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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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CONFESSIONAL STATEMENTS ARE TO BE SUBJECT TO SIX TESTS

However, in multiplicity of judicial authorities of this Court, it has been decided that before relying solely on confessional statement to convict an accused or in the process of evaluation of same, trial Courts are desired to subject the confessional statement to the following six tests; namely (a) Is there anything outside the confession to show that it is true? (b) Is it corroborated (c) Are the relevant statements made on it in fact true as they can be tested? (d) Was the accused one who had the opportunity of committing the offence? (e) Is the confession possible; and (f) Is it consistent with the other facts which have been ascertained and have been proved? Once a confessional statement is subjected to these six tests, this Court has held that same can be safely relied upon to ground a conviction. See Musa V State (2013) 2-3 SC (pt.II) 75 at 94; Nwachukwu vs The State (2007)7 SCM (pt.2) 447 at 455; Ikpo v State (1995)9 NWLR (pt.421)540 at 554.

— A. Sanusi, JSC. Bassey v State (2019) – SC.900/2016

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CONFESSIONAL STATEMENT IS THE BEST EVIDENCE IN NIGERIA CRIMINAL LAW

I entirely agree with the contention of the Respondent’s counsel that the nature of the corroborative evidence required does not need to be direct evidence linking the Defendant to the commission of the offence. Circumstantial evidence is sufficient, particularly where it leads to no other conclusion than the guilt of the Defendant. I agree with the Respondent’s counsel that a confessional statement is the best evidence in Nigerian criminal jurisprudence as it is direct evidence by the perpetrator giving the reasons for and how the offence was committed. So long as it is voluntary and it is a direct and positive admission of guilt, it can be used to convict even where it has been retracted.

– Ogunwumiju JSC. Junaidu v. State (2021)

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ACCUSED CAN BE CONVICTED ON HIS CONFESSION

The law is trite that an accused person can be convicted solely on his confession if the confession is positive and direct in the admission of the offence charged. In other words, voluntary confession of guilt whether judicial or extra judicial, if it is direct and positive is sufficient proof of the guilt and is enough to sustain a conviction, so long as the Court is satisfied with the truth of such a confession.

– Abdu Aboki, JSC. Chukwu v. State (2021)

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CASES IN SUPPORT OF DEATH PENALTY

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

✓ In Mbushuu and another v. The Republic (Criminal Appeal No. 142 of 1994; 30th January, 1995), the Tanzanian Court of Appeal held that although the death –penalty is a form of “cruel, inhuman and degrading treatment,” it affirmed that it was nonetheless constitutionally permissible, having regard to the qualified nature of the right to life as entrenched in the Tanzanian Constitution. The right to life in their Constitution was neither absolute nor unqualified. It was, as in section 30(1) of our Constitution, qualified.

✓ In the Zimbabwean Supreme Court case of Catholic Commission for Justice and Peace, in Zimbabwe v. Attorney-General, Zimbabwe and other (1993) (4) SA 239 in which Gubbay, C.J. delivering the judgment of the court with which Me Nally, Korsah, Ebrahim and Muchechetere JJ.A were in full agreement impliedly adopted the position that the right to life under their Constitution was qualified and thus upheld the constitutional validity of the death penalty in Zimbabwe. Said the learned Chief Justice: “It was not sought, nor could it reasonably be, to overturn the death sentences on the ground that they were unlawfully imposed. The judgments of this court dismissing the appeals of the condemned prisoners cannot be disturbed. They are final. And the constitutionality of the death penalty, per se, as well as the mode of its execution by hanging, are also not susceptible of attack.”
However, on the crucial issue of whether even though the death sentences had been properly passed, supervening events had not been established to constitute the execution of the convicts inhuman or degrading treatment, in violation of section 15(1) of the Zimbabwean Constitution on account of prolonged and excessive delay, the court, on the peculiar facts of the case resolved the same in favour of the convicts.

✓ In Bacan Singh v. State of Punjab (1983) (2) SCR 583, the constitutionality of Article 21 of the Indian Constitution came into question before the Supreme Court of India. In a well considered judgment, that court ruled, and quite rightly in my view, that the right to life entrenched in their Constitution was qualified and that in the circumstance, the death penalty was constitutionally valid. In conclusion, the court observed: “By no stretch of the imagination can it be said that the death penalty either per se or because of its execution by hanging constitutes an unreasonable, cruel or unusual punishment prohibited by the Constitution.”

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CONFESSIONAL STATEMENT CAN GROUND THE CONVICTION OF AN ACCUSED

It is now axiomatic that a confessional statement can ground the conviction of an accused person provided that it is direct and positive. It is therefore no longer debatable that a man may be convicted on his confessional statement alone which is voluntary, free, positive, so long as the Court is satisfied of its truth. Such a confession would constitute proof of guilt of the maker and suffices as evidence upon which to ground or sustain his conviction.

– Abdu Aboki, JSC. Chukwu v. State (2021)

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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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