Confessions Under the Evidence Act 2011: Voluntariness, Oppression and Retraction

On any given day in a Nigerian police station, a suspect is brought in for questioning. Sometimes, the questioning is done properly. Often, it is not. What happens next, the statement that emerges from that interrogation, may become the most important piece of evidence in a criminal trial. Whether that statement is admitted into evidence can determine whether a person goes free or goes to prison.

Confessions are extraordinary evidence. They are admissions by the accused person themselves that they committed the crime. When believed and properly obtained, they are among the strongest evidence a prosecution can have. The Supreme Court has affirmed that an accused can be validly convicted on their confessional statement alone.¹ But the law surrounding confessions is also one of the most heavily litigated areas of Nigerian evidence law, precisely because of how frequently statements are obtained through improper means.

This article explains what a confession is, when it is admissible, when it is excluded, how retraction affects admissibility, and the constitutional dimension that makes the confession rules critically important.

What is a Confession?

Section 28 of the Evidence Act 2011 defines a confession as an admission made at any time by a person charged with a crime, stating or suggesting the inference that they committed that crime.

Two elements are essential. First, the statement must be made by a person charged with a crime. This means the maker must have been charged with an offence, not merely suspected. Second, the statement must state or suggest the inference of guilt. It need not be an explicit admission. A statement that, by reasonable inference, points to the maker having committed the offence qualifies as a confession.

In The State v Ali Ahmed,² the court applied this definition. In State v Yahaya³ and Musa v The State,⁴ the courts held that when a defendant makes a statement, under caution or otherwise, saying or admitting or even creating the impression that they committed the offence, that statement is confessional.

A confession is an admission. It falls within the broader category of admissions defined in section 20 of the Act. But it is a specific type of admission: one by a person charged with a crime that implicates them in that crime. Not every admission is a confession, but every confession is an admission.

The Ingredients of an Admissible Confession

For a confession to be admissible, several requirements must be met.

It must be direct and positive. In Bassey v State,⁵ the court held that a confessional statement must be direct and positive. In Edun v FRN,⁶ the court held that a confessional statement to be used solely must be direct, positive, true, and unequivocal, containing facts that satisfy the ingredients of the offence the accused confessed to having committed.

In Kolade v State,⁷ the Supreme Court held that a confessional statement that is voluntary, direct, positive, and proved is sufficient to ground conviction. The court affirmed the death sentence and dismissed the accused’s appeal.

It must be voluntary. This is the most important requirement and the one most commonly disputed. Section 29(1) of the Evidence Act 2011 provides that a confession is only admissible if it is voluntary. Section 29(2) states that a confession is not voluntary if it was or may have been obtained by oppression of the person who made it or in circumstances making it unreliable.

Section 29(5) defines oppression as including torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.

It must be made after the commission of the offence. A confession made before the offence charged is not admissible as a confession under section 28. In Sunday Onungwa v State,⁸ the court applied this requirement.

It must be made by the accused personally. A confession made by another person, even their counsel, is not the accused’s confession. In R v Heyes⁹ and R v Inyang,¹⁰ the courts held that the confession must be made by the accused themselves.

Voluntariness: The Central Test

Section 29 of the Evidence Act 2011 is the most critical provision on confessions. It governs voluntariness and sets out when a confession must be excluded.

Section 29(1): a confession is only admissible if it is voluntary.

Section 29(2): a confession is not voluntary if it was or may have been obtained by oppression of the person who made it or in circumstances making it unreliable.

Section 29(3): a confession may be excluded even if it was not obtained by oppression if it was obtained in circumstances that make it unreliable. The court must exclude it if it considers it would be unfair to admit it.

Section 29(5): oppression includes torture, inhuman or degrading treatment, and the use or threat of violence.

The test of voluntariness is a matter of fact. In Dawa v State,¹¹ the court held that the question of voluntariness is a question of fact to be determined by the trial court on the evidence.

Confession by Inducement

An inducement is a promise of advantage for confessing or a threat of disadvantage for not confessing. In Egboghonome v State¹² and DPP v Ping Lin,¹³ the courts held that a confession obtained by inducement is inadmissible.

The inducement must be to make a statement, not merely to tell the truth. In R v Viapong,¹⁴ the statement to the accused that “any statement you make shall be written down and taken before the court, so it may be your evidence” was held to be an inducement. In R v Thompson,¹⁵ a statement to the accused’s brother that it would be the right thing for the accused to say something was held to be an inducement.

Moral adjuration is distinguished from inducement. A moral adjuration is a plea to the conscience of the person using religion or moral persuasion. In Fatunmani v R,¹⁶ the statement that whoever committed the crime should come forward rather than trouble their neighbours was held to be a moral adjuration, not an inducement, and the resulting confession was admissible. In R v Court,¹⁷ the statement “be sure to tell the truth” was similarly held to be a moral adjuration.

Confession by Threat

A confession obtained by threat is inadmissible. In R v Bhomien,¹⁸ the village elders told the community that people would be taken away if the culprit did not confess. The confession made in response was held involuntary. In R v Smith,¹⁹ soldiers told they would be held on parade made statements held to be involuntary.

Threats by metaphysical means, such as juju or witchcraft, are distinguished. In R v Udo Eka Ebong,²⁰ an accused who confessed after a juju ritual was administered was held to have made a voluntary confession, because juju is metaphysical, not a temporal threat or promise within the meaning of the section.

Person in Authority

For a confession to be excluded as involuntary, the threat, inducement, or promise must have come from a person in authority. The Act does not define a person in authority. Phipson defines it as someone engaged in the arrest, detention, examination, prosecution, or punishment of the accused.²¹ The following have been held to be persons in authority: judges and magistrates, police officers, military police, village chiefs, and employers of the accused.

For the confession to be inadmissible, the threat, inducement, or promise must also have reference to the charge. It must be intended to relieve the accused from the consequences of the charge. A collateral promise that does not relate to the charge will not vitiate the confession. In R v Lloyd,²² an accused was told they would be allowed to see their wife. The court held this was collateral to the charge and the confession was admissible.

The ACJA 2015 and Confessional Statements

The Administration of Criminal Justice Act 2015 has introduced additional procedural safeguards for confessional statements in federal proceedings. Section 15 of the ACJA requires that a confessional statement must be recorded in writing and may be recorded electronically. The accused must be informed of their right to have a legal practitioner present. The section also provides that a confessional statement must be taken before a magistrate.

The interaction between the ACJA 2015 and the Evidence Act 2011 on confessions is an area of developing law. Students should be aware that the ACJA requirements are procedural safeguards that operate alongside, not instead of, the voluntariness requirements in section 29 of the Evidence Act. Failure to comply with ACJA requirements may affect the weight given to a confessional statement even if it does not automatically render it inadmissible.

The Constitutional Dimension: Confessions and Section 34

The voluntariness requirements in section 29 of the Evidence Act 2011 are not merely statutory. They implement constitutional protections that operate independently.

Section 34(1)(a) of the 1999 Constitution provides that every individual is entitled to respect for the dignity of their person and no person shall be subjected to torture or to inhuman or degrading treatment.

Section 36(11) of the Constitution provides that no person tried for a criminal offence shall be compelled to give evidence at trial.

Section 36(5) establishes the presumption of innocence.

Where a confession is obtained through beating, prolonged detention without food or sleep, threats against the accused’s family, or other forms of psychological pressure, the constitutional provisions are engaged alongside the statutory ones. A court that admits such a confession is not merely making an evidentiary error. It is permitting a constitutional violation to determine the outcome of a criminal trial.

This is the lived Nigerian reality that legal analysis cannot ignore. The Nigerian police has faced persistent documented allegations of extracting confessions through torture. The 2011 Act’s explicit definition of oppression in section 29(5), including torture and inhuman treatment, was a direct legislative response to this reality. But the gap between the law on the page and the practice in police stations remains wide. When an accused person rettracts a confession and alleges it was extracted by force, the court is not merely resolving an evidentiary dispute. It is deciding whether to validate or reject conduct that the Constitution expressly prohibits.

The Trial Within Trial

When the admissibility of a confession is in dispute, the court resolves the dispute through a trial within trial, also called a voir dire. This is a separate mini-hearing within the main trial, focused only on the question of whether the confession was voluntary.

The prosecution bears the burden of proving voluntariness. In Saliu v State,²³ the court held that the burden of proof that a confession is voluntary is on the prosecution. The prosecution must satisfy the court, on the balance of probabilities, that the confession was voluntarily made.

The appropriate time to object to the admissibility of a confessional statement is when the prosecution seeks to tender it. In John v State²⁴ and Usman v State,²⁵ the courts held that the objection must be taken at that point, before the statement is tendered. An accused who allows a confessional statement to be admitted without objection may lose the right to challenge it on appeal.

Retraction and Its Effect

A retracted confession is a confession that the accused subsequently denies making or claims was made involuntarily. The question of whether a retracted confession is admissible, and what evidential value it has, is one of the most frequently litigated issues in Nigerian criminal practice.

Retraction Does Not Affect Admissibility

A confessional statement remains admissible even after the accused retracts it. In Issa Bio v The State,²⁶ the Supreme Court held that retraction or denial of a confessional statement does not affect its admissibility. In David Philip v The State,²⁷ the court held that an accused can be convicted on their retracted confessional statement if the court is satisfied the statement was made and there are circumstances that give it credibility.

The accused who retracts a confession must explain the reason for the inconsistency. They must lead evidence to establish that the confessional statement was not correctly recorded, or that they were unsettled in mind when making it, or that they did not make it at all, or that they were induced to make it. This explanation must come from the accused without prompting.

The R v Sykes Test for Weight

When a confession is retracted, the court applies the test from R v Sykes²⁸ and Kanu v The King²⁹ to determine what weight to give the retracted confession. These questions guide the inquiry:

Is there anything outside the confession to show it is true? Is the confession corroborated? Are the relevant statements of fact in the confession true as far as they can be tested? Did the prisoner have the opportunity of committing the offence? Is the confession possible? Is the confession consistent with other facts that have been proved?

These requirements were affirmed by the Supreme Court in Adebanjo v State³⁰ and Abdulrahman v State.³¹ The court does not simply accept or reject a retracted confession. It subjects it to careful scrutiny against the surrounding circumstances to determine whether it can safely be relied upon.

Conviction on Confession Alone

A court can convict on the basis of a confession alone without corroboration, provided it is satisfied of the truth of the confession. In Ijiya v State,³² the court held that an accused can rightly be convicted solely on their confession alone, although it is desirable to have some supporting evidence. In Simon v State,³³ the court confirmed this position.

However, a judge who is considering convicting on an uncorroborated confession should warn themselves of the danger of doing so, particularly where the confession has been retracted. The wisdom of seeking corroboration is well recognised in the cases even where it is not legally required.

A Quick Reference Table

Key Cases

Kolade v State (2017) LPELR-26053(SC) The Supreme Court held that a confessional statement that is voluntary, direct, positive, and proved is sufficient to ground conviction. The court affirmed the death sentence.

Saliu v State (2014) LPELR-22965(SC) The court held that the burden of proving voluntariness of a confession lies on the prosecution.

Issa Bio v The State (2006) 14 NWLR (Pt. 1000) 381 The Supreme Court held that retraction of a confessional statement does not affect its admissibility.

David Philip v The State The court held that an accused can be convicted on a retracted confessional statement if the court is satisfied it was made and there are circumstances giving it credibility.

R v Sykes (1913) 8 CAR 233 Established the six questions the court must ask when determining the weight of a retracted confession. These questions were adopted and applied consistently by Nigerian courts.

Egboghonome v State (1993) 7 NWLR (Pt. 306) 383 The court held that a confession obtained by inducement is inadmissible. An inducement includes any promise of advantage or avoidance of evil related to the charge.

Problem Question Framework

When a problem question raises issues about a confessional statement, apply this framework.

First, establish that the statement is a confession within section 28. Was it made by a person charged with a crime? Does it state or suggest that the person committed the crime?

Second, assess voluntariness. Was the confession obtained by oppression, inducement, or threat? Did the threat or inducement come from a person in authority? Did it have reference to the charge? Was the advantage temporal rather than metaphysical?

Third, if voluntariness is disputed, note that the prosecution bears the burden of proving it and that the issue is resolved through a trial within trial.

Fourth, if the confession was retracted, note that retraction does not affect admissibility. But apply the R v Sykes questions to assess the weight the court should give to the retracted confession.

Fifth, engage the constitutional dimension. If the confession was obtained through torture, beatings, or prolonged coercive detention, sections 34(1)(a) and 36(11) of the 1999 Constitution are engaged independently of the statutory framework.

Sixth, consider whether the ACJA 2015 procedural requirements apply. If the confession was not recorded in writing, or was not taken before a magistrate in federal proceedings, the procedural shortcut affects weight even if it does not automatically exclude the confession.

Common Student Mistakes

The first mistake is thinking that retraction makes a confession inadmissible. It does not. Retraction affects weight, not admissibility.

The second mistake is placing the burden of proving involuntariness on the accused. The burden is on the prosecution to prove voluntariness. The accused only needs to raise sufficient doubt.

The third mistake is treating juju or witchcraft threats as invalidating a confession. They do not. Only temporal threats, inducements, and promises, from persons in authority and relating to the charge, vitiate a confession.

The fourth mistake is treating the R v Sykes test as a test for admissibility. It is a test for weight. The confession is already admitted when the Sykes questions are applied.

The fifth mistake is ignoring the constitutional dimension. Students who treat the confession rules as purely statutory, without engaging sections 34 and 36(11) of the 1999 Constitution, miss a significant analytical layer and produce weaker examination answers.

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Footnotes

¹ Simon v State (2013) 10 NWLR (Pt. 1362) 435.

² The State v Ali Ahmed (1983) 2 NCLR 56.

³ State v Yahaya (1988) 4 NWLR (Pt. 90) 564.

⁴ Musa v The State (2012) LPELR-20428(CA).

⁵ Bassey v State (1993) 2 NWLR (Pt. 277) 658.

⁶ Edun v FRN (2019) LPELR-47748(SC).

⁷ Kolade v State (2017) LPELR-26053(SC).

⁸ Sunday Onungwa v State (1976) 5 SC 1.

⁹ R v Heyes (1951) 1 KB 29.

¹⁰ R v Inyang (1961) 1 All NLR 227.

¹¹ Dawa v State (1992) 8 NWLR (Pt. 261) 563.

¹² Egboghonome v State (1993) 7 NWLR (Pt. 306) 383.

¹³ DPP v Ping Lin (1976) AC 574.

¹⁴ R v Viapong (1937) 3 WACA 33.

¹⁵ R v Thompson (1893) 2 QB 12.

¹⁶ Fatunmani v R (1939) 5 WACA 4.

¹⁷ R v Court (1962) 1 CAR 60.

¹⁸ R v Bhomien (1948) 12 WACA 423.

¹⁹ R v Smith (1959) 2 QB 35.

²⁰ R v Udo Eka Ebong (1947) 12 WACA 123.

²¹ S Phipson, Phipson on Evidence (11th edn, Sweet and Maxwell 1970) 289.

²² R v Lloyd (1834) 6 C&P 393.

²³ Saliu v State (2014) LPELR-22965(SC).

²⁴ John v State (2012) 7 NWLR (Pt. 1299) 336.

²⁵ Usman v State (2013) 11 NWLR (Pt. 1367) 76.

²⁶ Issa Bio v The State (2006) 14 NWLR (Pt. 1000) 381.

²⁷ David Philip v The State (unreported).

²⁸ R v Sykes (1913) 8 CAR 233.

²⁹ Kanu v The King (1952) 14 WACA 30.

³⁰ Adebanjo v State (2010) 1 NWLR (Pt. 1174) 25.

³¹ Abdulrahman v State (2011) LPELR-9333(CA).

³² Ijiya v State (2017) LPELR-41914(CA).

³³ Simon v State (2013) 10 NWLR (Pt. 1362) 435.