CONFESSIONS IN NIGERIA EVIDENCE ACT, 2011
Introduction
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. It
plays a very crucial role in the conviction or the acquittal of an accused
person. As a result of the modification made in the Evidence Act, 2011, it will
be interesting to find out whether there is a substantial change in the extant
law with regard to confessions. In this paper, we shall look at the
definition and nature of confession, types of Confessions, Rational for admitting confessional statements
in evidence, When confession is said to be relevant, the Judges’ Rules, the
issue of unreliability of a confession and admissibility of a confessional
statement, Confessions implicating a
co-accused, the Import of denying or retracting a confessional statement. We
shall also make a critique and analysis of the extant law on confessions, then conclude
and advance a recommendation.
Definition
and nature of Confession
Black’s Law Dictionary defines confession as “a
criminal suspect’s oral or written acknowledgement of guilt, often including
details about the crime”[1].
A confession is also defined as an acknowledgment in express words, by the
accused in a criminal case, of the truth of the main fact charged or of some
essential part of it[2].
In other words, a confession is an admission, in whole or in part, made by an
accused person of his guilt, which at common law was made admissible if made
voluntarily[3].
The new Evidence Act retaining the ipsissima
verba of the old law, succinctly defines confession as follows: “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”[4].
Most decided cases in Nigeria[5]
defined confession by reference to the provision of Section 27 (now Section 28)
of the Evidence Act, as “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”[6].
The Law Reform Commission of Hong Kong, in their Report on “Confession
Statements and their Admissibility in Criminal Proceedings”, equally described
confession in these clearer terms: “When, in the course of an investigation
into a criminal offence, a suspect has made a statement to the police tending
to show that he has committed the offence, the statement is known as a
confession”[7].
On the nature and importance of confessional statement
in criminal trials, Niki Tobi JSC in
a recent case stated that “the best
evidence for purposes of conviction is confession to the commission of the
crime by the accused person”[8].
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. In the case Samuel Ayo Omoju v The Federal Republic of Nigeria[9],
where the accused, a Pastor was arraigned and charged with exporting 1.1 kg of cocaine
worth ten thousand US Dollars, the Supreme Court acknowledged the following statement
of the accused person as a true confessional statement:
“I
was in the Hotel until Sunday when Areh came with 118 wraps on something inside
shinning leather which I swallowed all with water. Around 9.00 pm he came to
the Hotel and brought me to the Airport and I checked in one luggage and I
climbed upstairs for the final screening and went down… After the screening I
was taken downstairs to their office. In the office, I was told that that I am
being suspected and I will be under observation until I go to toilet to
determine if I am carrying drugs. In their office, I went to toilet about 4.05
am and excreted forty-three (43) pieces of hard drug substance… All in all the
total of 118 pieces of hard drug cocaine were excreted by me. The drugs were
given to me by Mr. Areh at Dreamland Hotel”.
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[10].
For a full admission of guilt to qualify as a
confession, it must be direct and positive as far as the charges are concerned.
Hence it was held in the case of Gbadamosi v The State, that for a
statement of the accused to constitute a confession, the statement must admit
or acknowledge that the maker of the statement committed the offences for which
he is charged and in so doing be clear, precise and unequivocal[11].
In other words, a statement made under caution by the accused person becomes
confessional once it admits the charge or creates the impression that the
accused committed the offence charged. Hence, in the case of Mustapha Mohammed & Ors v The State, 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[12].
Types
of Confessions
There are two types of confessions, namely, Formal or
judicial confessions and Informal or Extra Judicial confessions. 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[13].
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, which states
that: “No person who is tried for a
criminal offence shall be compelled to give evidence at the trial”[14].
It is noteworthy that the provision in section 160 (b) that “failure of any
person charged with an offence to give evidence shall not be made subject of
any comment by the prosecution” has been repealed by the new Evidence Act 2011.
Informal or 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[15].
Rational
for Admitting Confessional Statements in Evidence
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[16].
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[17].
When
Confession is Relevant
Section 29 of the Nigerian Evidence Act 2011, in 5 sub-sections tried to determine when a
confession will be considered relevant. 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”. 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. This second aspect of the directive dealing with
the unreliability of the confession is not absolute but allows for an
exception. 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 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.
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.
Thus, Obaseki, JSC in 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[18].
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 is my humble submission
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”[19].
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[20].
The
Issue of Unreliability of a Confession and Admissibility of a Confessional
Statement
Section 28 of the repealed Evidence Act explicitly
declared irrelevant in a criminal proceeding a confession by an accused person,
if the making of the confession appears to the court to have been made by
inducement, threat or promise having reference to the charge against the
person. It went further to state that the inducement, threat or the promise in
question must proceed from a person in authority and sufficient in the opinion
of the Court, to give the accused person grounds which would appear to him
reasonable for supposing that making it, he would gain any advantage or avoid
any evil of a temporary nature. Hence, “if an accused person alleges that a
confessional statement made by him was extracted by a ‘threat’, the accused
person must also show that the threat emanated from a person in authority, that
the threat was one which had reference to the charge, and that the threat was
one which gave the accused person grounds to believe that by making the
confession he would gain an advantage or avoid an evil of temporal nature. If
one of these elements is missing the confessional statements are inadmissible”[21]
Persons in authority by consensus of judicial and academic opinion
include one who by his position can affect or influence the cause of the
prosecution against the accused persons, and such persons have been referred to
as the gaolers, the village heads, the owner of the stolen property, police
officers, State security officers and custom officers[22].
From the difficulty that is associated with the
application of this section 28 of the repealed Evidence Act, as well as from
the calls for a review, it becomes evident why the section was completely
removed in the new Evidence Act 2011. It however remains to be seen whether the
courts will still interpret the new section 29 of the Evidence Act 2011 in
connection with a person in authority, since it can still be argued that it can
affect the reliability of the evidence in question.
It however remains a trite law that only a voluntary
confession is considered relevant and therefore admissible. In Akpan v The State[23] the court held that once a confession of guilt is shown to have been made
freely and voluntarily, be it judicial or extra-judicial, if it is direct,
positive and properly established, it constitutes proof of guilt and is enough
to sustain a conviction so long as the court is satisfied as to its truth.
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[24].
Thus, any confession obtained by
oppression of the person who made it or any confession, which in the discretion
of the court was considered unreliable because of the circumstances existing at
the time it was made, will not be deemed voluntary, and consequently would not
be relevant or admissible in evidence by the court. The only exception would be
where the prosecution proves to the court beyond reasonable doubt, in those
cases where the circumstances existing at the time the confession was obtained
were likely to render the confession unreliable, that the confession in
question was actually not obtained by torture, inhuman or degrading treatment,
use or threat of violence, or by any other act that would be regarded by the
court as oppression of the person who made the confession[25].
For instance, in the English case R v
Priestly, oppression was defined as “something which tends to sap or has
sapped the free will which must exist before a confession is voluntary”[26].
In 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 my view that the courts have a
duty to discourage this”[27].
The
Judges’ Rules
The Judges’ Rules, first formulated in 1912 by English
Judges at the request of the Home Office, and revised in 1964, consist of
recommendations on the manner in which the police should take statements from
persons connected with crime, and so were not intended to have the force of law[28].
They aim at ensuring that the statements obtained by the police are voluntarily
made. The status of the Rules was explained by the Court of Criminal Appeal in 1918:-
"These Rules have not the force
of law; they are administrative directions, the observance of which the police
authorities should enforce on their subordinates as tending to the fair
administration of justice. It is important that they should do so, for
statements obtained from prisoners contrary to the spirit of these Rules may be
rejected as evidence by the judge presiding at trial."[29]
In this Judges’ Rules, Rule 2 requires a caution to be
given as soon as the police officer has evidence, that is, information, which
can be presented in court, and which would afford reasonable grounds for
suspecting that the person interrogated committed offence under interrogation.
The caution to be given is usually in the following terms: “You are not obliged
to say anything unless you wish to do so but what you say may be put into
writing and given in evidence”[30].Where
a person is charged with or informed that he may be prosecuted for an offence
he shall be cautioned in the following terms: “Do you wish to say anything? You
are not obliged to say anything unless you wish to do so but whatever you say
will be taken down in writing and may be given in evidence”[31].
In the application of these Rules, the issue that very
often arises is whether or not a statement by an accused person is admissible
either because the caution stipulated by them was not administered at all or
not correctly administered before it was made by the accused person.
In Okeke v The
State, Olagunja JCA stated that the judges’ rules are equally applicable as
part of the English Laws received and assimilated as part of our law except in
Northern Nigeria where they have been modified and adopted as part of the
criminal procedure code with the title Criminal Procedure (Statement to Police
Officers) Rule, 1960[32].
But then, since the Rules are not regarded as rules of law but of
administrative practice, a confession made by a suspect without caution may be
admitted in evidence if the court is satisfied that it was voluntary in spite
of the absence of the caution. This is explicitly stated in Section 31 of the
Evidence Act 2011 to the effect that if a confession is otherwise relevant, it
does not become irrelevant because the defendant was not warned that he was not
bound to make such statement and that evidence of it might be given.
In practice, in addition to the caution demanded by
the judges’ rules, where a suspect makes a confessional statement to a police
officer, he is taken before an administrative or superior police officer before
whom the confessional statement is read and the suspect is requested to confirm
that he made the confessional statement voluntarily. Whether such fear of
duress is actually removed by this procedure is a different matter. It is
nevertheless a commendable practice for it serves as a check on interrogating
officers. Though this practice is not covered by the Judges’ rules or any rule
of evidence, it has been applauded by the court[33].
However, in Ogbodu v The State, the
Court held that the fact that a suspect is not taken before a superior police
officer to confirm his statement will not render inadmissible an otherwise
admissible confession[34].
In Alarape v The State, the Supreme
Court reiterated this point when it held: “It is not the requirement of any law
that if a confessional statement has not been read over and confirmed before a
superior Police Officer, it will ipso facto cease to be effective or be rendered
inadmissible. Such a confirmation simply makes proof of its voluntariness
easier and no more. The practice has however been commended in many cases”[35].
Confessions
Implicating co-Accused Persons
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.
Section 27 (2) of the repealed Act provides: “Confessions, if voluntary, are
deemed to be relevant facts as against the persons who made them only”.
Even though the 2011 Act is silent on this point, it
is 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[36].
Hence, 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”[37].
The
Import of Denying or Retracting a Confessional Statement
Confessional statements may be challenged by an
accused person at any of the two broad levels: 1) 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.
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. This is why J.A.
Agaba hinted that the test of admissibility of a confessional statement is not
whether the confession was true (because this s a question of fact which would
only arise if and after the statement has been admitted in evidence) but
rather, the question of how the statement was obtained (because this will
determine as a matter of law, whether the statement would be admitted)[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[39].
Retraction may arise in several ways: 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); d)Where the accused alleges that his written statement was altered
by someone (that it did not represent exactly what he stated).
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[40].
In deciding the weight to be attached to a confessional statement, the judge
must ask himself certain questions: Are there anything outside the confession
to show that it is true? Is the confessional statement corroborated? Are the
statements made in it of fact and so far as we can test them true? Is the
accused person a person who had opportunity of committing the offence? Is his
confession possible? Is it consistent with other facts which have been
ascertained and which have been proved at the trial?[41]
However, 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[42].
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. As
aptly put by the Attorney General of Ondo State, 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”[43].
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”[44]. 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[45].
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. The 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].
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]
A
Critique and Analysis of the New Evidence Act 2011 on Confessions
A close look at the new Evidence Act 2011 shows that
the significant change made to the new
legislation with regard to confessions is the omission of section 27 (2), Section 28 and Section 30 of
the old law in the new one. Section 27 (2) of the repealed law states:
“Confessions, if voluntary, are deemed to be relevant against the persons who
make them only”. Section 28 states: “A confession made by an accused person is
irrelevant in criminal proceeding, if the making of the confession appears to
the court to have been caused by inducement, threat or promise having reference
to the charge against the accused person, proceeding from a person in authority
and sufficient, in the opinion of the court, to give the accused person grounds
which would appear t him reasonable for supposing that by making it he would
gain any advantage or avoid any evil of a temporary nature”. Section 30 states:
“If such a confession as is referred in section 28 of this Act is made after
the impression caused by any such inducement, threat or promise has, in the
opinion of the court been fully removed, it is relevant”.
These provisions gave rise to series of controversies
with regard to the relevance of section 27(2) to Section 28 of the Act. They
generated such questions like, “does section 28 provide an exhaustive list of
circumstances under which a confessional statement would be involuntary? That
is [should the court adopt] a co-extensive interpretation of the two sections
or should the word “voluntary” be given its ordinary meaning (without recourse
to section 28?), in effect [should there be] a disjunctive reading of the two
sections”[51] .
In view of the controversies generated by the earlier provisions, the relevant
question that presently begs for an answer is whether the current Evidence Act
2011 has resolved these controversies by the outright omission of these
sections.
It is however
noteworthy that Section 29 (2), (3)& (5) of Nigerian Evidence Act 2011,
which replaced Section 27 (2), section 28 and Section 30 of the repealed Act,
is not an original formulation. It was taken almost verbatim from the
confessions rule of the English Criminal law, which is regulated by section 76 of
the Police and Criminal Evidence Act, 1984 (PACE) which reads:
“76(2) If, in any
proceedings where the prosecution proposes to give in evidence a confession
made by an accused, 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
consequences of anything said or done which was likely, in the circumstances
existing at the time, to render unreliable any confession which might be made
by him in consequences thereof,
the court shall
not allow the confession to be given in evidence against him except in so far
as the prosecution proves to the court beyond reasonable doubt that the
confession (notwithstanding that it may be true) was not obtained as aforesaid.
(3)In any
proceedings where the prosecution proposes to give in evidence a confession
made by an accused person, the court may of its own motion require the
prosecution, as a condition of allowing it to do so, to prove that the
confession was not obtained as mentioned in subsection (2) above.
(8)In this section
“oppression” includes torture, inhuman or degrading treatment, and the use or
threat of violence (whether or not amounting to torture)”[52].
Hence, with the
exception of the word thereof that was omitted and the as
aforesaid that was replace by in a manner contrary to the provisions of
this section, our current section 29 (2) (a) & (b), (3) & (5)
is the same with Section 76 (2) (a) & (b), (3) & (8) of the Police and Criminal Act, 1984 (PACE).
A look at Section 29 (3) of Evidence Act 2011 shows
that the courts in Nigeria have been given an active role in the establishment
of the voluntariness of a confessional statement made by a defendant. It
explicitly stipulates that “the court may of its own motion, require the
prosecution, as a condition for allowing it to do so, to prove that the
confession was not obtained as mentioned
in either subsection 2 (a) or (b) of this section”. In other words, the
courts have now the discretion to intervene directly by asking the prosecution
to prove beyond reasonable doubt that the confessional statement of the
defendant which he proposes to give in evidence was not obtained by either
oppression or under circumstances that rendered it unreliable. It is submitted
that it is only with the passage of time that the advantage or disadvantage of
this new provision can be determined. It is equally submitted that for such an
intervention by the court not to be seen as descending into the arena of
conflict, the exercise of this discretion must be for the purpose of achieving
a just determination of the case before it, and not to weaken or strengthen the
case of the prosecution or the defence[53].
Again, a question that can arise from the intendment
of Section 29 (2) of Evidence Act 2011 will be whether a trial judge can exercise
any discretion to exclude the evidence of a confession made by a defendant. This
question is pertinent when we consider the fact that the unreliability test in
this section presupposes that the individual attributes of the accused must
always be taken into consideration[54].
It is thus submitted that if the prosecution fails to discharge the burden of
proving that a confession was not obtained by
method described in section 29 (2), the court shall not allow the confession
to be given in evidence and has no discretion to admit it, even if it is
satisfied that it is true. However, it does not follow from this that the
confession must be admitted if the prosecution does succeed in proving
that the confession was not obtained by those methods, for section 29 (1)
clearly provides that a confession may be given in evidence if not
excluded under the section[55].
It is thus submitted that in such cases, where the prosecution proved beyond
reasonable doubt that the confession was not obtained by oppression or in
consequence of what is said or done to render it unreliable, the trial judge
may still exclude the confession in the exercise of his discretion where the
individual attribute or mental condition of the accused is in all fours with R v Everett.
This view is corroborated by the Hong Kong Report on
Admissibility of Confessions which states that it is only after the confession
has been held to be voluntary and admissible, that the trial judge can exercise
his discretionary power on it: “However, a decision whether a statement
is voluntary and admissible in law is in no way dependent upon any
discretionary power of the trial judge. If it is voluntary, it is admissible.
It is only after it has been held voluntary and admissible that any
discretionary power to exclude it from evidence can arise. There is no
discretion to admit into evidence a statement which is not voluntary (inter
alia, per O'Connor J in TO Kai-sui & Ors v. R Cr. App. No. 1189 of 1979
(CA).”[56]
It becomes then evident that for the trial judge to
use his discretion both judicially and judiciously in connection with Section
29 (2) (b), he has to make four findings: 1) what, if anything, was “said or
done”?; 2) What were the circumstances existing at the time of such words or
acts?; 3) Were those words or that act in those circumstances, likely to render
unreliable any confession that might be made by this particular defendant in
consequence of such words or act?; 4)
Was the confession in fact obtained in consequence of such words or act?[57]
Unlike Section 28 of the repealed Evidence Act, which
provided for when a confession caused by inducement, threat or promise becomes
irrelevant in criminal proceeding, Section 29 (2) is silent on them. However, it
is submitted that under section 29 (2), Evidence Act 2011, it would not be
necessary that what is said or done should have been said or done before a
person in authority. Nevertheless, what is done or said must be said or done by
someone other than the defendant. In other words, what the judge should be
concerned with is whether the confession of the defendant true or not, was
obtained in consequence of anything said or done which was likely to render any
confession unreliable.
However, in view of Section 29 (2) omitting the words
“inducement” and “promise”, the question that arises is the relevance that can
then be attached to them in the interpretation of that section? It is submitted
that an inducement or promise should render a resulting confession inadmissible
only if "of a sort, likely in the circumstances existing at the time, to
render unreliable any confession which might be made by the accused in
consequence thereof". From this view point, one can say that the vitiating
factors of the repealed Section 28 of the old Act are indirectly incorporated
in the new Act for the word “oppression” is even wider in consequence than the
three words “inducement”, “threat” or “promise” used in the old Act. Hence,
where inducement, threat or promise is shown to exist before or in the course
of obtaining a confessional statement, it is submitted that such statement can
be considered as having been obtained in a way and/or manner that is oppressive,
and consequently unreliable.
Conclusion and Recommendation
The Law on Confessions plays a number of
roles between the interests of society in controlling crime and the interests
of suspects in fair treatment. It seeks to ensure reliability of information
being put forward at trials. It plays a part in deterring or preventing police
abuse in interrogating suspects of crimes. It plays a role in protecting the
individual’s rights to self-determination and the ability to make a free choice
in whether or not to speak to the police or remain silent without being
compelled to do so.
The new Evidence Act 2011tried to correct
the defects and difficulties encountered in the application of the old Act and
so explicitly sets out two rationales for excluding confessions: oppressive
methods of the police ranging from torture, inhuman or degrading treatment, the
use or threat of violence, and then reliability concerns.
There is no doubt that significant reform
has been done in the Evidence law on confessions in Nigeria. It is now left to
the Nigerian Courts to apply the new law in the hope that it will eliminate
completely or at least reduce to the barest minimum the miscarriage of justice
brought about by the admission of a confessional statement that should have
been rejected or the rejection of a confessional statement that should have
been admitted by the court.
One cannot, however, deny the fact that
there are inherent difficulties in balancing the rights of criminal suspects
with the legitimate goals of law enforcement, and that these difficulties are
magnified in cases involving terrorism and national security, as we are
currently experiencing with Niger Delta militants and Boko Haram.
To ensure that confession of a suspect is
voluntarily made, it is hereby recommended that his interrogation by the police
be recorded on video, to be played in court. The way and manner by which the
interrogation is carried out and recorded would definitely have an impact on
perceptions of the confession itself and clarify the interrogation situation to
the judge. This video recording will forestall the flagrant intimidation as
well as the inhuman and degrading treatment of suspects by the Nigerian Police in
the bid to elicit a confessional statement from them, so that the revered and
cherished principle “Nemo tenetur seipsum
prodere” – No one is bound to betray himself- will not only be said to be applicable
in Nigeria but will be seen to be applicable in Nigeria.
[1] Bryan A. Garner (ed.), Black’s
Law Dictionary, 8th Edition,
West Publishing Company, U.S.A, 2004, p. 317
[2] Ibid.
[3] Elizabeth A. Martin (ed.), A Dictionary of Law, 3rd
Edition, Oxford University Press, New York, 1996, p.84.
[4] Section 28, Evidence
Act, 2011
[5] Kareem v FRN (NO 1) (2002) 8 NWLR (Pt.
770) 636; Hassan v The State (2000) 12 NWLR (Pt. 682) 607; Yahaya v The State (2001) 10 NWLR
(pt.721) 360; Akpan v The State
(2001) 15 NWLR (Pt.737) 745; Olalekan v The
State (2001) 18 NWLR (Pt.746) 793 SC; Nsofor
v The State (2002) 10 NWLR (Pt.775) 274; Nwachukwu v The State (2002) 2 NWLR (Pt.751) 366; Moses Jua v The State (2010) 4 NWLR, (Pt. 1184) 249.
[6] Nsofor v The State (2002) 10 NWLR
(Pt.775) 274; Nwachukwu v The State (2002)
2 NWLR (Pt.751) 366.
[7] Law Reform Commission of Hong
Kong, “Confession Statements and their Admissibility in Criminal Proceedings”, www.hkreform.gov.hk/en/docs/radmissibility,
Accessed on 10/6/12 at 10.00pm
[8] Moses Jua v The State (2010) 4 NWLR, Part 1184, p.249.
[9] Samuel Omoju v The Federal Repubic of Nigeria (2008) in Tony Ukam, Supreme
Court Cases: Through the Eyes and Lips of Niki Tobi, Orak-Wise
Publications, Calabar, 2010, p.649.
[10] Moses Jua v The
State (2010)4 NWLR, Part 1184, p.249
[11] Gbadamosi v The State (1992) 11/12 SCJN (Pt. 2) 268 at 276.
[12] Mustapha Mohammed & Ors v The State
(2007), in Tony Ukam, Supreme Court Cases,
pp. 565-566.
[13] Aashima Garg, “Critical
analysis of the concept of Confessions” in http://jurisonline.in/2011/11/critical-analysis-of-the-concept-of-confessions/
; Accessed on 15/6/12 at 10.00pm
[14] Section 36 (11) of the 1999
Constitution, As Amended.
[15] See Saidu v The State (1982) 4 SC 41.
[16] J.A. Agaba, Practical Approach to Criminal Litigation in
Nigeria (Pre-Trial & Trial Proceedings), Panaf Press, Abuja, 2012, p.
76.
[17] P. Murphy & D. Barnard, Evidence & Advocacy, 5th
Ed., Blackstone Press, London, 1998, p.69.
[18] Igbinovia v The State (1981) 2 SC 5.
[19] Moses Jua v The State (2010) 4 NWLR
(pt.1184) 249.
[20] For details on this controversy cf.
C.C. Nweze, Contentious Issues &
Responses in Contemporary Evidence Law in Nigeria, Vol. 1, Enugu, 2003, pp. 279-294.
[21] Y. Osinbanjo, “Some Proposals for
Reform in the Law of Evidence” in J.A. Omotola and A.A. Adeogun (eds.), Law and Development, p.281 cited by C.C.
Nweze, Op.cit., p.282.
[22] Z.C. Anyogu, Evidential Perspectives on The Defence of Alibi in Nigeria, Enugu,
2006, p.34.
[23] . Akpan v
The State (2001)15 NWLR (Pt.737) 745.
[24] Z.C. Anyogu, Op.cit., p.33
[25] See Section 29 (2)(b) and 29 (5) of
Evidence Act, 2011.
[26] R v Priestly (1964) 1 QB 495
[27] Balaogun v A.G. Federation (1994) 5 NWLR
(Pt. 345) 458.
[28] Z.C. Anyogu, Op.cit., p.29.
[29] R v Voisin (1918) 13 Cr. App. R.89. For the summary of the old Rules, cf. P. Devlin, The Criminal Prosecution in England, Oxford UniversityPress, London, 1960, pp.
33-35)
[30] Fidelis Nwadialor, Modern Nigerian Law of Evidence, 2nd
Edition, University of Lagos Press, Lagos, 1999, p. 300.
[31]
Ibid., p.301.
[32] Okeke v The State (2000) 10 NWLR
(Pt.675) 423 at 473.
[33] Oguno v The State (2011) 7 NWLR (Pt.
1246) 314.
[34] Ogbodu v The State (1987) 2 NWLR (Pt.54)
41.
[35] Alarape v The State (2001)2 SCNJ 162.
[36] J.A. Agaba, Op.cit., p.93.
[37] Ozaki v The State (1990) 1 NWLR (Pt.
124) 90.
[38] J.A. Agaba, Op.cit., p.78.
[39] Sule v The State (2009) All FWLR (Pt.
481)809.
[40] Bature v The State (1994) 1 NWLR (Pt. 320)
267.
[41] Kareem v F.R.N.(2003) 16 WRN 114, 132; Akpan v The State (2000) 12 NWLR
(Pt.682) 623; Aremu v The State (1991) / NWLR (Pt. 20)
1;
[42] Osakwe v The State (1994) 2 SCNJ 57.
[43] Emoga v The State (1997) 7 SCNJ 518 at
529.
[44] Stephen John v The State (2011), www.easyline.files.wordpress.com/2012/01/steve-john-the-state.pdf.,
Accessed 15/6/12 at 10.00pm.
[45] Dele v The State (2011) 1 NWLR (Pt.
1229) 508.
[46] Olabode v The State (2009) All FWLR (Pt.500)
607 at p.621; See also Lateef v Federal
Republic of Nigeria (2010) All FWLR (Pt. 539) 1171.
[47] Madjemu v The State (2001) 9 NWLR (Pt.
718) 349
[48] Enebechi v The State (2008) 10 NWLR (Pt.
1096) 596.
[49] Emiowe v The State (2000) 1 NWLR (Pt.
641) 408 at 418 CA.
[50] Barmo v The State (2000) 1 NWLR (Pt.
641) 424 at 434 CA.
[51] M.A. Owoade, “Voluntariness of
confession in Nigerian Law – Need for Reform“ in Nigerian Current Law Review (1987), 179, 182.
[52] Police and Criminal Act, 1984, in http://www.legislation.gov.uk/ukpga/1984/60/section/76.
Accessed on 15/6/12 at 11.20pm.
[53] See Onuoha v The State (1989) 2 NWLR (Pt. 101) 23. In this case, the
Supreme Court held that that the trial court was empowered by section 200 of
C.P.A to call witnesses; however, it was an abuse of such power to call such
witnesses in order to strengthen the case of the prosecution.
[54] In interpreting Section 76(2) which
is in all fours with our Section 29 (2), Evidence Act 2011, an English
court in R v Everett (1988), explained that the effect of what is said or
done in an interview will vary according to the personality involved and that
persons of low IQ may be especially vulnerable. Hence, in the instant case, the
court held that the trial judge ought to have taken into account the mental
condition of the accused, a 42 year old man who had a mental age of eight, at
the time the confession was made; that it did not matter that the accused from
listening of the tape sounded rational. See Alan Taylor, Principles of Evidence, 2nd Edition, Cavendish
Publishing Ltd, London, 2000, p.234.
[55] Grammatically, “may” is used to
denote the permissive sense, but depending on the context of usage, it could be
construed in a mandatory sense. This is without prejudice to the judgment in Ude v Nwara (1993) 2 SCNJ 47, where
Nnaemeka-Agu JSC said: “’May’ should be construed as mandatory I.e. meaning
‘shall’ or ‘must’. I believe that it is now the invariable practice of courts to
interpret ‘may’ as mandatory whenever it is used to impose a duty…”
[56] Law Reform Commission of Hong
Kong, “Confession Statements and their Admissibility in Criminal Proceedings”, www.hkreform.gov.hk/en/docs/radmissibility,
Accessed on 10/6/12 at 10.00pm
[57] Cf. M.N. Howard, P. Crane, D.
Hochberg(eds.), Phipson on Evidence, Sweet
& Maxwell, London, 1990, p.677.
