its admissibility determined. It is only when an objection to its admissibility is taken on the grounds of involuntariness that a trial court must conduct a trial within a trial to determine its voluntariness and the consequent admissibility or otherwise in evidence” [47]. In Ebenechi v The State, the Court equally held that the evidence admissible during the trial within trial must relate strictly to the issue at hand, which is the voluntariness of the confessional statement [48].

Question 45

Who does the burden of proving voluntariness for a trail within a trail

Answer 45

It is noteworthy that the duty of establishing the voluntariness of the confession during trial within trial rests on the prosecution and not on the accused who is alleging that the statement was not voluntary. Thus, in Emiowe v The State [49] where the learned trial judge reversed the procedure by putting the accused into the witness box to establish her assertion of involuntariness of the confession and the prosecution did not tender evidence in rebuttal of the alleged involuntary confession, the conviction of the accused was reversed on appeal. Also in Barmo v The State, the court held that where in a trial within a trial, the accused was not heard before the alleged confessional statement was admitted, the admitted confession is likely to be expunged on appeal on the ground of lack of fair hearing. In the instant case, Omage JCA said: “It is the testimony of the appellant in the criminal trial of the said claimant that the alleged confessional statement was made under a threat, and that the alleged confessional statement was not voluntarily made, yet the appellant was not allowed to testify. The result therefrom is that there clearly was no trial within a trial on the admissibility of the confessional statement. The statement was simply admitted by the court against the maker of the alleged statement and used against his interest and liberty. It amounts to a lack of hearing not to talk of whether the hearing was fair; there was no hearing whatsoever. The trial within trial was an inquisition; it did not conform with our civilized adversary position” [50]

Question 46

In the case of Oladipupo v state the apex court followed the test laid down in R v skye. How?

Answer 46

(a) Is there anything outside the confession to show that it is true? (b) Is it corroborated? (c) Are the relevant statements made in it of facts true as far as they can be tested? (d) Did the accused person have the opportunity of committing the offence charged? (e) Is the confession possible? (f) Is the confession consistent with other facts which have been ascertained and have been proved?

(a) the credible evidence of the prosecution that the Appellant led the police team to the sections of the bush where they recovered the dismembered body of the deceased is a clear proof that the confession is true. (b) There was credible evidence of PW1 and PW2 which corroborated the confession of the appellant. (c) The facts contained in the confession are true as far as can be tested. (d) The Appellant by the circumstances of this case had all the opportunity of committing the offence as he was last seen with the deceased in the farm. (e) The confession of the Appellant is possible. (f) The confession is consistent with the facts ascertained as proved by the evidence of PW1 and PW2 ‘’

Question 47

Section 36 (11) Cfrn states under formal or judicial confession that

Answer 47

“No person who is tried for a criminal offence shall be compelled to give evidence at the trial”

Question 48

Extra judicial confession unlike formal or Judicial confession must past a test of

Answer 48

The strict admissibility test

Question 49

What does sauid v State say concerning the admissibility test in informal or extra judicial confession

Answer 49

Hence, in Saidu v The State, it was stated that the rules of admissibility of confessional statement of an accused are stringently observed and exclude the admission of such confessional statement by consent or from the bar even if without objection by the defence

Question 50

. A question that can be asked in this regard is whether this deliberate omission of the word “voluntary” in the definition of a confession would affect the courts’ subsequent decisions on the matter of confessional statements?

Answer 50

It is remarkable that the new Evidence Act 2011 in section 29 unlike the repealed Act in Section 27(2), did not explicitly use the word “voluntary” as a sine qua non for the admissibility of a confession and its relevance as a fact. A question that can be asked in this regard is whether this deliberate omission of the word “voluntary” in the definition of a confession would affect the courts’ subsequent decisions on the matter of confessional statements? It humbly submitted that it would not because the voluntariness of a confessional statement goes to the root of its being relevant and admissible in evidence. In Jua v The State, the Supreme Court affirmed that in dealing with a confessional statement, “what the court should look into is whether the confession was voluntary and accords with section 27 of the Evidence Act and not against Section 28 of the Act” . However, there is no doubt that the controversy generated among scholars by Section 27 (2) and 28 of the repealed Evidence Act led to the exclusion of the sections in the New Evidence Act 2011 .