Confessional Statement’s Principles, Rules And Effects Of Admission In Nigerian Courts By Alkasim Abubakar

INTRODUCTION

More often than not, suspect (accused) persons that are arrested make statements which are usually taken and recorded by a police officer to be used in their prosecution, when an accused person admitted the commission of the crimes he is suspecting of, that statement is called ‘confessional statement’. See section 17 ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015.  In the other vain, confessional statement defined as an admission made at any time by a person charged with a crime stating or suggesting by inference that he committed that crime. It is an oral or written acknowledgement of guilt often including details about the crime by an accused person. See section 28 of the Evidence Act 2011 and black’s law dictionary 8th edition 9p. 317

Confessional statement is one of the three ways or methods prosecutor uses to establish crime of accused and discharge the burden (onus) of proving beyond reasonable doubt, the other two methods are ‘direct eye witness account and circumstantial evidence’. See EMEKA V. STATE(2001)14 NWLR(PT. 734)(666..

  Any confessional statement obtained ‘voluntarily’ not contrary to section 29(2) of Evidence Act is relevant and admissible. However there are six tests as elaborated. In the locus classicos case of R.V. SKYES(1913)8 C.A:R. P233 which later on affirmed by  the West African Court of Appeal in the case of KANU V. KING(1952/55) 14 WACA P.30.

 The text are;

1, is there anything outside the confession to show that it is true?

2, is it corroborated?

3, are the relevant statement made in it of facts ,true as far as they can be tested?

4, was the accused person one who had the opportunity of committing the crime?

5, is the confession possible?

6, is it consent with other fact which been ascertained and proved?

From the foregoing, a voluntary, positive, clear, direct and unequivocal confessional statement is admissible. The instant article is going to address the following questions:

i, what is a confessional statement is taken involuntarily.

ii, what if a voluntary confessional statement is inconsistence with other evidence(eye witness and/or circumstantial evidence).

iii, can a co-accused convict on  the confessional statement made by the other accuse

iv, is retracted confessional statement  admissible.

v, must trial within trial be carried by court if confessional statement’s voluntariness is questioned.

vi, must the police officer/ interpreter that take a confessional statement be present to testify in court.

vii, can a prosecutor prove his case beyond reasonable doubt by a confessional statement alone.

Section 29(2)(a) of the Evidence Act provided the use of a confessional statement made by defendant (accused) provided it was not obtained ‘by oppression of the person who mad it’.(emphasis supplied). Sub-section 5 of the instant section clearly explained the word ‘oppression’ used in sub-section 2(a) as “torture, inhuman or degrading treatment and the used of threat of violence whether or not a mounting to torture.

In the FRN V. VICTOR OGALA &ANOR (unreported) FCT/HC/6/13/GR/28/2009 Which was delivred on 2nd day of October 2012 . the prosecutor used  both confessional statement of the two accused (recorded separately) and the evidence of eye witness to prove the two charges of arm robbery and conspiracy. But during examination in chief in the course of trial within trial  the first accused admitted that; the police used iron to beat me…they are four of them that beat me…” and the second accused stated that “…he brought out a gun and he said he was going to shoot me …’ however the two accused were convicted and sentenced to 25 years imprisonment with no option of fine, the court did not relied on the said confessional statement. The presiding Judge per Hon. Justice A.M Talba stated” upon a critical examination of the evidence of the two accused persons I am of the view that the statements of the accused persons  Exhibits A and B here in were obtained as a result of a ‘threat and torture’, therefore they are not obtained ‘voluntarily’ the said statements were admitted wrongly and accordingly Exhibits A and B are here by expunged”(emphasis are mine).

In ASUQUO V. STATE (2018) LPELR-44052(CA) Per Oyewole JCA stated thus “a confession however is only relevant if ‘freely and voluntary’ made”(emphasis are mine).

The supreme Court also held in KAMILA V. STATE (2018)LPELR-43603(SC) “I am mindful of the fact and it is even settled law , that before a court convicts an accused person on his confessional statement alone. It must ascertain whether such confessional statement was voluntarily made…” Per SANUSI JSC

 It is settled law that the duty of prosecutor in every criminal trial is to prove the charge beyond reasonable doubt see DIBIE V. THE STATE(2007)9NWLR(Pt1038) 30, and it is crystal clear that wherever inconsistent/contradictory evidence use by prosecution brings doubt and the doubt shall be in favour of the accused.

The Supreme Court in EDUN & ANOR V.FRN (2019) LPELR 46947 (SC)Per Eko JSC held “… this court made it clear that the prosecution would have failed to prove the guilt of the accused person beyond reasonable doubt if they put before the court two versions of  the same incident or transaction”.

Section 29(4) of the Evidence Act provides ”Where more persons than one are charged jointly with an 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 by words or conduct”.

In  ISHOR V. STATE(2017)LPELR-440419CA) held inter alia “ The confession of a co-accused person can not be used to convict an accused person unless he adopts it expressly or by implication’ Per Ekanem JCA.

From the above authorities it was explained clearly that one can only be convicted on confession he made himself or adopted the statement made by his co-accused by words or implication(conduct).

The term ‘retraction’ means the act of taking or drawing back; the act of recanting or drawing of something e.g statement see Black’s Law Dictionary 9th Edition 2009 at 1431.

Confessional statement are often retracted on ground of not voluntarily taken, not properly recorded or not the accused statement at all etc.

  During trial, an accused person who desires to retract his statement is bound with a duty to establish that his confessional statement can’t be true or correct by showing any of the following;

i, that he did not in fact make any such statement as presented,

ii, that he was not correctly recorded,

iii,that  he was unsettled mind at the time he made the statement,

iv that he was induced to make the statement. See OSETOLA V. THE STATE(2012)6 CSNJ 329 at 351.

 Where an accused at the earliest opportunity denies having made the statement may lead weight to his denial  see AKPAN V. STATE (1992)LPELR-1153 SC.

Accused who failed to establish any of the above principles his statement is bound to be admissible despite the retraction.   In ESSIEN V. STATE (2018)LPELR 44035(CA) court of appeal held Per Saulawa “indeed, the law is trite that retraction of confessional statement does not automatically vitiate its’ admissibility as a voluntary statement. The basic and fundamental requirement is that ones a statement is prove to have been  voluntarily made, it is direct, unequivocal and clear admission by the accused that he has committed  the offence, is sufficient to sustain a conviction. Afortiori, the fact that such confessional statement is subsequently retracted by the accused in course of the trial notwithstanding”.

Supreme court also in the of KAMILA V. STATE (supra) Muhammad JSC canvassed that”… accused who disputes his confessional statement may be still be convicted of the offence(s) which he is charged if evidence abide outside the  disputed confessional statement.

A trial within trial also name as ‘mini trial’ is a sub-trial make by trial court while stay the proceeding of main trial in order to assess the voluntariness of ta confessional statement in question.

In ONUEWSII V. STATE (2018)LPELR-45010(AC) court of appeal explains that “A trial within trial is done to prove the voluntariness or otherwise of the making of the confessional statement”. Per Awotoye JCA

Sanusi JSC stated the position of the law that; “The law is trite and well settled too, that where there is dispute on whether or not an accused person made the statement sought to be tendered made same voluntarily, it is the duty of the trial Court to try the voluntariness of such statement by conducting, a “trial within trial” otherwise known as ‘mini trial”. OLAOYE V. STATE (2018) LPELR-43601(SC)

As it is oftentimes happen a police officer who wrote down a statement of the an accused appear before court to testify for cross-examination or other matter as court may deem fit for the interest of justice but the question at hand is ‘can the statement of an accused be admitted  as evidence against him without  the police officer who recorded wrote or interpreted it come and testify it before court.

I relay on section 49 of the evidence act which explained that “Notwithstanding anything contained in this Act or any other law but subject to this section, where in the course of any criminal trial, the court is satisfied that for any sufficient reason, the attendance of the investigating police officer cannot be procured;

the written and signed statement of such officer may be admitted in evidence by the

court if –

a. the defence does not object to the statement being admitted; and

b. the court consents to the admission of the statement”.

In SEMAKA v. STATE (2018) LPELR-44001(CA) the learned counsel for the appellants argued that” where an interpreter has been used in the recording of a statement, the statement is inadmissible  unless the person who interpreted it is called as a with ness as well as the  person who wrote down the statement’ he relied on OLAKEKAN V. STATE (2007)18 NWLR9pt. 746) 293. But the learned counsel for the appellant  did not raise the exceptional circumstances as explained by section 49 (a&b) of the Evidence Act.  The Supeme Court in the case of FAMUYUIWA V. STATE(2017) LPELR-43836(SC) affirmed the decision of the court of appeal in which also affirmed the decision of the trial court, in which the trial court admitted and convicted the accused on statement which the police officer who wrote it down was not able to be procured in order to testify it in the trial court.

  In the FAMIYIWA case the police officer was transfered to another state police command while handling the case and when the need of the appearance of the confessional writer arise in the trial court  it was testified that  the said police officer was involved in an accident and consequently sustained injuries on both of his arms. His  D.P.O contended that he did’t know the village he was taken for treatment.

In order to testify,  the in ability for the prosecution  to procured the said police officer  for testification a latter was wrote to addressed the learned trial judge which was signed by one assistant commissioner of police (the head of the absent officer’s department ) which was consistent with section 50 of the evidence act  which provided that “In the case of a person employed in the public service of the Federation or of a State who is required to give evidence for any purpose connected with a judicial proceeding, it shall be sufficient to account for his non – attendance at the hearing of the said judicial proceeding if there is produced to the court either a Federal or State Gazette, telegram,

an e – mail or letter purporting to emanate from the head of his department, sufficiently explaining to the satisfaction of the court his apparent default”.

From the foregoing authorities one may reached to conclude that no confessional statement taken by police officer is admissible without the officer appeared in court to be testified, except if if his inability was satisfied with section 49 and 50 of the Avidence Act

In the case of  OLAOYE V. STATE (supra) per Peter Odili JSC stated that “…once a confessional statement is deemed to be positive, direct and unequivocal such a statement would be admitted since it has been voluntarily made and when that is the case such a ‘confessional statement alone as evidence can sustain a conviction. In such a case also there is no need for corroboration”. (emphasis is mine)       For the sake of corroboration, court of appeal in the case of SULE v. STATE (2018) LPELR-46110(CA) per Barka also stated “It is the position of the law that a confessional statement which is direct and positive is good enough to sustain a conviction even without corroboration”.

Confessional statement, as one of the three ways to prove conviction in any criminal trial, necessited law to have very defined and reprehensive  principles and rules to the effect of its’ admission in Nigerian courts. Our law is very ardent to this genuine issue but need of emphasis should not however, be shun aside. The principles need more than mere theoretical effect, practical application of those principles ought to be clearly recognized in our magistrates and area courts up to the Apex Court. It is a seamless fact that the realization of those principles would prevent any police officer or any other security agents from torturing, in human or degrading treatment or forcing any suspect (accused person) for the sake of taking statement, because of assurance he had in mind himself that any statement obtained in such manner are of no moment viz  has no evidential value in the eyes of the law.

ALKASIM ABUBAKAR (A.A.M.G),A student Of Law,  Faculty Of Law ABU, zaria-Kaduna,

Alkasima198@gmail.com, 080331316153.May 2019