Ani Comfort Chinyere (Mrs.)
LL.B (Hons.) BL; LL.M., Ph. D
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Legislations and judicial pronouncements in Nigeria and some other jurisdictions are increasingly eroding the hallowed principles of presumption of innocence, right to silence and the burden of proof. Some provisions in our financial crimes laws prescribe forfeiture of assets of persons arrested for financial crimes prior to trial. These provisions prescribing seizures during investigation appear like gross abuse of the fundamental tenets of fair hearing of which the presumption of innocence is an integral part. Besides the provisions on forfeiture of assets, it is argued that some other provisions of our financial crimes laws, that out rightly presume the suspect guilty until the contrary is proved and also transfers the burden of proof on the accused person to rebut the presumption are unconstitutional. The recent trend in the pronouncements of judicial authorities on drawing inferences on the accused person’s silence is brought into focus and it is proposed that inferences should only be drawn on the suspect’s failure to answer questions when questioned by the authorities at the initial stage, only when he had been fore warned that such inferences could be drawn later. The continued use of remand as a means of detaining suspects unduly and the abysmal conditions of detention in Nigeria are also pointers to the abuse of the principle of presumption of innocence.
In all Common Law jurisdictions, which includes Nigeria, presumption of innocence plays a vital role in the criminal procedure as one of the pillars of due process. Under this principle, it is taken for granted that an accused person is presumed innocent until the contrary is proved. Attached to this principle is the rule of evidence that lays the burden of proof on the prosecution to prove the guilt of the accused beyond reasonable doubt. Article 11(1) of the Universal Declaration of Human Rights, 1948 and Article 14 of the International Covenant on Civil and Political Rights, 1966 and Article 7(b) of the African Charter on Human and Peoples’ Rights, all of which Nigeria has assented to, also provide for the presumption of innocence.
There is also the principle that a suspect has the right to remain silent when questioned by the authorities, and that an accused person cannot be compelled to give evidence at the trial. Nigeria has embedded these principles in her Constitution and Evidence Act, Case law has also deeply established over the years that an accused person does not bear a legal burden of proof. He does not have to prove his innocence. In a criminal trial, the prosecution bears the persuasive burden. Therefore, the burden of proving an accused person’s guilt is upon the prosecution. This is the cardinal principle of all criminal trials and the prosecution must prove all the elements of the offence necessary to establish guilt.
The presumption of innocence has been called the “golden thread” that runs throughout the criminal law. When it is said that a defendant to a criminal charge is presumed to be innocent, what is really meant is that the burden of proving his guilt is upon the prosecution and until that burden is discharged, the accused person is still seen as innocent.
The principle of right to silence and privilege against self incrimination, are both related to the presumption of innocence for the reason that an accused person need not say anything throughout the duration of the trial as the burden of proving that he committed the offence rests squarely on the shoulders of the prosecution. The philosophy behind the rule as to the presumption of innocence has found various expressions in terms of numerical comparisons between the relative evils of mistaken acquittals and convictions. There is a gradual shift from the tenacious Common Law principle of placing the burden of proof solely on the prosecution and the right to silence. The statute books contain many offences in which the burden of proving the accused’s innocence is cast upon him. The courts too have enunciated principles that have the effect of shifting the burden in particular classes of cases. Confiscation and Forfeiture of assets of a suspect before trial under the current financial crimes laws is also another issue that appears contradictory to the presumption of innocence. This paper examines these provisions, along with other justifying provisions of the Constitution.
This analysis endeavors to look at how the concept of presumption of innocence has been interpreted by the courts and legal scholars. The issue of remand and its attendant long delays in trial has been a problem confronting the constitutional presumption of innocence. The recent efforts by the Lagos State government to bring a respite to this problem are discussed. The degree or quantum of proof needed to secure a conviction in a criminal trial and some of the exceptions to the principle that rests the burden of proof on the prosecution are also examined. In so doing, this paper discusses the reversal of the presumption of innocence in some of our legislations, especially the recent ones that deal on corruption and financial crimes. The implication of some of the provisions of the financial crimes laws that prescribe punitive measures for suspects that fail to answer questions during investigations are also examined, along with its consequence on the constitutional right to silence.
What is a presumption?
A presumption is the product of a rule according to which on proof of one fact the judge or jury may or must find that some other fact exists. A presumption may either be rebuttable or irrebuttable. When the presumption is irrebuttable, no evidence can be received to contradict the presumed fact.
Presumption of innocence falls under the category or rebuttable presumption of law whereby the judge or jury as the case may be, must find that the presumed fact exists unless sufficient evidence is adduced to the contrary. It is a cardinal principle of the common law, which is based on the accusatorial system, that everyone is presumed to be innocent until proved guilty. A person accused of a crime is not bound to make any statement or to offer any explanation of the circumstances, which tend to create suspicion against him.
The presumption in effect declares that the accused shall be provisionally treated as innocent until it is displaced by proof of guilt beyond reasonable doubt in a fair trial. It is based on the consideration that it is expedient to begin the trial with the assumption that the accused is innocent and that it is socially desirable that the prosecution should bear the burden of proving him otherwise.
Remand and the presumption of innocence
The practice of remand where accused persons are detained, often over long periods, in highly deplorable conditions pending their trial, waters down the import of the principle of presumption of innocence. This practice has the character of making the accused appear as if he is already suffering for the crime he has committed even before he is found guilty or acquitted. This practice negates the value of the fundamental right to liberty of the accused person. Sanusi JCA in his dictum in the case of Musa v. Commissioner of Police, brought out the principle behind the presumption, when he stated thus:
By virtue of section 36(5), 1999 Constitution, every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty beyond reasonable doubt. Hence the principle has always been that it is better for one hundred accused persons to go free than for one innocent person to be punished for an offence he did not commit, or has no hands in its committal. In the instant case, the detention of the appellants for 22 months without a charge was in breach of the presumption of innocence in their favour.
Besides the refusal by some judicial officers to grant some suspects bail, and granting bail on very stringent terms, another situation giving rise to remand usually occurs when the police take suspects who have committed serious offences to the magistrate courts on a holding charge to be remanded in prison custody, pending the out come of the legal advice by the DPP, or his ultimate prosecution. Unfortunately, this provision has no time frame within which the suspects are to remain in custody. The result is that people remain in custody for years, abandoned in dreadful conditions, with appalling food, very inadequately ventilated and extremely congested cells and without essential amenities. Some of the suspects even stay longer than the period they would have spent if they were actually convicted.
The courts have had course to state on several occasions that the holding charge is not known to our criminal laws, and have gone ahead to declare it illegal. In Onagoruwa v. State, Tobi JCA, noted thus:
In a number of cases, the police in this country rush to court on what they generally refer to as a holding charge, ever before they conduct investigation although there is nothing known in law as a holding charge.
Also in the case of Evangelist Bayo Johnson v. Lufadeju and Anor, the dictum of Galadima J.C.A is quite appropriate and enlightening when he said:
Before an accused is brought before a court before a court, it should be assumed that the case is ripe for hearing, not for further investigation…. There cannot be a “holding charge” hanging over an accused in court pending the completion of investigation in the case against him. The obiter diction of my learned brother Niki Tobi JCA in Onagoruwa v. The State, is quite apt and instructive when he said,… Our Constitution or any other law for that matter, in force in the country does not provide for a “holding charge” to be held like a sword of Damocles over a person.
Section 268 of the Lagos State Administration of Criminal Justice Law, 2007 (ACJL) has now given a time frame for remands. By this section, an order of remand by a Magistrate shall not exceed a period of thirty (30) days in the first instance. At the expiration of the thirty days, the magistrate is to release the person remanded unless good cause is shown why there should be a further remand order for a period not exceeding one month. At the expiration of the further order of remand, the Magistrate is to issue a hearing notice to the Commissioner of Police and/ or the Director of Public Prosecutions and adjourn the matter in order to inquire as to the position of the case and for the Commissioner of Police and/or The Director of Public Prosecutions to show cause why the person remanded should not be released. The Magistrate is to extend the remand order only if he/she is satisfied that that there is a good cause shown and that necessary steps have been taken to arraign the person before an appropriate Court or Tribunal. This no doubt is a step in the right direction and an acknowledgement of the evil occasioned by long detention which is antithesis of the principle of the presumption of innocence. It is proper that the all stakeholders in the administration of criminal justice in Lagos State adhere to this new provision, while the federal and other states are enjoined to amend their relevant laws accordingly.
Forfeiture of Assets of Persons Accused of Financial Crimes
Presently in Nigeria, as far as financial crimes are concerned, the Economic and Financial Crimes Commission (EFCC) Act and the Corrupt Practices and other Related Offences Act are the two major legislations dealing with financial crimes. The Commissions established under them, have virtually taken over investigation and prosecution of all the offences under the various financial Crimes Acts enacted before their inception. The laws relating to financial crimes in Nigeria contain copious provisions on confiscation and forfeiture of assets whether movable or immovable upon conviction in addition to the prescribed penalty. Adedeji Adekunle has identified three forms of penal forfeiture or confiscation. They include:
Besides the deterrent effect of this form of punishment, it is also targeted at making the crime unattractive by ripping the offender of the benefits of the crime, thereby incapacitating the offender financially.
Besides confiscation and forfeiture upon conviction, there are some provisions in our laws on financial crimes that prescribe forfeiture of assets of persons arrested for financial crimes. This paper is more concerned with the forfeiture of assets of persons prior to their trial. Section 27 of the Economic and Financial Crimes Commission (EFCC) Act requires a person arrested for committing an offence under the Act to make a full disclosure of all his assets and properties by completing an Assets Declaration Form. Section 28 further provides that where a person is arrested for an offence under the Act, the Commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such economic or financial crime and shall thereafter cause to be obtained an interim attachment order from the court.
From the wordings of this provision, it is clear that the Commission is empowered to trace, and attach the assets of a person who is alleged to have committed an offence, once the person has been placed under arrest. The section also adopts the use of the word immediately, implying that it is instant. The implication of this provision is that a mere allegation of the commission of an offence, without more, followed by an arrest under this Act, is enough to make the suspect loose his life earnings and assets despite the fact that he or she has not been found guilt of any offence by any court or tribunal.
Section 29 of the Act attempts to water down the harshness of the provision of section 28 by mentioning that the Commission shall cause an ex-parte application to be made to the Court for an interim order forfeiting the property concerned to the Federal Government and where the Court is satisfied that there is prima facie evidence that the property concerned is liable to forfeiture, it is to make an interim order forfeiting the property to the Federal Government. This attempt to water down the harshness of the provision of section 28 by referring to the court is an effort in futility since the application is ex-parte, which means that the accused party will not be served and is thereby excluded from being present when such crucial decision regarding his assets and properties is being made. Furthermore, the only evidence before the court at this point upon which it will decide whether there is prima facie case, is only the evidence of the prosecution, which is more likely to seem weighty at this point.
Section 37 of the Corrupt Practices and Other Related Offences Commission Act contains a provision similar to section 28 of the EFCC Act. The section empowers any officer of the Commission who is in the course of an investigation into an offence under the Act to seize any movable or immovable property, which he suspects on reasonable grounds to be the subject matter of an offence or evidence relating to the offence. This section unlike the EFCC provision does not go further to provide for any order of court. Section 45 of the Corrupt Practices and Other Related Offences Commission Act allows the Chairman of the Commission to order a bank or financial institution not to part with, deal in, or otherwise dispose of any movable property including monetary instrument or any accretion thereto which is the subject matter of any investigation under the Act or evidence in relation to the commission of such offence, which is in the custody or control of the bank.
The underlying reason for these seizures is to restrain the suspect from further usage or disposal of the assets and to ensure their preservation pending the determination of the case. On the issue of seizures before trial, Adedeji Adekunle commented:
It is admittedly unwise to make seizures during investigation subject to a preliminary judicial authorization. The risk that once put on notice suspects will dispose of such assets or take steps to conceal them, is too high. Nonetheless it is desirable that unilateral acts of seizures by law enforcement agents should as soon as practicable be reviewed by a judicial personnel.
These provisions prescribing seizures during investigation, on the face of it, appear like gross abuse of the fundamental tenets of fair hearing of which the presumption of innocence is an integral part. Such seizures appear inhuman because where the suspect is eventually found innocent and the Court orders a release of the seized assets and properties, he would have suffered some irreparable damages. Apart form the fact that the assets might have so much dilapidated and depreciated in value, especially where vehicles are involved, the suspect and his family would have suffered denial of access to bank accounts, stocks, etc, which could have some very negative effect on himself and his dependents.
Nevertheless, one should not loose sight of the provisions of section 44 (2) of the 1999 Constitution, dealing with compulsory acquisition of property. Such seizures are excusable under sections 44 (2) (e) and (k) which limits the right to property when it relates to the execution of judgments and orders of courts and to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry. So long as section 44 (2) (e) and (k) still stands in our Constitution, it continues to give validity to the provisions of the legislations that prescribe confiscation and forfeiture of assets and properties before trial.
Burden of Proof
That in every criminal proceeding, the accused is presumed innocent and the burden of proof is on the prosecution to prove its case is an old English principle. Section 36 (5) of the Constitution of Nigeria, 1999 provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. However this provision does not invalidate any law, which imposes upon any such person the burden of proving particular facts. The Nigerian Evidence Act also gave a statutory backing to these principles.
The Legal Burden
When an issue is brought before the court, the party who is making the allegation bears the legal burden of proof. In a criminal trial, the prosecution bears the persuasive or legal burden; therefore, the rule is that the burden of proving the defendant’s guilt is upon the prosecution. The prosecution must prove all the elements in the offence necessary to establish guilt. For instance, in a murder charge, the prosecution must prove that the accused caused the victim’s death with intention to kill him or cause him grievous bodily harm. This burden never leaves the prosecution. There is no question of the accused proving his innocence before a law court. For the duration of a trial, an accused person may not utter a word and he is not bound to say anything. The silence of the accused cannot be substituted for proof by the prosecution. The duty of the prosecution is to prove the charge beyond reasonable doubt. If the prosecution satisfies this legal burden of proof and the accused person does nothing to deny the charge, he may be convicted. The accused therefore, has a burden of raising an issue in denial of the prosecution’s case.
Exceptions to the Principle that Burden of proof Lies on the Prosecution
The Evidential Burden
As has been discussed earlier, the defendant bears no burden in a criminal case. This is however, subject to certain exceptions of which the evidential burden is one. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. For instance, when a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. What lies at the bottom of the various rules shifting the burden of proof is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand, and it is therefore for the accused to give evidence on them if he wishes to escape.
The term evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue, due regard being had to the standard of proof demanded of the party under such obligation. It is not a grave departure from traditional principles to shift the evidential burden though such a shifting does take away from the accused the right to make a submission that there is no case to answer on the issue in question and may in effect force him to go to the witness box.
The rule contemplates facts, which in their nature are such as to be within the knowledge of the accused and of nobody else; it has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only by the accused but also by others. Ordinarily, the burden of proving every ingredient of the offence even though negative averments are involved is on the prosecution. But under this rule, burden of proving a fact would be upon the accused person if the subject of the averment whether affirmative or negative is peculiarly within his knowledge.
After the prosecution has adduced prima facie evidence of the accused’s guilt, the accused for his safety must make some answer. It follows that it is normally incumbent on the accused to adduce sufficient evidence to raise a particular defence and he satisfies this burden if he indicates material, which could induce a reasonable doubt as to the availability of that defence. It was laid down in the leading case of M’Naghten that everyone is to be presumed to be sane until the contrary is proved to the satisfaction of the jury.
Section 139 of the Nigerian Evidence Act is on shift of burden of proof. It says that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. In Apamadari v. State, it was held that where an accused person seeks to rely on a particular defence provided by law, that it is his duty to establish by evidence the set of facts constituting the defence. Where the defence to a charge of dangerous driving is that the accused’s vehicle had a mechanical defect, the burden of establishing the defence, rests on the accused on account of his peculiar means of knowledge. What the shifting of the evidential burden does at the final stage of the case is that it allows the judge/jury to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence. Therefore if the accused gives some evidence consistent with his innocence which may be reasonably true, even though the jury or the judge is not satisfied that it is true, the accused is entitled to be acquitted for the burden of proof proper remains on the prosecution. 
Though the onus rests on an accused person to establish his plea of private defence, yet the higher courts have in some instances, frowned at the court calling upon the accused to defend himself or to show cause why he should not be convicted. In the Australian case of R. v. Wakefield, it was held that a direction given to the jury that while the ultimate onus rested upon the crown to prove the guilt of the accused, a civil onus lay upon the accused to show that his act of driving his truck against his wife was not deliberate and that if he failed to discharge that onus, the defence thereby failed, it was held to be wrong as the accused is presumed innocent.
In the case of Duru v. C.O.P., a Senior Magistrate convicted an accused person after he had told the accused to show cause why he should not be convicted. The prosecution had not stated its case nor has the accused raised the defence. A High Court held that the procedure was irregular and contrary to section 33(5) of the 1979 Constitution, which raised a presumption of innocence in favour of the accused. Also in the case of Okoro v. State, the Supreme Court, while discharging and acquitting the appellant, condemned the action of the trial judge in calling upon the accused persons to defend themselves whereupon the appellant was subsequently incriminated by evidence given by co–accused persons. The court declared such evidence obtained in violation of the constitutional provision of the presumption of innocence void and of no effect.
In England, the Law Commission’s Draft Criminal Code noted that, where evidence is given of a defence or any other fact alleged or relied upon by the defendant, the burden is on the prosecution to prove that the element of the defence or such other fact did not exist. This thereby removed the limit placed by the Woolmington principle.
Viscount Sankey L.C. in Woolmington v. DPP made reference to two exceptions to the principle that places the burden of proof on the prosecution. They are: the insanity defence at common law and statutory exceptions. Lord Goddard C.J. in the case of Brend v. Wood, said that unless a statute either clearly or by necessary implication, rules out mens rea, as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind. The House of Lords in Mancini, confirmed that these were the only exceptions.
Some statutes expressly place the burden of proving a defence on the accused, whereas others merely provide a defence without making any reference to proof.
Express Statutory Imposition of Burden on Accused
In a study carried out in 1996 to determine how frequently English criminal law departs from the presumption of innocence, it was found that no fewer than 40 percent of offences triable in the Crown Court appear to violate the presumption. There has been a continuing flow of legislation in England and other jurisdictions, which appear to dispense with mens rea.Ashworth and Blake concluded that many of those who draft and enact criminal legislations for England either fail to recognize these violations of the presumption of innocence or its application in this sphere or fail to appreciate what can be achieved by placing only an evidential burden rather than the legal burden on defendants in respect of defences.
Some of the examples of statutes that put the burden of proving certain matters upon the accused as follows:
movements is living on the earnings of prostitution unless he proves to the
religious worship, the proof of which lies on accused
proof of which lies on the accused.
Reversal of the Presumption of innocence and the burden of proof in financial crimes
The military decrees we have had in the past also had provisions that expressly cast the burden of proof on the accused person. Section (6) (3) of the Recovery of Public Property (Special Military Tribunals) Decree, provides that the onus of proving at any trial that there was no enrichment contrary to the provisions of section 1 of the Decree shall lie upon the public officer or the person concerned. In all these cases, what is required is for the accused to adduce evidence proving that the contrary is the case.
Section 16 of the EFCC Act also contains a provision that places the burden of proof on the suspect. The section makes it an offence for any person to give false information in any material particular to a public officer or any person who is to take any decision or do any act in relation to the discharge of his duty under the Act. The section goes further to provide that the onus shall be on him to prove that he exercised due diligence to prevent the commission of the offence having regard to the nature of his function and circumstances.
The Corrupt Practices and Other Related Offences Commission Act,  also has provisions that tends to reverse the presumption of innocence and the burden of proof. Section 8 (2) of the Act provides thus:
If in any proceedings for an offence under this section it is proved that any property or benefit of any kind, or any promise thereof was received by a public official, or by some other person at the instance of a public officer from a person
This section introduced for the first time, the presumption of corruption. By this section, if in any proceedings under section 8 (1), it is proved that a public officer or some other person at his instance, received any property or benefit of any kind, or a promise thereof, from a person seeking to obtain anything whatsoever from a government department, public body, or other organization or institution in which the public officer is serving, the property or benefit is presumed to have been received corruptly, unless the contrary is proved. C. O. Okonkwo,  while lending his support for this provision, noted that like conspiracy, the offence of corruption is usually a secret affair, implicating both sides, both of which will usually deny the offence. 
Section 53 (1) – (4) is a mixed grill of offences with the reversal of the presumption of innocence and the burden of proof. Section 53 (1) focuses on offences under sections 8-19 of the Act. In summary, the subsection states that where in any proceedings against any person under these sections it is proved that any gratification has been accepted or agreed to be accepted etc, the gratification shall be presumed to have been corruptly accepted or agreed to be accepted etc, as an inducement or a reward for or on account of the matters set out in the particulars of offence, until the contrary is proved.
Section 53 (2) is like a replicate of section 53 (1), but instead of restricting its provision to certain offences under the Act, it not only covers all the offences under the Act, but also extends to other laws prohibiting corruption. Section 53 (3) centers on where a person has accepted or attempted to obtain any valuable thing without consideration or for a consideration, which he knows to be inadequate. Such a person shall be presumed to have done so with such knowledge as to the circumstances set out in the particulars of the offence, until the contrary is proved. Section 53 (4) is targeted at customs officers and other persons duly employed for the prevention of smuggling. It equally provides that such a person shall be presumed to have committed the offence for such neglect or non-performance of his duty as set up in the particulars of the offence, until the contrary is proved. The general explanation for these sections has been that it is left for the public officer to bear the burden of proving the contrary, which is by way of explaining how he got the property or benefit, through other means, devoid of corruption.
Femi Olufokunbi has expressed the view that what these sections presume is the fact that the receiver received it corruptly until he proves the contrary, and that it is erroneous to say that he is presumed guilty by the provisions.
Section 36 (5) of the Constitution states thus:
every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty: provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
As far as the wordings of this section are concerned, it is prohibited to reverse the presumption of innocence. Note the use of the word only in the section. The only permissible thing that can be reversed by a law is the burden of proving particular facts. This is also in line with section 138 (3), 139, 141 and 143 of the Evidence Act.
It is the opinion of this paper that these provisions of the Corrupt Practices and Other Related Offences Commission Act mentioned above, out rightly presume the suspect guilty until the contrary is proved. These provisions while presuming the suspect guilty also transfer the burden of proof on the accused person to rebut the presumption. When a provision says something like: “shall be presumed to have committed the offence…until the contrary is proved”; “ …such a person shall be presumed to have done so with such knowledge as to the circumstances set out in the particulars of the offence, until the contrary is proved” if the intention of the legislature was only to impose upon the suspect the onus of proving particular facts, and not presume guilt, it would have adopted a similar method to what we have in section 16 of the EFCC Act, which expressly places the onus on the suspect without more. It is ultimately submitted here that these sections that reverse both the presumption of innocence and the burden of proof, cannot be said to be constitutional, because the major purpose and essence of section 36(5) of the Constitution was taken away by the presumption of guilt. The section made it clear that only a law that imposes burden of proving particular facts is excused.
Implied Statutory Imposition of Burden on Accused
Some statutes prohibit the doing of acts subject to provisions, exceptions and the like. In such cases, the statutes in its true construction prohibits the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the license or permission of specified authorities, the onus of proving such an exception is cast on the accused, e.g., driving without a license or selling liquor without a license. In such cases, the onus of proving that he had the required license rests on the accused.
Strict Liability Offences
This is a major exception to the principle of presumption of innocence. Strict liability offences are those defined in the statute without specifying intention, knowledge, recklessness, or negligence as an element of the crime.
In such cases, it is immaterial whether the accused had any mens rea. What matters is that the act has been done. Lawmakers are increasingly enacting laws that are of strict liability and the accused does not have to offer any defence. Some strict liability offences include a “due diligence” defence, of which the onus of proof lies on the accused. In England, the Criminal Law Revision Committee have argued that anyone who takes presumption of innocence seriously would regard evidential burden as appropriate in these instances as opposed to placing the legal burden of proof on the defendant. It has also been argued in another forum that strict liability may be justified for corporate defendants in respect of possibly harmful activities in which they choose to engage.
Proof Beyond Reasonable Doubt by the Prosecution
By section 138 of the Evidence Act, the burden of proving crime is upon the party who asserts it and the standard required is proof beyond reasonable doubt.
This principle was enunciated in Woolmington’s case. There Viscount Sankey stated thus:
If at the end of and on the whole of the case, there is a reasonable doubt by the evidence given by either the prosecution or the prisoner, the prosecution has not made out the case, the prisoner is entitled to an acquittal.
The presumption of innocence is given meaning at the criminal trial through the reasonable doubt rule, which in effect tells the jury that when deciding if the defendant has violated the criminal law, the greater injustice would be in wrongfully condemning someone who was not criminally responsible.
Meaning of Proof Beyond Reasonable Doubt
Judges have over the years used several expressions to explain reasonable doubt some of which by whittling down the effect of the direction, had resulted in the court having to quash convictions on the ground of misdirection as occurred in R. v. Gray. In this case, the Court of Appeal quashed a conviction when the judge had defined reasonable doubt as the sort of doubt that might affect you in the conduct of every day affairs. Phipson submits that it is better for a judge not to attempt to explain to a jury what is meant by reasonable doubt, unless they specifically ask for a direction on this point. The standard of proof required is high but that does not mean it has to be a scientific proof or absolute certainty.
Lord Denning in the case of Miller v. Minister of Pensions said of the degree of proof required in a criminal case:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt but nothing short of that will suffice”.
The Supreme Court of in the case of Ogba v. State, said that a case is proved beyond reasonable doubt if the evidence is so strong against a man to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”. In the Australian case of Green v. R, the High Court held that a reasonable doubt is a doubt, which particular juries entertain in the circumstances. A reasonable doubt, which a jury may entertain, is not to be confined to a rational doubt, or a doubt founded on reason in the analytical sense. In Ukana v. C.O.P, the Supreme Court while emphasizing that the standard of proof required is proof beyond reasonable doubt, defined reasonable doubt as the degree of cogency, which is consistent with, and equivalent to a high degree of probability. It does not eliminate the possibility of any doubts whatsoever including remote possibilities. In the case of Holland v. United States, the jury was told that “beyond reasonable doubt” did not mean beyond every doubt or leaving any doubt at all, but a doubt based upon reason and common sense in the exercise of the jury’s intelligence; that it meant a “substantial doubt, not a trivial doubt, a significant doubt, not a flimsy one; a real doubt and not an imaginary one.” These definitions of the term reasonable doubt are all quite acceptable with the bottom line that it does not eliminate the possibility of the judge still retaining some doubts in his mind.
When a judge has listened to both the prosecution and the defence and considered all the evidence presented before him, having the opportunity also to observe the demeanor of the witnesses, he has to determine whether the prosecution has proved its case against the accused person beyond reasonable doubt, not beyond any shadow of doubt. What is a reasonable doubt to a judge sitting without a jury would naturally vary in different individuals. A lot of factors could come into play in determining a Judge’s perception of some issues. They might include his background, among which could be his religion and tribe; his past personal experiences; his mood at the time of taking the decision, etc. What is reasonable doubt in the final analysis would depend to a great extent on the personality of the individual judge.
Recent trends on right to silence
There is a gradual shift away from the tenacious application of the Common Law burden of proof to the extent that the accused might not say anything during interrogation and trial. In Northern Ireland, Singapore, and England, the jury is permitted to have regard to an accused person’s conduct, which may include a refusal to respond to particular questions as giving rise to an inference of consciousness of guilt.
Section 40 of the Corrupt Practices and Other Related Offences Commission Act, provides that every person required by an officer of the Commission to give any information on any subject which it is the duty of such officer to inquire into, and which it is in that person’s statutory power to give, shall be legally bound to give such information failing which he shall be legally bound to give information, failing which he shall be guilty of an offence on conviction liable to imprisonment for six months or a fine of N10, 000.00
Also, by section 28 of the Corrupt Practices and Other Related Offences Commission Act, an investigating officer of the Commission, may order any person to attend before him for the purpose of being examined in respect of any matter which may in his opinion, assist in the investigation of the offence. Such a person shall during such examination, disclose all information which is within his knowledge. The officer could also by written notice require any person to furnish a statement in writing made under oath or affirmation. Failure to comply with this section is punishable with 3 months imprisonment without an option of fine.
Under the EFCC Act, failure to comply with any lawful enquiry or requirement made by an authorized officer is also an offence punishable on conviction by imprisonment for a term not exceeding five years or to a fine not below the sum of N 500,000.00 or to both. These provisions in these recent Acts that make it compulsory for a person to answer interrogatories, during investigation are contrary to section 35 (2) of the Constitution which gives a suspect the right to remain silent when questioned by the authorities, at least until he has consulted with his counsel or an person of his choice. Besides the statutory instances discussed earlier, some judges in Nigeria have held that inferences may be drawn from the failure of the accused to reply. In Okoro v. State, the Supreme Court commented that a court could draw inferences of guilt from the silence of the accused in the face of evidence linking him to the offence.
Also in the case of Nasiru v. State, the Supreme Court The court reiterated the fact that the provision of section 33(11), 1979 Constitution does not stop a trial court from commenting on or drawing unfavourable inferences against an accused who fails to testify, having regard to the evidence adduced in the case by the prosecution.
There have been calls from some quarters for an outright abolition of the right to silence. Some arguments in favour of the reform include the suggestion by some that right to silence is used by the guilty. Many of these arguments in favour of the reform are influenced by Bentham’s statement that Innocence claims the right of speaking as guilt invokes the privilege of silence. Hence, professional or serious offenders are those most likely to make use of this right when questioned by the police. Others argue that the right to silence before trial enables the defence to unfairly ambush the prosecution with a defence, which has been fabricated at trial, having regard to the evidence given by prosecution witnesses. It has been argued by some Nigerian Authorities that going by our traditional criminal justice system, presumption of innocence as it is today does not reflect our true African cultural position, which leans more on the inquisitorial method. A. A. Adeyemi believes that the justification for the right to silence does no longer exist, since it stems from the reactive process of moving away from the barbaric treatment of suspects and accused persons, who were previously treated without any civil rights.
Taiwo Osipitan, is also of the opinion that the right to silence can hardly be justified within the Nigerian context. According to him,
It is alien to our mode of settlement of disputes for a party to be allowed to maintain silence in the circumstances which justify a defence from such a person.
In the case of Daniel Sugh v. State, the court while lending credence to the fact that speaking in one’s defence is a spontaneous instinct, noted:
It is natural and in the ordinary course of events for a person accused of a serious offence spontaneously and instinctively to deny the accusation and give such explanation as was capable of exonerating or consistent with innocence than remain silent and wait for such a time as a rational explanation of innocence offers itself.
Section 34 of the Criminal Justice and Public Order Act, 1994, U.K., make provisions permitting the court to draw inference from the failure of the accused to mention any fact relied on in his defence when questioned by the police.
Our position is that in as much as it would be ideal if all accused persons would at the earliest opportunity, give explanations for their conduct, yet there could be some others who would not say a word for one reason or the other not motivated by guilt at the material time. Psychological imbalances, cultural inhibitions, timidity, ignorance, illiteracy, fear and anxiety are some of the reasons that could make a suspect to prefer to be silent.
The right to silence protects the suspect from incriminating him or herself, perhaps out of some other reason or any of the reasons given above. These ones who might fall under this category, should be considered in retaining the right. The right to silence is in conformity with what obtains internationally. We as Nigerians and Africans generally, are not locked up in a historical point in time. We have all adopted and assimilated a lot of other un African, values and attitudes, besides this, socialization and globalization have become the order of the day. Prudence is required in bringing in sentiments of Africanism in order not to appear static, while bearing in mind that there are others in our midst, who do not share such sentiments, and whose interest are involved.
Presumption of innocence, placing the legal burden of proof on the prosecution and the right to silence both before and during trial are common phenomena in Nigeria as in other Common Law jurisdictions. A major problem with the principle of presumption of innocence is the constant abuses this right is subjected to by the practice of long detentions and inhuman conditions of detention in our police cells and prisons. The constitutional exceptions to the right to own property have aided investigators of financial crimes in seizing assets and properties even before trial. The only cure to this action that appears contrary to the presumption of innocence is an outright removal of section 44 (2) (e) and (k) of the Constitution.
The problem with the burden of proof is the difficulty faced by judges in determining the standard of proof required of the prosecution. Several interpretations have been given to the phrase beyond reasonable doubt. An admixture of the presumption of innocence, right to silence, and the burden of proof, being placed exclusively on the prosecution, gives the accused person the impetus that he might not say anything even in the face of grave accusations.
However, there is noticeable move away from the rigidity of these Common Law principles by the increasing number of legislations that place burden on the accused especially the corruption and financial crimes provisions in Nigeria. Our contention here is that the provisions of section 36 (5) of the Constitution is contradictory. It provides for the presumption of innocence, and also accommodates any law that expressly places the burden of proof of particular facts on the accused person.
The trend by some judges to draw inferences from the accused person’s silence when questioned; and legislations in some jurisdictions to the effect that judges can draw adverse inferences from the accused person’s silence when questioned earlier are all proof to the fact that the rigidity of the Common Law in these issues have been watered down and is giving way to flexibility. These are welcome developments, but the call by legal scholars for the outright abolition of the right to silence, particularly by those who argue that it is contradictory to African culture and tradition should be viewed with caution. Our position is that in as much as it would be ideal if all accused persons would at the earliest opportunity, give explanations for their conduct, yet there could be some others who would not say a word for one reason or the other not motivated by guilt at the material time.
The financial legislation that makes it mandatory for a suspect to answer all questions put to him during investigation is clearly contrary to the right to silence in section 35 of the Constitution, which still remains superior to any other law in the land. Section 3 of the Lagos State Administration of Criminal Justice Law 2007 (ACJL) now provides that the police officer is obliged to inform the accused person of his right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his choice. This provision requiring the police to inform the suspect of his right to silence is quite commendable, but the Constitution should be amended to also reflect that and also that inferences could be drawn from his refusal to speak. While we await the amendment, there should not be any apprehension for now in retaining the right to silence when questioned by the police provided that the following additional safeguards are in place. They are:
The principles of presumption of innocence, burden of proof and right to silence are still very much worth retaining even in the face of efforts to reduce their efficacy by legislations and judicial decisions. The attitude of our law enforcement agents, who abuse the rights while they are still in place, leaves more to be desired. If these rights were obliterated, the human rights abuses that would be experienced as a result would be better imagined than experienced.
 Section 36 (5), 1999 Constitution. (Constitution of the Federal Republic of Nigeria Promulgation Act,
Cap. C 23 Laws o f the Federation of Nigeria, 2004).
 See the African Charter on Human and Peoples’ Rights Ratification and Enforcement Act, Cap A 9 Laws
of the Federation of Nigeria, 2004.
 See section 35 (2), 1999 Constitution, ibid.
 Ibid, section 36 (11).
 Section 138 Cap.E. 14 Laws of the Federation of Nigeria, 2004.
 Ifejirika v. State (1999) 3 NWLR (pt. 593) p. 59, at p. 62.
 See Ogoubunjo v. State (1996) 6 NWLR (pt. 452) 78, at p. 80. The Court of Appeal held in this case that
there is no burden on the accused person to prove his innocence.
 Woolmington v. D.P.P.1935 App. C 462 (Sankey L). It has also been identified as the “cornerstone of
Anglo-Saxon justice” Abraham, H. The Judicial Process, (New York: Oxford University Press, 5th ed.,
 William Twinning, theories of Evidence: Bentham & Wigmore, (London: Weidfield & Nicolson, 1985),
p.95. Fotescue had stated: I would rather wish twenty evildoers to escape death through pity than one man to be unjustly condemned Lord Stafford also stated: It is better that a thousand persons that are guilty should escape than one innocent person should die. Blackstone in this regard made the most widely used expression when he stated: The law holds that it is better that ten guilty person escape, than one innocent suffer. (Blackstone, IV Commentaries, Chapter 27, p. 358.)
 Cross and Jones: Introduction to Criminal Law ( London: Butterworths, 9th ed. 1980), p.52; T. Aguda,
The Law of Evidence in Nigeria, (Sweet &Maxwell, 2nd ed., 1974) p. 216. An example of an irrebutable presumption of law is section 30 of the Criminal Code, (Cap. C 38 Laws of the Federation of Nigeria, 2004), which says that a person under the age of seven years is not criminally responsible for any act or omission. In other words, a person under 7 years is presumed to be incapable of committing any offence. Another example is found in the legal principle that a male person under the age of 12 is presumed to be incapable of having carnal knowledge,(Ibid, section 30).
 The difference between the inquisitorial and accusatorial methods of criminal trial is that under the accusatorial
system, the innocence of the accused person is presumed until he is proved guilty by the prosecution, while under
the inquisitorial system of trial, which obtains in most continental legal systems, the judge plays a dynamic role in
cross-examining litigants and witnesses and the accused ‘s guilt is presumed until he proves his innocence.
 Aderemi JCA, in his dictum in the case of Bagudu v. Federation of Nigeria, (2004) 1 NWLR, (pt 853), p.
182, at p. 206, para. F, reiterated the unwavering support of the court to the constitutional provision presuming
everyone innocent until proved guilty beyond reasonable doubt by a court of law on credible evidence. See also
Ugheneyovwe v. State, (2004) 12 NWLR, (pt. 888), p. 626.
 Woodroofe and Amir Ali, Criminal Evdence, M.P..Bhatnager (Ed.), 1965, p. 181.
 See Amankwa O., Criminal Law in the Northern States of Nigeria, (Zaria: Ahmadu Bello University, Zaria, 1986), p. 98.
 (2004) 9, NWLR, (pt 879), p. 483.
 At p. 502, para. C-D.
 See Garba v.The State, (1972), 4 SC. 118, where the suspect stayed 25 months in detention without trial.
  6 NWLR (pt. 299), p. 333 at 341.
 (2002) 8 NWLR (Pt. 768), p. 192 at pp. 217-218.
 See also Ogor v. Kolawole (1999) NCLR, 534 at 540.
 See Lagos State Government Notice No. 25, Law No. 10, Lagos State of Nigeria Official Gazette, 20th
 Cap E 1, Laws of the Federation of Nigeria 2004.
 Cap. C 31, Laws of the Federation of Nigeria 2004.
 Section 42 of the EFCC Act lists the various financial crimes Laws that the EFCC is empowered to enforce.
 A. Adekunle, “Seizure of Proceeds of Criminal Activity: Trends in Recent Financial Crimes Legislation in Nigeria”, in Modern Practice Journal of Financial and Investment Law, Vol. 3 No.2, 1999, pp. 253-254.
 Ibid, p.252.
 Cap E1, Laws of the Federation of Nigeria 2004.
 Adekunle A., op.cit. note 27, p. 263.
 As far back as the Eighteenth Century, the Court of Old Bailey Sessions acquitted the prisoners on a charge of robbery because the prosecutor could not ascertain which of them declined to rob the victim (The King v. Richardson and another (1785) Leach 387). Also in the very popular case of Woolmington v. D.P.P (op. cit. note 9), Viscount Sankey L.C., held that while the prosecution must prove the guilt of the prisoner, no burden lay on the prisoner to prove his innocence and it was sufficient for him to raise a doubt as to his guilt. See also the case of R. v. Manning and Manning, Pollock LCB in summing up to the jury, directed them to return a verdict of not guilty as regards both if they could not decide which one was the guilty party. They were to take care not to convict upon mere surmises or suspicion, but only on grave and solid reasons leading to a satisfactory conclusion of guilt.
 See the dictum of Onalaja JCA in Ifejirika v. State op. cit. note 7
 See section 134, 135, 137, 138, 140, 141, and 142, Cap.E14, Laws of the Federation of Nigeria, 20004.
 Hampton, C., Criminal Procedure and Evidence, (London: Sweet & Maxwell, 1973).
 Jagmal v. E, 1948, A 211: 1948 ALJ, 106.
 Zwunglee Arli v. State, 1954, S.C. 15. See Monir, M. Principle and the Digest of the Law of Evidence, p. 1093.
 See the dictum of Kutigi JSC in Williams v. State.(1992), 8 NWLR, (pt.261), at p. 515; Onuoha v. State, (1995) 3 NWLR, (pt.385), p. 591; Egwu v. Egwu (1995), 5 NWLR, (pt.396) p. 493.
 See section 106 Indian Evidence Act 1872, and section 141 of Nigerian Evidence Act.
 Cross on Evidence, (9th ed.), 1974, p. 75.
 Cross and Jones, op. cit. note 11, p. 51.
 (1843) 10 C.I. & Fin 200.
 See section 27 of the Nigerian Criminal Code on Presumption of sanity.
 (1997), 3 NWLR, p. 289.
 Also in the American case of Martin v. Ohio, 480 US, (1987) 222 at 233, the majority in upholding the State’s shifting of the burden of persuasion for self defence to the defendant, explained:
“The defendant … had the opportunity under state law and the instructions given to justify the killing and show herself to be blameless by proving that she acted in self defence.”
 Ibid, p. 186.
 (1957), 75 (NSW), 66.
 (1985), NCLR, 695.
 Equivalent of section 36(5) of the 1999 Constitution.
 (1988), 5 NWLR, (pt. 94) p. 1.
 See A. A. Oyakhiome,“ The Development of the Presumption of Innocence in Nigerian Courts”, (1995) JHRLP, Vol. 5, No.1, January, pp. 8-11 for a full discussion of the case.
 Law Comm. No. 177. A Criminal Code for England and Wales (1989) Clause 13.
Op. cit. note 9 at p. 465.
 (1946) 62 TLR 462
 (1942), A.C. 1.
 Ashworth and Blake, “The Presumption of Innocence in English Criminal Law”, CLR, May 1996, p.307.
 See for instance the Public Order Act, 1986; the Official Secrets Act, 1989; the Aggravated Vehicle
Taking Act, 1992. All these Acts, were sponsored by the Home Office.
 Ashworth and Blake, op. cit. note 57.
 UK Homicide Act, 1957, section 2 (2).
 UK Sexual Offences Act, 1956, section 30 (2).
 Section 206 of Nigerian Criminal Code. It specifically adds that the proof lies on the offender.
 Ibid, section 177.
 Decree No.3 of 1984
 Equally, Section 1 (2) of the Public Officers (Protection from False Accusations) Decree of 1984, (Decree No.3 of 1984, as amended by No. 21 of1988), places the burden of proving that any published statement, rumor or report alleging that a public officer has corruptly enriched himself or any other person is true on the accused person.
 See the enabling Act, Cap. C 31, Laws of the Federation of Nigeria 2004.
 See also section 9 (2) of the Corrupt Practices and Other Related Offences Commission Act, which reproduces the provisions of section 8 (2).
 Such a presumption did not feature in the Criminal and Penal Codes.
 See C. O. Okonkwo , “Legal and Institutional Mechanisms Against Corruption in Nigeria,” paper presented at the
National Conference on the Problems of Corruption in Nigeria held in Abuja, 26th – 29th March 2001. p. 11.
 Taiwo Osipitan and Oyelowo Oyewo had earlier on suggested that in cases of corruption, the presumption of innocence as well as the right to silence should be done away with. See T. Ospitan , and O. Oyewo, “Legal and Institutional Framework for Combating Corruption”, in Akanki E. O., (Ed.), Unilag Readings in Law, (Faculty of Law, University of Lagos, 1999), p. 269.
 These offences include: gratification by an official, corrupt offers to public officers, corrupt demand by persons, counseling offences relating to corruption, fraudulent acquisition of property, fraudulent receipt of property etc.
 F. Olufokunbi , “Criminal Procedure and Recipes for the Enforcement of Anti-Corruption Law”, in Modern Practice Journal of Finance and Investment Law, Vol. 6, Nos. 1-2, 2002, p.22.
 Sections 8 (1), 9 (2), 53 (1)-(4).
 See section 53(4) Corrupt Practices and Other Related Offences Commission Act.
 See section 53(3) ibid.
 Section 16 provides thus: Any person who in the discharge of his duty under this Act gives information which is false in an particular fact to a public officer…commits an offence and the onus shall be on him to prove hat he exercised due diligence to prevent he commission of the offence…
 Compare these provisions of the Corrupt Practices and Other Related Offences Commission Act with section 19 (5) of the EFCC Act. This section, rather than presuming guilt, says that the fact that an accused person is in possession of pecuniary resources or property for which he cannot satisfactorily account ….may be proved and taken into consideration by the Court as corroborating any evidence of any witness. This provision is milder and better than an outright presumption of guilt.
 Cross and Jones, ibid, p. 51. See Edwards, (1975), Q.B 27; section 160 of the UK Licensing Act, 1964; Hunt, (1987), A.C. 352; Gatland v. Metroploitan Police Commissioner (1968), 2 Q.B. 279 (depositing skip on the high way without lawful authority); Section 246 of the Nigeria Criminal Code.
 Ashworth and Blake, ibid, p. 307.
 Ashworth, Principles of Criminal Law, 2nd ed. 1995.
 See Obri v. State, (1977) NWLR, p. 354.
 Op. cit. note 9. See also Mancini, (1942), A.C. 11; Summers, (1952) 36 CR. App R. 14 , where the court ruled that
the term ought to be abandoned because it could not be satisfactorily defined.
 Scott Sundby: “The Reasonable Doubt Rule and the Meaning of Innocence”, The Hastings Law Journal, vol. 40. p. 509.
 (1973) 58 Cr. App. R. 177.
 Phipson on Evidence, (1976, 12th ed.), p. 52.
 Bracewell (1979) 68 Cr. App. R. 44.
 (1947) 2 All ER. 372.
 At p. 373.
 (1990), 3 NWLR, Pt. 139 at 505.
 The Supreme Court adopted Lord Denning’s definition in Miller v. Minister of Pensions, op. cit. note 86.
 (1972) ALR, 524.
 Reginald Carter, Criminal Law of Queensland, 4th ed. (1974), p. 518.
 (1995), 8 NWLR, (pt. 416), at 706.
 They referred to Bakare v. State, (1987), 1 NWLR, pt. 52, at 580; Udo v. State, (1992), 2 NWLR, (pt. 222) at p.
471; Okeke v. State, (1995), 4 NWLR, (pt. 392) at p. 711; and Mohammed v. State, (1997) 11 NWLR, (Pt. 528),
 U.S County Appeals Tenth Circuit 1954, in Sullivan and Hardin, Evidence Cases and Materials, (1968), p. 798.
 Article 3 of Criminal Evidence (Northern Ireland) Order 1988
 Criminal Procedure Code (Singapore), section 123 (1).
 Sections 34-39, Criminal Justice and Public Order Act, 1994
 Section 28 (1) (a) of the Corrupt Practices and Other Related Offences Commission Act.
 Section 28 (3) (b), ibid.
 Section 28 (1) (c), ibid.
 Section 28 (10), ibid
 Section 38 (b)
 (1985) NWLR, (pt. 94), p. 253 at 314.
 (1999), 2 NMLR, pt. 589 at p 87
 The equivalent of section 36 (11), 1999 Constitution.
 “Silence in Australia: Probative Force and Rights in the Law of Evidence” (1994) 110 Law Quarterly Review, 647-650. For arguments on the abolition /retention of the right to silence, see S. Green, The Right to Silence, A Review of the Current Debate (1990), 53 Modern Law Review, 719-720, in The Royal Commission on Criminal and Civil Justice System in Western Australia, Consultation Drafts, vol. 2. Project 92, June, 1999, p. 733;. Zuckerman, A. S, “The Right to Against Self Incrimination: An Obstacle to the Supervision of Interrogation”, in the Law Quarterly Review, (1986).vol. 102, p. 68.
 Bentham J., Treatise on Evidence, quoted in Weinberg Mark, “The Right to Silence- Sparing the Judge from Talking Gibberish”, paper presented at Session 24, Australian Legal Convention, November 1997, p. 17.
 See, Lord Lane CJ, in R. V. Alladice (1988), 89 Criminal Appeal Reports 380.
 A. A. Adeyemi, “United Nations Human Rights Instruments and Criminal Justice Norms and Standards”, in Bassiouni M. C. (ed.), The Protection of Human Rights in African Criminal Proceedings, (Martinus Nijhoff Publishers, 2000), p.7; T. A. Aguda, “Some Aspects of Criminal Procedure” in Proceeding and Papers of the 6th Common Wealth Law Conference, Lagos, Nigeria, Nigeria Bar Association, 1980, p. 435-450; Adeyemi A. A., “Criminal Justice Administration in Nigeria in the Context of the African Charter on Human and Peoples’ Right”, in A. Kalu and Y. Osinbajo (Eds.), Perspectives on human Rights, (Lagos: Federal Ministry of Justice, 1992, p. 120. In this article, the learned professor of law contended that the fact that the right to silence is not included in the African Charter is a clear indication of the lack of belief in the right by the people of Africa.
A. A. Adeyemi, “United Nations Human Rights instruments and Criminal Justice Norms And Standards”, ibid.
 T. Osipitan, “Issues in Nigerian Law of Evidence”, in A. O. Obilade & G. Braxton, (Eds.) Due Process of
Law, (Southern University Law Center Baton Rogue, Louisiana, an Faculty of Law, University of Lagos,
1994) p. 110. See also, T. Osipitan, “Administration of Criminal Justice; Fair Trial, Presumption of Innocence
and the Special Military Tribunals”, in J. A. Omotala & A. A. Adeogun (Eds.), Law and Development,
(Lagos: Faculty of Law, University of Lagos, 1987) pp. 227- 328.
 Per Karibi Whyte, (1988), 2 NWLR, (pt. 77), p. 475 at p. 494.
 Silence in Australia: Probative Force and Rights in the Law of Evidence. (1994) 110, Law Quarterly Review, 647-650; Geer S., “The Right to Silence, A Review of the Current Debate” (1990) 53 Modern Law Review, 719-720.