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FAILURE TO USE VIDEO RECORDING DURING RECORDING CONFESSIONAL STATEMENT

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The use of the imperative word “shall” in the provision underscores its mandatory nature. The mischief sought to be curbed by the law includes such unsavory situations as where an alleged confession is extracted by torture and duress imposed on a defendant which led to the confession, to avoid miscarriage of justice and to reduce to the barest minimum the incidents of retractions and time consumed by trial within trial proceedings. Section 9(3) ACJL is a mandatory procedural law against infractions on the constitutional rights of a defendant as enshrined in Section 35(2) of the CFRN (as altered). Any purported confessional statement recorded in breach of the said provision is of no effect. It is impotent and worthless. See JOSEPH ZHIYA v. THE PEOPLE OF LAGOS STATE (2016) LPELR – 40562 Pp. 28-29 Paras G-B, ISMAILA FATOKI v. THE STATE- unreported judgment of the Court of Appeal in Appeal No. CA/L/1125/2011 delivered on 11/12/2015, FABIAN MATHEW v. THE STATE – unreported judgment of the Court of Appeal in Appeal No. CA/L/1126/2011 delivered on 11/12/2015, KINGSLEY AKHABUE v. THE STATE – unreported judgment of the Court of Appeal in Appeal No. CA/L/1056/2011 delivered on 11/12/2015, AGBANIMU v. FRN (2018) LPELR – 43924 (CA) Pp. 11-12 Paras E-A, ENECHE v. PEOPLE OF LAGOS STATE (2018) LPELR – 45826 (CA) Pp. 27-28 which are persuasive precedents of the Court of Appeal.

— H.M. Ogunwumiju, JSC. Friday Charles v. The State of Lagos (SC.CR/503/2020, Friday March 31 2023)

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confessional statement

WEIGHT/CONSIDERATIONS TO BE ATTACHED TO A CONFESSIONAL STATEMENT

The fact that an accused person denies making a confessional statement to the police, does not render such extra-judicial statement inadmissible merely because the accused person denies having made it. What the Court is expected to do to determine the weight to be attached to a retracted confessional statement is to test its truthfulness and veracity by examining the said statement in the light of other credible available evidence. The Court would consider whether: a. There is anything outside that Confessional statement to show that it is true; b. It is Corroborated; c. The facts stated in it are true as far as it can be tested; d. The accused person had the opportunity of committing the offence; e. The accused person’s confession is possible; f. The confession is consistent with the other facts ascertained and proved at the trial. See Per OKORO, JSC, in ALAO V. STATE (2019) LPELR-47856(SC) (PP. 23-24 PARAS. E).

— M.D. Muhammad, JSC. Friday Charles v. The State of Lagos (SC.CR/503/2020, Friday March 31 2023)

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WHERE DEATH SENTENCE IS THE PUNISHMENT, CONFESSIONAL STATEMENTS SHOULD APPLY WITH THE LEGAL PROCEDURE

The learned trial judge having admitted that the prosecution still bears the burden to call evidence to prove beyond reasonable doubt that the defendant made a voluntary confession in a trial within trial, went ahead to shift the burden of proof to the Appellant (Defendant at the trial Court). Evidence of a video recording or the presence of a legal practitioner would have been conclusive proof that the confessional statement was obtained voluntarily. It makes it imperative in the circumstances, particularly in cases of armed robbery where a death sentence is the sanction on conviction, that confessional statements should be taken according to the provisions of the law. Even where the prosecution has ignored the provision of the law as sacrosanct as this, the trial judge should have brought it up suo motu. The judge cannot pick and choose which extant law to enforce.

— H.M. Ogunwumiju, JSC. Friday Charles v. The State of Lagos (SC.CR/503/2020, Friday March 31 2023)

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RETRACTION OF CONFESSIONAL STATEMENT

Additionally, on the retraction of the contents of Exhibit A at the trial by the Appellant as DW1, the law is settled that a retraction or denial of a confessional statement does not affect its admissibility. Thus, the mere fact that a confessional statement is challenged on the ground that the accused person did not make the statement, does not render it inadmissible in evidence. In such a situation, the application of the following principles should be considered in determining whether or not to believe and act on a confession which an accused person has resiled from: a) Whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; b) Whether its contents, if tested could be true; c) Whether the defendant had the opportunity of committing the alleged offence; or d) Whether the confession is possible and the consistency of the said confession with other facts that have been established.

– Sankey JCA. Abdul v. State (2021)

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RETRACTED CONFESSIONAL STATEMENT IS ADMISSIBLE

My Lords, the position of the law as it stands today is that the signed retracted confessional statement Exh. 7A taken in vernacular is admissible in evidence. What matters is the probative value to be attached to it.

– H.M. Ogunwumiju, JSC. State v. Ibrahim (2021) – SC.200/2016

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TRIAL-WITHIN-TRIAL IS TO TEST VOLUNTARINESS OF CONFESSIONAL STATEMENTS ONLY

I agree with the learned counsel for the Respondent that the Appellant’s counsel had really misunderstood the fundamental requirement in criminal trial. A trial within trial is required in law where the objection to admissibility of a statement is based on the ground that it was not made voluntarily. In that case there has to be a trial within trial to determine the question of voluntariness. It is only where this is proved by the prosecution that the statement is admitted in evidence.

– Galadima, JSC. Kingsley v. State (2016)

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WHERE THERE IS RETRACTION OF CONFESSIONAL STATEMENT, COURT SHOULD CONVICT ONLY WHEN THERE IS CORROBORATION

Where a confessional statement is denied or retracted by an accused as in the instant case. it is desirable to have corroborative evidence no matter how slight before convicting on it. The Courts are enjoined as a matter of duty to test the veracity or otherwise of such statement by comparing it with other facts and circumstances outside the statement, to see whether they support, confirm or correspond with it. In other words, the Court must scrutinize the statement to test its truthfulness or otherwise in line with other available evidence. See: KAZEEM VS STATE (2009) All FWLR (Pt.465) page 1749; EDHIGERE VS STATE (1996) 8 NWLR (Pt.464) page 1; ONOCHIE & 7 ORS. VS THE REPUBLIC (1966) 1 SCNLR 204; and QUEEN VS ITULE (1961) 2 SCNLR 183.

— S.D. Bage, JSC. State v Masiga (2017) – SC

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