Dying Declaration

Though a party is not allowed to raise fresh issues not canvassed during trial or at the Court below on appeal without seeking and obtaining leave as the appellant has herein resorted to setting up a grouse against the dying declaration. See Director SSS v Agbakoba (1999) 3 NWLR (Pt.595) 315 at 365; however the contention against the quality of the dying declaration of the deceased go to no issue as what was stated by PW4 and PW5 were correctly taken to be so inspite of minor discrepancies which did not detract from the substance of the fact that the deceased was in imminent fear of death and had no difficulty in stating at whose hand or spear stab that death was occasioned. In that regard, Section 40 (1) of the Evidence Act 2011 were met. It provides as follows:-
"A statement made by a person as to the cause of his death, or as to any of the circumstances of the event which resulted in his death in cases in which the cause of that persons 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, hopes of recovery."

Dying declaration by the deceased or victim is admissible in evidence, and an exception to the hearsay rule, in murder and manslaughter cases, to prove the cause of death of the deceased declarant.

It is well established in the law of Evidence that a statement made by a person in imminent fear of death, and believing at the time it was made that he/she was going to die, is admissible as a dying declaration. See Section 40(1) of the Evidence Act, 2011. See also: Akpan vs. The State (1992) 6 NWLR (Pt.248) 439; Okoro v. The State(2012) 1 SC (Part 1) 1; (2012) 4 NWLR (Pt.1290) 351. In Okereke v. The State (2016) LPELR 40012 (SC) @ 37 38 F-C, this Court held:
"A dying declaration is an exception to the hearsay rule. It is a declaration of someone at the point of death, whose hope of life is gone when the motive for falsehood is no longer there and the mind is compelled by the most powerful consideration of the impending unknown to speak the truth."
See also: Chukwuemeka Ezeuko (alias Rev King) vs. The State (2016) LPELR 400 46 (SC) @ 58 A-B.