CAN THE CONFESSIONAL STATEMENT OF A DEFENDANT BE USED

AGAINST A CO-DEFENDANT

In criminal litigation, it is a well-established principle of law, that in criminal

trials the guilt of an accused person for the commission of an offence could be
established in any or all of the followings:

(a) Through confessional statement of the accused;

(b) Through circumstantial evidence, or
(c) Through eye witness or witnesses’ account. (See Akeem Agboola v. The
State(2013) Vol. 54 page 504; (2013) 11 NWLR (Pt.1365) 619.1

The Evidence Act2 defines 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. In section 29(1)(2(a)(b) of the Evidence Act 2011:

(1) In any proceeding, a confession made by a defendant may be

given in evidence against him in so for 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, in any proceeding where the prosecution proposes to give in
evidence a confession 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.

A Confession is defined as an admission made at any time by a person charged

with the commission of an offence stating or suggesting the inference that he
committed the crime the crime and this includes extra judicial and judicial
confessions. It also includes an incriminating admission made that is not
direct and positive and short of full confession.3

1
Sanusi JSC in State v. Musa (2020) 2 NWLR (Pt.1709) 499 at 535 paras. A - C
2
Section 28 (2011)
3
Sanusi JSC in Martins v. State (2020) 5 NWLR (Pt.1716) 58 at 75 paras. D – E
Confessional statement of a defendant could be voluntarily made by the
defendant, involuntarily made or made as result of oppression and torture. It is
to be noted that a confessional statement does not become inadmissible merely
because the accused (defendant) denied making it even though when such a
retraction takes place the court is cautioned to seek evidence no matter how
slight outside that confessional statement to show that the confession is
probable.4 If a confession is ascertained to have been made voluntarily the trial
court is free to act on it more especially because the law is settled that
confessional statement made by an accused person which is properly admitted
in law, is the best guide to the truth of the role played by the accused upon
which alone the court can convict even though as a matter of practice the law
requires the trial court to look for independent evidence no matter how slight to
corroborate the confession or to establish that it is true. 5

To test the truthfulness of a confessional statement, it is the duty of the court

to examine such statement in the light of other credible evidence before the
court can by inquiry know whether:

(i) There is anything outside it to show that it is true.

(ii) It is corroborated.
(iii) The facts stated in it are true as far as can be tested
(iv) The accused person had the opportunity of committing the offence
(v) The accused person’s confession is possible
(vi) The confession is consistent with other facts ascertained and proved. 6

In furtherance of the above, the proper time to object to the admissibility of

a confessional statement is at the stage when it is sought to be tendered
and not after it has been admitted in evidence. 7 Because confessional
statement is properly regarded as the strongest evidence of guilt of an accused
person charged with an offence and so if confessional statement has been
obtained freely and is positive, it is enough to secure a conviction by the
prosecution.8 If a confessional statement was made freely and voluntarily, the
retraction of such statement by the defendant will not render it inadmissible in
evidence.

4
Peter-Odilli JSC in State v. Musa (2020) 2 NWLR (Pt.1709) 499 at 527 – 528 paras. H - A
5
Sanusi JSC in Martins v.State (2020) 5 NWLR (Pt.1716) 58 at 76 paras. D - E
6
Peter-Odilli JSC in Martins v. State (2020) 5 NWLR (Pt.1716) 58 at 83 – 84 paras. H - C
7
Kekere-Ekun JSC in State v. Musa (2020) 2 NWLR (Pt.1709) 499 at 518 paras. A - B
8
Peter-Odilli JSC in State v. Musa (2020) 2 NWLR (Pt.1709) 499 at 527 paras. F - G
A confession can be oral or written, and both are admissible in evidence as the
strongest evidence of guilt on the part of the accused person. 9 And for a
statement to qualify as a confession, it must be a confession of the
offence charged and not a different offence. 10 In a situation where several
persons are charged jointly with an offence, the confession of one cannot be
used against another unless he adopts the said statement by words or
conduct.

Section 29(4)11 cites this below:

“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.”

Although common intention rule in Section 812 conjoins the defendants to

have committed the same offence but there confessions are taken separately
and individually.

“(8) When two or more persons form a common intention to

prosecute an unlawful purpose in conjunction with one another,
and in the prosecution of such purpose an offence is committed of
such a nature that its commission was a probable consequence of
the prosecution of such purpose, each of them is deemed to have
committed the offence.”

The above section of the Criminal Code Act states the commission of an offence
under the common intention rule but under the section of the Evidence Act as
of above, the common intention rule was not eradicated as to commission of
offence conjointly rather it states affirmatively that confessional statement of
each defendant should be taken individually. Where a defendant in a joint trial
has made a confession in the presence of a co-defendant, the court shall not
take such confession into consideration against the silent defendant, unless he
adopts it by word or conduct.13
9
Per Nweze, JSC, lead judgment, in Mathew vs. State (2018) 6 NWLR (Pt.1616) 561 at 574
10
Gbadamosi vs. State (1992) 9 NWLR (Pt.266) 465 S.C
11
Evidence 2011
12
Criminal Code Act
13
S.T.HON’S LAW OF EVIDENCE (THIRD EDITION) page 209 at the fourth paragraph
In Adeleke v. State14, Peter-Odilli, J.S.C state that, “on the point raised by
the appellant that the evidence of a co-accused is not admissible against
other accused persons is not a general rule that is taken hook, line and
sinker without exception. This is because where as in this case, there is a link
or nexus from the contents of the statement a co-accused or even his extra-
judicial statement with a strong connection from other independent evidence then
the exception is accepted as making that general rule aforesaid give way for the
reality on ground.”

Also in Babatunde v. State15 Okoro, J.S.C, said “it is a settled law by statute
and judicial pronouncement that the confessional statement of a co-accused is no
evidence against an accused person who has not adopted the statement. That is
to say, except an accused person adopts the confessional statement of a co-
accused, the said: confessional statement cannot be used against him. See Ozaki
& anor v. The State (1988) 1 S.C 109, (1990) 1 NWLR (Pt.124) 92, Exbuomwan v.
COP (1961) WNLR 257, The State v. Onyeukwu (2004) 14 NWLR (Pt.893) 340,
The State v. James Gwangwan (2015) LPELR – 24837 (SC), (2015) 13 NWLR
(Pt.1477) 600. The above is the general rule. However, where two accused
persons make confessional statements implicating each other, and there are
evidence outside their respective confessional statements, the court can convict
each accused person based on his own confession. Any reference to the
confessional statement of either accused person which, in the first place, are
similar with identical features, by the trial Judge, will not vitiate the conviction.
This, to my mind, is an exception to the general rule. It would be different where
one of the accused persons makes a confessional statement while the other
denies the offence.”

The above succinctly gives the exception to the general rule. Confessional
statement of a defendant if it is direct, voluntary and credible will be used
against the maker to secure conviction against him. Generally the confession of
a defendant cannot be used to convict a co-defendant however if the co-
defendant so adopt such statement either in conduct or in words it can be used
against him.

In other words, if a co-defendant denials the statement of a defendant, it is for

the court to determine the probative value it will attach to it in evidence. There
is distinction between probative value of confessional statement of a defendant
not adopted by co-defendant and of confessional statements by co-defendant

14
(2013) 16 NWLR (Pt.1381) 556 at 584 paras. C - D
15
(2018) 17 NWLR (Pt.1649) 549 at 565 paras. D - G
implicating each other. In Babatunde v. State (Supra) Okoro, J.S.C made
16

this distinction below:

”A distinction must be made between circumstances where one

accused person makes a confessional statement which is used to
convict a co-accused who denied committing the offence without
adopting the confessional statement of the co-accused and a
situation where both accused persons make confessional
statements implicating each other and by implication, adopting
each others’ confession.

16
566 – 567 paras. H - A