LEGAL NUGGETS (36):DYING DECLARATION .By Adedotun Habeeb Adetunji LL.M (M.IoD), FCAI.


EVIDENCE - DYING DECLARATION- Definition and nature of a dying declaration; conditions that must be satisfied for dying declaration to be admissible in evidence
 "In issue 2 of the appellant's brief the appellant had submitted that the trial judge erred in law in admitting Exhibit B as a dying declaration, etc when the said Exhibit B did not meet the legal test for its admissibility as a dying declaration. ?This provoke the questions, what is a dying declaration? In what circumstance is it admissible in evidence? A dying declaration is a statement made by a person who may die from the injury received from a person whom the deceased person identified as the person who inflicted on (the deceased) the injury that eventually caused his death.

In this case, injury from which he never recovered till he died. It is one of the exceptions to the rule of direct evidence to prove a fact in issue. Section 33 of the Evidence Act, Cap 112, does not require for its admissibility a formal declaration of dying to be made. What is relevant is a statement made by the deceased during his life as to the cause of his death. Therefore when the issue arises as in the instant case, as to the case of death of the deceased, the statement made by the deceased is relevant and admissible as a dying declaration. There is a difference is our own provisions of our evidence law on the circumstance and occasion for admissibility of dying declaration from the English provision.

Theirs require the statement to have been made when the deceased has lost all hope of life. See R. v. Woodcach 1789 E. R. 353. Such condition is not required in the Nigeria Law of Evidence Section 33. The facts in the instant appeal when the deceased invited the police to whom he made the statement of his dying declaration when he died become valid as a dying declaration. The following conditions are also occasions when such a statement is admissible. (a) The declarant must have died before the statement written or verbal is made. (b) The declaration of statement must relate to the cause of death of the declarant. (c) The declaration is relevant only in a trial for murder or manslaughter (d) Though the declarant may have hopes of recovery, he need not have lost hope entirely of life or be in a settled hopeless expectation of death. See also Mome Garba & Ors. v. R. (1959) SCNLR 402; (1959) 4 FSC 162." Per OMAGE ,J.C.A ( Pp. 19-21, para. D )

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