16/02/2026
*Omokaro v. State (2026) 2 NWLR (Pt. 2027) 125, SC.*
*ISSUES FOR DETERMINATION:*
1.Whether the Court of Appeal was right in affirming the judgment of the trial court that the prosecution proved the charge of murder against the appellant beyond reasonable doubt.
2.Whether the Court of Appeal was right in affirming the rejection of the defence of alibi raised by the appellant.
*FACTS OF THE CASE:*
The appellant was charged at the High Court of Delta State with the offence of murder punishable under section 319(1) of the Criminal Code, Cap. 48, Laws of the defunct Bendel State, 1976 (as applicable to Delta State of Nigeria).
The appellant and one other person at large were alleged to have on 20th March 2010 beaten one Ogenekpoboro Ughekpani, a male, with wood in a bush. The respondent’s case was that the deceased escaped the beating and ran to tell his cousin, PW1, that it was the appellant and one Etuwawara, alias Bomboy, who beat him with wood as a result of which he sustained bruises all over his body and had blood in his mouth and 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; and that, from the farm, he went home. He also denied encountering the deceased on that day, to wit, 20th March 2010.
The respondent called four witnesses in proof of its case against the appellant and tendered six exhibits including PW1’s extra-judicial statements, exhibits “A” and “A1”, and the appellant’s extra-judicial statements, exhibits “B” and “C”, wherein he denied committing the offence and reiterated that he had no encounter with the deceased on the day of the alleged incident.
In exhibit “A”, which was made on the day of the incident, PW1 stated that he was at home when the deceased met him. However, in his subsequent statement, exhibit “A1”, made on the 24th March 2010 and in his oral testimony in court on 7th April 2011, which was about a year later, he stated that he was in his mother’s house. Also, exhibit “A”, he stated that the deceased told him that the appellant and the other at large attacked him with wood but before the deceased could fully explain what happened, he gave up the ghost. However, in exhibit “A1”, he stated that the deceased told him everything but when he was being taken to the hospital, he gave up the ghost. In his oral testimony in court, he told the court that the assailants of the deceased told him he will bear witness from the grave and that the deceased vomited blood before giving up the ghost.
PW3, a medical doctor, testified that on 20th March, 2010, he carried out an autopsy on the deceased which PW1 identified to him. He stated that from his findings, the injuries the deceased sustained were not severe injuries that could lead to death but that the deceased could have sustained injury in the head which can cause death; and that the deceased died of head injury. Under cross-examination, he did not see any injury of the head and had no report of injury on the head. When re-examined, he told the court that he only made report of injury on the body.
PW4, an Investigating Police Officer attached to the State C.I.D, Asaba, Delta State stated that in the course of the investigation, he saw the co**se at the Shell Clinic at Eziake; that he observed multiple bruises on the body of the deceased; and that he also saw a swelling like a contraction on the deceased’s head. A medical practitioner’s report was tendered through him and was admitted as exhibit “D”. The report indicated the cause of death to be head injury.
At the conclusion of trial, the trial court, in its judgment and in evaluating the evidence led through PW1, relied on section 40 of the Evidence Act, 2011 to hold that what PW1 told the court the deceased relayed to him amounted to a dying declaration. The trial court then related the dying declaration against the alibi raised by the appellant and accepted the oral statement given to PW1 as true while disbelieving the appellant’s evidence. It convicted the appellant of murder and sentenced him to death by hanging.
Dissatisfied, the appellant appealed to the Court of Appeal. The Court of Appeal, inter alia, affirmed the finding of the trial court on the dying declaration and it dismissed the appeal.
Aggrieved, the appellant appealed to the Supreme Court.
*Held (Unanimously allowing the appeal):*
*1.On burden of proof on prosecution in criminal case.*
In criminal cases, the prosecution has the onus of proving that the person charged with the commission of the offence is guilty of committing the offence charged. This is because there is presumption of innocence inuring to an accused person by virtue of section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) which stipulates that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. By virtue of constitutional presumption of innocence prescribed in favour of an accused person, the prosecution has the burden or duty to call substantial and credible evidence in proof of the guilt of the accused. To discharge the burden, the evidence adduced must be credible and go to establish each and every ingredient of the offence charged beyond reasonable doubt.
Ugboji v. State (2018) 10 NWLR (Pt. 1627) 346; Obiode v. State (1970) LPELR-2524; Njoku v. State (2013) 2NWLR (Pt. 1339) 548; Tobi v. State (2019) 8 NWLR(Pt. 1673) 74 referred to.] (Pp. 173-174, paras. F-B)
*2.On burden of proof on prosecution in criminal case.*
The prosecution must adduce credible evidence which establish all the essential or material ingredients of the offence charged in a criminal case before it can secure a conviction. Proof beyond reasonable doubt required of the prosecution is proof of all the essential ingredients of an offence together or conjunctively. Failure to prove any of them is failure in the standard of proof thereby raising a doubt which is to be resolved in an accused person’s favour. Invariably, where the evidence adduced is lacking or is materially contradictory on even a single element of the offence charged, it will be fatal to the prosecution’s case. This is because the law requires that all the material ingredients of the offence charged must be proved beyond reasonable doubt. An essential element of an offense may be said not to have been established where the evidence in proof is not credible in the sense that it is contradictory.
Alabi v. State (1993) 7 NWLR (Pt. 307) 511; Ibrahim v. State (2015) 11 NWLR (Pt.1469) 164; Aliu v. State (2015) 2 NWLR (Pt. 1442)51; Shande v. State (2005) 12 NWLR (Pt. 937) 301; Okoro v. State (1988) 5 NWLR (Pt.94) 255; Abbas v. People of Lagos State (2019) 16 NWLR (Pt. 1698) 213; Ikemson v. State (1989) 3 NWLR (Pt.110) 455; Galadima v. State (2018) 13 NWLR (Pt. 1636) 357; Ahmed v. Nigerian Army (2016) 17 NWLR (Pt. 1540) 34; State v. Danjuma (1997) 5 NWLR (Pt. 506) 512; Uche v. State (2015) 11 NWLR (Pt. 1470) 380 referred to.] (Pp. 193-194, paras. E-C; 199, paras. C-D).
*3.On burden of proof on prosecution in criminal case.*
In Nigerian jurisprudence, the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it.
Where the commission of crime by a party is in issue in any proceedings, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal. (P. 198, paras. D-F)
*4.On meaning of proof beyond reasonable doubt.*
Proof beyond reasonable doubt means proof to moral certainty and it is such proof as satisfies the judgment and conscience of a judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible. Proof beyond reasonable doubt does not mean absolute proof or proof beyond every shadow of doubt. It is not proof beyond every iota of doubt. It is establishing the guilt of the accused person with convincing, compelling and conclusive evidence. The evidence adduced must establish that it was the accused person and no other person that committed the offence. Therefore, it means that a judge should not allow any whimsical, capricious or other idiosyncrasies to becloud his sense of justice. Thus, where the prosecution has been able to prove by credible evidence that an offence has been committed and that no person other than the accused committed the offence, the prosecution would be said to have established the offence charged beyond reasonable doubt.
Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) 170; Smart v. State (2016) 9 NWLR (Pt.1518) 447; Mindi v. State (2022) 8 NWLR (Pt. 1831) 1; Dairo v. State (2018) 7 NWLR (Pt.1619) 399; Egwumi v. State (2013) 13 NWLR (Pt.1372) 525; Galadima v. State (2018) 13 NWLR (Pt.1636) 357 referred to.] (Pp. 174-175, paras. C-A).
*5.On meaning of proof beyond reasonable doubt.*
Proof beyond reasonable doubt is not proof to the hilt and is not synonymous with proof beyond all iota of doubt or proof of a mathematical certainty. This is due to the aphorism that absolute certainty is impossible in any human venture, inclusive of administration of justice. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case will be said to have been proved beyond reasonable doubt.
Ibrahim v. C.O.P. (2020) 15 NWLR (Pt. 1746) 122; Fekolomoh v. State (2021) 6 NWLR (Pt. 1773) 461; Adisa v. State (2023) 9 NWLR (Pt. 1888) 85; Udo v. State (2023) 9 NWLR (Pt. 1888) 181; Manu v. State (2023) 10 NWLR (Pt. 1892) 231; State v. Ibrahim (2024) 1 NWLR (Pt. 1919) 213 referred to.] (Pp. 198-199, paras. F-A).
*6.On ways of proving commission of crime.*
The prosecution may lead evidence in proof of its case by any or a combination of the following ways:
(a)by the testimony of eye witness or witnesses who saw when and how the offence was committed; or
(b)by the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence;
(c)by circumstantial evidence of surrounding circumstances of the case, which point unequivocally to the fact that it was the accused and no other person that committed the offence charged and which is complete, cogent and unequivocal.
Any one of the methods is sufficient. In the instant case, there was no eye witness to the commission of the offence and the appellant did not confess to have committed the offence. The entire case of the prosecution was built on the testimony of PW1, who through his extra-judicial statements to the police and testimony in court stated that the deceased had told him that it was the appellant and one other who was at large at the time of trial that beat him with wood in the bush.
Ogunjimi v. State (2021) 9 NWLR(Pt. 1782) 551; Kushimo v. State (2021) 16 NWLR (Pt. 1801) 147; Bala v. State (2021) 18 NWLR (Pt.1809) 576; Archibong v. State (2022) 1 NWLR (Pt.1811) 239; Asekere v. State (2022) 7 NWLR (Pt. 1829) 259; Olatayo v. State (2022) 8 NWLR (Pt. 1832) 301 referred to.] (P. 175, paras. A-E).
*7.On nature of circumstantial evidence and when sufficient to ground conviction.*
Circumstantial evidence is evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with high level of certainty and the accuracy and/or precision of mathematics. It is not a derogation of evidence to say that it is circumstantial. However, to be sufficient to ground a conviction in a criminal trial, circumstantial evidence must be complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the defendant and no one else did the deed and as such, it is only the defendant and no one else, who should be criminally culpable for the offence alleged or charged. The facts must be incompatible with the innocence or non-culpability of the defendant and incapable of explanation by any other reasonable hypothesis or consideration than that of his guilt.
State v. Njoku (2010) 1 NWLR (Pt. 1175) 243; Oladotun v. State (2010) 15 NWLR (Pt. 1217) 490 referred to.] (P. 203, paras. B-E).
*8.On when circumstantial evidence sufficient to ground conviction.*
For circumstantial evidence to sustain conviction, the following conditions must be met:
(a)the evidence must irresistibly and unequivocally lead to the guilt of the defendant;
(b)no other reasonable inference could be drawn from it; and
(c)there must be no co-existing circumstances which could weaken the inference.
All the three conditions must exist in the adduced evidence to ground and sustain the conviction of a defendant.
Shehu v. State (2010) 8 NWLR (Pt. 1195)112 referred to.] (Pp. 203-204, paras. G-A)
*9.On nature and quality of circumstantial evidence sufficient to ground conviction for murder or culpable homicide.*
The fact of death should be proved by such circumstances as render the commission of culpable homicide or murder certain and leave no ground for reasonable doubt before an accused defendant can be convicted for the crime on circumstantial evidence. The circumstantial evidence should be cogent and compelling as to convince the court that no rational hypothesis other than murder can the facts be accounted for. A conviction for culpable homicide or murder on circumstantial evidence must point to the guilt of a defendant with the accuracy of mathematics. A court cannot convict on circumstantial evidence, especially in a case of murder or culpable homicide, where such evidence points in more than one direction.
Osuoha v. State (2010) 16 NWLR (Pt. 1219) 364; Maigari v. State (2010) 16 NWLR (Pt. 1220) 439 referred to.] (P. 203, paras. F-G).
*10.On ingredients of murder.*
For a prosecution to secure a conviction for murder, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence:
(a)that the deceased died;
(b)that the death resulted from the act of the defendant;
(c)that the defendant caused the death intentionally or with knowledge that death or grievous bodily harm was its probable consequence.
The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised. Where any is not proven, the murder offence fails and the accused is entitled to discharge and acquittal. In the instant case, there was no dispute that the deceased was dead. The conflict centred on the second and third ingredients of murder.
Abbas v. People of Lagos State (2019) 16 NWLR (Pt. 1698) 213; Okere v. I.G.P. (2021) 5 NWLR (Pt. 1770) 537; Njoku v. State (2021) 6 NWLR (Pt. 1771) 157; Ganiyu v. State (2023) 11 NWLR (Pt. 1895) 199; Somefun v. State (2023) 17 NWLR (Pt. 1913) 273; Ekpemegbere v. State (2024) 4 NWLR (Pt. 1928) 203 referred to.] (P. 199, paras. A-F)
*11.On proof of cause of death in murder charge.*
In a criminal trial for murder, before the court can make a finding on whether it was the act of the accused that killed the deceased, the court must first of all make a finding about the cause of death. The cause of death means the biological cause of death. The cause of the death of the deceased should be established with certainty because the act which caused the death is in most cases a certain act. In other words, the cause of death must first be ascertained before the nexus or causal link between the act of the accused and the deceased’s cause of death is established. The cause of death may be proved by evidence of witnesses who saw the very act that caused the death or by medical evidence of the doctor who examined the co**se and proffers his opinion as to the cause of death. The courts have always viewed with seriousness the requirement that in the case of murder or manslaughter, the cause of the death must be positively proved either by direct evidence or by such circumstantial evidence that leaves no room either for doubt or for speculation.
Emwenya v. A.-G., Bendel State (1993) 6 NWLR (Pt.297) 29; Uguru v. State (2002) 9 NWLR (Pt. 771) 90; Adekunle v. State (2006) 14 NWLR (Pt. 1000) 717; Akinlolu v. State (2019) 5 NWLR (Pt. 1665) 343; Adekunle v. State (1989) 5 NWLR (Pt. 123) 505; Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367; State v. Osuagwu (1974) 4 ECSLR 358 referred to.] (Pp. 190, paras. E-H; 200, paras. E-H).
*12.On burden of proof on prosecution in respect of cause of death in murder charge.*
In a charge of murder, the cause of death of the deceased must be established unequivocally and the burden of proving the cause of death is on the prosecution, to be discharged beyond reasonable doubt. In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceeding beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed further. While the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have carried it. These are factual questions to be answered by a consideration of the evidence. Where the cause of death is not established with certainty, it will be a futile exercise to proceed to a determination of whether the death of the deceased was caused by the act of the accused. In such a situation, the only verdict would be to acquit and discharge the accused. In the instant case, the cause of death of the deceased was not unequivocally proved beyond reasonable doubt with the contradictory evidence of PW1, PW3 and PW4 on the cause of death of the deceased. There was also no evidence as to the nature of the weapon used to inflict the injury. PW1 merely stated that the deceased told him that he was hit by the appellant with wood. There were material contradictions between the testimonies of PW1, PW3 and exhibit “A”, “A1” and “D” tendered by the prosecution on the cause of death. PW3, the medical doctor who conducted the post-mortem on the co**se, could not give definite evidence about the cause of death. He prevaricated on the issue. Consequently, there was no need to proceed to a determination of whether it was the act of the appellant that caused the death of the deceased.
Oforlete v. State (2000) 12 NWLR (Pt. 681) 415; Alake v. State (1992) 9 NWLR (Pt. 265) 260; Bello v. State (2014) LPELR -41075; Udosen v. State (2007) 4 NWLR (Pt. 1023) 125; Oche v. State (2007) 5 NWLR(Pt. 1027) 214; Ekpoisong v. State (2009) 1 NWLR (Pt. 1122) 354; Iliyasu v. State (2014) 15 NWLR (Pt.1430) 245; Lori v. State (1980) 8-11 SC 81 referred to.] (Pp. 190-193, paras. H-E; 194-195, paras. F-C;199, paras. F-H).
Per ABIRU, J.S.C. at pages 200-201, paras. H-G:
“In the instant case, there was no eye witness account of the incident that was alleged to have caused the death of the deceased. The respondent called one Dr. Lewis Onomor, as the third prosecution witness, and he testified that he carried out an autopsy on the deceased. The witness gave evidence that he observed multiple injuries and abrasions on the body of the deceased resulting from an assault, but that the injuries were not severe enough to have caused his death. The witness stated that he surmised that the deceased could have sustained an injury in the head and that because of that he put the cause of death as head injury. Under cross-examination, the witness stated that he did not see any injury on the head of the deceased and that he had no report that the deceased suffered a head injury. The medical report issued by the doctor was subsequently tendered as exhibit D by the Investigating Police Officer, the fourth prosecution witness, and the report merely confirmed the oral testimony of the medical doctor.
What is evident from the testimony of the medical doctor is that his conclusion on the cause of death of the deceased was based on speculation and conjecture, and not any empirical evidence, finding or observation that he made from his physical examination of the body of the deceased or from a report he received. It is correct that the fourth prosecution witness, the Investigating Police Officer, testified that when he saw the body of the deceased in the morgue, he observed multiple bruises all over the body and a swelling on the head. The witness did not say that he was a medical person or that he had any medical experience. The witness presented photographs of the co**se of the deceased as part of his evidence and he did not point out to the trial court the said swelling he said he noticed on the head of the deceased or the part of the head the swelling was. The evidence of the witness was clearly an afterthought brought in to fill the gaping hole created in the case of the respondent by the evidence of the medical doctor on the cause of death. The evidence of the fourth prosecution witness did not and could not shore up, supplant or supersede the evidence of the medical doctor who carried out a physical examination of the body of the deceased on the cause of death.”
*13.On application of inconsistency rule.*
In law, contradiction in the testimony of witness occurs when such statement affirms the opposite of what the other evidence has stated, not when there is just a minor discrepancy between them. Where there is obvious inconsistency between the statement of a witness and the oral testimony on oath before the court, the trial court is enjoined to apply the inconsistency rule to reject the evidence of the witness as worthless. Therefore, the inconsistency rule stipulates that where a witness makes an extra-judicial statement which is inconsistent with his testimony at the trial, the court will treat both statements as untrustable and will not regard such statements as evidence which the court can act onin resolving the conflict between the later and the previous statement. In other words, the effect of such conflict is that the previous statement does not constitute evidence on which the court can act and the evidence given in court will be regarded as unreliable.
Egbohognome v. State (1993) 7 NWLR (Pt.306) 383; Asimi v. State (2016) 12 NWLR (Pt.1527) 414; Smart v. State (2016) 9 NWLR (Pt. 1518)447; Ikenne v. State (2018) 18 NWLR (Pt. 1650) 157; Emeka v. Okorafor (2017) 11 NWLR (Pt.1577) 410; Patrick v. State (2018) 16 NWLR (Pt. 1645) 263; Oladejo v. State (1987) 3 NWLR (Pt. 61) 419; Orisa v. State (2018) 11 NWLR (Pt.1631) 453 referred to.] (Pp. 179-180, paras. E-A; 183, paras. A-D).
Per TSAMMANI, J.S.C. at pages 182-183, paras.F-E:
“A sober reflection will reveal three scenarios as stated by PW1 in exhibits ‘A’, ‘A1’ and his oral testimony in court. In the first instance, he state d the deceased died in the course of narrating what happened to him in the bush.
In the second scenario painted in exhibit ‘A’, the deceased died when he was being conveyed to the hospital on a motor-cycle. The third scenario is that, he died when PW1 was looking for a vehicle to convey him (deceased) to the hospital. One other aspect is that in both Exhs. ‘A’ and ‘A1’, the PW1 never said that the deceased reported to him that his assailants told him that:
‘.....he will bear witness from the grave’.
These are fundamental inconsistencies which raised material conflicts between the extra-judicial statements of PW1 and his oral testimony in court. Those conflicts are fundamental as to whether or not the deceased indeed made any dying declaration to the PW1. This is because when the PW1 made no effort to explain those inconsistencies. This has therefore created reasonable doubt on the veracity and evidential value of the evidence of PW1. In other words, reasonable doubt has been created on the credibility of the evidence of PW1 based on the conflicting narration of the declarations the deceased, allegedly made to PW1 as highlighted above…
That being so, it is my view that the inconsistencies I have highlighted above, being fundamental, have fatally affected the credibility of the evidence given by the PW1. Therefore, the oral testimony of PW1 on oath given at the trial lack probative value, and the extra-judicial statements made on those issues should not have been relied upon in finding against the appellant.”
*14.On effect of contradiction in evidence of prosecution witnesses.*
In Nigerian law, the prosecution, in calling all its witnesses as to the substance of offence charged must have certainty and unanimity in what they testify. Where there are divergent testimonies in that regard by the witnesses, such divergent testimonies will result in what is known as contradictions. Unless such contradictions are resolved, they lead to doubt, the benefit of which must be given to the accused person. In the instant case, the contradictions in the evidence of PW1, PW3 and PW4 were never resolved. The ultimate consequence was that material doubt was created as to the cause of death of the deceased. The doubt should have been and was resolved in favour of the appellant.
Ibeh v. State (1997) 1 NWLR (Pt. 484) 632 referred to.] (P. 194, paras. C-F).
*15.On meaning of “inconsistent”.*
The word “inconsistent” simply means “incompatible”. The word, the verb variant of the noun inconsistency, is the opposite of consistent. It means ideas or opinions which are not in agreement with each other or with something else. It also means mutually repugnant or contradictory, contrary, the one to the other, so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other.
Nigercare Dev. Co. Ltd v. Adamawa State Water Board (2008) 9 NWLR (Pt.1093) 498 referred to.] (P. 180, paras.F-H)
*16.On meaning of contradictory statement.*
A contradictory statement states the opposite of what is being contradicted. Therefore, a contradictory statement is an affirmation of the contrary of what was earlier stated or spoken. For a statement to be contradictory of another, it should be a direct opposite of what was earlier stated or asserted.
Dagayya v. State (2006) 7 NWLR (Pt. 980)637; Mohammed v. A.-G., Fed. (2021) 3 NWLR (Pt.1764) 397; Yakubu v. Jauroyel (2014) 11 NWLR (Pt.1418) 205 referred to.] (Pp. 180-181, paras. H-B).
*17.On difference and affinity between contradictory evidence and inconsistency.*
There appears to be some affinity between inconsistency and contradiction but the incidents differ. The words “contradiction” and “inconsistency” are not to be used interchangeably. They are not synonyms. This is because the inconsistency rule operates against the evidence of a witness who had made an extra-judicial statement only and which statement conflicts with the evidence given at the trial. It is restricted to the evidence of a witness who made an extra-judicial statement which is in conflict with the evidence given by him at the trial. Contradictory evidence, on the other hand, relates to conflicts in the evidence of two or more prosecution witnesses. The affinity between contradictory evidence and inconsistency is that, just like in the case of contradictory evidence, the inconsistency between the extra-judicial statement of the witness and his oral evidence in court must be vital and touch on a material or fundamental aspect of the case.
Ayinde v. State (2018) 17 NWLR (Pt. 1647) 140; Okiemute v. State (2016) 15 NWLR (Pt. 1535) 297; Gabriel v. State (1989) 5 NWLR (Pt.122) 457 referred to.] (P. 181, paras. B-F).
*18.On what is dying declaration.*
A dying declaration is a statement made by a person who believed that he is about to die with reference to the manner in which he sustained the injuries or in connection with such injuries by the person charged or suspected of having inflicted them. The phrase is a statement made by someone who is at the point of death. In law, it is a declaration which can be considered as a form of evidence made by a person who subsequently dies, when the cause of his death including the identity of his assailant is in issue. As a form of evidence which is an exception to the hearsay rule, the statement relied on as the dying declaration must be strictly established. Therefore, where the witness relaying the alleged dying declaration testifies as to the words used in general or amorphous terms or the words used as relayed to the court by the witness are unclear, imprecise or ambiguous, it will not qualify as a dying declaration. In other words, the actual words used by the deceased must be strictly proved, in a way as to avoid any uncertainties.
Idahosa v. Idahosa (2020) 6 NWLR (Pt. 1720) 254; Enebeli v. State (2022) 17 NWLR (Pt. 1860) 487; Akpan v. State (1992) 6 NWLR (Pt. 248) 439; Ezekwe v. State (2018)14 NWLR (Pt. 1639) 209; Hausa v. State (1994) 6 NWLR (Pt. 350) 281 referred to.] (P. 184, paras.A-F).
*19.On admissibility of dying declaration.*
By virtue of section 40(1) of the Evidence Act, 2011, a statement made by a person as to the cause of his death or as to any of the circumstances of the events which resulted in his death in cases in which the cause of that person’s death comes into question is admissible where the person who made it believed himself to be in danger of approaching death although he may have entertained at the time of making it hope of recovery. Section 40 of the Evidence Act provides for exception to the rule against hearsay evidence by making the statements of persons that are dead and thus cannot be called as witnesses to be admissible. Thus, where such person made a statement with respect to the cause of his death, such statement is admissible under section 40 of the Evidence Act as a dying declaration. The admissibility of such statement is limited to situation where the accused is being prosecuted for murder or culpable homicide. (P.183-184, paras. F-B)
*20.On admissibility of dying declaration.*
For a statement to be admitted as dying declaration, it must have been made by a person in fear of imminent death and believing at the time of making the declaration or statement that he was going to die, though he may entertain hope of recovery. Thus, before a dying declaration can be admitted in evidence by virtue of section 40 of the Evidence Act, 2011, there must be positive evidence that the deceased was in danger of approaching death or in fear of death at the time he made the statement. Although the deceased need not categorically say that he was going to die from the injuries sustained from the attack on him, the prosecution must give evidence of facts which point to the fact that the deceased believed that he was in danger of approaching death. Thus, there should be specific finding by the trial court that at the time of making the declaration, the deceased believed he was in danger of approaching death, although he may have entertained hopes of recovery. Therefore, in the absence of such finding, the statement is not admissible as a dying declaration. In the instant case, both the trial court and the Court of Appeal wrongly reached the conclusion that what the deceased relayed to PW1 was a dying declaration by virtue of section 40 of the Evidence Act, 2011. The versions of the evidence of PW1 in Exhibits “A” and “A1” and his oral testimony in court did not qualify as dying declaration. There were inconsistencies in his testimony and there was nothing in the statements that specifically disclosed the actual words used by the deceased.
Okereke v. State (2016) 5 NWLR (Pt.1504) 69; Akpan v. State (1992) 6 NWLR (Pt. 248) 439; Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; Dada v. State (2019) 3 NWLR (Pt. 1659) 305; Okokor v. State (1967) NMLR 189; Varboho v. State (1972) LPELR-3464; Hausa v. State (1994) 6 NWLR (Pt.350) 281; Okokor v. State (1967) NMLR 189 referred to.] (Pp. 184-185, paras. F-C)
Per TSAMMANI, J.S.C. at page 188, paras. B-H:
“After a careful and sober reflection, I am of the firm view that the versions of the evidence of PW1 in Exh. ‘A’ and ‘A1’; and his oral testimony in court do not qualify as dying declaration. Apart from the obvious inconsistencies in his testimony, there is nothing in the statements that specifically disclose the actual words used by the deceased. In Exh. ‘A’, PW1 stated that the deceased told him that the appellant and Eituawara Bomboy attacked him with wood but before he could conclude the statement, he gave up his ghost. Exh. ‘A1’ which was made four days later, went further to state that the deceased told him everything but when he was being taken to the hospital, when he gave up the ghost. In the oral testimony of PWI in court, one year later, he told the court that, his assailants told him that; ‘he will bear witness from the grave.’
Furthermore, that the deceased vomited blood before giving up the ghost. These two fundamental statements were never stated in either Exh. ‘A’ or ‘A1’. I am of the view that PWI added those statements in order to shore-up the evidence against the appellant with the view to lighten the noose round his neck.
There is no doubt that the deceased died immediately after reporting what happened to him to the PW1. However, I am unable to find, from the evidence on record that, what the deceased is reported to have told PW1 amounted to a dying declaration. There is no evidence of the actual words used in reporting to the PWI nor is there evidence to show that the deceased entertained fear that he would die as a result of the injuries sustained. On the whole, I am of the view that the statements made to PW1 as relayed in Exh. ‘A’, ‘A1; and his oral testimony in court, do not amount to adying declaration. The court below therefore erred in affirming the findings of the trial court that the prosecution proved its case against the appellant beyond reasonable doubt on the basis of a dying declaration by the deceased."
*21.On admissibility of dying declaration.*
The question of the admissibility of a statement made by a deceased qualifying as a dying declaration is covered by the provision of section 40 of the Evidence Act. Section 40 of the Evidence Act 2011 states that a statement made by a person as to the cause of death or as to any of the circumstances of the events which resulted in his death, in cases in which the cause of that person’s death comes into question, is admissible where the person who made it believed himself to be in danger of approaching death although he may have entertained at the time of making it hope of recovery. Section 40 says that the said statement shall be admissible whatever may be the nature of the proceeding in which the cause of death comes into question. The provision is an apparent attempt at the codification of the common law doctrine of dying declaration. (P. 204, paras. E-H)
*22.On admissibility of dying declaration.*
A dying declaration is a statement made by a person who may die from injury received from a person whom the deceased person identified as the person who inflicted on him the injury that eventually caused his death. The conditions under which such statement is admissible under the Evidence Act are:
(a) the person who made the statement must have died before the statement, written or verbal, is tendered in evidence;
(b) the statement must relate to the cause of death of the person who made the statement;
(c) the statement is admissible in whatever proceeding in which the cause of death comes into question: it is not only relevant in a trial for murder or manslaughter of the maker of the statement; and
(d) the maker of the statement must believe himself to be in the danger of approaching death, though he may have hopes of recovery.
*23.On admissibility of dying declaration.*
It is not a requirement under section 40 of the Evidence Act that a declaration must be made in the extremity of death, when the maker was at the point of death and every hope of the world is gone. The maker of the statement need not have lost all hope of life or be in settled hopeless expectation of death for his statement to qualify as dying declaration under our Evidence Act; this is what distinguishes our law from the common law position. There is no obligation under section 40 of the Evidence Act to lead positive evidence to establish that the deceased was in the apprehension of an imminent death and evinced no hope of recovery before his statement can qualify as dying declaration. What needs to be shown is that the maker of the statement believed himself to be in the danger of approaching death at the time he made the statement. The belief in the danger of approaching death is subjective and not objective. The person making the declaration must believe himself to be in danger of approaching death and it is not something that can be inferred from the opinion of third parties. What is relevant is the state of mind of the deceased at the time he made the statement and which is inferable from the nature and gravity of the injury and the part of the body it was inflicted and the words used by the deceased.
Orisadipe v. State (2015) LPELR41717; Okoro v. State (2012) 4 NWLR (Pt. 1290) 351 referred to.] (Pp. 205-206, paras. E-E).
Per ABIRU, J.S.C. at pages 206-207, paras. E-A:
“Now, the evidence of the first prosecution witness was that the deceased had bruises on his body and blood in his mouth at the time he made the statements to him. The third prosecution witness, the Medical Doctor, gave evidence that the multiple bruises and abrasions on the body of the deceased were not severe injuries that could lead to death. The nature and gravity of the injuries were thus not such from which a state of mind of an impending death could be inferred. Secondly, the first prosecution witness did not relate the actual words spoken to him by the deceased in making the said statement. There was thus no way the state of mind of an impending death could also have been inferred from the nature of the words used by the deceased. The findings of the two lower courts that the deceased believed himself to be in the imminent danger of approaching death when he made the statement related by the first prosecution witness and that the statement qualified as a dying declaration were not supported by the evidence on record. They were perverse.”
*24.On relevance of facts forming part of same transaction and application of principle of res gestae.*
By virtue of section 4 of the Evidence Act, 2011, facts which, though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Section 4 of the Evidence Act, 2011 introduces the common law principle of res gestea. The Latin phrase “res gestae” means the events in issue or other events contemporaneous with the events in issue. It embraces not only the actual facts proximate to the transaction but also the circumstances surrounding it. It also includes matters immediately antecedent to and having direct causal connection with the transaction. Therefore, section 4 of the Evidence Act adequately supports the application of the doctrine of res gestea. In the instant case, section 4 of the Evidence Act supported the admissibility of exhibits “A” and “A1” when the cause of death of the deceased was in issue. There was no dispute to the fact that the PW1 testified that the deceased ran to him with bruises all over his body and reported to him that it was the appellant and one other that hit him with wood in the bush. There was also undisputed evidence that the deceased died soon after reporting to the PW1 that the appellant and one other hit him with wood. It was also in evidence that at the time the deceased reported to PW1, he had bruises all over his body and blood in his mouth. Even though those statements exhibits “A”, "A1” and the testimony of PW1 in court did not amount to dying declarations, they were relevant facts by virtue of section 4 of the Evidence Act, 2011. (Pp. 188-190, paras. H-E).
*25.On treatment of evidence of tainted witness.*
A tainted witness is someone who had other purposes to serve by his testimony. It is not the law that the evidence of a tainted witness is inadmissible. A tainted witness is a competent witness and a court of law must not disbelieve the evidence of a witness simply because he has been described to be a tainted witness. However, a trial court must treat the evidence of such a witness with caution and go through it fastidiously with the finery of a tooth comb before accepting it and should find some corroborating evidence in support thereof.
In the instant case, there was a history of a prior conflict between PW1 and the appellant which was suggestive of the fact that PW1 might be a tainted witness. The appellant had earlier been accused of killing PW1’s brother and had been charged to court and was being prosecuted for the offence, prior to the incident that led to the instant case. Two days before the incident, the case relating to that charge came up in court and was adjourned to a later date and the deceased was one of the proposed witnesses listed to give evidence in that charge. However, the trial court and the Court of Appeal did not treat the evidence of PW1 with any caution and did not look for and/or find any corroborating evidence for his testimony in the testimonies of the other prosecution witnesses.
Ojo v. Gharoro (2006)10 NWLR (Pt. 987) 173; Ishola v. State (1978) 9 - 10SC 81; Akpan v. State (1992) 6 NWLR (Pt. 248) 439; Olaiya v. State (2010) 3 NWLR (Pt. 1181) 423; Pius v. State (2013) 7 NWLR (Pt. 1459) 628; Uzim v. State (2019) 14 NWLR (Pt. 1693) 419 referred to.] (P. 207,paras. A-H
*26.On need for case to be treated on its peculiar facts and circumstances.*
Each case must be treated based on its peculiar facts and circumstances. (P. 192, para. A)
*27.On need for judgment of court imposing capital punishment to arise from logical thinking and be based on admissible evidence.*
A judgment sending a man to the gallows must be seen to be the product of logical thinking based upon admissible evidence, in which the facts leading to the conviction are clearly established and the legal deduction thereupon is carefully made. It must not be allowed to stand if it is founded upon scraggy reasoning.
Anekwe v. State (2014) 10 NWLR (Pt.1415) 353 referred to.] (Pp. 196-197, paras. H-A)
Per U WA, J.S.C. at page 197, paras. A-D:
“The point being made is that looking at the case being made out as a whole in the light of the entirety of the evidence adduced on both sides, it was wrong for the trial court to have convicted the appellant, and for the lower court to have affirmed same. From the way the case was conducted by the prosecution, there was no thorough investigation. Since the PW1 failed to be consistent in his testimony regarding the circumstances in which the deceased died, how can we believe the alleged dying declaration the deceased made to him? I have noted that the penalty for the offence convicted was death, and that was the sentence the trial court eventually imposed on the appellant. It is this very reason that should have made the trial court more wary and be more predisposed to resolving whatever doubts and inconsistencies that the case had thrown up by the numerous loose ends in favour of the appellant. The Court of Appeal also failed to heed this.
*28.On meanings of speculation and conjecture.*
Speculation is the art or practice of theorising about matters over which there is no certain knowledge. Conjecture is an opinion or conclusion formed on the basis of incomplete information. (P. 201, paras.G-H)
*29.On attitude of court to speculation.*
Courts are not allowed to act on speculations or conjecture to reach their decisions. A court cannot decide issues on speculation, no matter how close what it relies on may seem to be on the facts. Speculation is not an aspect of inference that may be drawn from facts that are laid before the court. Inference is a reasonable deduction from facts whereas speculation is a mere variant of imaginative guess which, even when it appears plausible, should never be allowed by a court of law to fill any hiatus in the evidence before it. And this is particularly more so in Nigerian criminal jurisprudence.
Ivienagbor v. Bazaye (1999) 9 NWLR (Pt. 620) 552; Orisa v. State (2018) 11 NWLR (Pt. 1631) 453; State v. Yahaya (2019) 13 NWLR (Pt. 1690) 397; Addo v. State (2021) 12 NWLR (Pt. 1791) 427; Isonguyo v. State (2023) 3 NWLR (Pt. 1872) 519 referred to.] (Pp. 201-202, paras. H-D).
*30.On duty on appellate court where decision of court perverse.*
An appellate court is enjoined and obligated to set aside a perverse decision of a lower court. In the instant case, the findings and conclusions of the trial court and the Court of Appeal that the respondent led sufficient and credible evidence to prove the ingredients of the offence charged against the appellant beyond reasonable doubt was not supported by the quality of the evidence led by the respondent. They were perverse. The Supreme Court had to interfere with the concurrent findings of the trial court and the Court of Appeal.
Ekpenyong v. Nyong (1975) 2 SC 71; C.D.C. (Nig.) Ltd. v. SCOA (Nig.) Ltd. (2007) 6 NWLR (Pt. 1030) 300; State v. Solomon (2021) 13 NWLR (Pt. 1793) 301 referred to.] (P. 208, paras. A-C).
*31.On attitude of Supreme Court to concurrent findings of facts by trial court and Court of Appeal.*
As a matter of judicial policy, the Supreme Court is always averse to disturbing concurrent findings of fact made by the trial court and the Court of Appeal unless they are found to be perverse or have led to miscarriage of justice. The Supreme Court will also intervene where the concurrent findings ignored admissible and admitted evidence or allowed extraneous factors to becloud the justice of the case. The Supreme Court will also interfere where the concurrent findings were the result of improper evaluation of the evidence. In the instant case, the concurrent findings of fact by the trial court and the Court of Appeal were perverse and led to a miscarriage of justice to the appellant.
Opeyemiv. State (2019) 7 NWLR (Pt. 1702) 403; Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Wowem v. State (2021) 9 NWLR (Pt. 1781) 295 referred to.] (P. 177,paras. E-C; 199, paras. C-D).
Counsel:
E. K. Omare, Esq. (with him, Zeph Onwuzulike, Esq.) - for the Appellant.
Dennis E. Agbaga, Esq.(On the fiat of the Attorney-General of Delta State
