Ayodele Popoola
An accused person’s confession is only evidence against him and NOT against co- accused persons as it would be a misdirection that may lead to quashing of a conviction secured against such other accused person(s). Therefore, a valid confessional statement of a co-accused can only be used against an accused person if he voluntarily adopts it.
The starting point will be to look at the Evidence Act, 2011 which defines a 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 admissibility therefore, depends upon the relevance of the confession to the issue in the proceedings – Section 29 of the Evidence act, 2011.
A confessional statement may thus be defined as “factual account volunteered by a suspect himself giving or suggesting an inference that he committed the offence charged.” Before acting upon a confession, the court must be satisfied that it was freely and voluntarily made.
A confession can be used against the maker of it provided it is made voluntary, that is, not under any influence or coercion or duress, if free from any external influence, it is suffice to ground the conviction of the maker. Hence, statements made at the Police Station can be admissible in court if it is free from the above mentioned factors but however, the prosecuting counsel can abject on two grounds to the admissibility when it is tendered in court:
1. Not made voluntary
2. The accused is not the maker of it.
His Lordship went further to state that if the confessional statement fails to pass the test, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.
“Section 29(4) of the Evidence Act, 2011 deals with the use to which the statement of a co-accused can be put when considering the case of an another co-accused person. It provides – “29(4) Where more persons than one are arraigned jointly with a criminal offence, a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words or conduct.” This provision of law has been the cynosure of judicial interest and so the subject of several judicial decisions. Thus, the law is settled that the statement of a co-accused person is different and must be distinguished from his evidence in Court. The statement of an accused person is his statement and binds him alone and so can be used to convict him where it satisfies the requirements of a confessional statement, it cannot be used to convict a co-accused person. However, where the prosecution intends to use the statement against a co-accused, a copy of the incriminating statement must be made available to him and he adopts it by his words or conduct.
It is trite that a statement of a co-accused is different and distinguishable from his evidence in Court. A statement made by an accused remains his statement, and not his evidence, and it is binding on him only, otherwise, we will have a situation whereby many innocent souls will pay for crimes they never committed. A man’s confession is only admissible against him and not against an accomplice in the crime.
Firstly, it is necessary and imperative to understand the meaning and concept of confessional statement. Confession as defined by the Evidence Act in Section 28 is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.
On the question of whether or not the statement of a co-accused can be used when considering the case of another co-accused, the law is trite in Section 29(4) of the Evidence Act 2011 which is to the effect that “where more persons than one are arraigned jointly with a criminal offence, a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against such other persons in whose presence it was made unless he adopted the said statement by words or conduct.” Primarily or generally, it is the law that such statement cannot be used against the co-accused, prima facie.
This position was also questioned in the case of Ozaki v State (1990) 1 NWLR (Pt. 124) 92 at 113 per OBASEKI JSC where the Supreme Court held that “it is my opinion that an incriminating statement made even to the hearing of an accused defendant, even on an occasion which could be reasonably from him, is not evidence against him on his trial of the facts therein stated, save in so far as he has accepted the statement, and where the statement is used to found a conviction, the conviction must, on appeal, be quashed.
Thus, the law is settled that the statement of a co-accused person is different and must be distinguished from his evidence in Court, and that whereas the statement of an accused person in his statement and binds him alone and so can be used to convict him where it satisfied the requirements of a confessional statement, it cannot be used to convict a co-accused person. This was given judicial blessings in the case of Ali Mohammed v. FRN (2021) Legalpedia CA 14111.
The court also went on to state that in the event that such statement is to be used by the prosecution against the co-accused, a copy of the incriminating statement must be made available to him and he adopts it by his words or conduct.
A statement made by an accused remains his statement, and not his evidence, and it is binding on him only.
Confessional statement can be understood as a statement made by a suspect under investigation stating his/her involvement in the allegation made against him/her devoid of any element of coercion, inducement or threat.
Such statement must be voluntarily made by a suspect under investigation in respect of his/her own involvement in the case.
Succinctly, a confessional statement may thus be defined as “factual account volunteered by a suspect himself giving or suggesting an inference that he committed the offence charged.” Before acting upon a confession, the court must be satisfied that it was freely and voluntarily made.
Where an accused person/suspect makes a confessional statement as to his participation in a crime, he is not confessing for his accomplices. An accused person’s confession is only evidence against him and not against co-accused persons and it is a misdirection which may lead to the quashing of any conviction based on such misdirection of law.
A confessional statement of a co-accused can only be used against an accused person if he voluntarily adopts it. See OZAKI V. STATE (1990) LPELR – 2888 (SC).
More so, Section 29(4) of the Evidence Act, 2011 deals with the use to which the statement of a co-accused can be put when considering the case of another co-accused person. It provides – “29(4) Where more persons than one are arraigned jointly with a criminal offence, a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words or conduct.”
This provision of law has caught the attention of some scholars coupled with various judicial interest. In this vein, the Supreme Court recently held thus:
“It is my opinion that an incriminating statement made even to the hearing of an accused defendant, even on an occasion which could be reasonably expected to call for some explanation from him, is not evidence against him on his trial of the facts therein stated, save in so far as he has accepted the statement, and where the statement is used to found a conviction, the conviction must, on appeal, be quashed.” See Okoro V State (2018) LPELR-44273(CA) 14.
Having submitted above, it is crystal clear that a statement of an accused person can not be used against a co-accused and where a trial Court convicts a co-accused upon the incriminating statement made by an accused person, such conviction would be quashed on appeal.
It is not longer gainsaying that our Criminal Justice System strictly adheres to the cardinal principle of personalization of offences, that is to say, an accused person is personally held reliable for any act or omission committed by him. It is on that note that our Administration of Criminal Justice Act 2015 frowns at the act of shifting burden of criminality from one soul to another, and as such, every accused person shall be fully ready to take the burden of what he or she is alleged to have committed.
Thus, as a general rule the confessional statement of an accused person cannot be used against another accused person. This can be illustrated in a hypothetical scenario as follows: where Mr. A and Mr.B are being charged of the offences of conspiracy to commit robbery and robbery, the mere fact that Mr. A confesses to the commission of such crimes does not make Mr.B to be bound by such confessional statement.
In other words, the confessional statement made by Mr.A as clearly depicted in the above hypothetical scenario cannot be used against Mr.B.
However, it is integral to know that a confessional statement of an accused person can only be used against another accused person(s), where the latter in whose presence the said confessional statement is made adopts the same either by words or conduct which must be clear and unambiguous, this is clearly stipulated in section 29(4) of the Evidence Act 2011.
Finally, from the aforementioned facts, it is also worthy of note to know that the plea of guilt or otherwise of an accused person cannot be used against another accused person, even when all the accused persons are being represented by a single Counsel and as such, the plea of each and every one of them must be taken separately.
Ordinarily, the statement made by an accused person only binds the maker of the statement. Hence, in Law, a confessional statement of an accused person cannot be used as evidence against another co-accused person. However, where the co-accused person adopted the statement made. Before him as his statement or was there when the statement was made and he did not deny the statement, he/she will be deemed to have made the statement. Therefore, since such adopted statement is deemed to be his statement, the statement may be ‘proved against him’.
Again, though the confessional statement of a co-accused person is not evidence against an accused unless it was made in the presence of the accused and he adopted it by words or conduct. This is not so in the instance where the statement is used to prove conspiracy.
‘It is however the law that in a charge of conspiracy (as in the instant case) once conspiracy is shown to exist the confessional statement of a co-accused can be used against other accused persons’. This was the decision of the Court of Appeal in:
YAHAYA v. STATE (2014) LPELR-24083(CA). Page 30, Paras A – C.
Therefore, it is the general principle of law that the confessioned statement of an accused person be not be used as evidence against another accused person, but there are exceptions, like most general principles of law, this rule accommodates certain exceptions.
A voluntary confession of an accused person made freely is always relevant and admissible during his trial, otherwise it would be rejected in evidence.
It is trite that for a confessional statement to be free and voluntary, such must not be influenced by hope or fear in the form of a threat, promise or inducement.
However, in administrating criminal justice in Nigeria, Section 29(4) of the Evidence Act 2011 provides that, “where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct”.
Thus where an accused person makes a confessional statement as to his participation in a crime during police investigation, he is NOT confessing for his accomplices.
An accused person’s confession is only evidence against him and NOT against co- accused persons as it would be a misdirection that may lead to quashing of a conviction secured against such other accused person(s).
Therefore, a valid confessional statement of a co-accused can only be used against an accused person if he voluntarily adopts it. See OZAKI VS STATE (1990) LPELR-2888 SC.
Adopting such an uncorroborated confessional statement as basis for conviction would be unlawful because it would have vitiating effect on verdict of guilt adjudge by the court.
Grounds for admissibility of confessional statement including the Judges’ Rule, must be strictly adhered to.
Conviction based solely on the confession of another accused person would cast doubt on the voluntariness of the accused person to make the confessional statement.
Note that for a piece of evidence to be corroborative, it must be independent testimony of the accused person and must connect him with the commission of the crime.
The law is very clear on this, when two or more persons are arrested and arraigned before the court, plea of such accused must be taken separately. Either Guilty or Not.
In the other way round, if any of the accused has made any confessional statement before the police, such statement can only be used against the maker. Rather, there is a Proviso, which states that, if any or all the accused admit and concur with such a confessional statement made by one of them, then such statement can be used against all the accused.
