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Trial within Trial in Nigeria

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What is Trial within Trial?

Trial within trial in Nigeria, is a mini trial in an ongoing criminal case or proceedings, conducted by the court, to ascertain the admissibility, voluntarilness or otherwise of the confessional statement of the accused person.

When will court order trial within trial?

Court will order trial within trial where an accused person admits making a Confessional Statement but alleges that he made the statement under duress or any form of inducement from the person before whom it was recorded.

Usually, the confessional statement of an accused person will be tendered during hearing. Once it is tendered, the Accused person(Defendant) though his counsel, will raise objection to its admissibility, stating the fact that he was induced or forced to make the statement or sign same.

Once an objection is raised on the ground of involuntariliness of the Statement, the trial court will order trial within trial. This is because, a confession not made freely, cannot be admitted in evidence. See the case of Ojegele v State(1988) 1 NWLR (PT. 71) 414


Burden of proof in Trial within Trial.

Just like every other criminal trial, the legal burden of proof is always on the prosecution.

From the components of section 28 of the Evidence Act 2011, once a Confessional Statement is tendered and objected to, on the ground that it was involuntarily made, the burden of proving otherwise is on the prosecution.

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The prosecution calls evidence to discharge this burden. At the end of the prosecution’s case, the Defendant will equally call witness to rebutt the evidence led by the prosecution.

In other words, it is the legal duty of the prosecution to proof that the statement was obtained in compliance with law, while it is the duty of the Defendant to proof that he made the statement under threat, inducement or promise of pardon or favour.See the case of Nalado v State (2019) 13 NWLR(Pt.1688) P.8

The Standard of proof on the part of the prosecution, is proof beyond reasonable doubt.On the part of the accused, the accused person is required to cast reasonable doubt on the evidence of the prosecution.See the case of Borishade v FRN(2012) 18 NWLR(Pt.1332) p. 347(CA).

Role of Accused person during Trial within Trial.

The major role of the accused person during trial within trial is to give evidence on the circumstances surrounding how the statement was obtained from him(either by force, threat, inducement of any kind, or promise).

Once the accused person establishes any of the above unlawful means deployed by the prosecution’s witness, the accused person should be given benefit of doubt. See Borishade v FRN supra.

The accused person who desires to impeach the voluntariness of the statement, has to establish same by showing any of the following:

a. That he did not make any such Statement as presented.
b. That he was not correctly recorded or
c. That he was unsettled in mind at the time he made the statement or
d. That he was induced to make the Statement. See Osetola v State (2012) 17 NWLR.P.251 SC. Hassan v State( 2001) 15 NWLR (Pt.735) p.184

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At the end of trial within trial what happens?

At the end of trial within Trial, the court will either admit or reject the confessional statement. Where the court found that the confessional statement was voluntarily made contrary to the allegation that it was made under duress or inducement, the court will admit the statement.

But where the court is satisfied that the involuntariliness of the Statement was established, during the trial within trial, the court will reject the statement and mark same rejected.

What if Court refuses to conduct trial within Trial when an accused person has raised issue of Involuntariliness?

The effect of not conducting trial within trial when an accused person has challenged the involuntariliness of his confessional statement depends on wether the failure to do same, led to miscarriage of justice. In simple terms, it does not vitiate the entire proceedings. It is often treated as procedural irregularity. See Jimoh v State (2012) 3 NWLR(PT.1286) P.144

Can decision of a judge on trial within trial be challenged?

In other words, can a decision of court admitting or rejecting the confessional statement be Challenged? Yes. it can be challenged. It can form subject matter of Appeal.

Where the decision of the trial court, in a trial within trial is challenged, the appellate court will consider the evidence adduced in the trial-within-trial to determine whether the trial judge was legally wrong or right in refusing or admitting the said confessional statement. See Borishade v FRN supra.


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