Retracted confessions are usually extra-judicial statements which amount to confessions which turn out to be inconsistent with testimony at the trial. The inconsistency rule deals with such situations. It is that where a witness makes an extra-judicial statement, which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence on which the Court can act. This rule developed in the interest of justice to resolve conflict between previous statement and later evidence for the prosecution or defence. The object was to ensure that the evidence relied on by the Court is credible.

The party who retracts is always afforded an opportunity, while in the witness box to explain the inconsistency. See Onubogu v. State 1974 9SC p.1.

The inconsistency rule is restricted only to the evidence of a witness, who made an extra-judicial Statement, which was in conflict with the evidence given at trial. The previous statements are not evidence, which the Court can act on, and the evidence given at the trial is taken by the Court as unreliable. See Egboghonome v. State 1993 7 NWLR pt. 306 p. 383.

The inconsistency rule does not apply to an accused person. It does not cover a case where an accused person's extra-judicial statement is contrary to his testimony in Court.

A Court can convict on the retracted confessional statement of an accused person, but before this is properly done, the trial Judge should evaluate the confession and testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person, which is different from his retracted confession and the Judge asking himself the following questions:

(a) Is there anything outside the confession to show that it is true?

(b) Is it corroborated?

(c) Are the relevant statements made in it of facts true as far as they can be tested?

(d) Did the accused person have the opportunity of committing the offence charged?

(e) Is the confession possible?

(f) Is the confession consistent with other facts which have been ascertained and have been proved? See. Kanu & anor v. King 1952 14 WACA p. 30 Mbenu v. State 1988 3 NWLR pt. 84 p. 615 Stephen V. State 1986 5NWLR pt. 46 p. 978.

Though, the Court can convict only on the extra-judicial confessional statement of the accused person, but it is desirable to find some independent evidence. That is to say, it is desirable to have outside the confession some evidence, be it slight of circumstances which make it probable that the confession was true. See Queen v. Itule 1961 2 SCNLR p. 183 Onochie & 7 Ors v. The Republic 1966 NWLR p. 307 Edhigere v. State 1996 8NWLR pt. 464 p.1

“Per RHODES-VIVOUR, J.S.C. in CHUKWUKA OGUDO v. THE STATE
CITATION: (2011) LPELR-SC.341/2010