Dying declaration is admissible -S/Court
IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA This is an appeal against the decision of Owerri Division of the Court of Appeal, delivered on the 11th day of July, 2012 – Coram: Abba Aji, Owoade and Tsammani, JJCA. The appellant and two others had been arraigned on a two count charge of conspiracy […]
IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA This is an appeal against the decision of Owerri Division of the Court of Appeal, delivered on the 11th day of July, 2012 – Coram: Abba Aji, Owoade and Tsammani, JJCA.
The appellant and two others had been arraigned on a two count charge of conspiracy to murder and murder of one Cecilia Ogbonna. They were tried, found guilty and convicted by the High Court of Imo State sitting at Owerri. The three of them were sentenced to death pursuant to Section 319(1) of the Criminal Code applicable to the State.
The fact of the case goes thus:-
The deceased – Mrs Cecilia Ogbonna lived within the same neighborhood with the appellant’s mother – Mrs. Ifeoma Okereke. A common wall separated the houses of both women as they were both married into the same family. During her life time, there had been an unresolved dispute between the deceased and appellant’s mother. The latter had accused the deceased of having killed her son’s dog and threatened that the deceased would die just the way the dog had died. PW1 is one Grace Igwe, a trader who was married into the same family with the deceased. She testified that as she was returning from the market one day, she heard the deceased shouting that her electric wire had been tampered with and as she got closer to the house she saw the appellant and his mother, Ifeoma, who told the appellant to use a stick to break the head of the deceased. In the early hours of the 29th day of November, 2005, she had gone to the deceased’s house. As she opened the door she saw the deceased in the pool of her blood with multiple injuries and was told by the deceased that the injuries were inflicted on her by the appellant and others. The injury led to her death later in the hospital
In defence, the appellant denied ever inflicting any injury on the deceased but stated that there had been an armed robbery incident and that the said injuries on the deceased must have been inflicted by the armed robbers, who had attacked the neighbours.
At the close of the trial, the Judge believed the story of the prosecution and disbelieved the defence. And in his considered judgment delivered on the 31st day of March, 2009 the trial court convicted and sentenced the appellant and the co-accused to death by hanging.
The appellant and others were dissatisfied with the decision, hence they appealed to the court below. The appeal was found to be lacking in merit and was dismissed. The conviction and sentence by the trial court were affirmed in the judgment of the Court of Appeal delivered on the 11th July, 2012.
Further dissatisfied with the decision of the Court of Appeal led to the instant appeal by the appellant with a Notice of Appeal filed on 31st July, 2012.
The sole or lone issue formulated by the appellant and which was adopted by the respondent once again is:
“Whether having regard to the facts and circumstances of this case, the prosecution proved the guilt of the appellant beyond reasonable doubt.”
The appellant had been charged pursuant to Section 319 (1) of the Criminal Code Cap 30 Vol. II Laws of Eastern Nigeria, 1963 as applicable to Imo State of Nigeria, with the offence of murder.
The law is clear as to the circumstances where an offence of murder can be said to be committed. Murder is said to be committed when a person unlawfully kills another under any of the following circumstances; that is to say:
• If offender intends to cause the death of the person killed, or that of some other person;
• If the offender intends to do to the person killed, or to some other person grievous harm;
• If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
• If the offender intends to do grievous harm to some persons for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant or for the purpose of facilitating the flight of an offender who has committed or attempted to commit such an offence;
• If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
• If death is caused by willfully stopping the breath of any person for either of such purposes;
In the second circumstance above, it is immaterial that the offender did not actually intend to hurt any person. In the last three cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.
However it is trite law, that in a charge of murder, the burden is on the prosecution to prove and establish as a fact that the deceased died, that the death was caused by the accused; and that the accused intended to either kill the victim or cause him grievous harm. See; Francis Durwode Vs The State (2000) 12 SC (Pt.1) 1; Akpan Vs. State (2001) FWLR (Pt.56) 7351, Idemudia Vs State (2001) FWLR (Pt.55) 549 at 564; Sabina C Madu Vs. State (2012) 6 SCNJ 129’ (2012) 15 NWLR (Pt.1324) 405; (2012) 50 NSCQR 67.
In other words, in a murder charge, as the instant, the prosecution owes it a duty to discharge by proving the death of the victim of the alleged act, that the accused is responsible by act or omission, intentional or otherwise, to the knowledge of the accused and that the act or omission could cause grievous bodily harm or death. The prosecution must prove that the act or omission caused death but not that it• could have caused death. See; Ubanu & Ors Vs. State (2004) FWLR (Pt.191) 1533 at 1546 Godwin Igabele Vs The State (2006) 3 SCM 143 at 151; Elewo Abogede Vs State (1996) 5 NWLR (Pt.448) 270.
In the instant case, to discharge the burden on it, the prosecution called seven (7) witnesses while the appellant in defence called five (5) witnesses.
Before I proceed to consider the case as presented by both parties, it is necessary to state certain facts that were either admitted or not disputed by the defence now appellant in the case put forward by the prosecution. These include:
• The fact that one Cecilia Ogbonna was attacked in her room in the early hours of 30th November, 2005 .
• That the said Cecilia Ogbonna eventually died as a result of the injuries sustained from the attack by her assailants.
• That the deceased, Cecilia Ogbonna and the appellant and family lived within ‘the same neighbourhood.’ Indeed, their respective houses were separated only by a wall.
• That there was an unresolved boundary dispute between the deceased and appellant’s mother.
There is no doubt that the prosecution was not expected to prove, any longer, the above facts that were either admitted or not denied or disputed by the appellant.
It is already settled law that any admitted fact or fact not in dispute, or not specifically denied need no further proof and will be deemed established. See; Olale Vs. Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at 1021 Ndayako Vs. Dantoro (2004) 13 NWLR (Pt.889) 187; (2004) 18 NSQR 646; Ehinlanwo Vs Olusola Oke & Anor (2008) 10 SCM 28 (2008) 16 NWLR (Pt.1113) 357; (2008) 6-7 SC (Pt.ll) 123; Titiloye Vs Olupo (1991) 9-10 SCNJ 122.
In the instant case what the prosecution was expected to prove were the person or persons that were responsible for the injuries sustained by the deceased. Indeed, the prosecution was to show by credible evidence that the appellant and his co-accused caused the death of the deceased. And that by the injuries the appellant inflicted on her, that they intended to either kill their victim or cause her grievous bodily harm. These elements, the prosecution was required to prove to earn conviction of the appellant beyond reasonable doubt.
As I stated earlier, the prosecution called seven witnesses. PWl was one Grace Igwe. She testified that she knows the appellant and the deceased very well, both of them having come from the same neighbourhood. Indeed, the deceased and herself were married to the same family. Their husbands being first cousins. She was aware of the hostility between the appellant’s mother and the deceased, including the allegation against the deceased, by the appellant’s mother that, the deceased killed her son’s dog. PWl testified further as follows:-
“On 29th November, 2005 by 5.30p.m, when returned from market, the said Cecilia showed me her wrapper which had been cut. She said she would burn it and I advised her not to burn the cloth. I advised her to go that I would come to her in the morning for us to have joint prayer. I went to her in the morning a few minutes past five o’clock. I was carrying my lantern. It was Wednesday 30th November, 2005. On getting close to her house, I heard some noise made by her. The noise was the noise of somebody who was in pains.
As I went into her room I observed that my legs were matching on her blood on the floor. I raised the lantern and saw that her head had multiple injuries and blood all over her body. The body was bare. She was not wearing any blouse. I asked her what happened and she said that it was one Uzoma and Ugochukwu his brother and a tenant in Innocent’s house who were responsible for the wounds that they had executed their threats that they would kill her. The three accused persons are the people the deceased said were responsible for her death. After this I ran outside and raised alarm which attracted peoples’ attention.”
Under cross examination by the appellant’s counsel, the witness testified that she was in good terms with Ifeoma Okereke, the appellant’s mother and her children. That even her own last child often visited Ifeoma’s house. That she was returning from the market on the day in question when she heard Ifeoma’s voice and she rushed to the scene. It was then she heard Ifeoma told the deceased that she would die like their dog. And the appellant then told the deceased that he would kill her before her children would arrive from Lagos.
Further testifying under cross examination, the witness was categorical that there was no armed robbery attack or incident in their neighbourhood or anywhere in the village on the day in question.
PW2 was a Police Constable – Osuagwu Sampson. He testified as one of the policemen who visited the appellant’s family house after the complaint against him and others of having wounded the deceased on 30th November, 2005. On getting to the house, neither the appellant nor his brother was in the house. Only the mother was met in the house and she said she did not know the whereabouts of her children including the appellant. The policemen later visited the deceased’s house but discovered that she had been moved to the hospital. They went straight to the hospital where they obtained her statement. Indeed, as the only Igbo man of same tribe with the deceased, he obtained her statement. The statement of the deceased was tendered through the witness and when there was no objection it was admitted and marked Exhibit A.
Under cross examination, PW2 in response to the question posed by the defence counsel, had stated that the content of Exhibit A was what the deceased had told him which he recorded and read over to her and she confirmed that it was correct. She appended her right thumb impression on Exhibit A.
PW3 was also a neighbour to the appellant’s family and the deceased. He also testified that the deceased told him that the appellant and two others, that he mentioned, inflicted the injuries on her. The witness confirmed his testimony under cross examination.
PW5 was the Investigating Police Officer (lPO) who investigated the case. He obtained the statement of the appellant properly under caution. The statement was tendered through him and when there was no objection it was admitted and marked Exhibit C.
PW6 was also a police officer who caused the appellant to be arrested on 1st December, 2005 sequel to the statement earlier made by the deceased whereby his name and others had been given as her assailants. The appellant’s 1st statement made to the police was tendered and admitted as Exhibit F.
PW6 was the officer who obtained the statement of the appellant’s mother – Ifeoma Okereke. Same was tendered and admitted without objection as Exhibit G.
Under cross examination, PW6 confirmed that the deceased gave him the three names of her assailants including the appellant, which led to their arrest.
Exhibit B was the autopsy report of the medical doctor – PW4 who found two deep cuts on the right side of the scalp, measuring 6cm and 7cm respectively with associated bleeding. And that the cause of death was “traumatic and hemorrhagic shock due to soft tissue injuries and subdural hemorrhage consequent upon blunt injury to the head”. The trial court found that the deceased did not die of natural death, from the report of the autopsy. The trial Judge further found that Exhibit A was the statement made by the deceased while alive as to who inflicted the injuries on her.
Pursuant to Section 33 (1) (a) of the Evidence Act, the trial court found the statement to amount to dying declaration by the deceased.
The trial court had found that there were no material contradictions in the evidence adduced by the prosecution as regards the time the deceased died, to suggest that she did not make Exhibit A. The court concluded that there is abundant evidence that the deceased made Exhibit A before she died.
It is noteworthy that Exhibit A, which was said to have been made by the deceased while in the hospital, to the police confirmed the testimony of PW2, who saw the deceased shortly after she was attacked in her room in the early hours of 30th November, 2005. The deceased was said to have given the names of the appellant and the two others as her assailants.
There is no doubt, that at the trial of the appellant and his co-accused for murder of the deceased, there was no way the deceased could have been called as a witness to testify on the cause of her death. But the law is clear on the statements made by persons who cannot be called as witnesses. Section 33 (1) (a) provides as follows:
“Statements written or verbal, or relevant facts made by a person who is dead are themselves facts in the following cases:-
(a) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question; such statements are relevant only in trials for murder or manslaughter of the deceased person and only when such person at the time of making such declaration believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery.”
See; Solomon Thomas Akpan Vs. The State (1992) NWLR (Pt.248) (1992) 7 SCNJ 22; (1992) LPELR 381 SC; Anthony Okoro Vs. The State (2012) 1 SCM 80; (2012) LPELR 7846 SC; (2012) NWLR (Pt .. ) (2012) 1 SCNJ 36.
It is interesting to note however, that even though the prosecution owes it a duty to prove the charge of murder against the appellant beyond reasonable doubt, the defence put forward by the appellant and others was that it was armed robbers who had attacked their house and wounded their mother Ifeoma Okereke that also attacked the deceased and cause the injuries on her.
But this defence was debunked by the prosecution. From the evidence adduced by the prosecution, there was no robbery incident at all within that neighbourhood. What is more, at least, none was reported to the police. Indeed, PW7, one Christian Akowunobi, was the Chairman of the Vigilante Group of Ndegwu people. He testified, inter alia as follows:
“I know the late Cecilia Ogbonna. I know all the accused persons. As Chairman of Vigilante, my work is to guard Ndegwu town. I work with other subordinates. Each day we keep guard and patrol within Ndegwu community.
On 30th November, 2005, we were on duty of patrol till day break. At close of work, we received report that day, till 4.30am, there was no report of armed robbery or gun shot. After 4.30am around 6am one Sopurachi and Felicia Igwe came to my house that one Cecilia Ogbonna had been killed …………………………………………….. .
We went to the house of Cecilia Ogbonna. On getting there, we saw her lying on the floor in a pool of blood. She was still alive (sic). I asked her who inflicted the injuries on her; she said it was one Uzoma, his younger brother and a tenant in late Uzoigwe’s house …………….. .
The following day, I reported the matter to the State CID, Owerri. I made statement to the Police”
Under cross examination, PW7 was not shaken at all on the testimony he gave under examination in-chief. He confirmed that the deceased gave him the appellant’s name as one of those who attacked her.
What is more, from the uncontroverted testimony of PW6, the claim of armed robbery attack by the appellant and his mother, Ifeoma Okereke was found to be false. The bandages rapped round her head and legs were false as there was no wound or bruises on her at all. In other words, the claim that there was a robbery incident was a make-up or fabricated story to cover the act of attack by the appellant and his co-accused.
I am therefore not in the slightest doubt that the trial court was right in admitting the statement of the deceased as a dying declaration which was admissible and properly admitted and relied upon.
In R Vs Carnall. (1995) Crim. LR 944, the accused was charged with the murder of V. Two witnesses had seen V. in the street outside their house. He was bleeding and asking for help. He claimed that he had been attacked with knives and baseball bat, and it had taken him about an hour to crawl from his home to the house. The witnesses asked him who had attacked him and he subsequently named the defendant. At hospital, before V. died, he gave a statement to a police officer, again naming V as the attacker. The trial Judge admitted both the statement to the witnesses and that given to the police officer as part of the res gestae.
On appeal, it was argued that he had been wrong to do so. It was alleged that the time that had elapsed between the attack and the making of the statement (over an hour between the attack and the first statement, and nearer two hours in respect of the second statement) coupled with the fact that the statements had been made only in response to questions, meant that they were not sufficiently contemporaneous. Moreover, the appellant also contended that the statements were inherently unreliable, since the victim had lost a lot of blood, which could have resulted in a confused state of mind.
Dismissing the appeal, it was held that the crucial question was whether there was any real possibility of concoction or distortion, or whether the judge felt confident that the thoughts of the maker of the statements were at the time so dominated by what had happened that what the speaker said could be regarded as unaffected by any ex post facto reasoning or fabrication.
In answering this question, the trial Judge had taken account of the appalling nature of the attack itself, the horrific injuries that were inflicted, the pain that the victim was undergoing and the obsession he had at the time, with getting help and trying to stay alive. The time factor was not conclusive. As to the question of the loss of blood, the Judge had rightly taken the view that this was merely speculative on the part of the appellant. Thus, the central issue for the court was not a question of lapse of time, but whether there was a real possibility of concoction or distortion as a result of the lapse of time or any other proven factor.
The above was an English case whereby the rule of res gestae was applied. In the instant case, the fact that the claim of the appellant and his mother that the people who had robbed them and inflicted injuries on Ifeoma, the appellant’s mother also inflicted injuries on the deceased, and this was found to be untrue becomes relevant fact to the fact in issue because it throws light on it.
Ordinarily, merely telling a lie or lying by a suspect or an accused person is not evidence of the commission of any offence let alone murder. See; Anekwe Vs The State (1976) 9-10 SC 255; Omogbodo Vs. State (1981) NSCC 119. But where the fact of lying is taken together with other relevant facts and circumstances, in the particular case, it may safely be concluded that the accused is guilty of the offence charged.
In that case, the lie or those lies become(s) relevant fact to the fact in issue as evidence against him. See; Ajibove & Anor Vs State (1994) 8 NWLR (Pt.364) 587 sy 603. The fact in this case that the claim that there was a robbery attack, when there was none. And that the appellants’ mother was injured and had to bandage her head were found to be lies are relevant facts taken together with the fact that immediately after the incident, both the appellant and his younger brother disappeared from the house, that their mother claimed she did not know their whereabouts, are relevant to the fact in issue as to their involvement in the attack and the injuries inflicted on the deceased, which led to her death.
In the circumstance, I believe that the learned trial Judge was right in admitting the statement made by the deceased to PW6 and when that was taken together with the testimony of PW1 and PW3 on what the deceased told them respectively at different times when the attack was fresh. In other words, I am satisfied that Exhibit A was relevant and admissible as dying declaration and was properly admitted by the trial court.
In the final analysis, I hold that the sole issue distilled for the determination of this appeal should be and is hereby resolved against the appellant. In other words, this appeal lacks merit and deserves to be dismissed. The court below was therefore right to have affirmed the decision of the trial court that the prosecution proved the case against the appellant beyond reasonable doubt.
Accordingly, appeal is dismissed. The judgment of the court below which affirmed the decision of the trial High Court of Imo State delivered on 31st March, 2009 is hereby affirmed.
Olu Ariwoola
Justice, Supreme Court
L. M. Alozie, Esq. for the appellant.
A. N. Eluwa (Mrs) SG & PS, Min of Justice Imo State with K. A. Leweanya (Mrs) ACSC, Min. of Justice, Imo State for the respondent.