LEGAL IDEAS FORUM

AN APPRAISAL OF THE STATUS QUO OF THE EVIDENCE ACT ON THE ‘REST’ OF DYING DECLARATIONS ALONGSIDE RES GESTEA A CLOSE LOOK INTO THE CASE OF SUNDAY AKPAN V. THE STATE

MBANG CONFIDENCE
                
The administration of our criminal justice system in Nigeria is plausible as it tends to drive the wheels of adjudication towards the crux of the matter without leaving Loopholes as escape route for suspects. This is why to an extent, the laws are becoming a “brooding Omnipresence” vis – a –vis the act of human beings.
Interestingly, apposite as Evidence is to every adjudication whether criminal or civil, words or acts done in the course of transactions, however minor they are, sometimes become the apogee of prove of guilt or liability respectively. It is the important nature of Res gestea and dying declarations, as well as the analogous but settled ingredients of both phenomena that has prompted the author of this paper on  a junket of explicit balance and Rest.
In consideration of the corollary, it is always the situation that the last words or act, done by an assailant or victim in a transaction is usually clinge to for prove where no direct evidence is adduced. This words or acts may be taken as Res gestea and as dying declaration, this is usually a legal bomb on the side of criminal law practitioners and law students on how to ascertain whether the statement is a Dying Declaration or a Res gestea in murder/manslaughter cases.
However, before a robust delve into the substratum of this discourse, it is pertinent that the nature of Res gestea and Dying Declaration be disclosed for proper understanding. 
RES GESTEA
The word Res gestea  is a Latin phrase which means“the thing is done”. It is an English common law doctrine and it is not directly provided for in the Act. However, applicable reliance is always placed on section 5 of the Repealed Evidence Act and section 7 now section 4 of the extant Evidence Act. Happily section 4 of the Act contemplates difference in place and time, so to that extent, section 4 is wider than the Common Law Doctrine of Res gestea.
The doctrine of Res gestea is strictu sensu no longer applicable in Nigeria. Happily relevant facts under Res gestea can be admissible under section 4 which is wider. The facts which are admissible as forming Res gestea are usually declarations or statements and acts so long as they constitute, accompany or explain the facts in issue. The rationale for its admissibility is simply the atmosphere to which such exclamation or acts portends at that point. This is indeed plausible and credence should be given to the founding laws lords.
The application of the doctrine demands that such words or acts together with the conditions mixed, must be contemporaneous with the fact in issue, there must be a main or principal Acts, the significance of which needs to be made definite. The words must genuinely elucidate or give character to the act; the word must be by the person observing or experiencing the act, and not by another person. Under the Evidence Act, it is admissible whether or not under the same place or time. The application is also afforded in civil proceedings.
DYING DECLARATIONS
A dying declaration is a statement, oral or written made by a victim of a crime explaining the circumstances of his death and identity of his assailant. This is guaranteed in section 40(1)(a) and (b) of the Evidence Act 2011. In England there must be total expectation of death. So a statement admissible in England. may not be admissible in Nigeria as a dying declaration.
The rationale for the admissibility of Dying declaration has been more admirably and comprehensively stated by Eyre C.B. in R V Woodlock. as follows: 
“The general principle on which this specie of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of the world is gone, when every motive of falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so awful is considered by law as creating an obligation equal to that which is imposed by a positive Oath administered in a court of Justice.”
It can succinctly be stated that a person would be unlikely to choose to die with a lie on his lips.  However, the present author holds that it debatable, for people who have no regards for Judicial Oath may lie while dying, what about the agnostic and atheists in some situation spite may be involved for perceived wrong”. 

The conditions for the admissibility of dying Declarations are:
* The declaration which may be written or oral must be  relevant facts.
* The declarant must have died before evidence of the declaration is required to be given.
* The declaration must relate to the cause of the declarants death or any of the circumstances which resulted in his death.
* The trial must be for murder or manslaughter.
* The declarant must at the time of making the statement believe himself to be in danger of approaching death.

SUNDAY AKPAN V THE STATE 1967 NMLR 185 In this case, the only eye witness called for the prosecution of the killing by the accused of the deceased was 1st prosecution witness, a boy named Umoh Nye aged 12 years. The learned trial judge Aniagolu J sitting in the Calabar High Court. On the 4th of November 1966, carefully questioned him in accordance with section 162 of the Evidence law to determine whether he understood the nature of an Oath and he found that he did and that he was of sufficient intelligence to justify his evidence being given an Oath. He was accordingly Sworn and testified that on the night of 9th December, 1965 he saw the accused who was living with the boy’s mother, the deceased, enter the compound with a matchet. The 1st prosecution witness said that he then went to bed but shortly thereafter heard his mother shout “Sunday has killed me” and on the first prosecution witness running out he said that he saw the accused cutting his mother with a matchet. He ran off to his grandmother and on returning with her they found his mother lying in a pool of blood. The accused was not then to be seen. The 2nd prosecution witness the medical officer in charge of the General Hospital Calabar examined the body of the deceased and found her to be about 30 years of age and to have six cut wounds, death being due to acute shock from severe external haemorrhage resulting from multiple cut wounds most of which he thought had been inflicted from behind.
The 3rd prosecution witness, the grandmother of the first prosecution witness, confirmed in her evidence that the first prosecution witness called her and that on going to the house of the deceased they found her lying dead in the kitchen with cut wounds all over her body. The accused made a statement to the police in which he denied killing her or knowing anything about her death.
The most paramount ground of appeal raised by Mr. Cole counsel to the accused was that of corroboration which led to the conviction of the accused being quashed by the Supreme Court. But our main contention here is that the court per Lewis J.S.C (delivering the led judgment) admitted the statement “Sunday has killed me” as both  dying declaration and Res gestea; the mean task herein is to mathematically unveil the Jurisprudential labelling of that statement as both dying declaration and Res-gestea. In respect of Res gestea, the statement “Sunday has killed me” qualified as Res gestea because it constituted, accompanied, or explained the fact in issue so as to form part of the same transaction. According to Chief Akin Olujimi SAN, any declaration incident or act which passes this tart is said to form part of the Res gestea. In the present case, the statement was made during the commission of murder which is in issue and so to all intent and purposes, their Lordships where right when they held it as forming Res gestea.
On the other hand, the statement also qualified as dying declaration, because the deceased was at the time of making the declaration in danger of death. This perhaps marks the striking difference between both phenomena. But Jurisprudentially speaking, a statement admitted as dying declaration may also qualify as a Res gestea, but a statement qualified as a Res-gestea in murder/manslaughter may not qualify as a dying declaration unless the requirement of believe of danger is met with. In the above cited authority Lewis J.S.C admitted the Statement met the requirements for both phenomena, but a statement which qualify as a Res-gestea in a murder case, may not qualify as dying declaration. This is because the Victim may not believe himself to be in danger of death. Although it may be argued that statement admitted as Res-gestea directly from the victim may also be admitted as dying declaration. While this argument is somehow logical, it is submitted that, the better view should be that a statement made by a victim which qualifies as Res gestea may only qualify as dying declaration only if the declarant believed himself to be in danger of deaths, in other words it is subject to circumstances. This to my mind is why Lewis J.S.C admitted the statement as both phenomena. It is on this note I submit that Res gestea and dying declarations vis-à-vis murder/manslaughter are “twin sisters that cannot be avoided”, if the statement is made by the declarant. Perhaps that is why the Evidence Act 2011 is appraised for it balance of both phenomena vis-à-vis murder/manslaughter.
CONCLUSION
The ragging effects of Res gestea and dying declaration cannot be over emphasized in criminal proceeding; this is so because they portends the innate expression of the victim during the commission of an offence. It should therefore be noted that this two phenomena works hand in hand to unveil the real event in most criminal matters. So therefore, Judges and Practitioners should be alert to make good use of this phenomena in criminal matters.
 ABOUT THE AUTHOR 
Mbang Confidence (S.A.S) is a final year student of the faculty of law University of Calabar, a paralegal of the Godwinson Churchill and co law firm Calabar, he has passion for exploring the law with his Articles and Agitations.
        
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