BARR. ENNOCH ETSU KWALI AND ANOR V HON ISAH EGAH DOBI AND 37 ORS
May 30, 2025SUNDAY E. UMOREN VS ASUQUO E. AKPAN & ORS.
May 30, 2025Legalpedia Citation: (2008) Legalpedia (CA) 11154
In the Court of Appeal
HOLDEN AT CALABAR
Tue Apr 29, 2008
Suit Number: CA/C/156/2005
CORAM
VICTOR AEMEPOMO O. OMAGE
PARTIES
ADIAHA EMMANUEL ESSIEN
NATHAN ESSIEN ETUKUDO RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant on appeal prayed the court to grant an order of reversal of the judgment by the trial court. The 1st and 2nd accused person, were taken by information to the High Court on a charge of murder. The trial court in its judgment discharged and acquitted the 2nd accused person while the 1st accused was sentenced to death. It is against that judgment that the Appellant has filed this appeal.
HELD
Appeal allowed
ISSUES
Whether the action of the appellant caused the death of the deceased Martha Ukpai Whether there is a dying declaration by the deceased Martha Ukpai
RATIONES DECIDENDI
CONVICTION FOR MURDER- BASIS OF
“It is the law that the evidence upon which a conviction for murder can be based must be cogent and reliable, and it should be proof beyond reasonable doubt.”
DYING DECLARATIONS- ADMISSIBILITY OF
“It is the rule of law that such statements are admissible only if the maker of such declaration is in the extremity of death, when the maker is at the point of death and every hope of the world is gone when every move to falsehood is gone.”
MURDER- PROOF OF
“It is the law that a criminal charge of murder should be proved beyond reasonable doubt.”
CONTRADICTIONS-UNRESOLVED CONTRADICTIONS IN EVIDENCE OF TWO PROSECUTION WITNESSES-DUTY OF A COURT IN RESPECT OF
“Where there are contradictions in the evidence of two prosecution witnesses which were not explained or resolved, it is not proper to pick and choose which witness to believe.”
MURDER-CONDITION WHERE CONVICTION MUST BE QUASHED
“When there is no cogent and admissible evidence that the death of the deceased is caused by the appellant, his conviction must be quashed.” PER OMAGE JCA
DYING DECLARATION- WHETHER EVERY STATEMENT FROM A DECEASED CONSTITUTES A DYING DECLARATION”It is not every statement from a victim who later became deceased that could pass as dying declaration to constitute exception to the hearsay rule.”
DYING DECLARATION- STATEMENT THAT WILL AMOUNT TO DYING DECLARATION
“For a statement to be relevant as dying declaration under the provision of Section 33 (1)(a) of the Evidence Act Cap 112 LFN 1990 the statement must have been made by such a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that person’s death comes into question and such statements are only relevant when such person at the time of making such declaration believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery.”
CASES CITED
Akpan vs. State (1994) 12 SCNJ 5Alao vs. The State (1992) 9 SCNJ 109 Haruna vs. C. O.P. (1998) 7 NWLR(Pt. 557) 215Namsoh vs. The State (1993) 6 SCNJ 152Ogba vs. State (1990) 3 NWLR(Pt. 139) 505.R v. Woodcock 1789, 1 Leash report 502Rex v. Banna Yeji (1936) 3 WACA. 80.Wankey vs. The State (1993) 6 SCNJ 152.
STATUTES REFERRED TO
The Criminal Code|Evidence Act Cap 112, Laws of the Federation of Nigeria 1990|
