Admissibility of evidence as dying declaration
Belief in danger of approaching death
Propriety of inference from circumstances
RE: APPEAL NO. CA/L/498/2007
BETWEEN
CHUKWUEMEKA EZEUGO
(ALIAS DR. REV. KING)
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APPELLANT
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RESPONDENT
AND
THE STATE
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“… for a statement to qualify as dying declaration, the person making the
statement must believe himself to be in danger of approaching death. The belief
in the danger of approaching death is subjective not objective. The person
making the declaration must believe himself to be in danger of approaching
death, as nobody would wish to die with a lie on his lips. The danger of
approaching death cannot be inferred from surrounding circumstances or the
opinion of third parties.”
The above was the holding of the Court of Appeal, Lagos, per Jauro JCA on 1st
February, 2013.
The appellant is the General-Overseer of the Christian Praying Assembly Church, a
religious organization with its headquarters in Ajao Estate, Lagos. The deceased and
other members of the Church lived with the Appellant, rendering various services to
him. On 22nd July 2006, the Appellant accused some of the church members residing
with him of fornication. As a result, the Appellant intentionally caused petrol to be
poured on six persons accused by him. Allegedly, the appellant then threw a lit match
on them after beating them ruthlessly. The six persons sustained various degrees of
injuries and burns, but that of the deceased was more severe, she being weak after the
beating; hence, she was admitted in Faith hospital, Lagos until her death on 2nd August,
2006.
Subsequently, the Appellant was arrested by the Police and arraigned on 26 September,
2006, before Honourable Justice Oyewole of the High Court of Lagos State, on a six (6)
count charge to which he pleaded not guilty. The Appellant was charged with murder
of the deceased and attempted murder of some five (5) other persons. On 11th January,
2007, the trial court delivered its Judgment in which the Appellant was found guilty on
all the counts. He was sentenced to death on the count of murder and a term of twenty
years imprisonment with hard labour in respect of each of the other counts of attempted
murder.
Aggrieved by the judgment of the trial court, the Appellant filed a Notice of Appeal
anchored upon thirty-one (31) Grounds of Appeal. In his brief of argument, Appellant’s
Counsel distilled sixteen (16) issues for determination. The Respondent also filed its
brief of argument wherein it formulated seven (7) issues for the determination of the
appeal, which issues were adopted by the court. The first was (i) Whether the learned
trial judge before delivering judgment was obliged to invite parties to address him on
any evidence which was wrongly admitted; (ii) Whether the learned trial Judge was
right by expunging Exhibits P1 and P4 as well as part of the oral evidence of PW2 from
the record when delivering his judgment; (iii) Whether the learned trial Judge was right
to have dismissed the defence of Alibi put up by the Appellant; (iv) Whether PW1 is a
tainted witness whose evidence required corroboration; (v) Whether the learned trial
Judge was right when he held that the evidence of PW3 and PW4 were corroborated by
the evidence of PW1, PW8, PW9 and PW10 as well as other real evidence before the
court; (vi) Whether the learned trial Judge properly evaluated the evidence of the
parties before arriving at his decision to convict the Appellant; and (vii) Whether the
learned trial Judge was right when he held that the prosecution proved the cases of
murder and attempted murder against the Appellant beyond reasonable doubt.
Arguing issues one and two together, the Appellant’s counsel contended that a Court
must not raise an issue suo motu and resolve it against a party without having heard the
party against whom the issue is resolved. He posited that such an action violates the
constitutional right of the affected party to fair hearing. The Appellant’s counsel also
submitted that the trial Court was wrong in excluding the said evidence as
inadmissible as dying declaration because there was no proof of the deceased
declarant believing herself to be in the danger of approaching death at the time of
making the declaration. He stated further that in most cases, dying declaration was
held admissible against the accused, but it is also admissible in favour of the accused as
it is not foreclosed by section 33(1)(a) of the Evidence Act.
In his reply, the Respondent counsel submitted that cases are decided on valid legally
admissible evidence; thus, where inadmissible evidence was admitted in evidence, it is
the duty of the trial court to expunge same in the course of its judgment and this does
not amount to raising issue suo motu. Relying on Hausa v. The State (1994) 6 NWLR (Pt.
350) 281, the Respondent stated that the trial Court was right in rejecting the statements
in Exhibits P1, P4 and P9 as dying declaration.
After considering submissions of counsel, the Court of Appeal held that the trial Court
did not raise a new issue suo motu but merely discountenanced the said exhibits while
holding that the oral testimony of PW2, PW5 and PW7 do not qualify as dying
declarations. Further, the appellate court held that “It is very clear from the provisions
of Section 33(1)(a) of the Evidence Act, for a statement to qualify as dying declaration,
the person making the statement must believe himself to be in danger of approaching
death. The belief in the danger of approaching death is subjective not objective. The
person making the declaration must believe himself to be in danger of approaching
death, as nobody would wish to die with a lie on his lips. The danger of approaching
death cannot be inferred from surrounding circumstances or the opinion of third
parties.”
On the issue of Alibi raised by the Appellant, the Court held that once alibi is properly
raised by an accused, it is the duty of the prosecution to investigate and disprove it.
However, the accused has a duty to give the details of the Alibi he sets up to enable the
prosecution investigate it. In this case, the Appellant did not furnish enough
information for the Police to act on. More so, the law is that where there is evidence
which fixes the accused to the scene of crime, the defence of Alibi is logically and
physically demolished.
On the issue regarding the evidence of PW1 (a victim of the crime) as tainted, the Court
relied on the decision in R. v. Ukut (1960) 5 FSC 183 to hold that PW1 was an
eyewitness and a victim of the crime committed by the Appellant; thus, she is a
competent witness and her evidence is admissible. On the fifth issue, which touches on
the requirement of corroboration of the Prosecution witnesses’ evidence, the Court of
Appeal held that the evidence of PW1, PW9 and PW10 were rightly used in
corroborating the evidence of PW3 and PW4. With regard to the issue of the trial Court
properly evaluating the evidence of parties, the Court held that judgment writing is an
art and each judge is allowed to adopt his own style in achieving the end result. In this
case, virtually all evidence adduced were considered and evaluated. The style adopted
by the trial Court in writing the judgment was not in any way prejudicial to the rights
of the Appellant.
The seventh issue bordered on the standard of proof required of the prosecution. The
Appellant contended that the Respondent failed to prove the essential ingredients of the
offences as evidence of its witnesses were contradictory and inconsistent. In its
consideration of the issue, the appellate court held that … “not every contradiction in
the prosecution’s case will raise a doubt, the benefit of which ought to be resolved in
favour of the accused. It is only contradictions that are substantial and fundamental to
the main issue in question that would be fatal to the prosecution’s case. For a
contradiction to be material it must not only relate to a material fact it must be in
addition lead to a miscarriage of justice.” Consequently, the Court of Appeal resolved
all the issues against the Appellant and affirmed the judgment of the trial Court.
Appeal dismissed.
COUNSEL:
Olalekan Ojo, Esquire for the Appellant
Mr. Lawal Pedro, SAN Solicitor-General Lagos State with Mr. Femi Adamson, Assistant
Chief State Counsel and Mr. Mikhail Kadiri, State Counsel, Ministry of Justice Lagos
State for the Respondent.