Trial Within Trial: A Recurring Problem With Administration of Criminal Justice in Nigeria

  • Home / Corporate And Commercial Compliance / Trial Within Trial:…

Trial Within Trial: A Recurring Problem With Administration of Criminal Justice in Nigeria


The criminal justice system in Nigeria has become a subject of continuous concerns amongst stakeholders and the general public. It is riddled with age-long challenges viz: procedural and substantive; that requires rejigging. One of the challenges faced is the concept of trial within trial in the country’s criminal procedure which arises when the voluntariness of a confessional statement of a defendant is questioned.

Confessional Statement in Criminal Justice Administration

Confessional statement is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Section 28 of the Evidence Act 2011. A confession made in judicial proceedings is of greater force or value than all other proofs. occupies the highest place of authenticity when it comes to proving beyond reasonable doubt. See Osung v State (2012) 18 NWLR (Pt. 1332) 256. Due to its relevance to proving a crime beyond reasonable doubt, a confessional statement must be given voluntarily. It is the law that no statement by an accused person is admissible in evidence against him unless it is shown by the prosecution that it was a voluntary statement. See Godwin Ikpasa v State (1981) 9 SC 7. Where, however, 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. Section 29 (2) of the Evidence Act.

Why trial within trial?

Once the voluntariness of a confessional statement is objected to, its admissibility is determined by a trial within trial.

It may be argued that trial within trial stems from Section 29 (3) of the Evidence Act which reads: “in any proceeding where the prosecution proposes to give  in evidence a confession made by a defendant, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either subsection (2)(a) or (b) of this section.”

The procedure of trial within trial is so much used to exclude involuntary statements of an accused person that is contrary to the law and it has stuck on for good reason…”. See Augustine Ibeme v The State (2013) 10 NWLR (pt.1362)333. The sole purpose of a trial within the main trial is to test whether the confessional statement to be tendered by the prosecution was made voluntarily by the accused person or whether he was forced or induced to make it. Once a trial within trial is ordered by the trial judge the main trial is suspended until the conclusion of the trial within trial.

“The trial within trial commences with the state calling witnesses, usually police officers who would be examined under oath by the state and cross-examined by the defence. The witnesses for the state are to satisfy the court that the accused person made the confessional statement voluntarily while the defence counsel is to show the contrary i.e. that the accused person was forced or induced to make the statement. After the state concludes its evidence the accused person goes into the witness box to explain to the court how he was forced, or induced to make the statement. He may call witnesses, but they can only be called after he has given evidence” The State v Abdullahi Sani (2018) 9 NWLR (Pt. 1624) 278.

Doing away with trial within trial

While the usage of trial within a trial may be termed as a best approach in resolving the voluntariness or otherwise of a confessional statement has remained a trend, it is imperative to know of its enabling law. In giving an historical perspective of its usage, the Court in Gbadamosi v State (1992) NWLR (Pt. 266) 465, per Ogundare JSC reemphasized the absence of trial within trial in any Nigerian law: “A trial within the trial is an off-shoot of the jury system. In this country, the jury system having been on in Lagos in the 1930’s if not before that time… As I said before, trial within the trial is firmly rooted in the jury system. Remove the jury, off goes trial within trial”.

Just like Ogundare JSC asked: “do we need a statute here to abolish it when it was just a matter of practice and not law adopted by our judges in the days when English Law & Practice held sway in our land”?

The above question must have been the basis for the inclusion of Sections 15(4) and 17(1) – (2) in the Administration of Criminal Justice Act 2015 (ACJA).

Section 15(4) provides that “where a suspect who is arrested with or without a warrant volunteers to make a confessional statement, the police officer shall ensure that the making and taking of the statement shall be in writing and may be recorded electronically on a retrievable video compact disc or such other audio-visual means”. Section 17(1) provides that “where a suspect is arrested on allegation of having committed an offence, his statement shall be taken. (2) such statement may be taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an official of a Civil Society Organization or a Justice of the Peace or any other person of his choice. Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement.

As a matter of judicial interpretation in Nnajiofor v FRN (2019) 2 NWLR (Pt. 1655) 157, the word “may” which appears in Section 15 (4) as regards recording of the confession in a video format has been held not to confer a discretion on the police, but a directory, mandatory, imperative command. In Edewor v Uwegba (1987) 1 NWLR (Pt. 50) 313, 338, the Court held that “Generally the word “may” always means “may”. It has long been settled that may is a permissive or enabling expression. In Messy v Council of the Municipality of Yass (1922) 222 SRNSW 494 per Cullen, C.J. at pp 497, 498 it was held that the use of the word “may” prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it. See also Cotton, L.J. in Re Daker, Michel v Baker (1800) 44 Ch.D 282. But it has been conceded that the word may acquire a mandatory meaning from the context in which it is used. See Johnson’s Tyre Foundary Pty Ltd v Shire of Maffra (1949) A.L.R. 88. The word may also acquire a mandatory meaning from the circumstances in which it is used.”

In Akaeze Charles v FRN (2018) LPELR-43922(CA), the Court held that “it has been established by a long of decided cases that the Courts would interpret the word “may” as mandatory wherever it is used to impose a duty upon a public functionary to be carried out in a particular form or way for the benefit of a private citizen.

“Sections 15(4) and 17(2) of the ACJA impose a duty on public functionaries (police officers and other officers of any law enforcement agency established by an Act of the National Assembly and this include the EFCC) to record electronically on retrievable video compact disc or such other audio visual means, the confessional statements of suspects in the presence of the person/s set out in Section 17(2). The provisions are for the benefit of private citizens who are suspected of committing crimes so that the enormous powers of the police or other law enforcement agencies may not be abused by intimidating them or bullying them in the course of taking their statements.

“I should also add that the provisions also have another side to it, viz; to protect law enforcement agents from false accusation of coercion in taking statements from suspects. The use of the word “may” in those provisions are in those circumstances mandatory and not permissive”.

Perhaps, to err on the side of judicial caution, Section 9(3) of the Administration of Criminal Justice Law 2015, Lagos State provides for similar law to the ACJA. The Section reads “where any person who is arrested with or without a warrant volunteers to make a Confessional Statement, the Police shall ensure that the making and taking of such statement is recorded on video and the said recording and copies of it may be produced at the trial provided that in the absence of video facility, the said statement shall be in writing in the presence of a legal practitioner of his choice”.

Problems of trial within trial

Apparently, trial within trial consumes judicial time. It is conducted like the main trial i.e. the procedure applicable to the substantive trial, applies to same. In a case with more than a defendant, there is a likelihood of all defendants wanting a bite from the cherry.

Trial within trial also elongates the continuous detention of defendants who cannot access bail. With the recurring problem of adjournments in the Nigeria court system, defendants that are not admitted to bail, may continue to stay in detention throughout the period trial within trial is concluded with a decision on their acquittal or conviction not happening a in a time soon. 

A mini trial in a substantive one adds to the burden placed on judges. Nigeria judges are swamped with cases, and timelines of giving quarterly reports to the Nigerian Judicial Council. More often than not, these mini trials, due to their nature, takes the time that should be expended on other substantive matters.


Given the foregoing, it is advised that Sections 15(4) and 17(1) – (2) in the Administration of Criminal Justice Act 2015 (ACJA); Section 9(3) of the Administration of Criminal Justice Law 2015, Lagos State; and similar provisions in other relevant state jurisdictions, be adhered to strictly. The Courts should not in any manner allow the prosecution the laxity of non-compliance, thus, causing objections as to the voluntariness of the confessional statement.

Section 29 of the Evidence Act should be amended, indicating that the absence the provision of Section 15(4) of the ACJA renders the confessional statement inadmissible ab initio.

The extant laws on recording confessional statements have come to displace the continuous practice of conducting a trial within trial. These with other recommendations proffering better approaches are instructive. Trial within trial should be expunged.

For further information, please contact:

Farouk Obisanya at

Rouk & Co
Rouk & Co

We are a law firm dedicated to providing quality legal services to individuals and organizations in a changing world and help them with complex and sophisticated legal matters through thoughtful solutions, whilst maintaining the highest degree of ethical standard.

Write a Comment

Your email address will not be published. Required fields are marked *