Inconsistency Rule

A party at all times must be consistent with the pleading of his defence. He will not be allowed to approbate and reprobate in his case. See SUBERU v. THE STATE (2010) 5 SCM 215.

Now, this appeal is about the inconsistency rule and how it impacts on the burden of proof in criminal proceedings. Our jurisprudence is replete with decisions on the principle. The inconsistency rule, in relation to the testimony of a witness, renders incredible and unreliable the oral evidence of a witness as well as his earlier statement the oral evidence materially contradicts. Thus in the instant case, if as asserted by the appellant, the oral evidence of PW2 and PW3 indeed materially contradict their extra judicial statements, their statements as well as their contradictory oral evidence, must necessarily be discountenanced. Being incredible and unreliable, the statements and the oral evidence will be incapable of sustaining the concurrent conviction of the appellant by the two lower Courts. See Tunde Asimi V. The State (2016) LPELR- 40436 (SC), Friday Smart V. State (2016) LPELR-40827 (SC) and Akinlolu V. State (2015) LPELR-25985.

It is trite to state that the inconsistency rule does not apply to an accused person. In other words, it does not cover a case where an accused persons extra-judicial Statement is contrary to his testimony in Court. See the case of Ogudo v. State (2011) 12 SCM (Pt. 1) page 209 @ 223.

In R v Golder (1960) 1 WLR P.1169
Lord Parker CJ of England explained the inconsistency Rule when His lordship said that:
"When a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statements, whether sworn or unsworn do not constitute evidence upon which they can act."
This position of the law has long since been adopted and applied in Nigeria. See Joshua v. Queen (1964) 1 ANLR P. 1 State v Okoro (1974) 2 SC P.73
Queen v Ukpong (1961) ALL NLR p.25
The issue is not the inconsistency Rule as it applies to a witness rather it is the inconsistency rule as it applies to an accused person.
The law is long settled that the inconsistency Rule does not apply to an accused person. Cases where an accused person confessional extra judicial statements run contrary to his testimony in Court are not covered by the inconsistency rule. The Court is at liberty to convict on the retracted confessional statement of an accused person provided the testimony and confession of the accused person and all other evidence are properly evaluated.
Once an accused persons confessional statement is voluntary and true but inconsistent with his evidence in Court a Court may convict. See Egbogbonome v. State (1993) 7 NWLR (pt 306) p.383.