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) … … … … … APPELLANT … … … … … RESPONDENT AND THE STATE … … “… 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.