Whether the Recorder of Confessional Statement must be called to Tender the Statement in Evidence

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It was submitted before the Apex Court, that, the Police Officer who recorded the confessional statement of an accused person, must be called as a witness to come and tender same in evidence for it to be admitted, and, acted upon by the Court in convicting such an accused person.

The Supreme Court per OLUKAYODE ARIWOOLA, J.S.C. (Delivering the leading judgment) in OLOYE v. THE SATE (2018) LPELR-44775(SC) however, held that: “There was no need to have called Sgt. Njoku to whom the appellant made his confessional statement, which was not made through an interpreter. The appellant spoke English and gave his statement in the language of the Court. The case of Nwaeze vs The State cited by the appellant’s counsel is inapplicable, as no interpreter was required and used in this case to obtain appellant’s statement. The law is clear that whenever an interpreter is used in obtaining the statement of an accused, such a statement will be inadmissible unless the interpreter is called as a witness in the tendering of the statement. That was not the situation in this case.”

It is thus settled law that, it is only where an interpreter is used in the recording of the confessional statement of an accused person that it becomes mandatory, that such an interpreter must be called as a witness, when such statement is sought to be tendered. Where the service of an interpreter in not involved in the recording of a confessional statement, it is not mandatory to call the recorder as a witness at the point of tendering it in Court.

A confessional statement of an accused is therefore admissible and can be the ground for his conviction when tendered by a person other than the recorder except where it was obtained through an interpreter. 


The appellant, Michael Oloye was the 1st accused while one Sunday Adoba was the 2nd accused person. They were jointly arraigned and charged with conspiracy to commit armed robbery and armed robbery.

The case for the prosecution goes thus: On the 1st day of May, 2008, Michael Oloye, Sunday Adoba and another fellow at large, at Idedo village along Owode/Idiroko road, near Iju town, riding on a Nissan Bluebird car and posing as policemen, accosted Mrs. Kudirat Olawunmi, while she was travelling in her Nissan Vanette bus with her aides, towards Sango. Michael Oloye and others flashed police identity cards and asked for the vehicle particulars which the Mrs. Kudirat Olawunmi’s driver produced. Michael Oloye asked if Mrs. Kudirat Olawunmi had any contraband in her vehicle to which he got an answer in the negative. They then started to search the bus and discovered the sum of Three Hundred and Sixty Five Thousand Naira (N365, 000), the property of Mrs. Kudirat Olawunmi, in a polythene bag where it was kept and took the money. Sunday Adoba pulled out a pistol and ordered Mrs. Kudirat Olawunmi and her team to enter the bus. Michael Oloye and his gang dropped the money in their Nissan Bluebird car and drove off, initially towards Sango but later made a U-turn towards Atan. Mrs. Kudirat Olawunmi’s driver chased the accused and pursued them, but after a while lost sight of the accused. However, with the help of some policemen at a check point and some commercial Motorcycle riders at Atan junction, Mrs. Kudirat Olawunmi’s team became aware that the accused had driven towards Agbara direction, hence they followed them. Michael Oloye and his gang later abandoned their car and tried to escape in a village, but with the assistance of the villagers, Michael Oloye and Sunday Adoba were arrested while trying to escape through a river. The 3rd suspect however, escaped with the money. The accused were later taken to Agbara police station where Mrs. Kudirat Olawunmi and PW2 made statements.

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Inspector Gideon Ogunlabi was the Investigation Police Officer (IPO), formally serving at the Anti-Robbery Section, State CID, Abeokuta. On 5th of May, 2008, he obtained the statements of the witnesses and the accused persons who volunteered their statements. He observed that the statements of Michael Oloye, Sunday Adoba were confessional in nature, hence he took each of them before a Superior Police Officer, ASP Sola King. The two accused confirmed that the statements were their voluntary statements and then signed same before the ASP. Inspector Gideon Ogunlabi also signed and the ASP endorsed same. The said statements were tendered in evidence and were admitted without any objection and marked Exhibits A and B for the 1st and 2nd accused respectively. The Investigating Police Officer at the Divisional level – one Sergeant Njoku, was reported to be on a foreign mission but his own statement had been obtained and was tendered and admitted in evidence as Exhibit C. Inspector Gideon Ogunlabi also tendered the statements made by the accused at Agbara Police Division. The defence objected to the admissibility of the statements, which objection was overruled, and same were admitted in evidence and marked as Exhibits A2 and B2 respectively. Inspector Gideon Ogunlabi led a team of policemen to Akinwumi village where the accused were apprehended but they did not find the loot in the river where they claimed they had dropped the money. All efforts to arrest the 3rd member of the gang proved abortive.

The defence of the two accused persons was total denial. However, the trial Court found that even though each of the two accused denied robbing Mrs. Kudirat Olawunmi, their evidence in almost every material particular confirms the case of the prosecution. They were found guilty, convicted and respectively sentenced to 14 and 21 years imprisonment on each of the two counts.

Their appeal to the Ibadan Judicial Division of the Court of Appeal was unanimously dismissed. Michael Oloye was further dissatisfied with the unanimous decision of the Court of Appeal hence this appeal to the Supreme Court.

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The appeal was determined on the following issues:

  1. Whether the Honourable Justices of the Court of Appeal erred in law to hold that Exhibit 42 was admissible as a confessional statement when the recorder of the Statement Sgt. Njoku Peters was not called as witness to tender the Statement in evidence.  
  2. Whether the Honourable Justices of the Court of Appeal erred in law to hold that the confessional statement, Exhibit A and A2 (if at all admissible) are corroborated and consistent with the other evidence presented by the Prosecution in proof of the offence of conspiracy and robbery.
  3. Whether the Honourable Justices of the Court of Appeal erred in law to hold that contradictions in the evidence of PW1 and PW2 are not material and relevant to the proof of the ingredients of the offence of conspiracy and robbery.


​In a unanimous decision, the Supreme Court dismissed the appeal. The decision of the Court of Appeal, which upheld that of the trial Court was further affirmed.


  • CRIMINAL LAW AND PROCEDURE – OFFENCE OF ROBBERY: Whether physical assault must be proved to ground a conviction for robbery

“Another submission of learned counsel for the appellant that must be debunked is that the pulling out of a gun on a victim without physically assaulting the victim will not amount to an act of violence or a threat to use violence which is an essential element in the offence of robbery. By bringing out the gun, the appellant intended to instil fear into the victim’s mind so that the victim will forcefully obey whatever instructions the appellant issues to the victim. It is therefore not necessary to physically assault the victim with the weapon; the mental agony and torture experienced by the victim is enough to ground a conviction for robbery. See: Otti v. State (1993) 4 NWLR (Pt.290) 675.”Per AKA’AHS, J.S.C. (Pp. 42-43, Paras. C-A).

  • CRIMINAL LAW AND PROCEDURE – OFFENCE OF CONSPIRACY: Meaning and nature of the offence of Conspiracy

“Conspiracy generally is an agreement between two or more persons to do an unlawful act, or to carry out a lawful act by unlawful means. This is however said to be a matter of inference to be deduced from certain criminal acts of the suspects, which were carried out in pursuance of an apparent criminal purpose in common between the parties, which are hardly ever confined to one place, Therefore, failure to prove a substantive offence does not, ordinarily make conviction for conspiracy, in any way, inappropriate, being a separate and distinct offence in itself. In other words, conspiracy is independent of the actual offence said to have conspired to commit. See; Kaza Vs. The State (2008) 5 SCM 70; (2008) 7 NWLR (Pt.1085) 125, (2008) 1-6 sc 151; Balogun vs Attorney General, Ogun State (2002) 2 SC (Pt.1) 89; (2002) 4 SCM 23; (2002) 2 SCNJ 196; Folorunsho Alufohai Vs. The State (2014) 12 SCM (Pt.2) 122, (2015) 3 NWLR (Pt.1445) 172; (2015) All FWLR (Pt.765) 198.”Per ARIWOOLA, J.S.C. (Pp. 29-30, Paras. F-E).

  • EVIDENCE – CONTRADICTION IN EVIDENCE: Effect of minor discrepancy in evidence on credibility of the witness(es)
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“The 3rd issue is whether the Court below erred in law to hold that contradictions in the evidence of PW1 and PW2 are not material and relevant to the proof of the ingredients of the offences charged.

This issue was considered in the sister case of the co-accused – Sunday Adoga in which judgment was delivered by this Court on 23rd March, 2018 in Appeal No.SC.430/2014. In that case this Court had, inter alia, held as follows:

“It is not in all cases where there are discrepancies or contradictions in the prosecution’s case that an accused person will be entitled to an acquittal. It is only when discrepancies or contradictions are on material point or points in the prosecution’s case which creates some doubt that the accused person is entitled to benefit therefrom. Minor contradictions in the evidence of the prosecution witnesses cannot be fatal to the case of the prosecution.”

In this case, differences as to where the money was kept in the victims’ car from where it was taken away by the appellant and the co-accused, and whether or not the appellant was arrested by the villagers or the police at the Check point cannot be said to be material contradictions to entitle the appellant to acquittal. Minor discrepancies between a previous written statement and subsequent oral testimony will not destroy the credibility of a witness. See: Ayo Gabriel Vs. The State (1989) 5 NWLR (Pt.457) 468 at 469; Jerry Ikpenikan Vs. The State (2011) 2 NWLR (Pt.1229) 449.

The 3rd issue is to be and is hereby resolved against the appellant.”Per ARIWOOLA, J.S.C. (Pp. 39-41, Paras. E-A).

  • EVIDENCE – CONFESSIONAL STATEMENT: Whether it is necessary to call the recorder of a confessional statement when same is being tendered in evidence

“The objection taken by the counsel that only the recorder of the statement can tender it is misleading. The only occasion where a valid objection can be considered is where the statement of an accused is recorded through an interpreter and the accused makes his statement in his mother tongue which is recorded and later translated into English. In such a situation before the translated version is accepted as authentic, the person who interpreted the statement from the mother tongue into English must be called to testify; otherwise the translated version of the statement will at best be treated as secondary evidence while the one recorded in the mother tongue is taken to be primary evidence. See: R v. Zakwakwa of Yorro (1960) 5 FSC 2.”Per AKA’AHS, J.S.C. (Pp. 41-42, Paras. F-C).


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