An Examination of the Evidential Value of Dying Declaration With Respect to Child Witnesses


Simply put, a dying declaration or a statement as to cause of death, is: “the statement of a mortally injured person who is aware that he/she is about to die, giving information of who caused the injury and possibly the circumstances”.

It is a maxim which when loosely translated simply mean “a man will not meet his maker with a lie in his mouth”. It is birthed in English law and is an exception to the hearsay rule and is admissible, provided it complied with certain legal principles set out under English common law.

The Evidence act which is the guiding law on the relevancy and admissibility of evidence in Nigeria provides for a dying declaration in Section 40(1)1 which clearly state thus:

“A statement is made by a person as to the cause of his death, or as to any circumstances of the events which resulted in his death in cases in which the cause of that person death comes in to question is admissible where the person who made it is believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery.”

In determining the relevance of a dying declaration in Nigeria, the Evidence Act further provides in Section 40(2) thus:

“A statement referred to in subsection (1) of this section shall be admissible whatever may be the nature of the proceedings in which the cause of death comes into question.”

Hence, by virtue of the extant law, a dying declaration is admitted under Nigerian law and the court has taken cognizance of it in plethora of cases.

The basic foundational principle of dying declaration is hinged on the common law principle that ‘the deceased must be in a hopeless expectation of death’, a variance of this principle will render a dying declaration null and void as was seen in the stale case of R v Ogbuekwu were the court held that the deceased statement upon being interrogated said “…I don’t know whether I am going to die”, cannot qualify as a dying declaration.

To show the desperation upon which a dying declaration should be made, the court in R v Woodcock, had Justice Eyre gave a powerful admonition that:

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 this world is gone; and when every falsehood is silenced…

It is pertinent to note the case of Osiekwe v. The State, where the applicability of dying declaration was explicitly mentioned to include the fulfillment of the following conditions:

1. The declarant must have died before the evidence of the declaration;

2. It is admissible only in trials for murder (culpable homicide punishable with death or manslaughter (culpable homicide not punishable with death), where the accused is alleged to have caused the death of the deceased/declarant;

3. The deceased/declarant, at the time of making this declaration, must have believed himself or herself to be in danger of approaching death, although he may have entertained hopes of recovery. The trial judge is required to make a specific finding that the deceased did in fact believe in the danger of approaching death when making the declaration;

4. The statement must be made by the victim of the alleged crime (i.e. the deceased) and must relate to the cause of his/her own death;

5. The declarant must have been a competent witness if he or she were alive. The declaration must not be or include hearsay; it may include an opinion;

6. The declaration can be oral, or written or by signs;

7. Where the declaration is admitted, it must be complete. It is not competent to shift the parts that are favorable from those that are not.

Can a Sign be Considered as a Dying Declaration?

Although there is no Nigerian case law on this issue, recourse should be made to the English case of Chandraseka v R where the privy council held that signs made by a dying person who is incapable of speech by reason of a wound in the throat were admissible, but not the evidence of witnesses of what they understood by such sign.

Furthermore, the court in R v Pike made the observation that the deceased must have been a competent witness at the time of the declaration before the sign can be considered as a dying declaration. Following this, the question now lies as to whether the dying declaration of a child can be admitted as evidence?

Can the Dying Declaration of a Child be Admissible as Evidence?

In situations where a child tenders a dying declaration will the court admit it? In determining this, it is necessary to distinguish who a competent witness is. Section 175(1) of the Evidence Act 2011 has explained who a competent witness is. It provides that:

All persons shall be competent to testify unless the court considers that they are prevented from understanding questions put to them or from giving rational answers to those questions by reason of tender years, extreme old age, disease whether of body or mind or any other cause of the same kind.

Here, the term “tender years” is worthy of legal investigation. It is simply a reference to a child. According to Section 209 of the Evidence Act 2011, a person under the age of 14 is not considered competent to testify in court without supporting corroboration.
The Evidence Act 2011 expressly states in Section 209(1) that:

In any proceeding in which a child who has not attained the age of l4 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation if in the opinion or the court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.

Section 209(3) of the Evidence Act 2011 further provides that:

A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of subsection (1) of this section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant.

Following from the foregoing, the community reading of Section 209, Subsection (1) & (3) of the Evidence Act 2011 clearly demonstrates that in order for a child’s statement to be admissible as a dying declaration, it must be supported by some other substantial material evidence, such as a witness or a medical report.

About the Author 

Oliver Azi is a penultimate student of law at the University of Jos, with vast experience in debating/mooting; legal and creative writing; and a keen research interest in law and society. A vast reader with a readership of about 50 books per year. He has written for lawyers, NGOs and several clients in both the United Kingdom and Netherlands. He has interned with top tier litigation law firm, D.D Dodo & Co—Abuja; G.M Kuttu, SAN & Co—Jos; alongside, Great Ark Attorneys, Jos. He can be reached at [email protected] or on whatsapp at 081099114989

1. Evidence Act, 2011
2. (1789) 1 Leach 500 at 502
3. (1999) 9 NWLR (Pt. 617) 43 at 68
4. (1937) AC 220
5. (1829) 3 C&P 598

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