CONFESSIONS (Sections 28-32 EA)
S. 28 EA 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.” The word admission is a recurring decimal in this definition. Some scholars like Prof Adesanya have argued that there is no meaningful difference between “admission” and “confession”. Some other scholars like Prof Nokes believe that in “admission”, a part of the offence is what is admitted while in “confession”, the whole offence is admitted. Prof Osipitan (SAN) argues that though the definition of confession includes admission, the two concepts are not on the same level. According to the erudite scholar, “admission” deals mostly with civil cases whereas “confession” is relevant in criminal cases.
It is only when an offence has been committed that one can confess he did it. Thus, wherever there is a confession, it is the best evidence of the commission of the offence by the accused person. For there to be confession, it must be voluntary. S. 29(1) & (2) EA suggests voluntariness. Oppression includes torture, inhuman and degrading treatment and the use or threat to use oppression. The acid test of a confessional statement is whether it was made voluntarily.
Tendering a confessional statement can be challenged by the accused on two grounds: a. denying that the statement was made by him. If this is the case, the confession will still be admitted and the court will decide what value to attach to the statement b. The statement can be challenged on the ground that it was not made voluntarily. For example, the accused could be denied a few things just to make sure he makes the statement. Where the accused is raising this point, he is challenging the voluntariness of the statement. The court can’t admit the statement immediately but must first conduct a mini-trial to determine whether the statement was made voluntarily or not. During such mini-trials, the prosecution has a duty to show the statement was made voluntarily. It is only where the court is satisfied the statement was made voluntarily that the court can admit. Where the court finds that the accused was oppressed, the statement will not be admissible. Please note that there are threats and there are threats. For confession to be inadmissible, the threat must be one of physical as opposed to something metaphysical. Where the threats are things of metaphysical, the confessional statement is admissible.
As noted earlier, an admission made by a counsel representing his client in a civil case is binding on the former. But this is not the case with respect to confessions. In R v Etim Inyang, there was a previous maintenance proceedings where the husband’s lawyer said she couldn’t take a sum because her husband had a wife before. Thus, the man was charged with bigamy. One of the evidences sought to be used was the statement made in the previous proceeding and the court said that the statement was not made by him but by his counsel. This case is to the effect that although admissions made by a client’s counsel are admissible, confessions made by a counsel are not admissible against a party. But what about Limited Liability Companies? When it comes to criminal liability of companies, the rule is that agents and principal officers can make confessions which will bind the company.
Please it is important to state that under sections 27 and 28 of the old EA, if the statement was not made voluntarily, it was not binding. But under section 29 of the new EA, the test of admissibility is not whether it is voluntary; the test is whether it is relevant to any matter in issue before the court. But all those cases decided under sections 27 and 28 old EA are still relevant. S. 29 EA specifically recognizes statements gotten by means of oppression and statements made by the party in such a circumstance as to render the statement unreliable as not being admissible. S. 29(5) EA defines “Oppression” to include torture, inhuman or degrading treatment and the use or threat of violence whether or not amounting to torture. Note that by virtue of the word “include” in that section, the definition is not limited to acts mentioned therein. It may therefore be safe to conclude that a confession will be admitted if it is relevant to any matter before the court and provided there is no ground for excluding such confession. In State v Oloyede, the accused person underwent interrogation at different times for seven days. He was kept in solitary confinement during which no attention was paid to his health which was deteriorating. He became weak both physically and mentally. It was in that condition that he made the confessional statement and was thereafter rushed to the hospital. The court had no difficulty in holding that the statement was obtained as a result of oppression and thereafter inadmissible. In Balogun v A-G., FEDERATION, the accused person was alleged to have committed customs related offences. He was however taken to the State Security Services (SSS) where he was ill-treated and where he also made a statement. The court held that the statement was oppressively obtained. According to Uwaifo JCA (as he then was): “I think it is an oppression for a state security agency to take a suspect or accused into its custody in respect of a matter having nothing to do with the security of the state and insist on statement being made under that condition and in such an atmosphere.”
A statement put forward as confession must admit the confession of the offence in clear terms. It must be direct, positive and unequivocal in the sense of being a full admission of guilt of the offence charged. The statement must be pointing to the commission of the offence; the accused must agree clearly that he committed the offence. He must be confessing to both the mens rea and the actus reus of the offence. If what he is saying is that he took the money but with a reason, it is no confession. In Adeyemi v The State, the accused admitted shooting into the air to scare some robbers who had invaded the estate where he lived and that he was informed later that stray bullets from his gun had killed his neighbour. There was evidence that other neighbours who had guns also shot during the invasion. It was held that the accused was neither positive nor direct in his statement that he killed the deceased. In Afolabi v COP, the appellant who was a shopkeeper was convicted of stealing specific items belonging to his employers. The evidence of the prosecution was that the appellant has been confronted by his employer over shortages in his stock of goods kept in the appellant’s custody. The appellant was alleged to have told his manager in the presence of a co-employee that he had been busy with his election campaign and had taken some goods belonging to his employer and sold them in order to defray his election expenses. He however failed to indicate which of the goods he had taken and how much he sold the goods for. The prosecution nevertheless relied on the statement as a confessional statement. The court held that in so far as the appellant did not specify the goods he had taken and also how much he sold the goods for the alleged confession was neither positive nor direct and consequently not admissible. In Akpan v The State, the appellant had in his statement to the Police admitted that during a scuffle he hit the deceased with an iron rod but the Police failed to call the doctor who performed the post-mortem to testify on the cause of death. The prosecution merely relied on the statement made by the appellant as constituting a confession to the crime charged. The court held that the statement made to the Police did not amount to a confession by the appellant that he murdered the deceased. According to the court, the appellant merely confessed hitting the deceased with the iron rod but he never confessed that he murdered the deceased. See also Gbadamosi v The State which is the authority for the view that for a statement to qualify as a confessional statement the accused who is alleged to have made a statement must admit or agree clearly, precisely and unequivocally in the statement that he committed the offence charged.
A confession must be made by a person charged with a crime. He need not have been taken to court, it is enough if he is merely accused of an offence such that confessions made before taken to court are admissible either at the Police station, Oba’s place, and religious institute etc. The confession must be relevant to the fact in issue. Thus, relevancy determines the admissibility of such confessional statement. Note also that a confession is either inadmissible because it’s unreliable or because it was obtained by means of oppression. Oppression could also be by use of threat or the actual application of the threat. Any other thing that makes a thing involuntary under the old law can come under the idea of oppression. We could have instances where a person (who poses no threat to security) during investigation is thrown in chains or handcuffs, this could also be a form of oppression. There could also be oppression as a result of deception or drunkenness, the confession is admissible provided the substance has not driven him to insanity. Where there is a confessional statement as a result of deception, the statement is admissible. But one obtained by inducement is not admissible. The inducement need not be the one which makes the accused to speak the truth; it is sufficient if it is one which makes him to say anything. In R v Viapong, the Investigating Police Officer (IPO) had cautioned the accused as follows: “You should bear in mind that any statement you make shall be written down by me and taken before the court so that it may be your evidence”. It was held that this was an inducement because the accused was being made to believe that the only way he could avoid the evil of being condemned without any hearing was to say something. See also R v Kwachbo. Note that the law draws a line between inducement and moral adjuration, that is, an appeal to religious sentiments and traditional beliefs. A confession made as a result of such moral adjuration will be admissible. In Fatumani v The King, the accused was arrested and brought before the village head who told him not to put fellow suspects into trouble and that he should confess if he was thereafter responsible for the crime. The accused thereafter admitted that he committed the crime. During the trial he challenged the voluntariness of the statement on the ground that he was induced into making the statement. It was held that the statement was made as a result of moral adjuration and therefore admissible. In the case of R v Reeve, a confessional statement was made as a result of the following plea: “Don’t run your soul into more sin but tell the truth.” It was held that this was a mere moral adjuration and consequently the statement was admissible. Note also that statements made as a result of threat to the accused person will not be admissible provided the threat is of a temporal nature as opposed to one of metaphysical nature. It could be a threat of imprisonment or detention or violence or detriment which the accused person will suffer. In R v Smith, an army officer investigating a murder case had threatened all the suspects that none of them would leave the parade ground unless the culprit confessed. The accused thereafter confessed. It was held that the statement made by the accused person as a result of the threat was inadmissible. Similarly, in R v Baba Haske, a village head had threatened the suspect that if they failed to confess their involvement in the crime, they would be jailed. One of the suspects thereafter confessed his involvement in the crime. It was held that the statement was preceded by a threat and therefore inadmissible. Note however that where the threat was of a metaphysical nature, a confession made as a result of such threat would nevertheless be admissible. In R v Eka, during the investigation of a crime the local chief invited eighteen of the suspects for further interrogation. During the further investigation, juju was invoked in the belief that whoever committed the crime would subsequently go mad and die. Eleven months after the invocation of juju, the accused went to the local chief and confessed he was responsible for the crime. During the trial, he challenged the voluntariness of the confessional statement on the ground that it was made as a result of threat of juju. It was held that the threat was of a metaphysical nature and was therefore admissible. In other words, his belief in juju was indirectly held as being unreasonable.
Ultimately, it is important to state that where there are two or more accused persons and one of them has made a confessional statement implicating all of them, the law is that the confession would only be binding on the person who made the confession and would not bind the other(s) unless such other people have expressly or impliedly adopted that statement (BASSEY v THE STATE; OZAKI v THE STATE).