Position of the Law on the Admissibility of A Dying Declaration

CASE TITLE: OMOKARO v. STATE (2025) LPELR-81202(SC)

JUDGMENT DATE: 16TH MAY, 2025

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: HARUNA SIMON TSAMMANI, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on the offence of murder.

FACTS:

This is an appeal against the judgment of the Court of Appeal, Benin Division, delivered on the 14th day of May, 2015, wherein the conviction of the Appellant for murder by the Delta State High Court sitting at Isiokolo was affirmed.

The Appellant was charged before the Delta State High Court of Justice for the offence of murder punishable under Section 319(1) of the Criminal Code, Cap. 48 of Vol. II, Laws of the defunct Bendel State, 1976 (as applicable to the Delta State of Nigeria). The Appellant and one other person at large were said to have beaten the deceased, one Ogenekpoboro Ughekpani, a male, with wood in the bush. The deceased was able to escape and ran to tell his cousin (PW1) that it was the Appellant and one Etuvawara, alias Bomboy, who beat him with wood. As a result, he sustained bruises all over his body and had blood in his mouth. That PW1 was preparing to take him to the hospital for treatment when the deceased suddenly vomited blood and died.

The Appellant denied the charge and pleaded that, on the day in question, he left his home in the morning to tap rubber in his rubber farm at Orisi bush. From the farm, he went home. He also denied encountering the deceased on that day, to wit, 20/3/2010.

In their effort to prove the case against the Appellant, the prosecution called four (4) witnesses and tendered six (6) exhibits including the extrajudicial statements of the Appellant and the complainant (PW1).

The parties then filed and exchanged written addresses, and in the judgment delivered on 29/11/2013, the Appellant was convicted of murder and sentenced to death by hanging. His appeal to the Court of Appeal was dismissed; hence, the Appellant’s further appealed to the Supreme Court.

ISSUES FOR DETERMINATION:

The Court considered the following two issues together:

1. Whether the Learned Justices of the Court of Appeal were right in affirming the judgment of the trial Court that the prosecution proved the charge of murder against the appellant beyond a reasonable doubt?

2. Whether the Learned Justices of the Court of Appeal were right in affirming the rejection of the defence of alibi raised by the Appellant?

DECISION/HELD:

The appeal was allowed. The judgment of the Court of Appeal, Benin Division, delivered on the 14th day of May, 2015, affirming the judgment of the Delta State High Court delivered on the 28th day of November, 2013, in Suit No. HCI/2972010, was set aside. The Appellant was accordingly acquitted and discharged.

RATIOS:

• CRIMINAL LAW AND PROCEDURE- DUTY OF PROSECUTION: Duty of prosecution to prove all the ingredients of an offence; effect of failure
• CRIMINAL LAW AND PROCEDURE- GUILT OF AN ACCUSED PERSON: Requirement(s) of law on proof of guilt of an accused person
• CRIMINAL LAW AND PROCEDURE- DEATH SENTENCE: What is required of the Court in criminal cases involving capital punishment
• EVIDENCE- CAUSE OF DEATH: Duty of the prosecution to establish cause of death and link same to the act of the accused
• EVIDENCE- PROOF BEYOND REASONABLE DOUBT: Whether proof beyond reasonable doubt means proof beyond all shadow of doubt; how same is attained
• EVIDENCE- INCONSISTENCY RULE: When is the inconsistency rule applicable
• EVIDENCE- CONTRADICTION IN EVIDENCE: Effect of previous statement of a witness that is inconsistent with his evidence during trial; duty of court thereto
• EVIDENCE- DYING DECLARATION: What constitutes a dying declaration; requirements of the law in establishing same
• EVIDENCE- CAUSE OF DEATH: Principles of law on cause of death
• EVIDENCE- SPECULATION: Whether the Court can determine a case based on speculation
• EVIDENCE- DYING DECLARATION: Position of the law on the admissibility of a dying declaration
• EVIDENCE- TAINTED WITNESS: Principles of law as regards the evidence of a tainted witness

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