LEGAL NUGGETS (37):EVIDENCE - DYING DECLARATION .By Adedotun Habeeb Adetunji LL.M (M.IoD), FCAI.

ORISADIPE V STATE

EVIDENCE - DYING DECLARATION- The Section 40 (1) of the Evidence Act, 2011 as to dying declaration; nature of dying declaration and the conditions that must be satisfied for it to be admissible in evidence "By the testimony of the PW1, PW2, PW3 and PW4 reproduced above, it is agreed that the deceased told those witnesses that the Appellant shot him twice; first on the leg and later in the chest. The question that arises however is; what is the evidential or probative value of the testimony of those witnesses. This is so in view of the fact that, none of those witnesses was at the scene at the time of the incident or shooting. Those witnesses merely narrated what the deceased told them. Generally in law, such statement would be hearsay and therefore inadmissible. See Sections 37 and 38 of the Evidence Act.

However, there are exceptions to that rule on hearsay, and one of such exceptions is stipulated in Section 40 of the Evidence Act, 2011 which provides that: " 40(1) A statement made by a person as to the cause of his death, or as to any of the circumstances of the events which resulted in his death in cases in which the cause of that person's death comes into question is admissible where the person who made it believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery. (2) A statement referred to in Subsection (1) of this Section shall be admissible whatever may be the nature of the proceeding in which the cause of death comes into question."

This provision and other earlier provisions of the Evidence Act, in pari materia to it, have been the subject of various judicial pronouncements by the apex Court in this country, and also this Court. Let me digress a bit to state that there is a difference between the requirements of a dying declaration under Section 40 of the Evidence Act and that under the English common law. Under the English common law, the position was stated by Eyre, C.B. in the case of R. v. Woodcock (1789) 1 Leach 500 at 502 as follows: "The general principle upon which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth, a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice."

This strick and solemn requirement is not so under Section 40 of our Evidence Act, 2011. What our Evidence Act requires is that the statement must have been made as to the cause of death of the deceased. In other words it is a statement made by the deceased as to the cause of his death, when the cause of his death is a question in issue; and the maker of the statement must believe himself to be in danger of approaching death or that he is in imminent fear of death. In the case of Okoro v. State (2012) 4 NWLR (Pt. 1290) p.351 at 396 paragraphs E-G Ngwuta, J.S.C. held as follows: "I do not think that the law requires that an affidavit deposed to by the deceased before the Holy Sea to prove that the deceased is in a hopeless expectation of imminent death as a result of injuries inflicted on him.

In order to actualize the dual aims of our criminal justice delivery system of ensuring that neither the guilty escapes punishment nor the innocent suffers, each case must be decided on its own peculiar facts and circumstance. In this respect, the nature and gravity of the injury and the part of the body on which it is inflicted ought to be considered in determining whether what the deceased said in relation to the cause of his injury from which he died later was dying declaration or not. It should be necessary to prove by expression of the deceased, that he made the statement in fear of impending death. It could be inferred from the nature of the word or cause of death without further express evidence that the deceased believed he was dying."

Generally, what the law requires in a statement to qualify as a dying declaration are that: (a) The declarant must have died after the statement written or verbal is made; (b) The statement or declaration must relate to the cause of death of the declarant. (c) The statement or declaration must relate only to a trial for murder or manslaughter; and (d) Though the declarant may have entertained hopes of recovery, he need not have lost all hope of survival or be in a hopeless expectation of death. For a dying declaration to be admissible therefore there must be strict proof of the actual words used by the deceased. See Okoro v. State (2007) 2 NWLR (Pt. 1019) p.530; Akpan v. State (1992) 6 NWLR (Pt. 248) p.439; Daniels v. State (1991) 8 NWLR (Pt. 715) p.706 and Ogba v. State (1990) 3 NWLR (Pt. 139) p.505."
Per TSAMMANI ,J.C.A ( Pp. 28-32, para. C )