some statements are made under  excruciating pain, when the accused would be glad to confess anything to obtain momentary relief from torment.  Investigation shows that  most of the statements or confession brought before the court during trial are obtained by duress or artifice and some statements before the court are forced from an unwilling accused, which raise the questions of their inadmissibility or acceptance. 

Duress is defined as forcible restraint, unlawful constraint occasioning threat, intimidation, harassment etc.

A statement made or signed under duress is not voluntarily given as the content of such  statement will be put to test in a mini trial ordered by the court to determine the voluntariness of the statement.

However, the  accused/defendant counsel will oppose the admittance of the statement in evidence on the ground of involuntariness, that it was not freely given.

Where an accused person states that he or she actually made a statement and he/she did so on the basis of force, intimidation, torture or inducement, the court usually adopt a procedure known as trial within trial (mini trial) to test the veracity or otherwise of the supposed statement as it is provided for in the Evidence Act 2011 wherein same will be conducted in the course of the substantive proceedings (main trial) which will be suspended until the conclusion of the mini trial.

This is done by availing the parties the opportunity of calling witnesses in proof of their assertions and the trial Judge deliver a ruling on same after taking addresses from counsel.

The purpose of trial within trial is to aid the Court in determining whether or not the statement was voluntary or involuntary while the trial Judge weigh the evidence adduced by the defence and the prosecution on whether the statement was voluntarily made or not.

If in the court opinion the statement in question was voluntarily made, the  court will admit it but if the trial Judge finds that it was not voluntarily made or obtained, it will reject such statement and mark it so in it’s ruling then proceed with the substantive trial i.e the main trial.

No court will admit a statement it finds to be made under duress but it’s not a forward issue.

When we say a statement was made under duress, we must be able to prove it to the court. In a criminal matter like a confessional statement, in the law that governs admissibility of evidence and documents in the Evidence Act, Part three of it which has to do with Sections 14-36 regulates admissibility of documents.

A document that is ordinarily relevant is admissible in law but when we now say something is made under duress, there is an exemption. What the law has to do is to be sure that the confession was made voluntarily not under coercion. It is not a matter of just checking it, it must be proved. That is why even someone raise it as an objection at a point of wanting to tender it as an exhibit, the person who object it admissibility before the court could believe that it was not made under duress, the court has to be sure before it could be admitted as an evidence.

If the court is not satisfied that the confession is not made voluntarily, the court will mark it rejected and vice-versa.

Confessional statement of any person standing criminal trial is the best evidence that can ever be produced by the prosecution. However, there are certain  established conditions for the admissibility of a confessional statement in evidence as exhibit. These conditions were emphasized in the recent case of ALIYU v. STATE

(2021) LPELR-55002(SC) where the Supreme Court ruled that:

“When it comes to admissibility and reliance on confessional statement to ground conviction, the Court must be satisfied that the statement was freely and voluntarily made. This is in line with the provisions of section 29 of the Evidence Act, 2011 (as amended).

It therefore follows that  the test for the admissibility of a confessional statement before a Court of law is its involuntariness and once the issue is raised it must be resolved before its admission.

In the final analysis, a confessional statement found to be made involuntarily or induced by any promise,  oppression of the defendant, or made in consequence of anything said or done to the defendant which was likely to render the confession unreliable, is inadmissible.

So, a Court cannot admit a statement made under duress.

Generally speaking, a statement made under duress is not admissible in court. Where a defendant alleged that his extra judicial statement was made under duress. However the onus is on the prosecution counsel to proof beyond reasonable doubt  that the defendant statement was obtained under caution and  without duress.

Let us reproduce  section 27  and 29 of Evidence Act 2011  admission are not conclusive proof of the matters admitted but they may operate as estoppel under part X.

1. In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
2. If any proceeding, where the prosecution proposes to give in evidence a confession made by a defendant, if is represented to the court that the confession was or may have been obtained- ( a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence,

The court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.

For instance in Osetola v. State ( 2012) 17 NWLR p.  251 (SC).  The court either the way to discharge the burden that an earlier confessional statement made under duress or incorrect by an accused person is by calling evidence during trial within trial.

If a statement is obtained under duress but not confessional, it would be admissible regardless.  It is worthy of note to state that just as relevance governs admissibility the Evidence Act, 2011 guides the admissibility of extrajudicial statements in any criminal trial in Nigeria. In defining what a confession means, Section 28 of the Evidence Act (EA) provides that “A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”.  This suggests that if the statement does not infer that the maker committed the crime, it is not confessional and it is not protected by section 29 of the Evidence Act.

What happens to a confessional statement made under duress? The Evidence Act in section 29 (2) provides thus “If in any proceeding where the prosecution proposes to give in evidence a confessional statement made by a defendant it is represented to the court that the confession was or may have been obtained –

(a) by oppression of the person who made it, or

(b) in consequence of anything said or done which was likely in the circumstances existing at the time to render unreliable any confession which might be made by him in such consequence, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section”.

What this suggests is that where the statement of a defendant is about to be tendered against him in trial by the prosecution and the defendant, through his legal representation objects to the statement for being obtained under duress, the court has an obligation to make the prosecution prove that the said statement was not obtained in any manner contrary to the wordings of the Evidence Act, in other words, that it was not obtained under duress.

Once such objection has been raised, the court would proceed to “Trial within Trial” (TWT). What this means is that a mini trial would be set up (during the main criminal) immediately for the sole purpose of the prosecution proving that the statement was not obtained under duress. The defendant would establish also during this TWT that the statement was so obtained. After the TWT the court would deliver judgement for the TWT. If the prosecution proves their case in the Trial Within Trial beyond reasonable doubt, the statement would be admitted in evidence and if not, the statement would be marked rejected.

In respect of this, there are criteria of cases that any confessional statement that is actually obtained under duress, according to the Evidence Act such statement is not admissible.

What the court normally do is that, the court will conduct trial within trail to actually confirmed whether such a statement was obtained by coercion or under duress.

So if the prosecution could be able to establish that the statement obtained from the defendant or accused was given voluntarily, the court will admit it. There will be a ruling on that particular proceeding that is trial within trial before the court will now go on with the substantive trial.

Generally, statement made at the police station can be categorised into two; they are voluntary and involuntary statements. This is because statements that are categorised as involuntarily made, therefore cannot be admitted in the court, this is so because there is the presumption that it is against wish of the person given the statement and cannot be a statement of truth.

Basically, duress means threats, violence, constraints, or other action used to coerce someone into doing something against their will or better judgement and it is a violation of fundamental right to freedom, right to expression/ freedom of speech. The circumstances in which a statement was made may also determine whether it was voluntary or induced. The inducement may be by words accompanied by conduct from which the promise or threat can reasonably be implied.

One way in which a confession may not be voluntary is to extract it by inducement, threat or promise. This inducement will certainly render the confession inadmissible. This is just an inducement to merely make a statement and not to really confess the truth or one which is calculated to deceive and to make the confession an untrue one.

An inducement which renders a confession inadmissible must be one having reference or bearing to the issue against the defendant (accused) before the court. It must be related to the charge and not to other matters.

Here are a few examples of the many ways that confessions can be obtained through duress:

• Excessively long periods of interrogation without breaks
• Depriving the suspect of sleep, food or water until a confession is provided
• Threats of violence against the suspect if no confession is made
• Actual violence carried out against the suspect for a lack of a confession
• Other threats of harmful action to be taken against the suspect or his or her loved ones.

In sum, if there was any doubt as to the voluntary character of a statement, it will be inadmissible by the court. What is needed is for the court to be able to establish that the statement before it is not made voluntarily, hence, it will be rejected.