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14 Jan

EVIDENCE 1.9 ADMISSIONS AND CONFESSION

ADMISSIONS AND CONFESSIONS.

ADMISSIONS.

Admission may be formal or informal. Formal is when it is contained in processes filed in Court while informal includes oral and written admission. EA 2011 now recognises admission by conduct. See Section 23.

Definition of an admission: Section 20 EA provides that an admission is a statement, oral or documentary or conduct which suggests any inferences as to any fact in issue or relevant fact

N.A.S. Limited V UBA Plc; it is an acknowledgement by a party that one of the material facts relevant to the issue is not as he claims it to be. PAIS V JK PEEZ Co Ltd; a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claim. In Coker V Olukoga and Ogunnaike V Ojayemi, the court noted that an admission is adverse to the claim of the party making it.

Also, facts which has not been categorically countered or denied by a party is deemed admitted-Efet V INEC. In Akalonu V Omokaro the court noted that when evidence is not disputed or unchallenged it should be accepted. Although the trial court would still have to evaluate it-Gonzee Nigeria Ltd V NERDC

An admitted fact needs no further proof-Section 123 EA. But this does not mean that it is conclusive or that the party in whose favour the admission is made does not need to lead concrete evidence to prove his claims or that the court would automatically enter judgment in his favour-Akiniwo V Nsirim.

An admission does not constitute conclusive evidence but may operate as estoppel against the admitter-Section 27. Rebuttals can be made-Anamson V Farms Ltd, Nwankwo V Nwankwo. In Ehidimhen V Musa, the court noted that the party that made the admission may be estopped from asserting a contrary position especially when the admission has made another person to change his position and it would be unjust to allow the person who made the admission to make a contrary assertion/declaration. Same point was reiterated in Insurance Brokers Limited V Atlantic Textiles Ltd and Onamade V ACB.

They say, silence is golden but the problem is; silence may also amount to consent/admission. This is where admission by conduct mitigates against the rule that silence is golden. This is an introduction by the 2011 Act which provides for admission by conduct. It all depends on the facts of each case.

As was noted in Gira V State where a clear and direct accusation is made against a person, in his presence, in the circumstances which should warrant an instant denial, refutation or protestation and he makes neither, evidence of such could be given against him. For example; In Daniel Akinbiyi V Raliatu Anike, the defendant claimed that the plaintiff had detained her goods. She tendered an inventory to this effect during the proceedings and the plaintiff did not object nor did he cross examine the defendant on the accuracy. The construed this to hold that the defendant admitted to the detention of the goods. Furthermore, in Moriarthy V London Chathan Rly, in a claim for damages for injury sustained in railway accident, the plaintiff procured someone to lie on oath. The court held that by calling someone to lie on his behalf, he admitted to having a bad case.

In Bassela V Stern, the plaintiff sued the defendant for breach of promise to marry. It was adduced that he gave her money in order to lure her away. The construed this act as an admission. As he ought to have disputed the promise rather than giving her money. However, in Weidman V Walpole, the defendant failed to reply certain letters. Sued him for breach of contract to marry. Held that the letters were merely social. In Oloko V Oloko, the petitioner did not furnish a reply or respond to the allegation of adultery levied against him. Held that it amounted to an admission.

To be binding, an admission must be precise, clear and unequivocally expressing the mind of the admitter-Coker V Olukoga. Admission must be in relation to the facts in issue linked to the reliefs claimed by one of the parties to a case-Victabio Ventures Ltd V W. Vander Zwan and ZNB (2009) ALL FWLR (Pt. 490) P.754, Oyetunji V Akani. In Buhari V INEC, the court noted that not words in isolation but the whole paragraph would be considered and the court should be without doubt as to the fact admitted-Ngige V Obi.

If the admission is on pleading, the entire pleading document should be looked at to see whether it was the true intention of the party to admit-Mobil V Asuah.

In NNPC V Clifco, the court noted that where both parties have agreed on a fact in issue, no further proof of such fact is necessary as it is no longer an issue between them.

Who can make admissions?

Section 20 EA (now 21):

The parties, their Agents, representatives, predecessors in title, persons with pecuniary interest. Such admissions are binding on the principal. Unlike confession which requires the accused himself to personally make the confession. In Okonkwo V Kpajie, the court recognised the ability of the client’s counsel to make admissions that would bound him… being the mouthpiece and agent.-see Section 21(1), 22 and 23 EA. Provided that such admission is clear and unambiguous-Okuseji V Lawal.

In Cappa and D’alberto Ltd V Akintilo, the counsel’s offer to pay compensation (29,568.17kobo) was held to be an admission of liability binding on the client.

Adisa V Efuye, where the court held that admission of liability made by the driver of a vehicle that was acting within course of employment would be binding on the employer/vehicle owner. Admission by a partner would bind a co-partner. In Oyedele V Oyename, admission by the driver that he drove with a defective brake was binding on the defendant. See also AG Fed V A.I.C Limited (1995) 2 SCNJ 113.

Admissions of manager was held to be binding on the Bank in Simons V London Bank. Directors too in the course of business can bind the company.

In Iga V Amakiri, admission by head of family in his representative character was binding on the other family members he represents. Section 21(1 and 2) admission by keith and kin of claimant of disputed land adverse to his interest is admissible against him.

Statements made by a party’s witness which is adverse to him is binding provided the party and the witness have the same interest-Prince E.O Morohunfade V Prince S.A Adeoti, where his grandson asserted that the Oyo (adverse section) Section is also embraced by the said ruling house. This was binding on the grandfather. Leric Nig Ltd V UBN Ltd (2000) 12 SCJN 184 at 203.

Section 23: where the party refers the demander to another person for information, the info gotten is binding on him-Williams V Innes where the defendants referred the plaintiff to another person for information on the assets of the deceased testator. The information supplied by the referee amounted to an admission against the defendants. In R V Mallory, the accused referred the police investigating officer to his wife and the wife showed the officer where the goods are. Held that it amounted to an admission that the accused was actually in possession of the goods.

Admissions made by parties in out-of-court-settlement may not be admitted-Section 26.

Admission under civil Islamic Law: very similar to that under the Act. As was explained in Salai V Dagola that it is a binding declaration by the maker in favour of another which must be clear, unambiguous and freely made.

CONFESSIONS.

Our adversary system makes the judge an impartial umpire who must not descend into the arena of conflict. Except in justified instances like where the prosecution tries to rely on involuntary confessions.

Confession has great evidential value and may secure the success of a prosecution’s case. This is why it is highly sought after by means or crook.

What is a confession?

Section 28 defines it as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. Same definition adopted by Katsina Alu JSC in Ubierho V State.

NATURE:

Confession must be made by the accused and no other: confession cannot be by proxy… nor should it be made on behalf of another-R V Inyang.

A confession may be oral[1] or written[2]. Both have equal weight depending on the court’s assessment-Okeke V State. In Nwosu V State and Nwachukwu V State, the court also noted that both oral and written confessions have the same potency.

If the accused admits to committing a crime but has a defence, then it is not a confession-Uwakweghinya V State. The accused must admit the confession of the offence in clear, direct, positive and unequivocal terms. He should not admit and give a reason/defence. There should be full admission of guilt of the offence chargedGbadamosi V The State, Afolabi V COP. In Adeyemi V The State, there was a robbery incident and shooting everywhere. A neighbour died. The accused admitted shooting into the air to scare robbers and noted that other neighbours shot too. It was held that this is NOT a confession to killing the deceased. In Uwakeghinya V State the appellant narrated to the police how the deceased hadd attacked him and how he had killed the deceased. Held that it did not amount to a confession because it was qualified with a defence/explanation. In Buba V State, the defendant described how the deceased met her death but nowhere therein admitted to killing her.

Where a defendant in a joint trial made the confession in the presence of a co-defendant who remains silent, the court would not use it against the silent co-defendant even if it implicates him unless he adopts it by words or conduct-Section 29(4) EA.

VOLUNTARINESS is a condition precedent to the admissibility of confessional statement. In Lam Chi Ming V R, the court noted that the rationale behind voluntariness is because of the unreliability of involuntary confessions. It further noted that a man should not be compelled to incriminate himself. In R V Mustaq, same position was taken.

The accused may challenge a confessional statement on the ground that

  • He did not make/authorise/draft/sign/assent to the confessional statement or that it was incorrectly recorded: in such a case, the court would admit the confession and decide what weight to attach to it-Shittu V The State, Nsofor V State, Ogudo V State
  • It was not voluntarily given: This would render the statement inadmissible. The court must then conduct a “mini trial[3]” to determine the voluntariness of the confession. The prosecution has to prove that the confession was given voluntarily-Dawa V State. The court may then decide that it was given voluntarily (in such case, it admits the confession and continues with the main case) or that it was involuntary (in such case, the confession is rejected)-Saidu V State, Ekpo V State. If the defendant had made more than one confessional statement to the police and he objects to both of them, a trial within trial should be conducted separately for each of them and not be lumped together in one mini trial-Durogo V State.

The trial within trial is to determine the admissibility and voluntariness of the confessional statement and not to look into its truthfulness or falsity-Adeyemi V State it was noted that it is to determine the veracity of the allegation of the accused as to whether the statement to the police was involuntarily made or not rather than whether the statement is true or false. In Jimoh V State, the court noted that the trial within trial is a mini trial within the context of the main trial and temporarily suspends the main trial until the voluntariness of the confessional statement is determined. The prosecution should start by adducing evidence of voluntariness. If the defendant denies making the confession during the trial within trial, the trial within trial should be stopped and the statement ordered admitted… Then the court would decide what weight to attach to it. In State V Jimoh, the accused noted that the confessional statements were not made voluntarily. A trial within trial was ordered and during the trial within trial, he claimed that he never made the statements. Similar thing happened in Jimoh Salawu V State.

Such objection must be raised during the time the statement is sought to be tendered in evidence.

Admissibility of confession under the EA.

The evidence Act requires that confessions must be voluntary. (Section 27 OEA) This Act fails to define Voluntariness.

Section 28 of the Old Evidence Act has now been replaced by Section 29 EA 2011. From the interpretation of Section 29 (1)(2)(3) and (5) confession made by oppression or other will sapping devise would be rendered unreliable and the prosecution must satisfy the court that the confession was voluntarily made.

Sub 5 provides that oppression includes torture, inhuman or degrading treatment and the use or threat of violence whether or not amounting to torture. In R V Priestly, the court noted that whether or not there is oppression is a question of the facts and circumstances of the case. Looking at the length of time, nature of accused (what may be oppressive to a child may not be oppressive to a person of tough character), facts and circumstances of the case.

Section 29 EA 2011 does not re-enact the word “inducement” (as used in the former act) therefore, it appears that inducement would no longer be a vitiating factor. Similarly, Section 31 EA 2011 provides that a relevant confession does not become irrelevant mainly because it was made under a promise of secrecy, or in consequence of a deception practiced on the defendant for the purpose of obtaining it or when he was drunk or that he was not warned that he is not bound to make such statement.

It can be construed by the combined interpretation of Section 29 and 31 EA 2011, inducement, trickery, drunkenness, absence of prior notice… have been removed from the list of vitiating factors.

Confession made as a result of oppression or threat are inadmissible. (The new Evidence Act provides that such threat need no longer be from a person in authority), etc-Section 28 EA now Section 29 EA 2011.

Confessions made as a result of Promises[4] of one benefit or the other (R V Viapbong), coercion and violence like rubbing red pepper into suspect’s eyes[5], tear gassing cells, insertion of broom stick into urethra of suspect’s penis, denying accused water for three days[6], solitary confinement without food[7], taking accused to SSS for offences not touching on state security[8] and so on are inadmissible. Sachs J in R V Priestley notes that oppressive actions which sap the freewill of the accused make such confessions involuntary.

“Torture” was defined as the infliction of intense pain to the body or mind to punish, to extract a confession or information or obtain a sadistic pleasure-Black’s Law Dictionary.

In A V Secretary of State, the court held that torture is prohibited even for cases of terrorism.

In Banjo V State, the defendant was suspended in the air on a fan hanger and beaten with sticks, cutlass and wire… the prosecution brought him down and hit his head against the wall… to which he eventually capitulated and confessed to having committed the offence. The trial-within trial revealed that he sustained injuries on his head, left arm and left leg. The confession was held to be inadmissible. In State V Olashehu Salawu, the defendant was arrested in Lagos and taken to Illorin on allegation of assassination of SSS men. Then transferred to Abuja and subjected to inhuman treatment as a result of which he spent two months in the hospital. Then taken to the torture chamber where he confessed under torture. Failure of the prosecution to give rebuttal/call the two police officers mentioned in the saga was fatal to its case… such evidence not produced deemed unfavourable to the case of the appellant who withheld it. In Amacree V Nigerian Army the court held that clamping of chains around the defendant’s legs when he was being interrogated and when he was making the confession amounted to oppression. Burnt V Police Prosecutor wearing suspects hoods and menacles during interrogations amounted to oppression. In R V Emmerson, the court noted that the police or interrogator could raise his voice where the person being interrogated is tough. This was also okayed in R V L provided it is not heavy and does not amount to verbal bullying even if the counsel is around-R V Paris. In Horvath V R, a confessional statement from a 17 year old lad who was hypnotised before he allegedly confessed after prolonged questioning amounted to oppression.

Those made as a result of moral adjuration are admissible-R V Sleeman “don’t run yourself into more sins… then the accused confessed. Admitted. Also “…tell the truth… if you killed say so”-R V Eka Ebong (1942) 12 WACA 139.

Those made as a result of threat from Juju or witchcraft are also admissible. As in R V Nwaoke, the court noted that it is unreasonable to rely on witchcraft. Same point reiterated in R V Gadam.

If the confession was made after the threat or inducement has ceased to have effect on the accused, the statement would be admissible-Section 30.

In 1912, Judges’ Rules were formulated by the Judges of the King’s Bench Division. Required certain actions/steps to be taken in relation to confessions. Like the duty to caution the suspect before further interrogation/questioning where it intends to take him to court (what you say may be used as evidence…). The suspect can write his statement or have a police write exactly according to his dictation and read it over to him after which it shall be signed…. Etc. these rules sought to ensure due process in the extraction of confession.

The Nigerian Police has also introduced a “standard form” which contains questions like whether the accused has been cautioned by the person who arrested him and whether the accused understood and made the statement after the caution. Whether the statement was voluntarily made and read over and interpreted to him and attested by him (the accused) and the interpreter? And many other questions…

These judges rules and police standard form are merely rules of administrative practice and lack the force of law and non-compliance would not make the confession inadmissible-Ojegele V The State but compliance would make the judge feel more confident in admitting such statement. In Adamu V AG Bendel State (1986) NWLR p.286, the Court was displeased that the Police form was not followed.

Section 35 (2) of the 1999 Constitution provides that we have the right to remain silent until after consultation with a legal practitioner or other person of his choice. This is meant to prevent any form of intimidation. The problem is that guilt may be inferred from silence especially where the silence is in the fact of a serious offence-Daniel Sugh V The State (1988) 2 NWLR Pt 77 p 475. The Resolution of the General Assembly also prohibits the use of violence, threats or other voluntariness impairing strategy on a detained.

Section 34 of the 1999 Constitution maintains the right of dignity of human person and prohibits infliction of torture, inhuman and degrading treatment.

The Administration of Criminal Justice Law of Lagos State 2007 restates the constitutional right to remain silent. Counsel must be informed of his right to a counsel of his choice before making any statement-Section 3(2). Section 9(3) of the Law mandates that statements must be taken in the presence of the accused person’s counsel in video recording. The law fails to stipulate the effect of non-compliance tho.

Would hearsay be admissible?

May be admissible. As in Nwachukwu V State, the court noted that admission made by a person if over-heard by someone else may be received in evidence. It is left to the court to determine what weight to attach to it. In Arogundade V State, the witness gave evidence that the appellant had confessed to the crime to him. This was admitted. Although if it was made in vernacular, and translated to English, the interpreter would need to be in court to attest to the veracity-Bello V State.

Confession through interpreters: where a confession was made by a defendant to the police through an interpreter, such statement is inadmissible unless the interpreter (alongside the person who wrote the statement down) is called as a witness in the court to confirm the veracity-Olalekan V State. Same point was reiterated in FRN V Usman where the Hausa language confession was translated to English Language. Since the interpreter was not present in the court, the court held that it amounted to hearsay… The police officer who recorded the statement and the interpreter must testify else the statement would amount to hearsay which is inadmissible.

Veracity and assessment of confessions.

Where there is no vitiating factor, a confession can secure a conviction. Normally the courts would look at circumstances which may make it probable that the confessional statement is true. Looking at whether the statement is corroborated, whether the facts are contained therein, whether the confession is true-Ogudo V State, whether it was correctly recorded and other facts and circumstances of the case.

[1]            Also called “judicial”. It is made while testifying in court

[2]            Also called extrajudicial. Written statements to the police or other law enforcement agencies at the stage of investigation.

[3]            A “trial within a trial”-Eke V State.

[4]            Note however that the new position is that inducement and promise no longer constitute a vitiating element

[5]            C.O.P V Aigbama.

[6]            State V Stanley Famous.

[7]            State V Oloyede (1973) ESCLR p1.

[8]            Balogun V AG Fed.

Isochukwu

Quite eccentric really

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