Oromoni’s Dying Declaration as Evidence

0
ONIKEPO BRAITHWAITE :THE ADVOCATE

My editorial of last week, ‘Oromoni: Jumping the Gun’, elicited a great deal of response from you my Readers. Thank you. Due to space constraints, I have only reproduced a few of these comments below. Even though this particular topic is a sad one, it makes me glad that many are taking a keen interest in what is happening around us, and speaking out. This is one of the most peaceful ways, that we can effect positive change in our society – articulating our views and making constructive criticism. Hopefully, those in power will develop a culture of reading, reflecting, taking constructive criticism in good faith, correcting wrong actions and taking the right steps.

Dying Declaration

One of the phrases that was mentioned recently in relation to this unfortunate incident, was ‘Dying Declaration’. Some have argued that, the statement alleged to have been made by late Sylvester Oromoni before his death, mentioning the names of some of his school mates, and stating that they forced him to ingest an obnoxious substance because he refused to join their group, qualifies as his dying declaration which should be investigated thoroughly, because it is extremely relevant in ascertaining the truth in this matter. Indeed, if he made such statement, it is a dying declaration. But, such statement should be corroborated, that is, there must be ‘evidence which confirms or supports’ his statement, possibly like the Delta State autopsy report (see Section 209(3) of the Evidence Act 2011 (EA).

A dying declaration is: `“The statement of a mortally injured person who is aware that he/she is about to die, telling who caused the injury and possibly the circumstances (“Usman shot me”). Although hearsay since the dead person cannot testify in person, it is admissible on the theory that a dying person has no reason not to tell the truth….A dying declaration is a statement made by a person who may die from the injury received from a person whom the deceased person identified as the person who inflicted on him (the deceased), the injury that eventually caused his death…..It is one of the exceptions to the rule of direct evidence, to prove a fact in issue” – per Omaje JCA in Okoro v State 2007 2 N.W.L.R. Part 1019 Page 530 at 544-545. It is an exception to the rule of hearsay. What is considered to be relevant, is the statement made by the deceased while still alive, as to the cause of his/her death. By virtue of this definition, one can safely say that Sylvester Oromoni’s statement/allegation against his school mates, is a dying declaration (aka death bed declaration or ante mortem statement). Why did he single out these specific school mates? What would have been the reason for him not to tell the truth, when he was in such a bad condition? Also see Ekpo Isong v State 2009 1 N.W.L.R. Part 1122 Page 354 at 368; Ezeugo v State 9 N.W.L.R. Part 1360 Page 508 at 576 per Saulawa JCA (as he then was).

In the past, Section 33 of the old Evidence Act 1955, which provided for circumstances in which a dying declaration would be relevant provided thus: “Statements, written or verbal, or relevant facts made by a person who is dead, are themselves relevant facts….(a) when the statement is made as to the cause of his death, or as to any circumstances of the transaction which resulted in his death, in cases in which the cause of the person’s death comes into question…..”. Additionally, the person must have believed himself or herself to be in danger of death, even if he may have had hopes of recovering, and that there must have been a trial for murder or manslaughter of the deceased person, for such statement of a deceased person to be relevant.

However, though Section 40 of the EA regurgitates the old Section 33, 40(1) has jettisoned the proviso that there must be a trial for murder or manslaughter of the deceased person, for such ante mortem statement to be relevant. It seems absurd that a dying declaration which should be crucial to an investigation of the death of an individual, would be seen as relevant only in a proper trial when it should be the basis of the investigation into the death. Thankfully, the said Section 40(1) has made such statement admissible in any proceeding in which the cause of death comes into question. This obviously includes the Investigation/Coroner’s Inquest.

Conclusion

How thorough was the Police investigation, into all the matters arising in this case – especially with regard to allegations of bullying and all sorts of unacceptable behaviour said to have occurred in this case and in the College? Not only does the Police investigation seem shoddy and hurried, the Lagos State Police Commissioner seemed to have drawn most of his conclusions from the autopsy report. The Coroner’s Inquest in the matter of the death of Sylvester Oromoni commenced last Saturday. We shall await the outcome, and hope that whichever way it goes, justice is served for the sake of this little boy.

Dear Editor,

Re: Oromoni: Jumping the Gun

Dear Editor

True. They all jumped the gun. I cannot agree more with you more. I am a UK trained Police Surgeon and work with Coroners.

Dr D.O.,
London, UK

Dear Editor,
I do not believe that the function of the Director of Public Prosecutions (DPP) is contingent upon that of a Coroner’s Inquest, and therefore, I don’t agree that in the Sylvester Oromoni case, the advice of the DPP was premature because the Coroner’s Inquest is just starting, and his final report had not been issued. They are independent of each other.
O.O,
Lagos

Dear O.O.,
While the office of the DPP is obviously independent, in circumstances such as this, the Coroner’s System Law (CSL) has set out the procedure to be adopted in such a matter as this. While the CSL may need to be fine tuned to be more explicit,  it seems absurd that the DPP’s advice can be given without the final outcome of an Inquest whose purpose is to establish the cause of death. It’s akin to putting the cart before the horse! One of the main functions of the DPP is to give legal advice on whether a matter should be prosecuted or not, based on the Police file. Which file would that be? Should the Police file not include the documents referred to in Sections 41 & 42 of the CSL? Section 41 of the CSL provides that the Coroner should forward his/her written verdict to certain officials including the Divisional Police Officer in the District where the inquest was held upon completion of the Inquest. Why is this so, if the Coroner’s verdict is not required, and it is simply an academic exercise? Section 42 of the CSL goes on to provide that, where the Coroner suspects that unknown person may be liable for the offence which is the subject-matter of the Inquest, the record of proceedings of the Inquest shall be certified to that effect and transmitted to the DPO for further action. To me, this implies that for any advice to be complete in such a matter as this, Sections 41 & 42 must be complied with first. If the outcome of the Inquest is in consonance with the autopsy report which forms a part of the Inquest, all well and good; but, if it differs from it, it could make nonsense out of the DPP’s advice which preceded it. It therefore follows that, the logical sequence (supported by the aforementioned provisions) is that a Coroner’s Inquest should be completed, before the DPP’s advice is given.

In 2019, I was part of the team that accompanied the Attorney-General of Ekiti State on a visit to the Lagos DNA Laboratory (which was damaged during the carnage that took place the day after the #EndSARS Protest). We were shown sophisticated equipment which other labs in Nigeria, and indeed, many parts of Africa do not have, and were told that many labs send samples to them for further analysis, also in criminal cases in order to solve crimes. To further buttress my point, what if in such a case as this, the Coroner ordered that samples from the deceased are sent to a lab like the Lagos DNA Laboratory after receiving the autopsy reports, and things which could not be detected from the autopsies carried out at the lab in Delta State or the Lagos hospital were detected in the DNA Lab which debunk the initial findings of the previous reports, or she’d more light. What would then happen? A new autopsy report would be reissued; a new suspect could emerge; further investigation may be required. A new legal advice may have to be issued.
Editor

Dear Editor,
Your article on Sylvester Oromoni’s matter, is absolutely spot on. The authorities disappointedly were ahead of themselves, as they ought to have tarried a while for a comprehensive investigation, autopsy and indeed,  probed the alleged cult of bullies in the College. Brilliant write up.

A.A.R.

Dear Editor,
Could it be that the authorities had already made up their minds about how the outcome of this case would be, even before the outcome of any investigation or Inquest?

A.A.

Dear Editor,
You are spot on. I was shocked when a Doctor who observed the autopsy came to defend the autopsy on Arise TV.

O.O.,
Lagos

Dear Editor,
You are so right. Thank you for speaking our minds. Thank you for your comments on the lack of duty of care by key parties.

O.O.,
Lagos

Dear Editor,
You laid it out clearly and succinctly, and I will follow your lead and not jump to conclusions yet. However, I do not trust due process in our country!

F.A.

Dear Editor,
I don’t think anything different will emerge from the Coroner’s Inquest. I do not see a situation where one Lagos State official, will publicly go against the other. The pace has already been set, by the DPP’s somewhat premature advice. I doubt that the Coroner will denounce the DPP, or the Lagos State Commissioner of Police. This is just how our country is.

S.E.

Dear Editor,
A very painful episode and many unanswered questions. I agree with your editorial 100%. Let the proper legal processes and procedures be followed. This is such a delicate case, and one where there should be no shortcuts to rush to judgements. I’m not a Lawyer, but I was surprised by the way the Police Commissioner rushed to hold a press conference. I agree with you, let the Coroner’s inquest be held, and let’s hear what comes out of that. Also, the allegation of bullying or cultism in the school, must be investigated further. Regardless of where one stands on this matter though, the sad fact is that this poor young boy died when he probably didn’t need to.  My heart still bleeds for him.  It makes one so sad.  Poor little boy. May he rest in perfect peace. Amen.

S.I.

Dear Editor,
Excellent review and analysis of the process that should have been adopted. It is amazing how incompetence has become the norm in everything in Nigeria. From the investigation of the collapsed building, to this case. In such a sensitive matter, no stone should be left unturned to ensure that the right process is adopted to restore confidence, and equally important, to provide justice to Sylvester.
K.M.

Dear Editor,
Yet another dark stain in the annals of the investigatory role of our country’s law enforcement, and the somersaults in the legal prosecutorial sector.
Well done as usual, Editor.

S.A. SAN

#upjudicialsalaries

This Day Lawyer, in 2022, will focus on the need to improve judicial salaries, allowances and conditions of service. It is simply unconscionable that Judicial Officers across our courts, have been on the same salaries for more than a decade. Subsequent editions will serve as a reminder to the Buhari administration, the need to take immediate steps to ensure that a call to the Bench, is not a call to penury and servitude.