In Nigeria, many criminal trials have had the Prosecuting side attempt to convict the Defendant through a confessional statement made by the latter at the Police Station during investigation. In the confessional statement, the Defendant purportedly admits to committing the crime he or she has been charged with. In most of such trials, the Defendant states that he or she actually made the confessional statement but complains afterwards that he or she did so because he or she was beaten, forced, threatened or promised some benefit (for example, release from police custody and termination of the case to avoid prosecution in court).

To test the veracity of the Defendant’s claim that the confessional statement was gotten from him through any of the above mentioned or similar circumstances, the court usually adopts a procedure known as trial within trial wherein the Prosecutor is required to prove that he or she got the confessional statement from the Defendant in a voluntary manner and without compulsion or inducement on the Defendant. The procedure is regarded as a trial within trial because the procedure adopted to prove the veracity or otherwise of the supposed confessional statement is a smaller trial within the larger trial carried out to prove the Defendant’s guilt or otherwise. Section 29, sub-sections 1 and 2 of the Evidence Act of 2011 makes provision for the above procedure.

Before the coming into force of the Administration of Criminal Justice Law (ACJL) of Lagos State in 2011, confessional statements were taken in writing and without more could be tendered in evidence if proven by the Prosecutor that the statement was obtained voluntarily and without duress, force or inducement on the Defendant. However, by virtue of the relevant provisions of the ACJL of Lagos state, certain additional conditions have been added to the above to further strengthen the test a confessional statement has to pass for same to be considered a veracious one.

The extra measures are captured in section 9, sub-section 3 of the ACJL of Lagos State. The effect of the said provision is that every confessional statement must be recorded on video so that the said recording can be tendered to and played in court as evidence. The essence of the above provision is obviously so that the Court will be able to decipher from the demeanor of the Defendant and all other surrounding circumstances in the video if he or she gave voluntarily made the confessional statement. Alternatively, where a video facility is not available, the Police must take the confessional statement in writing and must ensure that while same was being taken, the Defendant had a Legal Practitioner of his choice present. As was decided by the Court of Appeal in the case of Nnajiofor v. Federal Republic of Nigeria (2018) LPELR-43925(CA), the implication of not abiding to the above is that the confessional statement will not be admitted in evidence.

Unarguably, this is a great innovation geared towards curtailing the excesses of some officers of the Nigerian Police Force that have over the years adopted various unethical means in squeezing out confessions from suspects that they consider to be guilty of crimes. This move at curtailing this negative trend is commendable and one geared towards advancing the course of justice in Nigeria.

The import of this article is to enlighten all who may come by it - Lawyers and more particularly non- Lawyers – of the existence of such a provision as the above as it has been observed that the provision, though existent, is still hidden to many including Lawyers. The importance of enlightening the public on the above issue cannot be over-emphasized as just by a confessional statement and no more, a Defendant can be found guilty and convicted of an offence.

While it must be noted that the above piece was written with the ACJL of Lagos state in view, the Administration of Criminal Justice Act (ACJA) - a Law made by the National Assembly and which guides the procedural aspect of criminal matters in the FCT – provides for but does not mandate that video recording of confessional statement be made compulsory. The same also goes for the provision that the Defendant’s Lawyer be present when the latter is giving his or her confessional statement that is provided for but not mandated. Instead of adopting the word, “shall” to make the performance of that duty by the Police mandatory (like its counterpart, the ACJL did), it adopts the word “may” giving the impression that the duty is discretionary and not compulsory. See section 15, sub-section 4 and section 17, sub-sections 1 and 2 of the Administration of Criminal Justice Act. However, the Court of Appeal in the case of Nnajiofor v. The Federal Republic of Nigeria (cited above) defined the word “may” to mean “shall” and went on to state that such definition will apply when the performance of a duty by a public functionary to a private citizen is in contemplation. The Court in that case held that the EFCC had a duty to perform by virtue of the immediate aforesaid provisions of the ACJA and that as a result, even though the word “may” was used in describing the manner in which the EFCC was required to perform the duty, it did not matter as in such a case, the word “may” will compulsorily mean “shall” thereby mandating the EFCC to compulsorily perform the duty.

While the effort of the Court of Appeal must be commended, it must be noted that the Court of Appeal is not the Court of finality in Nigeria as the Supreme Court may yet decide otherwise on the matter thus turning around the current position of things.

In the interim, it is hoped that in no time, the Federal Legislature will amend the relevant provisions of the ACJA to reflect the mandatory nature of the requirements as stated above rather than leaving it seem discretionary so as to avoid the unnecessary ambiguity that emanates therefrom.