Background Facts
1.1 With reference to the Supreme Court’s decision in ESANGBEDO V. THE STATE (1989) LPELR-1163 (SC), (1989) 4 NWLR (PT 113) 57, which seems to have decided that extra-judicial statements are inadmissible generally and can only be used to contradict an accused person, there is need for a thorough research on the issue to ascertain the current position of the law.
- Introduction:
2.1 Extra-judicial statements have over the years been used by the Prosecution as strong tools to convict Accused persons in Criminal Trials in Nigeria.
2.2 These tools in the hands of the Prosecution are made more lethal by the principles governing the admissibility or otherwise of extra-judicial statements of both the witnesses and Accused persons in Nigeria.
2.3 It is to this end, that we have undertaken a holistic review of these principles in order to x-ray the avoidable pitfalls into which most Defence Counsel fall during criminal Trials much to the detriment of the Accused persons.
2.4 While embarking on this review, the following topical issues would be resolved with the aid of decided cases and statutory authorities:
- What is the meaning of extra-judicial statement?
- Can a confessional statement or a statement made by an Accused person be regarded as an extra-judicial statement?
- What is the rule governing the admissibility of extra-judicial statement (the inconsistency rule)?
- Are there exceptions to the inconsistency rule?
- What options are available to an Accused person when faced with incriminating extra-judicial statement?
- Review of Judicial Decisions on Extra-judicial Statements.
3.1 Before analyzing the rules of extra-judicial statement, a summary of the facts and decision of the Supreme Court in the locus classicus case of ESANGBEDO V. THE STATE (1989) LPELR-1163 (SC), (1989) 4 NWLR (PT 113) 57 and that of the Court of Appeal in AFAM OKEKE V. THE STATE (2016) LPELR-40024 (CA) is germane.
3.2 In ESANGBEDO V. THE STATE (supra) the Appellant in the above case appealed against the decision of the Court of Appeal which upheld the Appellant’s conviction and death sentence for armed robbery and murder by the Lagos State High Court.
3.3 Appellant’s Counsel raised the issue on whether the Court of Appeal was right to have affirmed the conviction of the Appellant having regard to the contradictions in the testimonies of the Prosecution witnesses and their extra-judicial statements which were not tendered during trial.
3.4 The Supreme Court while affirming the judgment of the Court of Appeal and the death sentence against the Appellant held inter alia that the said extra-judicial statements which contained the material contradictions in the testimonies of the Prosecution witnesses cannot be relied on, as those statements were not tendered in evidence by the Prosecution and the Appellant’s Counsel never attempted to tender them through the Prosecution witnesses during cross examination. The Apex Court surmised that since the extra-judicial statements were not made on oath and were not tendered in evidence, the trial Court was right in not considering them.
3.5 In AFAM OKEKE V. THE STATE (supra) the Appellant appealed against the judgment of the High Court of Anambra State wherein the Appellant was convicted for armed robbery and sentenced to death. The Court of Appeal considered inter alia the issue of whether the trial Court was right to have convicted the Appellant based on the extra-judicial statements of PW1, PW2, PW3 and PW5.
3.6 The Court of Appeal while allowing the appeal, discharging and acquitting the Appellant held that the trial Court was in error to have convicted the Appellant as there were material contradictions in the extra-judicial statements tendered by the Prosecution’s witnesses and their testimonies in Court which ordinarily the trial Court should not have attached any probative value.
4.0 Meaning of Extra-Judicial
Statement
4.1 The Black’s Law Dictionary, Deluxe 9th Edition at p.665 defines ‘Extra-judicial statement’ as: “Any utterance made outside of court. It is usually treated as hearsay under the rules of evidence.”
4.2 The above definition of an extra-judicial statement which categorizes it as hearsay is strengthened by the general rule of law that extra-judicial statements of witnesses in criminal trials are inadmissible in court. We call in aid the Supreme Court decision in ESANGBEDO V. THE STATE (1989) LPELR-1163 (SC), (1989) 4 NWLR (PT 113) 57 where the Apex Court reiterated that “Generally the extra judicial statement of a witness in a criminal trial is inadmissible as evidence for either side.”
4.3 The underpinning rationale for the inadmissibility of extra-judicial statements is that they are statements which are not made on oath in open Court. In the case of AFAM OKEKE V. THE STATE (2016) LPELR-40024 (CA), the Court of Appeal in this regard stated thus:
“The extra judicial statement of a witness in a criminal trial is inadmissible as evidence for either side. The admissible evidence is evidence on oath in open Court by the witness which is subject to cross examination by the adverse party.”
4.4 There is no gainsaying the fact that statements relied upon by the Prosecution in proof of the guilt of the Accused person during criminal trials are extra-judicial in nature.
4.5 The raging question now is, whether a statement (confessional or otherwise) made by an Accused person in the course of investigating an alleged crime (“pre-trial statement”) amounts to an extra-judicial statement?
5.0 Classification of the Pre-Trial
Statement of an Accused Person
5.1 More often than not, the Prosecution through an investigating officer tenders statements (either confessional or otherwise) made by the Accused person while trying to prove the guilt of the Accused person. Eyebrows have been raised on whether such pre-trial statements of an Accused person can be classified as extra-judicial statements.
5.2 The underlining reason for the clarification of this issue springs from the fact that where the Accused person’s pre-trial statement is regarded as extra-judicial, then it should be inadmissible; and where rendered inadmissible, the Prosecution is precluded from tendering same in proving the guilt of the Accused person except in instances where extra-judicial statements can be admitted.
5.3 Pre-trial statements of an Accused person may be confessional or not in nature. Confessional statement has been held by the Supreme Court to be:
“Admission made by an Accused person stating or suggesting that he committed the crime which is the object of the charge preferred against him. It is an acknowledgment of the crime of the Accused.” Per OKORO, JSC in NKIE V. FRN (2014) LPELR-22877 (SC) @ p.29, paras. D-F.
5.4 Section 28 of the Evidence Act 2011 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.’ See also the Supreme Court in AKIBU HASSAN V. THE STATE (2001) 15 NWLR (Pt. 735) 184; IKEMSON V. STATE (1989) 3 NWLR (Pt. 110) 455; and KAMILA V. THE STATE (2001) FWLR (Pt. 37) 1078.
5.5 A peep into the sacred archives of the law reveals that the law in Nigeria is quite settled that statements made by an Accused person during investigation of an alleged offence to either the Police or any investigating body is classified as extra-judicial statements.
5.6 The simply reason for this is that such statements, though made by an Accused person, were made outside the Court and were not made on oath.
5.7 This issue was laid to rest by the Court of Appeal in the case of AJUDUA v. FRN (2014) LPELR-CA/L/693A/2014 per PEMU, J.C.A. @ p.18, paras. C-E where the Court held:
“With respect, this is a misconception as “extra judicial statement” portends a confessional statement, and indeed what was done outside the Court. Yes, decidedly, in a criminal trial, the lower Court has the power and indeed a duty to ensure that all the contents of an information, including the statement of the Accused are contained in the information filed against the Accused.“
5.8 The Supreme Court blazed the trail in an earlier case of KAMILA V. THE STATE (supra) where it likened the confessional statement of the Accused person to an extra-judicial statement, thus:
“It is apposite to say, that this Court has over the years evolved some requirements which a confessional statement must meet in order to be relied on by trial courts….From the look of the statement of the appellant Exhibit D, it is crystal clear that all the above requirements were met or complied with, hence I also hold the view, that the Trial Court was right to accept and act on the extra-judicial statement of the appellant (Exhibit D).”
5.9 Having resolved the issue that pre-trial statements of an Accused person in respect of an alleged offence are extra-judicial statements, our attention shifts to the applicable rule governing the admissibility or otherwise of an extra-judicial statement.
6.0 The Inconsistency Rule
6.1 The Courts are in consensus ad idem as to the rule governing the admissibility or otherwise of extra-judicial statements. While relying on the dictum of the Supreme Court in SUNDAY UDOSEN V. THE STATE (2007) 1 SCNJ 482, the Court of Appeal in IGENTI V. STATE (2013) LPELR-CA/B/295C/2010 per OGUNWUMIJU, J.C.A. @ pp. 15-17, paras. G-A., restated:
“Let me restate the inconsistency rule. Where a witness in a criminal trial made a prior extra-judicial statement materially inconsistent with his evidence on oath, the trial judge, not being permitted to pick and choose which evidence to believe, is obliged to disbelieve both and put no probative value on them. For the rule to be activated by the defence, during cross examination of the witness, the defence counsel is obliged to demand from the Prosecution a copy of the said extra-judicial statement of the witness which ordinarily should be in the Prosecution’s file and part of the proofs of evidence. The portion of the extra-judicial statement materially different from the witness’ evidence on oath would be put to him to give him opportunity to explain. Thereafter the extra-judicial statement should be tendered and admitted as evidence. The point would then be made an issue during address by defence counsel. See S.232 and S.233(c) Evidence Act 2011 and Golden Dibie v. The State (2007) 3 SCNJ 160; The State v. Fatai Azeez & ors (2003) 4 SCNJ 325.”
6.2 Section 232 of the Evidence Act 2011 granting statutory imprimatur to the inconsistency rule provides:
“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him or being proved, but if it is intended to contradict such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him;
Provided always that it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make use of it for the purposes of the trial, as it deems fit.”
6.3 Section 233 (c) of the Evidence Act 2011 expatiates further that:
“The credit of a witness may be impeached in the following ways by any party other than the party calling him or with the consent of the court by the party who calls him-
(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.”
6.4 The above provisions of the Evidence Act 2011 is also read together with Section 237 of the Evidence Act 2011 which has to do with the use of an extra-judicial statement to show consistency in the testimony of a witness or to show that his testimony is not an afterthought.
6.5 The effect of the above provisions is that once a statement made by a witness who is not in Court to give evidence is tendered, then such statement is inadmissible and cannot be relied upon by the Court.
6.6 For such statements to sail through, the witness must be called to testify and the statement must be tendered through the witness for the purpose of contradicting the witness or to show consistency in the witness’ testimony before the Court otherwise, where the trial Court admits such statement, it is only to show that such a statement was made in the course of investigating the matter and nothing more.
6.7 In CHUKWU V. STATE (2012) LPELR-CA/OW/182/2010 per TSAMMANI J.C.A @ p.40, paras. D-E, the Court held that:
“The law is that, in a criminal trial, the only proper use to which an extra-judicial statement can be put to, is for cross-examination of the witness who made the statement in order to discredit his testimony in court. See also ESANGBEDO v. STATE (1989) 4 NWLR (Pt. 113) p.57 @ p.66, para.F”
6.8 Also see AGBANIMU v. FRN (2018) LPELR-43924(CA) where the Court of Appeal per OTISI, J.C.A. @ pp. 41-43, paras. D-E held:
![](https://legaldeskng.com/wp-content/uploads/2024/08/LegaldeskNG-WhatsApp-Channels.jpg")
“Exhibits F and G were the extra judicial statements of Ogunronbi Gbenga and of Abayomi Adeoti. None of these persons testified in this matter. I want to straightaway say that the contents of Exhibits F and G cannot at all be used against the Appellant. In criminal trial, an extra-judicial statement is used for the cross examination of the witness who made the statement in order to discredit him. The extra judicial statement of a witness who was not called to testify may only be tendered to prove that it was made in the course of investigation and no more. The contents thereof, which were not made on oath, cannot be relied upon as evidence against the accused person. In Esangbedo vs. The State (1989) LPELR-1163 (sc), (1989) 4 NWLR (Pt 113) 57, the Supreme Court, per Nnaemeka-Agu, JSC, unequivocally said: ‘We cannot look at the extra-judicial statements of P.W.1, P.W.2, P.W.4 and P.W.9, which were not tendered as exhibits during the trial because those statements cannot be legal evidence. An appellate Court is bound to base its consideration of every appeal before it upon legal evidence upon which the Court below acted. Even in the Court of trial, the only proper use that could have been made of those extra-judicial statements of witnesses was to have used them for cross-examination of those witnesses in order to discredit their testimony-to show that their testimony in Court was unreliable. In that case, it would have been necessary to tender the statements, to draw the attention of each witness to the portion of his previous statement that is in conflict with instant testimony and give him the opportunity to explain the inconsistency. See Christopher Onubogu v The State (1974) 9 S.C. 1, at pp. 17-19; R. v Fraser & Anor. (1956) 40 Cr. App.R. 160, p.163.’ See also Okeke v The State (2016) LPELR-40024(CA) where this Court, per Ogunwumiju, JCA, concisely put it this way, page 18 of the E-Report: ‘The extra judicial statement of a witness in a criminal trial is inadmissible as evidence for either side. The admissible evidence is evidence on oath in open Court by the witness which is subject to cross examination by the adverse party. The only time when an extra judicial statement of a witness is admissible is where a party seeks to use it to contradict the evidence of a witness already given on oath. The defence witnesses will ask for the statement and give reasons to the Court for doing so. That is to say, even though the extra judicial statements of Ogunronbi Gbenga and Abayomi Adeoti were admitted in evidence as Exhibits F and G, the trial Court ought not to have relied on them at all in convicting the Appellant.”
6.9 While enumerating the formal requirement of an extra-judicial statement, the Supreme Court in the case of KIM v. THE STATE (1992) 4 NWLR (Pt. 233) 17 @ 25 paragraph 14, held that:
“The formal requirement of extra-judicial statement are: (a) It must carry the usual form for caution. (b) Each of the words of caution must be in the language understood by the maker. (c) It must be followed by the maker’s thumb-print or signature as the case may be. (d) It must be recorded in the language understood by the maker (e) It must be read over and interpreted to the maker in language in which it is made.”
See also AJIBOYE V. FRN (2014) LPELR-CA/IL/C.51/2014 per ALKALI J.C.A @ p.32, paras. A-C.
6.10 In OKEKE V. STATE (2016) LPELR-CA/E/371C/2012 per OGUNWUMIJU, J.C.A. @ pp.18-19, paras.D-D, the Court stated:
“The extra-judicial statement of a witness in a criminal trial is inadmissible as evidence for either side. The admissible evidence is the evidence on oath in open court by the witness which is subject to cross examination by the adverse party. The only time when an extra-judicial statement of a witness is admissible is where a party seeks to use it to contradict the evidence of a witness already given on oath. The defence counsel will ask for the statement and give reasons to the Court for doing so. On production by the Prosecution, the defence counsel must seek to tender it and refer to specific passages which contradict the evidence of the witness. After it has been admitted in evidence, the specific portions of the statement of the witness made to the Police must be shown to the witness to read out or counsel may read it out to the witness. Failure by the witness to explain the contradiction in the evidence on oath of the witness and the contents of the extra-judicial statement can then be used to make an issue during defence counsel’s address. See S.232 and 233 of the Evidence Act 2011. The Court is not allowed to pick and choose between the two statements. See State v. Fatai Azeez & ors (2003) 4 SCNJ 325; Igenti v. State (2013) LPELR-2086 (CA).’’
6.11 Given the iron-cast nature of the inconsistency rule governing the admissibility or otherwise of extra-judicial statements, one is prompt to ask, ‘Are there exceptions to the inconsistency rule?’
7.0 Exception to the Inconsistency Rule
7.1 The fount of revelation flowing from judicial decisions clearly shows that the confessional statement of an Accused person when tendered in evidence forms an exception to the inconsistency rule.
7.2 The law is trite that where the statement of an Accused person is tendered by the Prosecution, such statement despite being an extra-judicial statement is generally admissible. The only ground where the extra-judicial statement of an Accused person will be rendered inadmissible is where such statement is held to be involuntary.
7.3 The angular crucible to this exception is that even the confessional statements of an Accused person which were denied by the Accused person during trial are still admissible and the Court can convict the Accused person where the Court finds other facts in support of the retracted statements.
7.4 We place reliance on the aphorism of the Court in GBADAMOSI v. STATE (2013) LPELR-22169(CA) per UWA, J.C.A. p. 29, paras. C-G thus:
“Concerning the argument of the learned counsel to the appellant that the confessional statements made by the appellant were resiled and ought not to have been relied upon. On the other hand, in the case of EGEOGHONOME VS. THE STATE (1993) 7 NWLR (PT. 306) 383 it was held that the inconsistency rule did not apply to retracted extra judicial confession of an Accused person. Where an Accused makes an extra judicial statement admitting the commission of the offence with which he is charged, the statement will be considered or taken into account in the determination of his guilt, notwithstanding that he had resiled from that evidence in his testimony at the trial, by giving evidence contradictory to that evidence.“
7.5 Further to the above, a more elaborate pronouncement was made in EYOP V. STATE (2012) LPELR-20210(CA) per Garba, J.C.A @ pp. 65-66, paras. B-A
“One other point worthy of note here is the inconsistency between the Appellant’s oral evidence in court and exhibit ‘1’. The law generally, is that where a witness gives evidence in court which is inconsistent with a previous statement made by him in respect of the same issue, the testimony is to be treated as unreliable while the statement is not regarded as evidence upon which the court can act. See Oladejo v. State (1987) 3 NWLR (61) 364 at 427; State v. Usor (1972) NMLR 211; R. v. Ukpong (1961) 1 ALL NLR, 25. However, the law has made an exception to the above general rule where the extra-judicial statement is a confession by an Accused person who gives inconsistent oral testimony simply denying or retracting from the confession. The position is that even though the statement may conflict with the evidence in court, it will not be rejected but rather relied on if it is positive, direct and in accord with other proved facts. In Akpan v. State (2001) FWLR (75) 428 at 443; Karibi-Whyte, JSC had explained the law as follows:-
‘The question whether the principle in these cases enunciated above applied to the evidence of Accused persons, including their confessional statements was decided in the case of Egboghonome v. The State (1993) 7 NWLR (306) 383, where it was held that the inconsistency rule did not apply to retracted extra-judicial confession of an Accused person. The implication is that it applied to extra-judicial statements which are not confessions. In addition, the consequence of the Egbaghonome case is that where an Accused makes an extra-judicial statement, admitting the commission of the offence with which he is charged, the statement will still be considered or taken into account in the determination of his guilt, notwithstanding that he had resiled from that evidence in his testimony at the Trial, by giving evidence contrary to that evidence.”
7.6 Similarly, the Apex Court reaffirmed the position in the case of Bassey v. State (2012) 3-4 MJSC 77 at 194-6 where Rhodes-Vivour stated that:
“Where the confession is found by the court to have been voluntary and it is true but inconsistent with the Accused person’s evidence in court, it is safe to convict. R v. Walter Sykes (1913) 18 CAR p. 233; Queen v. Obiasa (1962) 2 SCNLR p. 402; Mumuni v. State (1975) 6 SC page 79; Akpan V. State (1992) 6 NWLR (pt. 248) p. 439.”
7.7 The body of judicial pronouncement having stilled the storm over the issue of whether an Accused person’s confessional statement is caught up by the inconsistency rule, our attention migrates to the options available to an Accused person who is betrapped by an incriminating extra-judicial statement.
8.0 Options available to the Defence
8.1 Permit us to state that the most important option available to the Defence is for the Accused person’s Counsel to act responsibly and timeously. This high level of diligence and sense of responsibility must be exhibited in, requesting for all the extra-judicial statements made by the Accused person and other witnesses in respect of an alleged offence; objecting to the involuntariness of the Accused person’s statement; objecting to the admissibility of an extra-judicial statement of a witness who was not called by the Prosecution to testify in open Court during trial, objecting to the admissibility of a pre-trial statement of an Accused person (which is not confessional in nature, but would not support the case of the Defence); urging the Court through the Defence’ final written address to expunge any extra-judicial statement which did not scale through the inconsistency rule hurdle and preparing sound and arguable grounds of appeal where the Accused person is still found guilty by the trial Court.
8.2 The essence of the above precautions is that the law tilts more in favour of the Prosecution than the Accused person. The Prosecution is at liberty (although it is not good practice) not to tender in evidence any extra-judicial statement that will exculpate the Accused person from conviction and therefore it is the duty of the Defence Counsel to embark on a thorough investigation and search for every available extra-judicial statement in representing the Accused person.
8.3 The Court in IDOWU v. THE STATE (2011) LPELR-3597(CA) per TSAMMANI, J.C.A. @pp. 63-64, paras. C-E, reiterated the inalienable duty of the Defence in this regard viz:
“The law is that, it is not necessary for the Prosecution to tender the statement made by a witness who is called to testify in the case. This is because such a statement which was made by a witness called by the Prosecution, and relates to any matter on which the witness has given evidence, is not evidence of facts contained in it. The only way the defence can put it in evidence is to cross-examine the witness with a view to impeach his credit, and then put the extra-judicial statement in evidence for purpose. Though, it is good practice for the prosecuting counsel whose duty is not to secure conviction, but to see that justice is done, to make such statement available to the defence counsel so that the defence may make use of such statement in their defence, there is no law that compels the Prosecution to tender such extra-judicial statement in evidence at the Trial. It therefore means that the defence counsel has the responsibility to formally request for the production of the statement. The learned defence counsel failed to ask for such statements. He cannot now complain and push the blame to the Prosecution for the blunder committed by him or for his inadvertence. This court cannot also come to his aid at this stage by invoking the provision of section 149(d) of the Evidence Act against the Prosecution. In any case, section 149(d) of the Evidence Act is concerned with withholding evidence and not with failure of a party to call a particular witness or tender a particular document. See Section 199 and 209 of the Evidence Act. See also LAYONU AND ORS V. STATE (2003) 3 A.C.L.R and NDIDI V. STATE (2005) 17 N.W.L.R (Pt.953) P.17. In the instant case, it cannot be said that the Prosecution had withheld evidence as to require the invocation of section 149(d) of the Evidence Act against them on the issue of evidence of identification.”
8.4 Of equal importance is the fact that the Defence must be on guard to ensure that the extra-judicial statement of a Co-accused person is not used against the Accused person as the law is that an Accused person cannot be convicted by the extra-judicial statement of a Co-accused person. See THOMAS V. STATE (2013) LPELR-20205(CA) per TUR, J.C.A. @ p.49, paras.E-F where the Court held that
“The extra-judicial statements can only be used against the appellant and not the co-accused. See Chuka V. The State (1988) 7 SCNJ 226; Atanda v. Attorney-General Western Region (1965) NMLR 225; Otufale v. The State (1969) NMLR 261 and Mumuni vs. The State (1975) 6 SC 79.”
9.0 Conclusion
9.1 Flowing from the above scenario, the following highpoints are deducible:
- All statements made outside the Court in respect an alleged offence are extra-judicial statements.
- Pre-trial statements of an Accused person including confessional statement are also extra-judicial statements.
- Extra-judicial statement of a witness in criminal trial is generally inadmissible except when it is tendered to show inconsistency or contradiction in the testimony of the witness.
- However, the confessional statement of an Accused person if made voluntarily is admissible despite being an extra-judicial statement.
- Where there are contradictions between the confessional statement of an Accused person and his testimony in open Court, the Court would still attach probative value to an Accused person’s confessional statement.
- The Court can convict an Accused person on the strength of his confessional statement.
- The defence has a responsibility to act timeously in order to prevent the Court from admitting into evidence an incriminating extra-judicial statement.
Marvis Oduogu (Associate at PUC), 08064082698
