Flynote: Death penalty

 

IN THE FEDERAL SUPREME COURT OF NIGERIA HOLDEN AT LAGOS
CITATION: (1972) 5 S.C. (REPRINT) 1

CORAM
TASLIM O. ELIAS                           CHIEF JUSTICE OF NIGERIA
SIR IAN LEWIS                                JUSTICE, SUPREME COURT
GEORGE S. SOWEMIMO              JUSTICE, SUPREME COURT

BETWEEN

BASSA VORGHO                        APPELLANT

AND

THE STATE                                 RESPONDENT

 

JUDGMENT OF THE COURT

(Delivered by T. O. ELIAS, CJN.)

On July 30, 1969, at Luwa, Bassa Vorgho committed culpable homicide punishable with death by shooting Takava with a dane gun. On November 25, 1970, he was convicted of culpable homicide punishable with death, contrary of Section 221 of the Penal Code by Hague, Ag. J., at the High Court, Maiduguri, North-Eastern State. He has appealed to this court against sentence.

The facts can be briefly stated. On July, 29, 1969, the day previous to that of the murder, there had been community work at Jalva Wisso’s farm for which the accused was given wine to share among the community workers. Takava would appear to have objected to the accused’s sharing wine and to have beaten the accused three times on the head with a stick. The deceased then menaced the accused with a bow and arrow being one out of ten which the accused had in his quiver. The accused said in his statement that he seized all the ten arrows and hid them in the fence of his own house. The accused then said that, on the following day, July 30, 1969, the deceased came to his house and demanded the return of the arrows but that this was refused. There then followed a struggle, and the accused said that he went home. He next took his dane gun and proceeded towards his own farm when the deceased followed and held him from behind. According to the accused, he turned and the gun he was holding went off shooting Takava and wounding accused’s right thigh. This was the story as told by the accused. There was no witness to the actual shooting, although the deposition of Wasa Brusa (deceased since the preliminary enquiry) was tendered in evidence as Exhibit D and showed that the deponent said he heard gun-shots and somebody crying saying “Bassa has killed me!” The deposition also went on to state that, on going to the scene, the deponent saw the accused walking away in a normal manner carrying a gun, and that Takava lay on the ground with an axe and a hoe near him. The deponent said that the deceased’s intestines protruded and were torn; and that there was smoke over his body though no fire burned nearby. Another witness, Gada Ndawaha, P.W.4, said he heard a gun-shot and that he arrived at the scene later. The accused was not present but Takava was lying on a path with blood rushing from two wounds and he was also vomiting blood.

According to this witness, the wounded man said “I am sure I will die. Because of this you should pay those whom I owe”.

Arising out of the facts of this case is an interesting point that does not appear to be covered, so far as we are aware, by any previous authority, either in Nigerian or in English law. The question is whether a dying declaration that does not merely state the cause and circumstances of the declarant’s death but also contains an expression of opinion concerning the motive of his killer is admissible as evidence of such opinion. This question is rendered of particular significance when one has regard to the fact that the learned trial Judge seems in this case to have based his conviction of the appellant for culpable homicide punishable with death on the only evidence as to the appellant’s motive for killing the deceased on a statement which is contained only in the latter’s dying declaration. It is to be observed that the learned trial Judge expressed himself in these words; “Despite these shortcomings, I am convinced on the evidence as a whole that accused waylaid the deceased and shot him deliberately and with intent to kill. The accused was motivated by hatred, however unjustified and I accept the dying declaration of the deceased as true. The accused’s version is unconvincing and rejected.”

There are two issues raised here; the first is that the learned trial Judge accepted the dying declaration of the deceased as true. The learned trial Judge had earlier in his judgment said:

“The wounded man said according to this witness “I am sure I will die. Because of this you should pay those whom I owe, Such words are a dying declaration under Section 33(a) of the Evidence Law, as the wounded man clearly believed himself to be in danger of approaching death. Witness asked deceased how he became injured and received the reply:

“A gun, Bassa killed me for nothing. There was no misunderstanding between us.” So far, there is little to quarrel with. But the learned trial Judge continued:

“In cross-examination, witness said Takava had mentioned a festival where drinks were served and continued;” It was because of the drink I have that annoyed Bassa. That is why he shot me. Go and pay all the people I owe.? I had experience difficulty in deciding the sequence of the words alleged uttered by the dying man, but I am satisfied they are admissible as a dying declaration implicating the accused.”

We are, therefore, faced with a situation in which the learned trial Judge held a dying declaration not only admissible as implicating the accused, but also as true of the facts stated therein, including the declarant’s expression of opinion as to the appellant’s motive for killing him. This seems to us to be going beyond the established ambit of admissibility of a dying declaration even as propounded in Section 33(a) of the Evidence Law, which reads:

“When the statement is made by 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; such statements are relevant only in trials for murder or manslaughter or culpable homicide of the deceased person and only when such a 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.”

We were asked by learned counsel for the appellant to regard as inadmissible as a dying declaration a statement containing the words “I have no sign of recovery” attributed to the deceased by a witness. In view, however, of other words allegedly uttered by the deceased according to other witnesses, and which undoubtedly could amount to a dying declaration, we find it unnecessary to decide the point.

The second reason for the novel character of the dying declaration which the learned trial Judge accepted is that this single piece of evidence as to the appellant’s motive was admitted in the face of the appellant’s plea that he killed the deceased by mere accident. It seems to us that much stronger evidence should have been required for rebutting the claim of accidental killing than the suggestion as to the killer’s motive in an expression of opinion contained in the deceased’s dying declaration.

While there is nothing wrong with the learned trial Judge finding the accused’s version as to how the accident happened improbable, especially during a demonstration to the court which showed that the injury allegedly sustained by the appellant could not have happened in the way he claimed, it is quite a different thing to hold that the dying declaration is true not only as regards how the deceased met his death but also as to why.

Another aspect of this case is the submission of the learned counsel for the respondent (which was opposed by the appellant’s counsel), that the words “Bassa has killed me” allegedly uttered by the deceased as he lay grovelling on the ground are part of the res gestae and are admissible in evidence against the accused. The learned trial Judge found that the point was not taken at the preliminary inquiry and that no objection was then made to the admission of these words in evidence, and observed further;

“Of course, the accused was then unrepresented; but there is nothing in the record to show that the words followed other than immediately on the gun-shot”.

After examining R. v. Foster (1834) 6 C. & P. 325, R. v. Bedingfield (1879) 14 Cox 341; and R. v. Goddard (1882) 15 Cox 7, cited to him, the learned trial Judge said that he had “formed the clear opinion that the words “Bassa has killed me? are so contemporaneous with the gun-shot as to be admissible as part of the res gestae. In this connection, I note that the accused was observed walking away from the scene, so there is every possibility he heard the words uttered”.

We think that conclusion was well-founded but, whilst it helped establish the killing, it did not prove the circumstances, in particular that it was not accidental. As it was, he convicted on the basis of a dying declaration, which incorporates an expression of the declarant’s opinion regarding the motive of his killer.

As the appellant himself admitted having killed the deceased, albeit by accident, and as this is supported by the finding by the learned trial Judge that the words “Bassa has killed me” formed part of the res gestae, we consider that the appellant is guilty of culpable homicide not punishable with death and we set aside his sentence and do substitute a conviction for homicide contrary to Section 224 of the Penal Code. We accordingly sentence him to 10 years? imprisonment with hard labour.

(Sgd) T. O. ELIAS, CHIEF JUSTICE OF NIGERIA.

Counsel:

Mr. F. O. Akinrele, for the Appellant.

Mr. S. Liberty, (D.P.P. North-Eastern State), for the Respondent.