Conditions For The Admissibility Of Deceased’s Statement As A Dying Declaration

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 24th day of March, 2023

Before Their Lordships

Olukayode Ariwoola

John Inyang Okoro

Amina Adamu Augie

Mohammed Lawal Garba

Emmanuel Akomaye Agim

Justices, Supreme Court

SC.875/2017

Between

KAZEEM AYINDE APPELLANT

And

THE STATE RESPONDENT

(Lead Judgement delivered by Honourable Mohammed Lawal Garba, JSC)

Facts

The Appellant was charged with the offence of murder punishable under Section 319 (1) of the Criminal Code, Laws of Oyo State, before the High Court of Oyo State. The case of the Respondent was that the Appellant also nicknamed “Kazeem Pele”, murdered one Ayuba Karim. The Respondent’s witnesses – PW1, PW2 and PW4 testified that on 16th February, 1998, they had met the deceased in a pool of his blood with machete cuts all over his body, and the deceased had persistently mentioned the name of the Appellant as his attacker before he died. The Appellant raised alibi in his defence. He claimed that he had travelled to Lagos to visit his brother on 15th February, 1998, and he spent some days there before returning to Ibadan. After the trial, the trial court delivered its judgement in which it convicted the Appellant for murder and sentenced him to death by hanging. Dissatisfied, the Appellant filed an appeal before the Court of Appeal. The Court of Appeal dismissed the appeal; hence the Appellant filed a further appeal at the Supreme Court.

Issues for Determination

The Supreme Court adopted the following issues formulated by the Appellant, in its determination of the appeal:

1. Whether the lower court was right to have affirmed the findings of the trial court which discountenanced the alibi raised by the Appellant, and held that the Appellant failed to discharge the burden placed on him to prove his alibi.

2. Whether the lower court was right when it held that the dying declaration of the deceased and the circumstantial evidence in the case was unequivocal, and irresistibly pointed to the Appellant as the person who inflicted the machete cuts on the deceased.

Arguments

On the 1st issue, counsel for the Appellant contended that the Respondent failed to investigate the defence of alibi raised by the Appellant. He submitted that the Appellant’s defence of alibi was not disproved by the Respondent, and there was no credible evidence fixing the Appellant to the scene of the murder.

Counsel for the Respondent on the other hand, submitted that the defence of alibi raised by the Appellant was dislodged by credible evidence adduced by the Respondent. He argued that the dying declaration of the deceased, as well as the testimonies of the prosecution witnesses not only fixed the Appellant at the scene of the crime, but also established that he committed the crime. He submitted further that even though the Respondent has the duty to investigate the defence of alibi when properly raised, the Appellant has a greater duty to provide the evidence showing that he was not at the scene of the murder, but elsewhere as claimed by him. According to him, the Appellant’s failure to call the brother he claimed to have visited in his alibi, was fatal to the defence, as the said brother’s evidence was very essential to the defence.

On the 2nd issue, counsel for the Appellant argued that the statement made by the deceased did not qualify as a dying declaration under Section 40(1) and (2) of the Evidence Act, 2011. He contended that the circumstantial evidence relied upon by the trial court in admitting the said statement as the dying declaration of the deceased and convicting the Appellant, was merely based on suspicion and previous record of the Appellant. He submitted that the said dying declaration and circumstantial evidence in this case, were not cogent and compelling to warrant the Appellant’s conviction for murder.

In response, counsel for the Respondent argued that the trial court was right to have admitted and relied on the dying declaration of the deceased to convict the Appellant for the offence of murder, and the Court of Appeal rightly upheld the findings of the trial court. He submitted that the deceased’s persistent mentioning of the name of the Appellant to PW1, PW2 and PW4 as the person who fatally injured him was not based on suspicion or mere conjecture, but on evidence which is admissible and reliable as a dying declaration.

Court’s Judgement and Rationale

Determining the 1st issue, the Apex Court held that an accused person who relies on the defence of alibi bears the initial evidential burden of providing the essential particulars and evidence of such a defence on the balance of probabilities, in order for the duty of the Police or prosecution to investigate it for the purpose of disproving same at the trial court to arise. The Court referred to IFEJIRIKA v STATE (1999) 3 NWLR (PT. 593) 59 at 78.

The Court held that for the defence of alibi to avail an accused person, he must not only raise it at the earliest opportunity, but also provide the relevant and material particulars of the specifically identified or identifiable place he was, the date and time as well as the name(s) of people he was with at the material time, in order for proper investigation to be conducted on it by the Police or prosecution before trial of the offence he was charged with. The Court also held that although failure to investigate a plea of alibi properly raised may be fatal to the case of the prosecution as it creates a doubt and undermines the attainment of the standard of proof beyond reasonable doubt; however, where there is strong, credible and compelling evidence specifically and unequivocally fixing an accused person to the scene of the crime at the material time, failure to investigate an alibi raised by the accused person will not be fatal to the case of the prosecution. The Court relied on its decision on its decision in EBRI v THE STATE (2004) ALL FWLR (PT. 216) 420 at 435.

The Court held that in the two statements the Appellant made to PW4 and PW6, the Appellant merely said that he left Ibadan to Lagos on 15th February, 1998 and spent three days; however, they were completely devoid of the crucial particulars that could warrant any investigation by the Police at all. In the circumstance, since the fundamental particulars to enable the defence of alibi to have been properly investigated by the Police were not there, even if there was indeed, failure by the Police to investigate it (which was not the case here), that failure, ipso facto, was not fatal to the prosecution’s case against the Appellant, since the plea or defence was not properly raised as required by the law.

The Court also referred to the evidence of the Appellant’s wife, while testifying in the Appellant’s defence, that she and the Appellant slept together on the night of 15/2/98 to 16/2/98 and the Appellant went to Lagos, but not on that day; and the statement of the Appellant in Exhibit B that he slept inside his house with his wife on 15/2/98 to 16/2/98. The Court held that these pieces of direct, cogent and irresistibly compelling evidence effectively disproved the plea of alibi put up by the Appellant before the trial court that he travelled to Lagos on 15/2/98 and returned to Ibadan on 17/2/98, and the plea was rightly rejected by the two lower courts.

On the 2nd issue, the Court reproduced Section 40 of the Evidence Act, 2011 (then applicable as Section 33 (1) of the Evidence Act 1990) which provides that a statement made by a person as to the cause of his death or circumstances or events which resulted in his eventual death, where such death is in question, is admissible in evidence, where at the time he made the statement, he believed himself to be in danger of approaching or imminent death. The Court held that the conditions to be satisfied for a statement made by a deceased person to qualify and be admissible in evidence as a dying declaration include: (a) that the maker of the statement must have at time he made the statement, believed himself to be in real danger of imminent death; (b) that the statement must be relevant and admissible as to the cause of the maker’s death or any circumstances of the events which resulted in his death; (c) that the cause of the death of the deceased maker must be in issue at the trial at which the statement is to be proved.

The Court held that the unchallenged evidence of PW1, PW2 and PW3 was that the deceased whom they met lying in a pool of blood with machete cuts all over his body, was repeatedly saying “Kazeem Pele has killed me” in Yoruba language. It was apparent that the statement was made by the deceased in the fear of imminent death, and without any hope of survival. The statement also showed that the deceased knew the Appellant before the incident, and so was not in doubt about the person who inflicted the injuries on him. The Court also held that the statement was in respect of the cause and circumstances of the death of the deceased, and it was tendered at the trial of the Appellant for the murder of the deceased, at which the death of the deceased arose for determination. The trial court was therefore, right to have admitted and relied on the said statement as a dying declaration admissible in evidence, by virtue of the provisions of Section 40 of the Evidence Act. The Court of Appeal also rightly affirmed that position.

Appeal Dismissed.

Representation

B. Ibironke Esq. with K. C. Ezewuzie, Esq. for the Appellant.

A. Sobaloju Esq. for the Respondent.