“Section 29(4) of the Evidence Act, 2011 deals with the use to which the statement of a co-accused can be put when considering the case of an another co-accused person. It provides – “29(4) Where more persons than one are arraigned jointly with a criminal offence, a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words or conduct.” This provision of law has been the cynosure of judicial interest and so the subject of several judicial decisions. For instance in the case of Ozaki V State (1990) 1 NWLR (Pt. 124) 92, 113 per Obaseki, JSC, the Supreme Court held thus: “It is my opinion that an incriminating statement made even to the hearing of an accused defendant, even on an occasion which could be reasonably expected to call for some explanation from him, is not evidence against him on his trial of the facts therein stated, save in so far as he has accepted the statement, and where the statement is used to found a conviction, the conviction must, on appeal, be quashed.” See also Okoro V State (2018) LPELR-44273(CA) 14; Hassan V State (2016) LPELR-42554(SC); Sololo V State (2005) 11 NWLR (Pt. 937) 460; Emeka V State (2001) FWLR (Pt. 66) 682; Shekete V Nig. Air Force (2000) FWLR (Pt. 29) 243; Gbadamosi V State (1992) 9 NWLR (Pt. 266) 465 Thus, the law is settled that the statement of a co-accused person is different and must be distinguished from his evidence in Court. For whereas the statement of an accused person is his statement and binds him alone and so can be used to convict him where it satisfies the requirements of a confessional statement, it cannot be used to convict a co-accused person. However, where the prosecution intends to use the statement against a co-accused, a copy of the incriminating statement must be made available to him and he adopts it by his words or conduct.

“In the case of Suberu V State (2010) LPELR-3120(SC), the Supreme Court stated as follows – “Section 27(3) of the Evidence Act deals with the use to which the statement of a co-accused can be put when considering the case of another co-accused… It is trite that a statement of a co-accused is different and distinguishable from his evidence in Court. A statement made by an accused remains his statement, and not his evidence, and it is binding on him only. Where the prosecution intends to use the statement against the co-accused, a copy of the incriminating statement must be made available to him.” [Section 27(3) of the Evidence Act referred to therein is now Section 29(4) of the Evidence Act, 2011]. The Supreme Court took it further in the case of Ozaki V State (1990) LPELR-2888(SC) when it held – “It is an error in law to convict an accused person on the statement of another accused to the Police. It is a travesty of justice and gross violation of all known rules of evidence. Section 27 of the Evidence Act forbids the use of such statement even when it is confessional…” The law was further expounded by Okoro, JSC in State V Gwangwan (2015) 24837(SC) 28-29, E-C thus: “First, where an accused person makes a confessional statement as to his participation in a crime, he is not confessing for his accomplices. An accused person’s is only evidence against him and not against co-accused persons and it is a misdirection which may lead to quashing the conviction. However, a confessional statement of a co-accused can only be used against an accused person if he voluntarily adopts it.” Finally, in the more recent case of Ajaegbo V State (2018) LPELR-44531(SC) 43-45, D-E, Nweze, JSC held as follows: “A free and voluntary confession of guilt by an accused person, whether under examination before a Magistrate or otherwise, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant convictions without any corroborative evidence so long as the Court is satisfied of the truth of the confession… However, a man’s confession is only evidence against him and not against his accomplices… In effect, a confessional statement is not binding on a co-accused person, except the statement was adopted by the co-accused person. This must be so for where an accused person makes a confessional statement to the Police as to his participation or culpability in the crime charged, he is not confessing for his co-accused person. Thus, his confession is only evidence against him and not against the co-accused person… The law therefore is that the confessional statement of an accused person cannot be used against a co-accused person unless it is adopted by the co-accused person… Therefore, in the instant case, based on the law which has been copiously interpreted by the apex Court and this Court, the use of the statement of the co-accused person against the Respondent without his having adopted it as his, was unlawful and has a vitiating effect on his conviction by that Court… For this purpose, the adoption of the statement of an accused person which would qualify the statement to be used against a co-accused person can be by words or conduct…”

I agree with him that you cannot convict an accused solely on the confessional statement of a co-accused. In Aikhadueki V State (Supra) the apex Court held: “…….. In any case the Court is wary of an allegation in a statement of one accused person against another. It is trite law that allegations in a statement made by one accused against a co- accused will not constitute evidence against the co-accused unless the said co-accused has adopted the said statement”. The extra-judicial statement of an accused is irrelevant in the trial of a co-accused. See Suberu V State (2009) LPELR 8716, Holo Lanre V The State (2015) LPELR-24538, Nwodo V The State (2018) LPELR 46335.

“I am in total agreement with his Lordship that the conviction cannot stand in view of the settled position of the law that an incriminating statement made even to the hearing of an accused defendant, even on an occasion which could reasonably be expected to call for some explanation from him is not evidence against him on his trial of the facts stated therein, save in so far as he has accepted the statement and where the statement is used to found or secure conviction the conviction must, on appeal be quashed. See Ozaki V. State (1990) 1 NWLR (Pt. 124) 92 at 113. Cajethan Okoro V. the State (2018) LPELR – 44273 (CA), (PP. 14-25, paras C-A) see also Section 29(4) of the Evidence Act, 2011.