C.K. ANYANWU, LL.M. and C.K. EZEAKU, Esq.
INTRODUCTION
It is pertinent to note that for decades, one of the most controversial issues in Nigeria’s criminal justice system has been the manner in which police officers obtain confessional statements from suspects. Stories of statements extracted through torture, threats, or intimidation are unfortunately common. To cure this mischief, the Administration of Criminal Justice Act (ACJA) 2015 and its equivalent Administration of Criminal Justice Laws (ACJL) across various states introduced revolutionary procedural safeguards. These laws mandate that a suspect’s confessional statement should be taken in the presence of a lawyer or recorded on video. But a critical legal question arises: If the police fail to follow these ACJA/ACJL procedures, does the confessional statement automatically become inadmissible in court? Recent decisions from the Court of Appeal and the Supreme Court reveal a fascinating tug-of-war between procedural safeguards and a strict rule of evidence.
This research shall analyse how the courts currently interpret this issue.
Definition of Terms
i) Evidence
Evidence, broadly defined, is the means from which an inference may logically be drawn as to the existence of a fact; that which makes evident or plain. ‘Evidence’ is the demonstration of a fact; it signifies that which demonstrates, makes clear, and ascertains the truth of the very fact or point in issue, either on one side or on the other.
In legal parlance, the term ‘evidence’ includes all the means by which any alleged matter of fact, the truth of which is subject to investigation, is established or disproved. ‘Evidence’ has also been defined as any species of proof legally presented at the trial of an issue by the act of the parties and through the medium of witnesses, records, documents, concrete objects and the like.
P. 128, paras. E-H, Turkur v. Uba
ii) Extra-Judicial Statement
An extra-judicial statement is an accused person’s statement to the police as evidence of the fact that it was made, but being an extra-judicial statement, it is not evidence of the truth of its contents. See Sanusi v The State.
Further, Black’s Law Dictionary (11th Edition) defines ‘extrajudicial’ statement as anything done outside the regular course of judicial proceedings or unconnected to a court. In Nigerian jurisprudence, an extra-judicial statement is typically an out-of-court statement made by a suspect to the police or investigating authorities.
iii) Confessional Statement
By virtue of section 28 of the Evidence Act, 2011, a confessional statement is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. It 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. Therefore, once admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional. P. 275, paras. B-D, Saminu v. State
iv) Types of Confession
There are basically two types of confession, namely formal confession otherwise known as judicial confession, and informal confession otherwise known as extrajudicial confession.
- 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.
- Extrajudicial Confession
Extrajudicial confessions are made outside courts, especially during investigations by law enforcement agencies such as the Nigerian Police Force, the 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.
V. The Import of Extra-Judicial Statements and Confessional Statements Juxtaposed
In this regard, we shall first consider extrajudicial statements and instances when the extrajudicial statement of an accused can amount to a confessional statement.
An extra-judicial statement is an accused person’s statement to the police as evidence of the fact that it was made, but being an extra-judicial statement, it is not evidence of the truth of its contents. Sanusi v. The State
When will the extra-judicial statement of a defendant qualify as a confessional statement and be admissible?
In the case of USHAH v. STATE, the accused made his statement as follows:
“I of the above name and address wish to comment on the shovel that was found under my mattress by the police. That the shovel the police removed under my mattress is not a shovel per say. It is a rifle from Magical Academy U.S.A. The rifle is seen physically as a shovel for security reasons; the knife you are seeing is a collection of knives from my mother’s kitchen. It is true we always have misunderstandings with my mother. It is also true that I once fought with my late mother and broke her left hand. I used a wooden shovel and broke her hand with it. That is all I have for now to say. ” It is worthy of note that the extra-judicial statement of a defendant qualifies as a confessional statement and is admissible if it is direct, positive and relates to the defendant’s own acts, knowledge or intention, stating or suggesting that they committed the crime charged. Clearly, the above do not relate to the defendant’s own acts, knowledge or intention, stating or suggesting that he killed the deceased. They do not qualify as confessional statements.”
However, in IBANGA v. STATE, the court held it is trite that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence with which he is charged, the statement becomes confessional, and the court can act on it to convict the accused person.
In SOLOLA V. STATE, it was held thus:
“A confessional statement is the best evidence in our criminal procedure. It is a statement of admission of guilt by the accused, and the Court must admit it in evidence, unless it is contested at the trial… Once a confessional statement is admitted, the prosecution need not prove the case against the accused person beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the accused.” Per MOHAMMED DANJUMA, JCA (Pp 19 – 20 Paras D – B)
Vi. Distinction between extra-judicial statement and evidence on oath of a co-accused person
“There is a gulf difference between an extra-judicial statement made by a co-accused which is governed by Section 27(3) of the Evidence Act and evidence given by a co-accused on oath which is governed by Section 178(2) of the Evidence Act.
An extra-judicial statement by a co-accused remains a statement and not his evidence. It is binding on the maker only. See: Ogiri & Anor v. The State; Chukwueke v. The State (supra) at page 616 is both cited by learned counsel for the appellant. “Per JOHN AFOLABI FABIYI, JSC (pp. 16-16, paras. A-B). See also, SUBERU v. STATE.
Vii. Whether a confession made while an accused person is testifying in court carries more weight than the extrajudicial confession
“Where a confession is made while an accused person is testifying in court, it carries more weight than the extrajudicial confession. See OCHE VS. THE STATE. See also, YAHAYA v. STATE. However, in the recent case of STATE v. MOSES, the court gave a different interpretation. It held thus: “The law is that an oral extra-judicial confession by a defendant carries equal weight as one made in writing.”
Viii. Difference Between Confessional Statement and Extra-Judicial Statement
An extra-judicial statement made by an accused person wherein he raised a statutory exculpatory defence cannot be said or held to be a confessional statement. For instance, where a statement of an accused person raises the issue of self-defence as the lawful basis for the alleged murder of the deceased person, that statement ought not to be regarded as a confessional statement. Also, an extra-judicial statement made by an accused incriminating others, as long as he did not admit he committed the offence, is not a confessional statement. See Afuape v. State. On the other hand, a confessional statement is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Idoko v State.
ix. The Legal Status of a Confessional Statement
In the legal hemisphere, by a confession an accused person surrenders himself to the law and becomes his own accuser. A confession is one of the legally accepted trinity modes of proof of the commission of a criminal offence. It is numero uno in that regard. Hence, the law grants to the court the unbridled licence to solely convict an accused for an offence where the confession is direct, voluntary, precise, unequivocal and positive. See Osho v. The State of Ekiti. In other words, the accused person can be convicted on his confession alone regardless of the fact that he resiled therefrom or retracted it altogether at the trial. However, the court must test the contents of such a confessional statement by facts outside the statement. In cases of retracted confessional statements, the court is enjoined to test the veracity or otherwise of the said statement by comparing it with other facts and circumstances outside the statement.
Further, in the case of Noah v. State, the apex court held as follows:
“The test for determining the truth or otherwise of a confessional statement is to seek any other evidence of circumstances, which makes it probable that the confession is true. In this regard, the court would consider issues such as:
(a) Whether there is anything outside the confession to show that it is true.
(b) Whether the statement is corroborated.
(c) Whether the statement of facts made in the confessional statement so far as can be tested is true.
(d) Whether the accused person had the opportunity of committing the offence (d) charged.
(e) Whether the confession of the accused person was possible.
(f) Whether the confession was consistent with other facts that have been ascertained and (f) proved at the trial.
Thus, while a trial-within-trial procedure is employed to test the voluntariness of a confessional statement, a comprehensive examination of the surrounding circumstances is necessary to assess the credibility of a retracted confessional statement. (Pp. 575-576, paras. E-A)
x. How to Properly Record a Confessional Statement
In Mohammed v. State, the Supreme Court analysed the procedure for authenticating confessional statements.
The procedure recommended for authenticating the statement of an accused is as follows:
The cautionary word shall be read out and (a) explained to the person.
The accused person shall be asked whether or not he understands the impact of the cautionary words. The caution shall be administered in the language the accused (b) understands.
The accused person shall then be asked if he desires to make a statement. If he evinces the desire to make a statement, he shall be asked (c) whether he shall write the statement himself.
If the accused person shows that he is unable to write the statement himself, such statements shall be recorded in the language in which the accused person made the statement.
The statement shall then be read out to the accused person in the language in which he made it, and he shall be asked if it is his statement.
If he accepts that it is his statement, he shall sign, and the same shall be translated into the English language, which is the official language of the court.
The accused person, together with the statement, shall be taken before a superior police officer who shall read over the statement to the accused in order to confirm the authenticity and voluntariness of the statement.
Where the statement passes the test of voluntariness and correctness of the procedure followed in recording or receiving same, the court will be right in accepting and according due weight to it in convicting the accused person. In the instant case, the appellant’s grievance with exhibits A, B, G, and G1 was that the same police officers who recorded the statements in the Hausa language translated the same into the English language. That by so doing, there was no independence and impartiality, leading to a violation of the appellant’s fundamental right to a fair hearing.
xi. How to Challenge a Confessional Statement
In Bala v. C.O.P., the court explained how an accused person may impeach his confessional statement at trial.
During a trial, an accused person who desires to impeach his statement must establish any of the following:
That he did not, in fact, make any such statement as presented; or
That he was not correctly recorded; or
That he was unsettled in mind at the time he made the statement; or
That he was induced to make the statement.
In other words, the accused defendant must show either that he did not make the statement at all, meaning that it was make-believe, or that he made the statement but involuntarily. Where the accused contends that he did not make the statement, a trial court will admit the statement and postpone the determination of its probative value to the stage of evaluation of evidence. Where the accused/defendant contends involuntariness in the making of the statement, the trial court will conduct a trial-within-trial at that stage to determine the issue of voluntariness before admitting the statement if it finds it was made voluntarily. Thus, an accused cannot rely on both situations in impeaching his extrajudicial statement to the police because they are mutually exclusive. Where an accused person puts forward both situations as the appellant did in the present case, his case will be inconsistent and contradictory.
However, resigning from, contesting, or retracting a confessional statement does not make it unreliable. The court can admit and convict on a retracted confession if it is satisfied that the statement was indeed made by the accused person and that the circumstances under which the statement was made guaranteed the credibility of the content of the confessional statement. Before the trial court convicts purely on the basis of a retracted confessional statement, it must ensure that some corroborative evidence outside the confession makes the truth in the content of the retracted confession probable. It is desirable, particularly if the confession is subsequently retracted, that there should be corroboration, no matter how slight, to but a conviction would not be questioned merely because it is based entirely upon the evidence from a confession made by the accused. In the instant case, the confessional statements of the appellant and his co-accused showed that they pursued the deceased persons with cutlasses, wounded them, and they died as a result of the injuries inflicted on them by the two accused persons. In addition, the cutlasses were tendered in evidence. Thus, there was no doubt that all the evidence demonstrated that the appellant and his co-accused killed the two deceased persons, who were confirmed dead.
xii. Admissibility of Confessional Statement under the ACJA/ACJL
It is important to underscore the fact that when the ACJA and state ACJLs were first introduced, many legal practitioners believed that any breach of the video recording or counsel-presence rule would automatically render a confession inadmissible.
There is judicial backing for this strict interpretation. For instance, in IBANGA v. STATE, the Court of Appeal examined Sections 17(1) & (2) of the Cross River State ACJL, which require the presence of a legal practitioner or electronic video recording when taking a statement.
The Court took a firm stance against the police’s failure to follow this procedure. Ruling the statement inadmissible, the Court held that a conviction based solely on such a flawed statement could not stand because the substratum foundation of the case had been destroyed. Quoting the famous words of Lord Denning MR in Macfoy v. UAC, the Court stated thus: “You cannot put something on nothing and expect it to stand. It will collapse.”
xiii Position of Admissibility of Confessional Statement under the Evidence Act
While the strict approach in Ibanga v. State offers strong protection for suspects, the dominant position of the appellate courts is quite different. The courts have repeatedly held that while the ACJA/ACJL is a procedural law, the Evidence Act is the substantive law that governs admissibility.
In ASUQUO v. STATE, the Court of Appeal clarified that while the courts will not ignore the protective objectives of the ACJL, the Evidence Act takes precedence. The Court noted that an alleged non-compliance with the ACJL does not render a document inadmissible if it has already met the requirements of the Evidence Act.
The Court held thus:
“The Administration of Criminal Justice Act is principally a procedural law and cannot therefore override the Evidence Act, having met the evidentiary requirements during the tendering of the confessional statement.”
xvi. Admissibility of Confessional Statements under the Evidence Act, 2011, Administration of Criminal Justice Act 2015 and the Administration of Criminal Justice Laws of Various States: Inconsistent or Complimentary?
The court of appeal in FRN v. Mamu stated thus: “The Evidence Act, being a specific act on evidence, including trials-within-trial and admissibility, takes precedence over the Administration of Criminal Justice Act in matters of admissibility of evidence. The handling of evidence in any adjudication is primarily covered by the Evidence Act. Any other legislation which makes provision for issues touching on evidence must take its subsidiary position to the Evidence Act. The Administration of Criminal Justice Act is principally a procedural law and cannot therefore override the Evidence Act.”
As you can see, both legislations are in their respective rights, not in conflict but complementary. Whilst it can rightly be argued that the EA is the principal legislation in matters of evidence, one cannot relegate the importance of ACJA/ACJL to the background because it is a subsidiary legislation.
Also, as regards the omissions, the Supreme Court in A.G. Fed. v. Anuebunwa held thus: “Where evidence has been excluded from the application of the Evidence Act by any other legislation validly in force, it shall be admissible in accordance with the conditions for its admissibility as may be specified in that other law or act, as the case may be.” So, it can’t be misplaced if certain lacunas that are evident in the Evidence Act are/are covered in ACJL.
xv. The True Test in Admissibility of Confessional Statements
If the ACJA/ACJL does not strictly control admissibility, what does? The Supreme Court provided a definitive answer in IREGU v. STATE. The apex court held that the admissibility of a confessional statement is governed strictly by Section 29 of the Evidence Act, 2011. The only question the court must ask is, Was the statement made voluntarily?
According to the Supreme Court:
“Any confessional statement made as a result of either torture, threat of violence or inhuman/degrading treatment is inadmissible… Therefore, where there is cogent and credible evidence that the accused person made the statement voluntarily, the fact that the prosecution is unable to call the superior police officer before whom the accused and the statement were taken will not affect its admissibility.”
This position was further expanded in ABUBAKAR v. STATE, where the Court of Appeal analysed the word ‘may’, used in Section 17(2) of the ACJA regarding the presence of a lawyer or video recording. The Court concluded that ‘may’ is permissive, not mandatory. The Court emphasised that administrative requirements like video recordings cannot override the clear provisions of the Evidence Act. If a statement is proven to be voluntary, it is admissible. The ACJA’s procedural guidelines only become relevant when helping the judge determine the weight or voluntariness of the statement during a trial-within-a-trial.
xvi. Constitutional Provision of Evidence on the Exclusive Legislative List
Perhaps the most compelling argument for why State ACJLs cannot dictate admissibility is found in the Constitution.
In EDUENOH v. STATE, the Supreme Court delivered a constitutional master class. The Court pointed out that ‘Evidence’ is Item 23 on the Exclusive Legislative List of the Nigerian Constitution. This means only the National Assembly (through the Evidence Act) can make laws dictating what is admissible in court. Consequently, any State House of Assembly that enacts a Criminal Procedure Law or ACJL attempting to dictate whether evidence should be admitted or rejected is acting unconstitutionally.
The Supreme Court stated emphatically:
“The admissibility of evidence is therefore not a matter of procedural convenience but a question of substantive law fixed by federal legislation… By the doctrine of covering the field and the supremacy clause of the Constitution, the Evidence Act prevails, and any conflicting state provision becomes inoperative.”
The Supreme Court concluded that even if the police completely ignore the provisions of a State’s Criminal Procedure Law when taking a statement, that fact alone cannot render the confession inadmissible, provided it satisfies the Evidence Act’s requirement of voluntariness.
Conclusion
The analysis of these recent appellate decisions reveals a clear legal reality. The Evidence Act is the key and regulates the admissibility and inadmissibility of confessional statements. While the ACJA and various State ACJLs introduced beautiful innovations meant to curb police brutality and forced confessions as passionately deliberated in Ibanga v. State. These procedural laws cannot rewrite the rules of evidence. As solidified in Asuquo, Iregu, Abubakar, and ultimately Eduenoh, the sole yardstick for admitting a confessional statement in Nigeria remains voluntariness under Section 29 of the Evidence Act. Further, because ‘evidence’ is a constitutional monopoly of the Federal Government, state procedural laws cannot legally exclude an otherwise voluntary confession.
