Law of Evidence Legal Articles Nigerian Law

ADMISSIBILITY OF CONFESSIONAL STATEMENTS: A CURIOUS LEGAL REVISIT IN NIGERIA – Olukolade Ehinmosan

INTRODUCTION

The importance of a sound and efficient criminal justice system in any geographical terrain or ecosystem cannot be overemphasized. Where certain acts or conducts are viewed collectively by members of a society as a huge threat to their genes and sustainability, they more often than not, criminalize such acts or conducts by the enactment of penal statutes. The nectar of such penal statutes can hardly yield lasting societal coexistence without proper and disciplined law enforcement and adjudication.

In Nigeria, the machinery of the criminal justice delivery has its facets coupled in the law, anchored on the legal dogma of presumption of innocence. Despite this legal dogma, certain suspects volunteer confessions on either the suspected crime or any associated act or conduct. These volunteered statements are never handled with the kid gloves of impulse and brutish spontaneity in a sane society. There must be clearly mapped out procedures for volunteering, recording and deploying such statements. It is this dictate of sanity that apparently drummed the trail for the enactment of the Administration of Criminal Justice Act (ACJA), 2015.

Little bother about the historical antecedent behind its enactment. The gravamen of this short revisit is the admissibility of confessional statements in light of the procedures clearly mapped out under the ACJA, 2015. Shall we?

WHAT IS A CONFESSIONAL STATEMENT?

Section 28 of the Evidence Act, 2011 (EA) gives a somewhat sufficient definition of ‘Confession’ as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. The Encarta Dictionary of English Language defines ‘statement’ as an account of the facts relating to a crime or case given to the police or in a court of law, usually for use as evidence. A Confessional Statement may thus be defined as factual account volunteered by a suspect himself giving or suggesting an inference that he committed the offence charged.

ADMISSIBILITY OF CONFESSIONAL STATEMENTS

The vertebra of admissibility in the Nigerian criminal corpus juris is Relevancy. This is no gainsaying in the presence of a universe of authorities. Section 1 of the EA makes relevancy the bulwark of admissibility. Furthermore, section 29, EA stipulates to wit:

29(1)“In any 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.

Thus, foremost, a confessional statement, to be admissible, must be shown to be relevant. For a swift example, a statement by a suspect confessing to committing the crime of stealing may not be relevant to or may be too remote to be admissible in a trial for a charge of treason.

Meanwhile, apart from relevancy, the issue of whether the confessional statement is not excluded by the competent court of law is the second hurdle to be crossed. This is where the issue of Admissibility comes to fore. Unlike the cameo of relevancy in this treatise, admissibility is the key player on this pitch of Confessional Statements.

Section 29(2), EA lays bare the sole pillar of admissibility of a confessional statement – VOLUNTARINESS. Where a 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 the time to render unreliable any confession which might be made by him in such consequence, 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 in a manner contrary to the provisions of this section.”

The court may even suo motu, require the prosecution to prove that the confession was not obtained involuntarily as enshrined under Section 29(2) (supra). It thus appears that the sole ground upon which a confessional statement may be excluded or admitted in evidence is:

WAS THE CONFESSION OBTAINED VOLUNTARILY?

IS ‘VOLUNTARINESS’ THE SOLE GROUND FOR ADMISSIBILITY?

Section 17 of the ACJA enshrines the procedure to be followed by law enforcement personnel for recording the statement of a suspect. This provision of the law is reproduced below:

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

(2) 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 official 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.

(3) 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 full particulars.

The use of the mandatory marker ‘shall’ must be noted.

THE CURIOUSITY

Analogous to rules of courts, enactments of the highest law making body in the land must be equally dignified and respected. Where the curiosity lies must be placed in lights instantly:

CAN A CONFESSIONAL STATEMENT BE EXCLUDED IN EVIDENCE SOLELY BY REASON OF FAILURE TO COMPLY WITH THE ACJA?

There has been no treatise or article touching on this curiosity. The closest this article came is a heated argument between two budding lawyers on the subject. One of the contentions was that failure to procure a competent interpreter who interprets the confession to the suspect in a language he (the suspect) understands and failure of the competent interpreter (to attest to) and the confessing suspect to endorse the statement as having being made by him goes to the admissibility of such confession in Court. The rebutting contention was canvassed based on the ground that the admissibility of a confessional statement is solely and fundamentally based on voluntariness.

It is respectfully submitted that the ACJA must be accorded its full and deserved respect and strict adherence. However, failure to adhere strictly to the procedure stipulated by the ACJA for obtaining a confessional statement cannot go to the root of admissibility. This will run in fatal opposition to the spirit, letters and intention of the draftsman of the Evidence Act and even the ACJA itself. Where a confessional statement shown to have been voluntarily made by a suspect is sought to be tendered, any objection on its admissibility based on non-adherence to the ACJA should be rightly discountenanced. The compliance with the procedures in the ACJA should only go to the weight or probative value to be attached to the confession rather than its life in the trial – admissibility.

OLUKOLADE O. EHINMOSAN

LEAD PARTNER, LAW AXIS 360°

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