CHAPTER ONE
1.1 INTRODUCTION
An adverse admission relevant to the issues of guilt in a criminal case is known at Common Law as confession, and the same terminology is employed by the Evidence Act 1990. As indicated above, confessions represent the most important and most frequently encountered exception to the rule against hearsay in criminal cases, fundamental changes in the law pertaining to confessions were introduced by the Evidence Act 1990, but in order to understand the principles of admissibility of confessions, it is necessary to understand the principles of admissibility developed at common law to govern the admissibility of confessions. Apparently, we will summarize the most important aspects of the common law rules, we will then proceed to examine the new statutory definition and rules of admissibility of confessions.
While the common law recognized that a confession might be both reliable and cogent as evidence of guilt, and indeed saw no objection to a conviction in cases where a confession was the only evidence against the accused, the law recognized that a confession could be regarded as reliable only when given freely and voluntarily. If coerced on forced, reliability of the confession might be totally compromised and the integrity of the system of administration of justice itself made to suffer. The exclusion of evidence obtained through torture, force or other coercive methods was the means of protection of the accused developed by the judges during the eighteenth and nineteenth centuries, when the memory of an age when such methods were commonplace still lingered. Its significance may be gauged by the fact that in English law, the rule that a confession obtained by oppression, in circumstances likely to render it unreliable must be excluded, is the only instance of the mandatory exclusion of illegality or unfairly obtained evidence. The classic statement of the common law rule as to admissibility of confession was that of Lord Sumner in Ibrahim .V. R1
"It has been established that no statement by an accused is admissible in evidence against him unless it is shown by the persecution to have been voluntary statement, in the sense that it has not been obtained from him either by fear, or prejudice or hope of advantage exercised or held out by a person in authority".
In common parlance, 'voluntary' meant simply of one's free will'. That test of voluntariness, as defined by Lord Sumner was supplemented by Lord Parker C.J in Callis .V. Gunn2, when he
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added the requirement that a confession must not have been
obtained in 'an oppressive manner', his observation was, strictly speaking, obiter - the case involved the admissibility of fingerprint evidence. But when the Judges' Rules appeared in revised form in 1964, the introduction started that the rules did not affect the principle, which was overriding and applicable in all cases that:
... It is a fundamental condition of the admissibility in evidence against any person equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercise or held out by a person in authority.
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Interestingly, Lord Sumner's phrases fear of prejudice' and 'hope of advantage' are habitually spoken of as 'threats and 'inducements' respectively. It give rise to some problems in the application of the rules of admissibility at common law. In particular, the suggestion of some deliberate act in the words 'threats' and 'inducements' for a time led the courts to concentrate on the mind of the questioner, rather than on the mind of the suspect. As the problem may recur, despite the apparently clear wording - of the 1990 act, it is worth pursuing briefly. In R .V. Iseguilla3, the court of Appeal concluded that:
"... Under the existing law the exclusion of a confession as a matter of law because it is not voluntary is always related to some conduct on the part of authority, which is improper or unjustified. Included in the phrase 'improper or unjustified' of course must be the offering of an inducement, because it is improper in this context for those in authority to try to induce a suspect to make a confession".
This view of the law would have left the accused without recourse in a case where without any improper intent and perhaps even without realizing it, the questioner created some fear of prejudice or hope of advantage in the mind of the suspect.' In such a case, the resulting confession might well be involuntary, but under the Isequilla rule, would nonetheless be admissible. In D.P.P .V. Ping Lin4, the House of Lords was called upon to decide whether it was the state of mind of the questioner or that of the suspect which was to control the question of voluntariness. The House firmly held that it was the latter that governed the question of whether or not the confession was voluntary, and that should therefore also control the question of admissibility.
Indeed, the rules of admissibility applied only where the fear of
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prejudice or hope of advantage was excited or held out, or the oppression created by a 'person in authority', The question of what persons were or were not persons in authority, has, however, settled that a person in authority must have, or reasonably be thought by the suspect to have, some influence over his arrest, detention or persecution, or in other words, be of a person from who a threat or inducement might appear credible. The limitation of the rule in this way was not of great importance, since the vast majority of confessions are made to police officers and others who are undoubtedly persons in authority, and it has been abolished expressly by the Evidence Act 1990. But it remains germane to consider it in the light of the common law rule that the fear of prejudice or hope of advantage must have been generated by the person in authority, with the consequence that self-generated fears and hopes would not destroy the voluntariness of the confessions. However, the result is different under the new statutory rules, even though the confession is made to a person who previously have been a person in authority.
In addition to the rules governing admissibility, the trial Judge had power to exclude a confession, in the exercise of his discretion, where it had been obtained by means of or following a breach of the
Judges' Rules. The Judges' Rules were rules of conduct and procedure for the guidance of police officers and others concerned in the arrest, detention and interrogation of suspects. They were fist promulgated by the judges of the then king's Bench Division in 1912, and subsequently revised from time to time. The Rules were not rules of law, and did not affect the legal principles of admissibility of confession. However, in R. V. May6, Lord Goddard C.J held that the trial judge might refuse to admit a statement if a breach of the rules occurred. But the main importance of the rules always lay in the fact that a breach of the rules might provide evidence that the resulting confession was not voluntary.
1.2 DEFINITION OF CONFESSION
At common law, a confession was the name given to an adv-erse admission by the accused relevant to the issue of guilt in a criminal case. In Nigeria, as the case in point, confessions are covered by section 27 to 32 of the Evidence Act 1990. The word "confession" is derived from the Latin word 'confessus' which mean to speak or confess completely? 7.
Under the Evidence Act8, confession is defined thus:
"A confession is an admission made at any time by a person
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charge with a crime, stating or suggesting the inference that he committed that crime.
A confession, like any other admission, may be made orally, in writing, by conduct or in any way from which a proper inference may be drawn adverse to the maker. Usually confessions are made to police officer or other investigators as a result of interrogation, but may equally be made to the victim of an offence, a friend or relative or any other person.
The law regarding confessions is now the same in all cases, and it no longer matters whether the person to whom the confession is made is a person in authority.
Importantly, although in common law parlance, the word 'confession' connotes a full admission of guilt, it has no such meaning in law, either at common law or under the statutory definition. As long as any part of a statement is adverse to the maker, in that it has some relevance to the issue of guilt, it will be deemed a confession for the purpose of the law of evidence.
More still, going by the definition given by the Evidence Act, it is clear that admission of such guilt can be made "at anytime' is so far it was made after the commission of an offence. Such a confessional
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statement can even be made before the accused is charged. The case of Sunday Onungwa .V. The state9 is very illustrative in this respect. In that case, the appellant was convicted of murder. It appeared from evidence which the trial judge accepted that, during the investigations (by the police) preliminary to him being charged with the offence, the appellant admitted to ownership of a blood stained matchet recovered near the scene of the murder admitting at the same time that he had killed the deceased "as a result of the work of the devil". The admissions was made in the presence of other members of his family amongst them was his elder brother who also testified confirming the admission made by the appellant. It was argued at the lower court that these admissions being "extra judicial" should have been rejected and that when the admissions were made it was not then decided the appellant should be charged with any offence and that no caution was administered to the appellant before they were made. Overruling these submissions, the Supreme Court held: 'that an admission made at anytime by a person charged with crime suggesting the influence that he committed the offence is a relevant fact against the maker and if it is made voluntarily it is admissible in evidence.
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Also, in Gbadamosi .V. State10, confessions was defined thus:
"Legally, the word 'confession' means an admission of an offence by an accused person it means an acknowledgement of crime by an accused person. It is an admission made at anytime by a person charged with crime stating or suggesting the inference that he committed the crime".
For a confessional statement to be admitted in evidence, it must be freely and voluntarily made. The accused person must make it out of his own freewill and choice.
1.3 NATURE AND SCOPE OF CONFESSIONAL STATEMENTS
Confessions are either judicial or extra judicial. Judicial confessions are confessions made in the court in the course of the proceeding in question. Section 27 of the act is obviously wide enough in its wording to cover both, but judicial confessions are also expressly dealt with in section 218 and sections 314 of the criminal procedure Act and section 37 of the Evidence Act, also section 157(1), 161(2) and 187(2) of the Criminal Procedure Code. If during his trial in court an accused person confesses to the
offence charged, and such a confession is in the nature of a plea of guilty section 218 of the Criminal Procedure Act prescribes the consequences of such a plea11", Section 161(2) and 187(1) of these Criminal Procedure Code deals respectively With such consequences in trials in the magistrate courts and in the High Courts of the Northern State. It should be noted that by pleading guilty, an accused person does not admit the truth of the facts contained in the dispositions. He merely admits that he is guilty of the offence as charged and nothing else12.
Under section 314 of the criminal procedure Act, a statement made by an accused person at preliminary inquiry is admissible without further proof unless it is proved that the magistrate purporting to sign the statement did not infact sign it, whilst under section 37 of the Evidence Act any statement made by an accused person at such an inquiring or at a coroners inquest may be given in evidence.
Usually 'admission' in relation to a crime is used to denote the admission of a fact relevant to the crime, whilst ‘confession’ is used
to denote the admission of guilt13. However, the definition of confession seems wide enough to include an incriminating admission falling short of a full confession14”.
An admission made in a plea in civil proceedings does not amount to a confession for the purpose of criminal proceedings. Also an extra- judicial admission of guilt made in another proceeding not being the one in which it is intended to prove the confession must have been made by the person and not his counsel. In R .V. Asuquo Etim Inyang15 the accused was resident in Calabar and went through a form of marriage in the church there. Some 18 months later proceedings were taken against him in the magistrate court to enforce a maintenance order made against him by London magistrate's court in respect of a marriage which the accused had contracted in England seven years previously. Before the Calabar magistrate's court counsel for the accused admitted the facts of the London marriage. The accused himself merely gave evidence as to his financial circumstances. Criminal proceedings on a charge bigamy were instituted against him at the Calabar assizes, the prosecution relying solely on the two marriage certificates and the
admissions made before the Calabar magistrate. It was held that the admissions could not be treated as confessions for the purposes of proving the criminal charge as they were not made by the accused himself. An extra judicial confession though made orally would carry no less weight than the one made in writing16.
A confession must be direct and positive, not equivocal. In RaimiAdebisi Afolabi .V. Commissioner of police17, the accused was the storekeeper to a firm in Ibadan. When a shortage was discovered in his stores and this was brought to his notice by the manager of the firm, he told the manager that he had taken certain of the stores and sold them to assist defray his election expenses but he did not indicate how much he had sold. During a retrial he repudiated this story. It was held that, 'as the alleged confession was neither direct nor positive as to the items contained in the charges, it was not admissible. However in R .V. Akpan Udo Essien18, it was held that a statement amounting only to a confession of implication in the crime cannot be regarded as a confession under this heading. A man confess to his own acts, knowledge or intentions but he cannot 'confess' as to the acts of other persons which he had not seen and of which he can only have knowledge or hearsay. The failure by the prosecutor to prove an essential element in the offence charged cannot be cured by an admission of this kind19”, he point has also been raised whether by section 27(1), which speaks of "an admission made at anytime by a person charged", it is intended that a confession, if it is to be admissible, must have been made subsequent to the accused being charged with an offence. In R. V. Udo Eka Ebong20, it was held that a statement may amount to a confession even if made before the accused was charged with the offence. However, a statement made before the commission of an offence cannot amount to a confession.
The fact that an accused has denied making the confession does not necessarily make it inadmissible. In R .V. John Agagariga Itule21, soon after the appellant was arrested for murder, he made a statement to a police in which he admitted killing the deceased, but described circumstances which of true, would amount to legal provocation. The next day he denied having made the statement and made a new one in which he repudiated all responsibility for the deceased's death. His evidence at the trial was substantially in conformity with his second statement. Brett. Ag. C.J F said (at page 465 of the Report).
"A confession does not become inadmissible merely because the accused person denied having made it and in this respect a confession, contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession. The fact that the appellant took the earlier opportunity to deny having made the statement may lend weight to his denial, but it is not itself a reason for ignoring the statement".
It is now well settled that once a confessional statement is admitted in evidence it becomes part of the case for the prosecution and as such the judge is bond to consider its probative value. Egboghonome .V. The state22, the words of per Olatawura J.S.C is instructive. He said inter alia:
"It will be an escape route freely taken by an accused person without any hindrance to escape from justice. It will be in the interest of the society to allow a man who has confessed to his crime to walk out of court a freeman simply because he had a change of mind, the whole trial will be mockery".
1.4 RELEVANCY OF CONFESSIONAL STATEMENT
On relevancy of confessional statement, the Evidence Act23
provides:
"Confessions, if voluntary are deemed to be relevant facts as he persons who make them only". Such a confession is therefore admissible. Section 28 lists out case in which a confession is irrelevant and inadmissible. It states that a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by an inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of temporal nature.
There is no doubt that the provisions apply only to admissibility of confession on behalf of the prosecution and that an accused person may, in order to exculpate himself, give in evidence a confession alleged to have been made by this co-accused, regardless of the method by which it was obtained24".
Only voluntary confession is relevant and therefore admissible.
There is no definition of the word "voluntary" in the Act. But any confession obtained in any of the manner listed in section 28 is
involuntary and thus inadmissible. Therefore the section is a guide as to when a confession is not voluntary.
The burden of proving affirmatively that a confession was made voluntarily is always on the prosecution by virtue of section 27(2) and 13a(1). The prosecution should first prove affirmatively to the satisfaction of the court that a confession was free and voluntary before tendering it in evidence25". The burden of proving this never shifts from the prosecution26. It is therefore wrong to admit a confessional statement through an accused person during his cross examination by the prosecution as in such a case there will be no positive evidence on which the voluntaries or accuracy of the statement can be founded. In Adekanbi .V. Attoney-Coneral of Western Nigeria27, the prosecution failed to call the police constable who look the appellant's confessional statement because the judge refused an adjournment for him to be called. The prosecution in the course of the case did consequently not tender that statement. But when the appellant gave evidence in his defence, he agreed under cross-examination that he could read and that he had signed the statement; where upon the prosecution tendered it through him. The appellant's counsel objected to the
admissibility of the statement contending that the prosecution had not proved that it had been made voluntarily.
The appellant denied that he read the statement before signing it and protested that it did not represent what he said. The tria1 judge nevertheless admitted the statement saying that its voluntariness was not in issue but only its accuracy, which according to him, the appellant could still challenge. He also disbelieved the appellant's denials about the contents of the statement. On appeal the- Supreme Court held that the judge erred in admitting the statement for by so doing he seemed to have overlooked the fact that the burden of proving affirmatively that a confession was made voluntarily is always on the prosecution. The court further pointed out that the judge also overlooked the fact that there was no positive evidence on which he could have that the statement was an accurate record of what the appellant had said and that the judge disbelieved the appellant's denials about the contents of the statement, cannot in the case, make up for the lack of positive evidence, since there was no legitimate presumption for the appellant to rebut. It may be pointed out that failure by the prosecution to tender the statement of an accused person' before
closing its case is a most undesirable practice and one that should not arise through oversight, if in fact prosecuting counsel make it the practice, as they should, always to tender any statement an accused may have made regards to the offence as a matter of course whether or not such statement was in his favour or against him28. Where a statement by an accused is tendered in evidence and objection made on the ground that it was not made voluntarily the judge first hear evidence on the point from both parties and make a ruling on the admissibility of the document before receiving or rejecting it in evidence29".
One way in which a confession may not be voluntary is by inducement. The inducement necessary to render a confession inadmissible is an inducement to merely make a statement. It need not be an inducement to confess the truth or one which is calculated to make the confession an untrue one30.
An inducement is usually a promise of advantage from confession or a threat of disadvantage from not confessing. The circumstances under which a statement was made may also determine whether not it was voluntary or induced. The inducement
may be by words accompanied by conduct from which the promise or threat can be reasonably being implied31. A confession elicited from an accused person as a result of physical violence inflicted on him or of threat of such violence is involuntary and therefore inadmissible32.
More still, a mere moral adjuration not amounting to a threat or promise does not affect the admissibility of a confession33. Under the common law confessions produced by such statement as "you had better as good boys, tell the truth34 and "Don't run you soul into more sin but tell the truth35 have been admitted because they are mere admonitions on moral or religious grounds.
Also a confession within the meaning of section 27(1) is voluntary and admissible even though it was made out of "juju"36.
An inducement which renders a confession in admissible must be one "having reference to the charge against the accused person". It must relate to the charge and not to other collateral matters. For an inducement to make a confession inadmissible, section 28 stipulates that it must have been held not by a person in authority. If a confession is made after the impression caused by the inducement, threat or promise has, in opinion of the court been fully removed; it is relevant by virtue of section 30.
37. R. V. Voison (1918) I. K.B.531; R.V.Wattam (1952)36. Cr App. R. 72
38. R.V. Richardson (1971) 2 Q.B, 484 (1971)2 All E.R. 77.3, 777
Section 31 provides that a confession, otherwise relevant, does not become irrelevant merely because it was made under a promise of secrecy, or consequence of a deception practiced in the accused person for the purpose of obtaining it, or when he was drunk or because it was made in answer to questions which he need not have answered, whatever may have been the form of these questions or because he was not bound to make such statement and that evidence of it be given.
Section 32 states that confessional statements made in one proceeding may be used in another proceedings subject to the conditions laid down therein.
1.5 THE JUDGE'S RULES AND THEIR APPLICATION IN NIGERIA.
The judges' of the King's Bench Division in England, at the request of the Home Secretary in 1912, formulated some rules, which were enlarged from four to nine in 1918, principally for the guidance of the police in taking statements, including confessional statements from persons in custody especially in the custody of police. These rules were operated up to early 1964 when they were replaced by new Rules made by the judges of the Queen's Bench
Division. These new Rules came into operation on Monday, January 27, 1964. The old Rules were never made applicable to this country (Nigeria) by any legislation but the judges consistently held in favour of their application here as they have held in favour of the new Rules. It should be noted, however, that the Rules are rules of administrative practice, and not rules of law. For the same reason that the Rules are rules of administrative practice, failure to observe any of them in the statement will not necessarily render the statement inadmissible in evidence, albeit it may do so37. The test of admissibility even under the Rules is whether the statement was made voluntarily or not. As the courts in England have pointed out, the courts must take care not to deprive themselves by new artificial rules of practice of the best chances of learning the truth38.
The Rules are as follows:
"You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence". When, after being cautioned a person is being questioned, or elects to make a statement, a record shall be kept of the time and place at which any such questioning or statement began and ended and of the persons present.
However, the fact that an accused person has made a statement in reply to a question put to him by a police officer after he has been taken into custody without the usual caution being first administered to him does not of itself render the statement inadmissible/ although the judge has a discretion to exclude such a statement.
More still, it is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimizing harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement. Before any such questions are put the accused should be cautioned.
or not there has been compliance with the judges rules but depends on whether it is shown that the confession has been made voluntarily.
In Nigeria, the courts have also maintained that confessional statement without caution is admissible provided the confession are voluntarily made43. Also when a suspect or an accused person who has been cautioned is making a statement, there is need to caution him again when he begins to make a confession44. It must be noted that it is not enough to administer caution but that the caution so administered, had been understood by the person to whom it is administered. There is another practice, which has grown up in this country in terms of receiving confessional statements. The practice is the taken of an accused person who has made confessional statement to a superior police officer for confirmation. The practice is not provided for either in the judges' rules or any local legislation. But our courts have described the practice as highly admirable. In R .V. Omerewure Sapele45, Abbott F.J. said: "we consider that this course is eminently fair to such an accused it gives him early opportunity of alleging if he wishes to, before a responsible person, that his statement has been improperly obtained and we d
not think it necessary for any fresh caution to be administered even if corrections are made. We think however, that such an accused ought to be asked to sign or make his mark and corrections".
It must be pointed out that the non-compliance of taken an accused person who has made a confessional statement before a superior police officer does not affect the admissibility of such statement if the statement is freely and voluntarily made. In the case of Ogugu .v. State46, it was held: "The practice of taking a suspect who makes statement to a senior police officer to confirm that the suspect has made the statement freely and voluntarily in accordance with the judges rules is not a rule of law but is commendable precaution for ensuring that enthusiastic junior police officers will not endeavour to be tempted to obtain confessions to secure conviction. Mere failure to accommodate the practice does not affect the efficacy or evidential value of a confession, which a trial court found to be freely and voluntarily made.
Where the court finds that a statement made by an accused person is voluntarily- made such a statement will not be rendered weightless because the accused that made such a statement did not
47. (1995)9 NWLR P+ 421 P. 540 SC
confirm the statement before a superior officer. The case of Ikpo .v. State47 is instructive, it was held in that case: "It is not the law that a true and voluntary confessional statement not read or confirmed before a superior police officer ceases Ipso facto to be true or voluntary confessional statement or that it is thereby rendered weightless or inadmissible.
The only ground for the admissibility of a confessional statement is its voluntariness. Once a statement tendered in evidence is free and voluntary it is admissible. Therefore a confessional statement that is voluntary cannot be excluded because of the non-compliance of the Judges' rules.
It must be noted that, exercising power under section 373(1) of the Criminal Procedure Code, the Chief Justice of the then Northern Region of Nigeria made rules which are essentially similar to the Judges' Rules of England. These are the Criminal Procedure (Statement to Police Officers) Rules 1960 which are now applicable in the eighteen states carried out of the Northern Region. Also section 126 of the Criminal Procedure Code expressly permits the prosecution to put in evidence the record of a confession made in the case diary.
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