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

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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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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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CONFESSIONAL STATEMENT – CONFIRMATION BY SUPERIOR OFFICER MAY BE DISPENSED WITH

Confirmation before a superior police officer of a statement made by the accused that he was the one who committed the crime may be dispensed with and the confessional statement may be admitted if there is no suspicion of such statement not being voluntary. See MUSA KASA v. THE STATE (1994) 6 SCNJ.

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

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CASES NOT IN SUPPORT OF DEATH PENALTY

These cases were made reference to in Onuoha v State (1998) – SC. 24/1996:

✓ In the State v. Makwanvane and Another (1995) (6) BCLR 665 (CC), (1995) SACLR LEXIS 218 where it was held that the death penalty violated the constitutional protection of freedom from cruel, inhuman and degrading treatment under section 11(2) of the South African Constitution and was, in consequence, invalid and unconstitutional. In that case, however, the right to life as prescribed under section 9 of the South African Constitution was clearly unqualified hence the Constitutional Court was able to arrive at the decision, quite rightly in my view, that it reached. Said the court at pages 49 – 50 of the report: “The unqualified right to life vested in every person by section 9 of our Constitution is another factor crucially relevant to the question whether the death sentence is cruel, inhuman or degrading punishment within the meaning of section I1(2)of our Constitution. In this respect our Constitution differs materially from the Constitutions of the United States and India. It also differs materially from the European Convention and the International Covenant.” There is however a second and an equally vital reason why the death penalty was declared unconstitutional in the Makwanyane case. This is on account of the arbitrary, discriminatory and selective nature of its exercise at all material times in South Africa. In this regard, the court explained: ”..These differences still exist, which means that the law governing the imposition of the death sentence in South Africa is not uniform. The greatest disparity is in the Eastern Cape Province. A person who commits murder and is brought to trial in that part of the province which was formerly Ciskei, cannot be sentenced to death, whilst a person who commits murder and is brought to trial in another part of the same province, can be sentenced to death. There is no rational reason for this distinction, which is the result of history, and we asked for argument to be addressed to us on the question of whether this difference has a bearing on the constitutionality of section 277(1)(a) of the Criminal Procedure Act.”

✓ In the Hungarian case of Jones v. Wittenberg 33 F S UPP. 707, it was held that the death penalty was unconstitutional on the ground that it is inconsistent with the right to life and to human dignity under section 54 of their Constitution. Section 54(1) of the Constitution of the Republic of Hungary which states that “every one has the inherent right to life and to human dignity and no one shall arbitrarily be deprived of this right.” Under this provision, the death penalty, in Hungary, is considered an arbitrary deprivation of life. Consequently, the right to life in the context of the death penalty is unqualified under the Constitution of the Republic of Hungary.

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CONFESSIONAL STATEMENT TENDERED WITHOUT OBJECTION IS VALID

The law is well settled that when a confessional statement is tendered without objection by an accused or his counsel, they cannot cry foul on appeal as it is deemed they were in agreement with what was tendered at the trial Court, see the cases of Shurumo v. State (2010) LPELR-3069(SC) and FRN v. Kayode-Beckley (2020) LPELR-50549(CA), neither the appellant nor his counsel objected to PW4 tendering exhibit A at the trial Court.

– EBIOWEI TOBI, J.C.A. Abdul v. State (2021)

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WHAT IS A CONFESSION?

A confession is defined as a statement admitting or accepting that one is guilty of a crime. Legally speaking; a confession is a statement by which an individual acknowledges his or her guilt in the commission of a crime. A person makes a confession when he is guilty of something which is criminal in nature. See Nsofor v State (2008)18 NWLR (pt.905)292; Abdullahi v State (2015) EJSC Vol.8)103. In short, a confessional statement is an acknowledgement expressly made by an accused in a criminal case, of the truth of the main fact charged or some essential part of it. See also Akpan V State (2001)11 SCM 66 or (2001)15 NWLR (pt.737)745; Nwachukwu v State (2002)12 SCM 143; Jimoh v State (2014) LPELR 22464 (SC); Onuoha v State(1987) 4 NWLR (pt.65)331; Adebayo v State (2015)EJSC (VOL.4) 60.

— A. Sanusi, JSC. State v Abdu Musa (2019) – SC.625/2016

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RETRACTED CONFESSIONAL STATEMENT IS STILL ADMISSIBLE

In ASIMI V. STATE (2016) LPELR – 40436 (SC), this Court per Rhodes Vivour JSC at Pp 14-15, para E-C stated succinctly thus: 22 “Once, an extra-judicial confession has been proved as in this case to have been made voluntarily and it is positive and unequivocal, amounting to an admission of guilt (such as the appellant’s confessional statement, Exhibit P6) a Court can convict on it even if the appellant retracted or resiled from it at trial. Such an afterthought does not make the confession inadmissible. It is desirable but not mandatory that there is general corroboration of the important incidents and not that retracted confession should be corroborated in each material particular.”

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