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SIX TESTS CONFESSIONAL STATEMENT MUST PASS IF RETRACTED

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Where a confessional statement is retracted as in this case, the Court then shall decide the weight it would attach to the confessional statement. The best way to go about it is by subjecting the confession to the underlisted six tests, namely: (a) Is there anything outside the confession to show that it is true? (b) Is the confessional statement corroborated (c) Are the statements made in it of facts and so far as we can test them, true? (d) Is the accused person a person who had the opportunity of committing the offence (e) Is his confession possible? (f) Is it consistent with other facts which have been ascertained and which have been proved at the trial See Kareem v FRN (2003) 16 WRN 114; Kolawole v State (2015) EJSC (Vol.3) 41; Dibie v State (2007) 1 ALL FWLR (pt.363) 83; Ejinima v State (1991) 5 LRCN 1640; Bature v State (1994)1 NWLR (pt.320) 267.

— Amiru Sanusi, JSC. Ogunleye Tobi v The State (2019) – SC.714/2017

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FAILURE TO USE VIDEO RECORDING DURING RECORDING CONFESSIONAL STATEMENT

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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CONFESSION IS RELEVANT WHEN IT PROVES FACT

The vital consideration that should engage the mind of a trial Judge is the relevancy of the confession. A confession is relevant when it proves the fact that constitutes one of, or all, the elements of the crime to be proved, and/or identifies the person who committed the offence. If the confession is relevant and is free and voluntary, it is admissible in evidence and once admitted, the weight to be attached depends on its probative value and pure truth content.

– Sankey JCA. Abdul v. State (2021)

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TEST TO PROVE CONFESSIONAL STATEMENT

The tests for determining the voluntariness of a confessional statement have been consistently applied by this Court in a plethora of cases as follows: (1) Whether there is anything outside the confession to show that it is true. (2) Whether the statement is corroborated, no matter how slight (3) Whether the facts contained therein, so far as can be tested, are true. (4) Whether the accused person had the opportunity of committing the offence. (5) Whether the confession of the accused person was possible. (6) Whether the confession was consistent with other facts which have been ascertained and proved in the matter.

– J.I. Okoro JSC. Berende v. FRN (2021)

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ADMISSIBILITY OF A CONFESSIONAL STATEMENT

Olalekan v. State (2001) LPELR-2561(SC) 4, 50-51, F-A, where Onu, J.S.C. held as follows: “This Court has held times without number that the statement of an accused is not inadmissible merely because it is taken down in a different language from the language of the person making it. See Queen v. Baba Haske (1961) 1 All NLR 330 at 333.” (Emphasis supplied).

At page 37, A-C of the same Report, Karibi-Whyte, J.S.C. also stated as follows: “The general proposition is well settled that where an interpreter has been used in the recording of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down.”

Again, at pages 55-57 of the same Report, Uwaifo, J.S.C. made his findings in extension as follows: “I have read the reasons given by my learned brother Ogundare, J.S.C. for dismissing this appeal on 20 September, 2001. I wish however, to express my views briefly on whether Exhibit A was properly admitted at the trial. Sgt Linus Patricks (PW6) was the officer who recorded the statement of the appellant. The appellant spoke in Yoruba language and PW6, acting through an interpreter, Aremu Adeosun (PE3), recorded the statement in English language. That was how Exhibit A, the said statement, came into existence. Now, PW3 testified that he interpreted between PW6 and the Appellant. Thereafter, he read the statement as written in English language by interpreting it to the Appellant who agreed that it was correctly recorded. He said the Appellant thumb-printed Exhibit A and he, the interpreter, signed it, as did PW6, the recorder of the statement… At the trial Court, no objection was taken to the voluntariness of the statement, or any other objection at all… The objection now taken in this Court is that the statement (Exhibit A) is hearsay evidence… With the greatest respect, what I understand the authorities in this country to establish is that where an interpreter has been used in taking down a statement, both the person who wrote down the statement and the person who interpreted it must be called as witnesses. In the case of the person who recorded the statement, he would, of course, state in evidence the procedure he took in the process. That was done in the present case. As for the person who interpreted, he would need to be presented as a witness to testify that he interpreted. It is then open to the defence to cross-examine them… I am therefore satisfied that the prosecution called the necessary witnesses who gave sufficient evidence in the present case to make Exhibit A admissible… The objection that it was hearsay is not well founded and I overrule it.”

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RETRACTED CONFESSIONAL STATEMENT MUST PASS THESE TESTS

In other words, the retracted confession must pass the six credibility tests forming part of our criminal jurisprudence which have been established in a long fine of cases referred to above. These are: i. Is there anything outside the confession to show that it is true? ii. Is it corroborated? iii. Are the relevant statements made in it of facts true as far as they can be tested? iv. Was the accused one who had the opportunity of committing murder? v. Is his confession possible? vi. Is it consistent with other facts which have been ascertained and have been proved?

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

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CONVICTION CAN BE FOUNDED ON RETRACTED CONFESSIONAL STATEMENT

The law is trite that a conviction can be found on a retracted confessional statement of an accused person once it is voluntary, positive and true. Where an accused person objects to the tendering of his confessional statement on the ground that he did not make it, the confession will be admitted and the question as to whether he made it or not will be decided at the end of the trial, since the issue of its voluntariness does not arise for consideration. See: Dibia v. State (2017) LPELR 48453 SC.

— Abdu Aboki, JSC. Abdulrahim Usman v. The State (SC.61C/2019, Friday May 06, 2022)

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