CONFESSION OF ONE OF THE ACCUSED PERSON AGAINST ANOTHER PERSON IN COMMON AND ISLAMIC LAW

CHAPTER ONE

GENERAL INTRODUCTION

1. INTRODUCTION

One of the sources of proof of a crime or a right is confession. Confession is one of the means of establishing evidence under Islamic and Common law. Thus, to understand the concept of confession, for it relates to any party in any matter, the principle of evidence must be looked upon.

Literally, evidence is information by which facts tends to be proved. And the law of evidence is that body of legal rules regulating the means by which facts may be proved in courts of law. This is according to common law principle of evidence.

However, the Islamic law has laid great stress on the evidence to prove the facts relevant for the judgment of a court. Despite the fact that the Hol

Qur?an and Sunnah of the Prophet had repeatedly demanded for justice and condemn injustice, which made it compulsory that every legal matter

should be proved beyond reasonable doubt that the accused has admitted the crime or the defendant has violated the right of the plaintiff, the court cannot give judgment against the accused or the defendant. One of the prophetic saying (S.A.W) in buttressing the above assertion is as follows:

„If people would be given what they claim

(without evidence), some persons would claim other people?s blood and properties, but it is obligatory on the claimant to produce evidence?.

This shows that evidence is of supreme importance in the administration of justice, if thus follow that confession as a means of establishing a proof (i.e. evidence) is an important lead to justice.

1. BACKGROUND TO THE STUDY

The early courts in Nigeria were mainly the customary courts presided over by the traditional rulers and chiefs. In the Northern part of Nigeria, however, there is existence of Islamic law. There are rules of evidence applicable in the customary courts which are still applicable in those courts till the introduction of the English common law on evidence.

Up till 1945 when the Nigeria Evidence Act was enacted in those courts established by the British and until now it still remained almost the same in

form and substance, though it has been amended from time to time. It is however now set out in the compilation of the laws of Nigeria of 1990

Confession on the other hand, from the common law perspective was first developed from in the Roman Catholic Church under the sacrament of penance, where the confession of a sin is considered to be enough to absolve oneself. Islamic law on the other hand, considered confession as one of the ways in which facts could be proved since the Qur?an has in no way bound the Muslims to adopt a particulars method in proving a crime as long as it is accordance with the universally acceptable methods of legal ethics endorsed sense and reason. But it is, evident from research that confession is a method of proof being used by the prophet when he was alive.

1. FOCUS OF STUDY

This project focuses on how the confession of one of the accused person affected any other person who is not an accused under shariah and common law of evidence and its applicability in Nigeria court. It also covers largely,

the principle of confession in both common and shariah law and recommendation on the two laws.

1. SCOPE OF THE STUDY

The title of this research work covers a wide range of topics and so it concentrates on the historical background on both shariah and common law. It also covers on the concept of confession in common and shariah law. In order to show the variance of this project, the effect of confession of one of the accused person against another person was critically analyze and its applicability in Nigeria courts under both shariah and common law as an institution at administering justice in Nigeria.

In conclusion, this long essay recommends for the effective application of the concept of confession as its relates to each party for arriving at a just course

1. METHODOLOGY

The scope of this research is a wide one. Thus, there will be reliabilities on authority gathered from textbooks written by professional and academics scholars on both laws. Cases from law reports and necessary statutes as its deem fit will be used. The provision from the Holy Qur?an and the Sunnah of the prophet is an important authority to buttress the points on the principle of confession. Also, materials from interest will be used to complete this research work as we are now in E-world.

1. AIMS AND OBJECTIVES

This research work aims at answering question on whether the accused confession against another person. If he can, whether its binds the person whom the confession has been tendered against and the admissibility of such confessional statement in both common law and shariah courts respectively in this country.

1. LITERATURE REVIEW

The principle of law of evidence on which this topic has been chosen is a very fundamental and wide area of law. However, there are various textbooks under both shariah and common law that have been written by different and distinguished scholars in the field. The following are some of the authors and statute that have been referred to in this project:

PROF. DR. ANWARULLAH in his Principles of Evidence in Islam stated that it is universally upon by the Islamic jurists that the accused cannot be forced to admit guilt. He further says that, Ibn al-Hazm suggest in al Muhalla that neither the Quran, nor the Sunnah or Ijma allow examination by beating, imprisonment or threat.

A.L AKINTOLA and A.A ADEDEJI in A Book of Readings in honor of Oluwarotimi O AKEREDOLU, SAN, stated that a confession must be voluntary if it is to be admissible in evidence, thus, a confession must be direct, positive and unequivocal.

CAP 112 LFN OF 1990, Nigeria Evidence Act in its section 27(1) stated that an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime is confession.

The above and many other text and journals are the books consulted in the course of this particular long essay.

1. DEFINITION OF TERMS

To make this research work an accessible material, it is pertinent to define some necessary terms which are as follows:

EVIDENCE: There are many definitions for the principle of evidence as the testimony, hearsay, documents, things and facts which a court will accept as evidence of fact in an issue, in the case of Akintola and ors v. Solana. Oputa JSC stated that:

„If a thing is evident (clear) it does not require evidence. What therefore is evidence? Simply put, it is the truth of which is submitted forinvestigation may be established or disposed. Evidence is therefore necessary to prove or disprove an issue or fact?1

Evidence is Islamic law is derive from and Arabic word called Bayyinah. In the words of Ibn Qayyim2, he says that the word Bayyinah in the language of the Qur?an is the name of everything by which the truth becomes evident. However, the authority on evidential proof under Islamic law is the hadith of Tirmidhi, No. 1261 that prophet (SAW) said:

„To substantiate a crime is the claimant?s responsibility, and the person who refutes it will have to swears an oath?.

ACCUSED: According to the Black?s law dictionary with pronunciation, fifth edition. Accused is the general name for the defendant in a criminal case. The person becomes an accused within the meaning of guarantee of speedy trial only at point at which either formal indictment or information has been returned against him or when he becomes subject to actual restraint on his liberty imposed by arrest which ever first occurs, this was said in State v. Almida3 .

1. (1986)4 LC 141 at 184

1. Ibn Qayyum, I?lamu?l-Nuwawaqim, (1st ed. Vol. 1 Beirut Daru?l-Jay 1973) P. 30

1. 54 Haw. 443, 509 P. 2d 549, 551

ADMISSION: Confessions, concessions or voluntary acknowledgments made by a party of the existence of certain facts. More accurately regarded, they are statements by a party, or someone identified with him in legal interest, of the existence of a fact which is relevant to the cause of his adversary4.

In Rookie v. General Motors Corps5, was defined as a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claim in action.

An admission is not limited to words, but may also include the demeanor, conducts band acts of the person charged with a crime, as in People v.

Baldi6.