IN THE HIGH COURT OF LAGOON STATE

IN THE LAGOON JUDICIAL DIVISION

HOLDEN AT LAGOON

CHARGE NO:

DR. CHARLES HIGH ………………………..……………. DEFENDANTS

AND

THE PEOPLE OF LAGOON …………..…………………. PROSECUTION

ADMISSIBILITY OR OTHERWISE OF CONFESSIONAL STATEMENTS

My Lords, in determining the admissibility or otherwise of a Confessional
Statement, the provisions of Section 28 and 29(10-(5) of the Evidence Act are
quite instructive:
Section 28 of the Evidence Act defines ‘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.
On when a confession becomes relevant, Section 29 (1) provides:
‘In any proceeding, a confession made by a defendant may be given in
evidenceagainst 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, where a confessional statement is relevant to the proceedings, it can be

tendered in evidence. However, its admissibility is subject to compliance with the
provisions of Section 29 (2) (a) & (b) to the extent that such confession was not
obtained by oppression of the person who made it or obtained in circumstances
that may render such confession unreliable.

 Note that Section 29 (5) provides that ‘Oppression’ includes torture,

inhuman or degrading treatment, and the use or threat of violence
whether or not amounting to torture
In this moot case, one of the Defendants made confessional statements and we
wish to address the court on the admissibility or otherwise of these statements.

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The confessional statements being an admission by the Defendant as regards the
commission of the offence and obtained in compliance with the provisions of the
law and rules governing the method for taking it becomes admissible and in the
absence of any objection by the defence, the court can convict the Defendant
based on the confessional statement. (See Alarape Vs State (2001) 5 NWLR (pt
705) Pg 79, Joseph Idowu Vs State (2000) 12 NWLR Pt 680 pg 48).
In Olalekan Vs State (2001) 18 NWLR Pt 746 pg 793 where the Supreme Court
held thus:
‘ Where a confessional statement is direct, positive and unequivocal as to the
admission of guilt by an accused person, the statement is enough to ground
the conviction of the deceased even though it was retracted at the trial’
OBJECTIONS THAT CAN BE RAISED BY THE DEFENCE:
I) Defendant can retract the statement or ( where defendant says ‘I did
not make the statement )
II) State that the statement was made under duress (Where the defendant
says I made the statement but my statement was made under duress)
Position of the Law where the Defendant retracts his statement:
A denial of a statement by itself is no reason for rejecting the statement. The
confession where voluntary is admissible once the statement complies with the
law and rules governing the method for taking it and it is tendered and not
objected to by the defence. Where it is admitted as exhibit, then it is good
evidence and no amount of retraction will vitiate its admission as a voluntary
statement that the confession was true

The law is that the court can convict on a confessional statement retracted at the
trial if satisfied that the accused made the statement and as to the circumstances
which give credibility to the contents of the confession. But it is desirable that;
before a conviction can properly be based on such retracted confession there
should be some corroborative evidence outside the confession which makes it
probable
See Mufutau Aremu Vs State (1991) 7 NWLR (pt 201) 1 @15,; Bassey Vs State
(1993) 7NWLR (Pt 306); Nsofor vs State (2002) 10 NWLR (Pt 775) 274 @293

Position of the law where the Defendants challenges the voluntariness of

his statement:

In the case of Ikemson Vs State (1989) 3 NWLR pg 455 @ 467 Para G the
Supreme Court held thus:
‘ where a statement is objected to ab initio during trial and its
voluntariness is challenged on the ground of duress or undue
influence, there should be a trial within trial to decide its
voluntariness’
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  Note that where the defendant is merely disputing the correctness of
the content of the confessional statement trial within trial is not
necessary. See Nnabo Vs State (1992) 2 NWLR (pt 226) 716
What is a trial within trial?
A trial within trial is a mini trial conducted to find out if the accused person made
his confessional statement voluntarily or otherwise. In other words, it is a trial
convened at the point where the prosecution seeks to tender the confessional
statement and the defence raises objection to its voluntariness. The main trial is
therefore suspended to ascertain the allegations of involuntariness by the
defence.

Conduct of a trial within Trial

While it is trite law that the burden of proof lies on the person who asserts, it is
however a different scenario altogether in an objection necessitating a trial
within trial. Thus the constitutional right of innocence until proven guilty inures
in favour of the accused. It therefore stands to reason that even though the
accused is the person disputing the voluntariness of the confessional statement,
it does not necessarily shift the burden of proof from the prosecution to him. See
Gbadamosi Vs State (1992) 9 NWLR Pt 226 pg 480 where the Supreme Court
per Omo Jsc held thus:

‘I agree with counsel that the trial within trial conducted by the
learned trial judge was irregular and that calling on the appellant to
first testify, in an inquiry whether or not the statement he is alleged to
have made is voluntary, does suggest a shift of the onus of proof from
the prosecution to the defence (appellant). The immediate result of the
irregularity is the end result of it i.e the admission of exhibit ‘H’ as a
confession is improper and must be set aside’

Therefore, in the conduct of a trial within trial, the prosecution calls the
Investigating Police Officer (IPO) and any other witness and is led in evidence as
to the Time, Manner and Mode in which the defendant’s statement was obtained.
Prosecution witnesses are then cross examined and closes its case

In like manner, the defence opens its case, defendant gives evidence cross
examined and closes its case. Upon address by counsel, the court would write its
ruling.

Accordingly My Lords, where a Defendant makes a confessional statement which

is direct, positive and unequivocal as to the admission of guilt, the statement is
enough to ground the conviction even though it was retracted at the trial.

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However, where the Defendant contends the voluntariness of the statement, the
duty of the court is to conduct a Trial within Trial to determine the voluntariness
or otherwise of the defendant’s statement.

DATED THIS …..DAY OF …….2019

A.B. SHARP SHARP (ESQ)

DEFENDANT’S COUNSEL

FOR SERVICE ON

KEHINDE TAIWO (MRS.)

DIRECTORATE OF PUBLIC PROSECUTION
FOR: HON. ATTORNEY GENERAL &
COMMISSIONER FOR JUSTICE
LAGOS STATE