AN EXAMINATION OF THE NIGERIAN LAWS ON CONFESSION: THE EVIDENCE ACT, 2011 and THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015

Author: O. M. Atoyebi S.A.N FCIArb. (U.K.)., Contributor: VICTOR ATANG

September 4, 2023
1:29 pm

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It is a well-established principle of law that in a criminal proceeding, the guilt of an accused person can be proved in various ways, which include: by evidence of an eyewitness to the commission of crime, by way of circumstantial evidence and by a confessional statement of an accused person.

An accused person can be convicted based on his confessional statement alone, once shown to be free, voluntary, positive, direct, and unequivocal reason, being that the strongest evidence establishing the guilt of an accused person is his confession. This article analyzes statutory provisions, judicial pronouncements, and interpretations as well as other rules on the admissibility of conversational statements, otherwise known as self-incrimination.

MEANING OF CONFESSIONAL STATEMENT

Black’s Law Dictionary defines confession as an acknowledgement in express words by the accused in a criminal case, of the truth of the main charge or some essential part of it.[1] The Evidence Act defines confession thus: 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[2].

Nigerian jurists in various cases have defined confession. In the decided case of Ebbeyomi V. State,[3] it was held that a confession is an extra-judicial statement made by an accused person to the Police containing an assertion of admission showing that he participated in the commission of the offence for which he stands accused. More so, for an extrajudicial statement to amount to a confessional statement, it must be direct, positive, and not equivocal. In the case of R V. Asuquo Inyang,[4] it was held that confession must be made by a person charged and not by his Counsel.

It is worth noting that confession occupies the highest place of authenticity with regard to proving a guilt beyond reasonable doubt.[5]

TYPES OF CONFESSION

There are basically two types of confession namely: formal confession otherwise

known as judicial confession and informal confession otherwise known as extra-judicial confession

1. Judicial Confession:

A Judicial confession is made in Court during a criminal proceeding. A typical example is where a person alleged to have committed an offence admits committing the offence after arraignment. However, the accused must understand the charge (the particulars of the offence) being read and the implication of his plea.

2. Extrajudicial Confession:

Extrajudicial confessions are made outside Courts, especially during investigations by Law Enforcement Agencies such as the Nigerian Police Force, Economic and Financial Crime Commission (EFCC), etc. Therefore, any statement made by an accused person or a suspect outside the Courtroom which suggests that he is guilty of the crime for which he is charged is referred to as an extrajudicial statement.

Extra judicial confessions may be oral or written although, in practice, police interrogators normally record confessional statements volunteered by an accused person since these are generally viewed as more reliable. These statements are usually tendered in court during trials as the confession of the accused.

EFFECT OF CONFESSIONAL STATEMENT

By virtue of the provision of Section 29(1) of the Evidence Act[6], in any Court proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this Section.

The above section implies that a confession if direct, positive, and satisfactorily proven occupies the place of authenticity when it comes to proof beyond reasonable doubt and is sufficient without further corroboration to warrant conviction. In the case of Liwhu V State[7], the Court of Appeal held that in recognition of the fact that the confession of an accused person to the commission of a crime plays a major in the determination of his guilt and that a Court of Law is entitled to convict on confession if it comes to the conclusion that the confession is voluntary. Also, In the case of Oduntan V. People of Lagos State & Anor,[8] it was held that a voluntary confession of guilt whether judicial or extrajudicial if it is free, direct, positive, and properly established, is sufficient proof of guilt of the offence(s) confessed and as such is enough to sustain a conviction so long as the Court is satisfied with the truth thereof without corroborative evidence.

Furthermore, it is pertinent to note that the following cumulative conditions must be satisfied for the Court to convict based on the uncorroborated confessional statement of an accused person:

There is something outside the confession that shows that it’s true.
The statement contained therein are likely to be true.
The accused had the opportunity to have committed the offence.
The facts stated by the accused are consistent with other facts which have been ascertained and established at the trial.[9]

Thus, it is trite law that a confessional statement made by an accused person, which is properly admitted in evidence is, in law, the best pointer to the truth of the role played by such accused person in the Commission of the offence. It is also pertinent to note where an accused impugns the admissibility of his confessional statement on the grounds that it was not voluntarily made; it becomes imperative for the Court to conduct a Trial-within-Trial. The purpose of a Trial-within-Trial is to ascertain the validity and voluntariness of the confessional statement[10]

STATUTORY PROVISIONS RELATING TO OBTAINING CONFESSIONAL STATEMENT IN NIGERIA

a. Evidence Act, 2011

Section 29 of the Evidence Act states that if, in any proceedings where the prosecution proposes to give in evidence a confession made by a defendant, it is presented to the Court that the confession was or may have been obtained through the following;

(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, the Court shall not allow the confession to be used against him. This is unless the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was obtained in a manner contrary to the provisions of this section.

The key word in the above provision is oppression. In the decided case of Balogun V. A.G Federation[11] Uwaifo JCA (as he then was) aptly captured the meaning of oppression in the following words

It is 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 particularly under circumstances and in an atmosphere which instils fear not only on the suspect but also in the Police Officer called in to take the statement. It is my view that the Court have a duty to discourage this.[12]

Oppression in relation to obtaining confessional statements by law enforcement agencies includes all forms of torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture. In the case of COP V Alozie[13], the Supreme Court held that the Courts are bound to reject an accused person’s confession which eventuated from torture, duress, and threat.

Whether Inducement or Promise of Secrecy Amounts to Threat under the Evidence Act, 2011:

Section 31 of the Evidence Act provides that if a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy or in consequence of a deception practised on the defendant for the purpose of obtaining it or when he was drunk or 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. In regards to Section 31 of the Evidence Act, relevancy is the hallmark of the admissibility of confession which flows from the promise of secrecy.[14]

b. Administration of Criminal Justice Act, 2015

The Administration of Criminal Justice Act came into force in 2015 with several reforms and innovations in the Nigerian Criminal System. The clear aim of the Act is to ensure that the system of administration of Criminal Justice in Nigeria promotes efficient management of Criminal Justice Institutions, speedy dispensation of justice, protection of the society from crimes and protection of the rights and interests of suspects, the defendant, and the victim. One such innovation is with respect to the procedure of obtaining confessional statements from an accused person. Section 15(4) of the Act holds to the effect that where an arrested suspect volunteers to give a confessional statement, he shall be recorded in writing and may also be recorded electronically on a retrievable video compact disc or such other audio-visual means Section 17 of the Administration of Criminal Justice Act, 2015 provides as follows:

(1) Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken if he so wishes to make the statement

(b) Such statement may be taken in the presence of a legal practitioner of his choice or where he has no legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an Officer of a Civil Society Organization or a Justice of the Peace or any other person of his choice. Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a Legal Practitioner

(c) Where a suspect does not understand or speak or write in the English language, an interpreter shall record and read over the statement to the suspect to his understanding and the suspect shall then endorse the statement as having been made by him and the interpreter shall attest to the making of the statement

(4) The interpreter shall endorse his name, address, occupation, designation or other particulars on the statement

(5) The suspect referred to in subsection (1) of this Section shall also endorse the statement with his particulars

The purpose of Sections 15(4) and 17(2) of the ACJA, 2015 is to curb the excesses of powers perpetuated by Investigating Police Officers in the course of taking confessional statements from suspects and to obviate the necessity of conducting a trial-within-trial which has been observed to be time wasting in the administration of justice.[15] In interpreting the above statutory provision, the Court of Appeal held in Oguntoyinbo V, FRN[16], to the effect that once there is a complaint that a confessional statement was not made voluntarily and it is shown to the Court that Section 17(2) of ACJA was breached, rather than enforced by law enforcement agents as required by Section 1 of the same statute, in the sense that where the persons mentioned in Section 17(2) are available and willing to be present in the statement taking exercise but yet prevented by law enforcement agents, the Court ought to, and should as a matter of course, rule such disputed confessional statement to have been made involuntarily and therefore inadmissible in evidence.

However, in the more recent case of Elewanna V. State[17], the Court of Appeal held to the effect that the provisions of Section 15(4), 17(1) and 17(2) of the Administration of Criminal Justice Act do not apply to the admissibility of Confessional Statements that are governed by the provisions of Sections 28 and 29 of the Evidence Act. The Court further stated that the reason for the above is that the admissibility of confessional statements is solely governed by the Evidence Act, a Federal Act of general application and therefore the inputs of the Administration of Criminal Justice Act as in the provisions of Sections 15(4), 17(1) and 17(2) of the ACJA in relation to the admissibility of confessional statements are not mandatory. The ACJA is basically a procedural Act but in a sense a teleological enactment containing provisions that could be considered ideal and useful as the society progresses. So for now, the admissibility of confessional statements in Nigeria is governed by the provisions of Sections 28 and 29 of the Evidence Act and not the ACJA.”

Clearly, the above interpretations show the conflict between the two statutory provisions that regulate the admissibility of confessional statements in Nigeria. It is recommended that there should be a legislative amendment in this regard in order to bring about a uniform procedure for obtaining confessional statements from suspects.

CONCLUSION

This research has extensively examined the use of confessional statements to prove the guilt of an accused person as well as the procedure relating to the obtaining of an accused confessional statement under Nigerian Criminal laws. This article also buttressed the fact there are two types of confessional statements; the judicial and extrajudicial statements, with the latter being the central focus of this work in light of the statutory provisions of the Evidence Act and Administration of Criminal Justice Act. It is therefore recommended that in order to give effect to the innovative provisions of the Administration of Justice Act, adequate and sufficient facilities should be provided to law enforcement agencies to carry out their duties effectively.

[1] Bryan A. Garner (ed.), Black’s Law Dictionary, 8^th edn., West Publishing Company, U.S.A, 2004, 317

[2] 2011

[3] (2000) NWLR (PT 654) 559

[4] (1931) 10 NLR 33.

[5] Mustapha Mohammed v. The State (2007) 11 NWLR (Pt 1045) 303

[6] Ibid

[7] (2020) LPELR -51248(CA)

[8] (2019) LPELR – 50994 (CA)

[9] Akpan V State (1986) 3 NWLR (27) 258

[10] (2013) LPELR- 20278 (CA)

[11] (1994) 5 NWLR (pt 345) 485

[12] ibid

[13] (2017) LPELR- 41983 (SC)

[14] See Egbe V. Nigerian Army (2020) LPELR-50370 (CA)

[15] COP V. Omordiale (2021) LPEL- 54803(CA)

[16] (2018) LPELR -45218 (CA)

[17] GODWIN ELEWANNA v THE STATE (2019) LPELR-47605 (CA)

AN EXAMINATION OF THE NIGERIAN LAWS ON CONFESSION: THE EVIDENCE ACT, 2011 and THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015

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