Trial within trial: A ready tool of the defence counsel in destroying the prosecution’s case in the Nigerian legal System


Several times a lawyer got briefed about the case of an accused person standing trial for offences ranging from misdemeanor to capital offence few days to the trial, or at the most pressing time, on the day of the trial. Following a complaint lodged at the police (in this article police includes DSS, EFCC, IMMIGRATION, CUSTOM, and other sister agencies) an accused is arrested on the suspicion of committing an offence, the police in the course of finding out the level of involvement of the accused in the said crime uses all antics and tactics to force out a statement from the accused. This statement which is termed confessional statement will later form part of the evidence of the prosecution tendered through the Investigating Police Officer, and where the court found the statement to be admissible, it can fairly rely on it to convict the accused, as the best evidence against an accused is his own testimony. See Adamu Saliu v State (2014)All FWLR (Pt. 743) 2051 per Rhodes-Vivor, JSC.

The forgoing paragraph poses no problem on the face of it, however, several laid down constitutional rights, and legislations has provided the procedure to be followed in obtaining confessional statement. This article examines a situation where the accused is forced to make a statement involuntarily, which under our legal system will warrant a special criminal proceedings termed “Trial within Trial.” Destroying the prosecution’s case through the machinery of “trial within trial” requires a special knowledge on the part of the defence lawyer and we shall look deeply into this special knowledge and the future of trial within trial in the Nigerian legal system.

In the words of renowed jurist Rhodes-Vivor JSC in Adamu Saliu v State (2014) All FWLR (Pt. 743) 2051, trial within trial is a mini trial conducted to find out if the accused person made his confessional statement voluntarily. If the statement was not made voluntarily, it would be rejected by the court but if found to have been made voluntarily, it would be admitted in evidence and relied on by the court in convicting the accused person.

In a more elaborate explanation of the concept, trial within trial, Justice Tsammani in the case of Obinah John v The State (2013) LPELR-22197 (CA), succinctly held:

Certainly, it is the law that in criminal trial, no statement by an accused person can be admitted against him unless it is shown to have been voluntarily made. That being so, where the admissibility of a confessional statement is challenged on the ground that it was not voluntarily made, the Judge has a duty to determine whether or not it was voluntarily made. In practice, that is done by way of a trial within trial where evidence is led about the circumstances under which such a statement was made. It is therefore only when the accused has raised the issue that he did not make the statement voluntarily, that the need for trial within trial will arise.”

Clearly, under our jurisdiction, it is noted that the only permissible reason for the conduct of trial within trial is the determination of the voluntariness of the confessional statement sought to be tendered by the prosecution as purported to have been made by the accused person. See the case of Ibeme v The State (2013) 10 NWLR (Pt. 1362) 333; Lt. Commander Steve Obisi v Chief of Naval Staff (2002) 2 NWLR (Pt. 751)400

Before I delve into discussing the role of defence counsel in trial within trial, permit me to point out that there is a difference between trial within trial and trial before trial, which the later is unknown to Nigerian Jurisprudence. An accused standing trial is presumed innocent under proven guilty, and any attempt to secure his conviction before trial is a nullity. See section 36(4) of the 1999 Constitution. In Lt. Commander Steve Obisi v Chief of Naval Staff (supra), the court authoritatively stated the point that trial before trial is unknown to the Nigerian law and therefore should be discouraged at all levels of criminal trials. In this case, the appellant was charged and tried before a General Court Martial for various offences which allegedly violated the provisions of the Armed Forces Decree. The charges were that he disobeyed standing orders contrary to the Armed Forces Decree by engaging in private business, donation of #1,000,000.00 (One Million Naira) to his church as tithe and receipt of gratification from contractor, amongst others. He was tried, convicted and sentenced to twenty years imprisonment.

Prior to the trial, the appellant made an extra judicial statement to the Director of Naval Intelligence. During his trial, the appellant objected to the admissibility of the statement. He alleged that he did not make the statement freely and voluntarily. He urged the Court Martial to reject the statement. The Court Martial, however, overruled the objection, admitted the statement and marked same as Exhibit C. In their verdict, the Court Martial held thus on the admissibility of the said statement:

“The members of this court have considered critically the assertion by the accused officer that Exhibit C, his statement to the DNI (Director of Naval Intelligence) was not voluntary. The Court notes that the accused officer is a senior officer who is aware of avenues of redress of intimidation and coercion. He ought to have complained out to the appropriate authority before now that he was forced to admit all that he wrote in Exhibit C. perhaps if he had done so, he would have saved himself and members of this court the inconvenience of going through this trial. For then, a trial before trial as required by law would have unveiled this allegation assuming that it has some elements of truth.”

On appeal, the Court of Appeal, per Aderemi JCA in reversing the Court Martial decision held thus:

“The court below went on a wrong premise when, in upholding the admissibility of Exhibit C it said that the appellant ought to have complained out to the appropriate authority before now that he was being forced to admit all that he wrote in Exhibit C and that if he had done that, that would have saved himself and members of the court below the inconveniences of going through the whole trial as a trial before trial, as required by law, would have unveiled the allegation. That certainly is not the law, there is nothing called trial before trial in law. It is when the voluntariness of the statement is the cardinal issue in the sense that it has been shown not to have been freely and voluntarily made by the accused that a trial within trial and not trial before trial will be conducted to determine whether the accused was coerced, induced, deceived or forced to make the statement in question.”

Confessional Statement

The bulwark of our jurisprudence on trial within trial burders on confessional statement of an accused which is questioned for lack of voluntariness. It becomes imperative that we look at the law of evidence which guides the admissibility of confessional statement made at the police station during investigation.

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

On When a confessional statement is relevant?, by Section 29 of the Evidence Act 2011 provides as follows:

(1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far 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

(5) In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.

(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

The definition of oppression in Section 29(5) of the Evidence Act is not exhaustive and any similar violation of the rights of the defendant will also constitute oppression. It is instructive that the use of torture or inhuman or degrading treatment is a violation of the fundamental rights of a defendant. Section 34(1) of the Constitution of Federal Republic of Nigeria 1999 (as amended) States that:

No person shall be subjected to torture or to inhuman or degrading treatment.

In C.O.P v Alozie(2017) LPELR-41983 (SC) Centus Nweze JSC said: “the courts are bound to reject accused person’s confession which emanated from torture, duress, threat or inducement.”

Thus, the denial of food or other basic necessities or medicines vital to health and sustenance of the defendant will be a valid ground for challenging a confession by reason of oppression. Denial of access to counsel and proper legal representation amounts to a ground for rejecting confessional statement. The denial of food or basic necessities is unjust, cruel, inhuman and degrading treatment and constitute oppression against the defendant and the list goes on. See sections 29(5) of the Evidence Act , 34(1) of the Constitution.

The role of Defence Counsel in safeguarding the rights of his client in trial within trial.

The police having forced out a statement from the defendant, or subjected him to accept the one chun out by the police, the prosecution rushes to court to secure the conviction of the defendant. The constitutional and evidential safeguard set out above to protect the accused becomes his only city of refuge. The defence counsel during conversation with his client must ensure to ask him whether any of the vitiating circumstances was done to him prior or during the time of making the confessional statement. Lawyers must be on alert and listen careful to the narration of the ordeal suffered by their clients in the hands of the police, where he found that the accused was subjected to inhumane or degrading treatment, promised a favour in exchange for the confessional statement, forced to make the confessional statement, signed the one presented by the police which he did not make, the defence counsel has a sacrosanct duty to the client and the court to ensure that such statement will never be admitted in evidence in the courts record.  

Chukwuma-Eneh in the case of Augustine Ibeme v State (supra) stated the rational for trial within trial. “The rational behind instituting the procedure of trial within trial is to protect an accused person (particularly an illiterate person) from the overbearance of some overzealous Investigating Police Officer (IPO) bent on securing convictions in their matter at all costs by using all manner of inducements, threats or promise to obtain confessional statement in the prosecution of their case”.

On his part,  Rhodes-Vivor JSC stated that the procedure (trial within trial) guarantees equality in the criminal justice system thereby keeping the streams of justice pure.

A lawyer as a minister in the temple of justice shall not stand on akimbo and watch his client swept away by the tsunami of incriminating involuntary confessional statement presented before the court by the prosecution, he must act to see that justice is done both for the accused and the state, and he must act timeously. What then shall the lawyer do?

1. Raise an Objection to the admissibility of the Confessional Statement and move the Court to Trial within Trial.

Time is of the essence here, the lawyer must act fast. The appropriate time to raise objection to the admissibility of a confessional statement in a criminal trial is when the statement is about to be tendered by the prosecution. In practice, the prosecution usually seeks to tender such statement through a witness mostly, the IPO, who was present at the police station when the confessional statement was made. In Obinah John v State (supra), the Court of Appeal held:

The challenge as to the voluntariness of the statement must be raised at the tendering of the said statement, not after it has been admitted and forms part of the evidence before the court. Also, in Patrick Ikemson v the State, the tendering of the confessional statement was not promptly objected to. The appellant’s and co-accused persons were convicted. They appealed up to the Supreme Court. The Court, per Nnamani, JSC, seized the opportunity and restated the trite position of the law that in all cases of objection to a statement being admitted in evidence, it is at the point of tendering the statement that objection must be raised and voluntariness tested. See also, Henry Odeh v Federal Republic of Nigeria (2008) All FWLR (Pt. 424) 1590. In Dairo v FRN (2012) 16 NWLR (Pt. 1355) 129, the court held that if the accused person challenges the admissibility of the statement on the basis that he made the statement involuntarily due to certain vitiating elements such as inducement, promise of an advantage, threat, duress etc the court is expected to determine the veracity of this claim before deciding whether to admit the statement or not.

Ekemini Udim, in his book “trial within trial in criminal proceedings” instructed that the defence counsel who wants to raise an objection against an involuntary confessional statement, shall ensure that he moves the court in the proper language the court understand, he must be specific in the tenor or language of his objection. The Supreme Court, in Sani Abullahi v State (2008) All FWLR (pt. 432) 1047  held thus: “in raising an objection at trial as to the voluntariness of his confessional statement, being tendered as Exhibit, the accused must be categorical and specific in the tenor of the objection he raises.” Similarly, in Lt. Commander Steve Obisi V Chief of Naval Staff (supra), the Apex court, per Pats-Achalonu JSC said, “there would be need for a trial within trial where the appellant can clearly demonstrate by the nature of the language he used to express his ordeal that the statement credited to him was obtained by force, trick or non recognizable legal ways. In the absence of that, it will be idle for the court to forage out in an attempt to be considered to have done its duties magnificently and according to its calling.”

In Dairo v FRN (2012) 16 NWLR (Pt. 1355) 129, the court held that if the accused person challenges the admissibility of the statement on the basis that he made the statement involuntarily due to certain vitiating elements such as inducement, promise of an advantage, threat, duress etc the court is expected to determine the veracity of this claim before deciding whether to admit the statement or not.

 2. Defence Counsel must lead evidence to prove that the confessional statement was not obtained voluntarily by the prosecution: We have pointed out, that trial within trial is a mini trial done to ascertain the voluntariness of a defendant’s confessional statement. As a rigorous procedure of all trials in the Nigerian adversarial legal system, leading evidence requires as provided under Section 214 of the Evidence Act 2011, an examination in Chief, Cross examination and re-examination. The defendant or his counsel who alleges involuntariness of the confessional statement will lead evidence in chief, specifically, the accused himself who will narrate or explain to the court how the statement was forced out of him. This evidence of the accused will be cross examined by the prosecution to show that there is no compulsion on the part of the IPO to get the statement of the defendant. On the final analysis, a re examination by the defence counsel.

Where the prosecution refuses, neglects or fails to cross examine the accused person on the allegation of involuntariness, the law presumes that the allegations of the accused person are true. In Adelarin Lateef v Federal Republic of Nigeria (2010) All FWLR (Pt. 539) 1171, the Court of Appeal, per Alagoa JCA observed:

From the record, it is clear that each accused person gave evidence of beating, torture and duress meted out to them in obtaining their statements. It is also clear that there was no cross examination of any of the accused person/appellants after they had given evidence in the trial within trial proceedings. In Waziri v State (1997) 3 NWLR (Pt. 496) 689 at 721, the position of the law as failure to cross-examine a witness in a proceeding was stated as follows: ‘It is an established principle of law that where an adversary or a witness called by him testified on a material fact in controversy in a case, the other party should, if he does not accept the witness testimony as true, cross examine him on that fact or at least show that he does not accept the evidence as true. Where as in this case, he fails to do either, a court can take his silence as an acceptance that the party does not dispute the fact that the making of the statement is involuntary.

3. Appeal

Ekemini Udim said that at the conclusion of every trial within trial, the judge has a duty to make a considered ruling on it. It is either the Judge rules that the accused person has successful proved his allegation that the extra-judicial statement in issue was not freely and voluntarily made by him but was forcefully extracted from him by the police, or the judge rules that, the prosecution has proved beyond reasonable doubt that the extra-judicial statement was freely and voluntarily made by the accused person.

Whatever the decision the judge made, this may be a ground for appeal up to the Supreme Court. It is important to note that the defendant cannot at the first time on appeal raises allegation that the confessional statement of the appellant was not freely and voluntarily made where same was not raised at the trial court. See the case of Demo Oseni v State (2012) 49 NSCQT 1190, Per Tanko Muhammed JSC

“throughout the trial at the trial court, there was no objection to the admissibility of the appellant’s confessional statement. It is rather too late to raise such an issue on appeal. It is an afterthought. “

An appeal from the trial court on the admissibility of the confessional statement can be classified as interlocutory appeal and must be filed within the appropriate time under the enabling statutes. In civil suits, such interlocutory appeal must be filed within 14days from the day of ruling. In criminal appeal, the period for filling is however different, the period is within 90days. See Section 25 of the Court of Appeal Act for time of filing civil and criminal appeals.

25 (2) The periods for giving of notice of appeal or notice of application for leave to appeal are;

(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.’

In State v Duke (2003) 5 NWLR (Pt. 813) 394 the Court held:

To make the matter clearer, since, unlike subsection 25(2)(a) of the Court of Appeal Act that governs civil matters, subsection 25(2)(b) thereof dealing with appeal in criminal matters, draw no distinction between appeals on interlocutory and final matters, the period within which an appeal can be filed in criminal matters remain the same whether the decision on appeal is interlocutory or final and therefore, the question of seeking leave of the court before filing an appeal does not arise as long as an appeal is filed within 90 days stipulated by subsection 25(2)(b) for filing an appeal against a decision in a criminal matter.”

Counsel for the accused/appellant should ensure that a notice of criminal appeal from a lower court to a higher court is signed by the accused/appellant as a condition precedence to the competency of an appeal. Even where the appellant is in prison custody, appropriate arraignment should be made to take the notice to the prison for same to be signed by the appellant as provided in Order 17 Rule 4(1) of the Court of Appeal Rules, except where the accused/appellant is insane sub- rule 4(5) or a body corporate sub-rule 6, where the appellant counsel may sign or the company secretary, clerk or legal representatives respectively. See the case of Ikechukwu v Federal Republic of Nigeria (2015) 7 NWLR (Pt.1457) 1 where the supreme court upheld the ruling of the Court of Appeal which struck out the appellant’s appeal on the ground that the notice of appeal was incompetent having not been signed personally by the appellant.

Please note: (1) Objection to the voluntariness of a confessional statement cannot be raised during the defendant’s defence to invoke trial within trial. On this, see the case of Obinah John v State(supra), where, a defendant raised objection to the admissibility of his confessional statement during defence. The trial judge overruled the objection and the decision of the trial judge was upheld on appeal.

2. Trial within trial will not be permitted where the accused denies making the statement. The rejection of a confessional statement by a defendant is otherwise a retraction. J.A Ababa opined in his book “Practical Approach to Criminal Litigation in Nigeria, Confessional statements may not be challenged by an accused person (for reason) that he/she did not make the statement. This is otherwise called a retraction.” In Kazeem v State (2009) All FWLR (Pt.465) the court held that where an accused person retracts his statement by denying making same or retracts from tendering same, the court can go ahead and admit the statement notwithstanding the retraction but will determine the probative value to be attached to it during the evaluation of the evidence before the court based on the surrounding circumstances of the trial.’ In the case of Alarape v State (2001) 5 NWLR (Pt. 704) 79, the Supreme Court, per Iguh, JSC held that: “Retraction of or resiling from a confessional statement or denial by an accused person of his having made such a statement does not ipso facto render it inadmissible in evidence.”

3. The conduct of trial within trial must be done in the presence of the defendant. Trial in absentia is unknown to the Nigerian jurisprudence and this position applies to trial within trial as a mini part of the main trial. In Lateef v Federal Republic of Nigeria (2010) All FWLR (Pt. 539) 1171 @ 1190, it was stated by the Court of Appeal that a trial within trial takes the form of a normal trial in which witnesses are called to give evidence and are subjected to cross examination by the other side. Such trial will be incomplete without the physical presence of the accused person who is alleged to have made the statement now in issue.

4. Only the defendant or his counsel can raise objection to the voluntariness of a confessional statement. See the case of Federal Republic of Nigeria v Babalola (2015) All FWLR (Pt. 785) 227, where Justice Aka’ahs said,  “what I find rather curious in this case is that the learned counsel to the respondent would take objection to the statement which was made by another person. I am of the view that only a person who made the statement can raise objection to its voluntariness.”

5. The fact that a Confessional Statement was written for the accused by the police does not call for trial within trial. The position of the law will favour trial within trial where the defendant alleges that he was forced, threatened or compelled to make or admit the confessional statement.  See, Nnabo v State (1992) 2 NWLR (Pt. 226) 716, Adamu Saliu v State (2014) All FWLR (Pt. 743) 2051; Daniel Madjemu v State (2001) FWLR (Pt. 52) 2210

The position of Administration of Criminal Justice Act 2015 on Confessional Statement

The ACJA has in a mild term guaranteed the voluntariness of confessional statement. There is no provision in the Act which precludes or prohibits the accused person standing trial, from timeously raising an objection to the admissibility of a confessional statement where such statement was not made by the defendant voluntarily. For more understanding of the position of the Act on confessional statement, we shall reproduce the two most important provisions of the Act on confessional statement.

Section 15(4) 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. (italics mine for emphasis)

17(1) where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so so wishes to make a statement. (italics mine for emphasis)

(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 other person of his choice.

Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfer while the suspect is making his statement, except for the purpose of discharging his role as a Legal Practitioner.

(3) Where a suspect does not understand or speak or write in English Language, an interpreter shall record and read over the statement to the suspect to his understanding and the suspect shall then endorse the statement as having been made by him, and the interpreter shall attest to the making of the statement…

It is crystal clear that ACJA supported the position that a confessional statement must be voluntary and still goes further to suggest ways of safeguarding this sacrosanct doctrine by ensuring that such statement shall be recorded in  writing, and may be recorded electronically on a retrievable video compact disc or such other audio visual means. Again in section 17(2) such statement may be taken in the presence of a legal practitioner appointed by the accused or such other officer as mentioned above. These provisions of ACJA only makes the proof of the voluntariness of a confessional statement easier but there is still a doubt if the present economic situation in Nigeria permits that, especially the part on recording the confessional statement as most police station do not have the machinery in place to effect the provisions of the Act.

The Future of Trial within Trial in the Nigerian Legal System

Scholars, jurists and legal experts have not hide their voices in expressing their opinions on the heated topic of relevancy of conducting trial within trial in the Nigerian Legal System. Some believed that since trial within trial is an offshoot of jury system of trial which Nigeria has done away with, it becomes imperative to abandoned the rigmarole waste of time caused by trial within trial and incorporate the issue of voluntariness as part of the main trial where both the prosecution and the defence will lead evidence on same and the judge will rule on that at the stage of final judgment, this will save enough time for the court and ensure that justice is speedily delivered. See Gbadamosi v State per Ogundare JSC explained that “trial within trial is an offshoot of the jury system which Nigeria once practiced about the 1930, and since the jury system was removed, off should go trial within trial.” This will be in line with other Commonwealth jurisdictions which have done away with trial within trial including India and UK which had moved away from the practice of trial within trial.

A great majority of the people who have expressed their opinions said that trial within trial has become a delay tactics by certain defence counsel and contributes to unending trials at a time effort is made to speed up criminal justice administration. Speaking to the NATION at the first C.O Anah (SAN) Memorial Colloquium in Abuja titled “Trial within Trial; an incongruity with speedy administration of criminal justice,” Justice Danlami Senchi noted that there has been a blind and slavish adherence to the practice through the fundamental rights to personal liberty under section 35 (2) of the constitution which requires that any statement made by a person upon a lawful arrest must be voluntary.  To him, the innovation ACJA 2015 designed to achieve, speedy dispensation of justice may be hampered by the retention of the practice, and he recommended that, having been served with the proof of evidence containing a copy of the defendant’s statement, his counsel could file a notice before trial indicating his intention to object to the statement on the ground that it was not obtained voluntarily. During trial parties will lead evidence to prove the voluntariness or otherwise. At the close of evidence and after hearing arguments from both the prosecution and defence, the court shall in its final judgement rule on the issue of voluntariness of the defendant’s statement. Where the court finds that the statement was obtained voluntarily, the court may proceed to rely on it and use same in the rest of its judgement. Where the court finds that the statement was obtained by means of oppression or inducement and thus not given voluntarily, the court shall discountenance such statement and expunge it from the records.

It must be noted that the position of the law is that where inadmissible evidence is received or admitted in evidence by a court, such court has power (and duty) to treat such inadmissible evidence as if it had never been admitted, i.e. expunge it from the records even when no objection has been raised to its admissibility. See HESHIDU V GOJE (2003) LPELR-10 310 (CA).

The opinion expressed by Justice Danlami Senchi JCA has found support by many including the likes of Prof. Akinseye-George, Mr Kemi Pinheiro (SAN), Mrs Chinyere Moneme, Kemasoude Wodu and others. On his part, Prof. Akinseye-George observed that “an overshadowing majority of the States have taken the bull by the horn by legislating a new approach pertaining to admissibility of confessional statement. He referred to Section 37(6) & (7) of the ACJA of Kaduna State, which provides: “A prosecutor who seeks to rely on a confessional statement allegedly made voluntarily by a suspect shall, while presenting the prosecutor’s case, adduce evidence to show the voluntariness of the said statement.” Therefore, any objection to the admissibility of such confessional statement shall be recorded and shall be ruled upon by the court while delivering judgement in the substantive case.

Adekunle C.O opinied that if the Judges Rules are given the force of law and adequately enforced, it will be unnecessary to resort to trial within trial to determine the admissibility of a confessional statement. The judges rule are rules formulated in England by the Judges of the Queen’s Bench Division in 1912. The rule stipulates that a police officer is expected to caution the accused, record the time and place the questioning was held, parties present, allow the accused to write his own statement without prompting, and where the police officer writes for the accused, the officer should write down the exact words of the accused person, the statement should be read and interpreted to him, signed by the accused person and police officer. The accused and the confessional statement should be taken before a superior police officer for countersigning. In Dairo v FRN (supra), the court held that the Judges rule are made for the efficient administration of justice. The aim is to ensure that where a confession is voluntary, it is really voluntary.

Some jurist have expressed positive suggestion on trial within trial, tending to focus on ways to make dispensation of justice faster and  guarantee fair hearing. NBA spokesman, Mr. Nduka speaking to the NATION said “my personal opinion is that the abolition of trial within trial will not guarantee speedy trials until several ancient practices are jettisoned. Judges still write in longhand… there is a reason we have this (trial within trial) in our criminal jurisprudence. Let there be a reform. We should be looking for a more comprehensive approach to speedy trials.”

On his part, Mr Ajuluchukwu Eze, said trial within trial should not be scrapped, but called for an adherence to the ACJA provisions on video recording of the interrogation process in the presence of a lawyer.

Looking at the arguments tendered on both sides in support and against retention of trial within trial, one will agree that all the parties noted that the system encourages delay in the dispensation of justice but it is not a system to be dealt away with as it protects the constitutional rights of the defendant guaranteed under section 35(2). The solution has been fairly in the line of the proposition of Justice Danlami Senchi JCA which not only recognised trial within trial as part of the main trial but as well offers party a chance to raise their objections and arguments in support or otherwise of the purported involuntary confessional statement. This will allow the court a chance to hear both side and make a fair judgement at the time of giving its final judgement. This approach will protect the defendant and at the same time remove the unnecessary prolongation of trial occasioned by trial within trial.


Trial within trial in the Nigerian legal system is a coin of two opposite side, looking at it from the angle of the prosecution, it is a tool of delay tactics employed by defence lawyers to frustrate the prosecution. It is no doubt that once an objection is raised on the involuntary confessional statement by the defence counsel, the life span of the trial will be prolonged by not less than six months and thereby making an unnecessary waste of time and resources. However, on the defence counsel side, trial within trial is not just a principal but a tool for destroying the prosecutions case, the defence counsel is focused on ensuring that the constitutional/legal rights of the defendant is protected and there is due process is securing the conviction of the right person. To the defence counsel he believes that justice cannot be sacrificed at the alter of speed, for it is better that nine (9) guilty person go unpunished than one innocent person be punished unjustly. It becomes imperative that these thesis and antithesis has given rise to a synthesis in the proposition of Justice Danlami Senchi JCA cited above in our search to protect the defendant and ensure quick dispensation of justice, thereby achieving a win-win situation for all parties in criminal trial in Nigeria.

About the Author

Ifenna Henry Obiajuru, Esq. is Associate counsel at I.P EZEUGWU & CO. (Legal Practitioners and Property Consultants) Ogun State, Nigeria. He is a legal researcher and author.


C.O Adekunle, “A case for the Abolition of trial within trial in Nigeria Criminal Jurisprudence” (2017)  International Joutnal of the Law Students Society Bowen University, Iwo, Nigeria. Essays in Honour of Late Mr. Oluwasegun Isaac Adenbighe, the legal insight vol. 1, 2017 pg 179-187.

Ekemini Udim, “Trial within Trial in Criminal Proceedings” (2016) Lagos, Princeton &Associate Publishing Co. Ltd

Kemasuode Wodu, “Trial within Trial: Regulation by means of practice direction”

The Nation Newspaper, ed. “C.O Anah (SAN) Memorial Colloquium, Trial within trial: an incongruity with the speedy administration of criminal justice.”

Punch Newspaper, ed. “Admissibility of Confessional Statement: Imperatives of trial within trial, Lagos state judiciary 2019/2020 legal year.”

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