By KEMI PINHEIRO, SAN, FCIArb, FIOD
Being a paper delivered at the Lagos State Judiciary 2019/2020 Legal Year Stakeholder’s Summit held on the 24th day of September, 2019.
The preliminary question I would posit from the onset is whether in the first place
it is imperative to have a trial within trial in order to determine the voluntariness of
a confessional statement? Are there other methods by which the voluntariness of a
statement that qualies as a confession can be admitted without the resort to the
cumbersome and time wasting procedure of a trial within trial?
My discourse this morning is to examine the necessity of trial within trial, analyze the various challenges and problems that erupt from this procedure. I shall not leave my audience with just the problem, at a later part of my discourse I will proffer solutions to the problems and benchmark same against the procedures applicable in other jurisdictions.
It is my hope that at the end of my presentation I will have been able to trigger a new thinking in the procedure formally known as trial within trial, a thinking suffiient enough to compel its abrogation. That is my task. In any event, to borrow the words of Heraclitus of Greece; “There is nothing permanent except change”.
My first visit in this laborious process will be to section 29 (2) (a) – (b) of the Evidence Act, 2011 which governs admissibility of confessional statements and sets out the circumstances under which statements qualifying as confessions will be admitted.
Curiously, and interestingly Section 29, as with any other section of the entire Evidence Act makes no mention of the phrase “trial within trial”. I make bold to say that the phrase does not exist in our statutory lexicon. Rather it is a practice that has evolved over time to test the voluntariness of a statement qualifying as a
confession.
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