Sylvester Oromoni; The Admissibility of a Dying Declaration of a Child, and Other Matters Arising

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By David Anifowose

INTRODUCTION

The circumstances surrounding the death of Sylvester Oromoni, a 12-year-oldboarding school pupil of the Dowen College has caused an uproar in the Country and even beyond. According to PUNCH news, more than 100,000 people have signed petitions demanding justice over his death.[1]So far,differentaccounts have been given regarding the circumstances surrounding his passing away; Sylvester’s cousin via Twitter claimed that the five boys had accosted Sylvesterin, beating up and giving him a chemical to drink for his refusal to join a cult group.According to him, Sylvester stated this while he was dying, and mentioned the exact names of the boys that carried out the heinous act. The school in a statementreleased by them have denied this line of events. They explained that the investigation earlier carried out by them showsthat there was no bullying or any form of attack on the boy, and that the boy died as a result of the injuries sustained while playing football. Though none of these accounts has been corroborated by the Police – who claimed they are still investigating the case, a few students have also given various accounts which seem to align with the position earlier stated by Sylvester’s cousin, which has in a way inspired the anger of the public towards the school management. This article seeks to address the legal issues surrounding the death of Sylvester, including the admissibility of his dying declaration, and the liability of his alleged killers if found guilty.

ADMISIILITY OF A DYING DECLARATION OF A CHILD

Dying declaration is based on the Latin maxim, ‘nemomarituruspraesumiturmentiri-literally translated, it means ‘a man will not meet his maker with a lie in his mouth’. It originated in English law.[2] It is an exception to the hearsay rule and was admissible, provided it complied with certain legal principles set out under English common law. By virtue ofSection 40 (1) of the Evidence Act; “A statement made by a person as to the cause of his death, or as to any of the circumstances of the events which resulted in his death in cases in which the cause of that person’s 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. “Subsection(2) further provides that “A statement referred to in subsection (1) of this section shall be admissible whatever may be the nature of the proceeding in which the cause of death comes into question.“InAkpan v. State[3], the Supreme Court held as follows: “…it is well established in our law of evidence that a statement made by a person in imminent fear of death and believing that he was going to die is admissible as a dying declaration”. 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.

Having established the above, it is pertinent to note the case of Osiekwe v. The State,[4]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 statement must contain some expressions of hope of recovery or doubt as to his death. That is, 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.

While majority of the above conditions appears to be fulfilled in the instant case, the 5th condition as mentioned in the above case which is: “the declarant must have been a competentwitness if he or she were alive…” appears to be contentious, as the declarant is an infant. The question now is, who is a competent witness?Section 175(1) of theEvidence Act 2011has 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.[5]It is important to note at this juncture, that “tender years”, has stipulated to in the aforementioned Law, refers to the age of the Child. And by virtue of Section 209 of theEvidence Act 2011,a child below 14 years old is not seen as competent enough to give an evidence in Court without corroboration. Section 209(1) of the Evidence Act 2011, clearly provides 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 ofhis evidence and understands the duty of speaking the truth.

Section 209(3) of theEvidence 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.

Flowing from the above, the community reading of Section 209, Subsection (1) & (3) of the Evidence Act 2011, clearly shows that for the statement of young Sylvester (who is just 12 years old) to be admissible as a dying declaration, it must be corroborated by some other material evidence; which could either be a testimony, a doctor’s report, or something substantial enough to prove his testimony.

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WHETHER A CHILD CAN CORROBORATE THE TESTIMONY OF ANOTHER CHILD

According to PM news[6], a school mate of Sylvester has “corroborated” his dying declaration. According to them, the boy who was a witness to the beating narrated what happened in details in a note to “Tamara”, and in fact, named the same 5 boys who were named by the deceased on his deathbed.[7] While the age of the school mate was not expressly stated, it can be safely assumed that he is below the age of 18 years old; that is, he is not an adult. On normal circumstances, meaning, if it was an adult that gave the corroboration, the dying declaration of Sylvester would have been duly corroborated. But in this instance, the circumstances seem to be a little bit complicated, as the person giving the corroboration, appears to be a child.

It is important to note at this juncture, that the Evidence Act 2011has given a sharp distinction between the testimony of a child below 14 years old, and a child who is 14 years old, and above. By virtue of Section 209(1) of the Evidence Act 2011,as earlier stated in preceding paragraphs, a child who has not attained the age of l4 years can only give an unsworn evidence in Court. And before he can be tendered as a witness, he/she must in the opinion of the court, be possessed with sufficient intelligence to justify the reception of his evidence and he must understand the duty of speaking the truth. These stipulated conditions were explained in the case of Mbele v The State[8], where the Supreme Court stated that for a child to testify in Court, the following conditions must be met:

  1. Whether the child is possessed of sufficient intelligence to be able to understand questions put to him rationally to justify the reception of his evidence; that is, does he understand the duty of speaking the truth? The court does this by putting preliminary questions to the child which may have nothing to do with the matter before the court. If the answer to the first investigation is in the negative, then the child cannot be a witness at all in the case. If the answer is in the affirmative then,
  2. Whether the child understands the nature of an oath (in other words, whether he understand the duty of speaking the truth). This second investigation is also determined by the putting of questions to the child as to the nature of an oath such as asking him about God and what will happen to one who tells lies after being sworn, etc.

Having explained the above, upon the fulfillment of the conditions stipulated in Section 209(1) of the Evidence Act 2011a child below 14 years old can give an unsworn evidence which must be corroborated.[9]

For a child who is 14 years and above, Section 209(2) of the Evidence Act 2011guarantees that he/she can give sworn evidence in all cases. It provides thus: A child who has attained the age of 14 years shall. subject to sections 175 and 208 of this Act give sworn evidence in all cases.

The summary of the foregoing paragraphs is that while the evidence of a child below 14 years old must be corroborated, the evidence of a child of 14 years old and above need no corroboration.

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In relating the above findings to the above question of whether or not a child can corroborate the testimony of another child, the testimony of a child can only corroborate the testimony of another child if the child corroborating the evidence is 14 years old and above. If the child is below 14 years old, some other material evidence will also be needed to corroborate that child’s testimony in a Criminal trial, thus, it is impossible for a child below 14 years old to corroborate the testimony of another child in a criminal trial. Relating the forgoing to the instant case, the testimony of Sylvester’s schoolmate can only corroborate Sylvester’s testimony, if he is above 14 years of age. In other words, if he is 13 years and below, his testimony would not be enough to corroborate the dying declaration of Sylvester as required by law.

CRIMINAL LIABILITY OF THE ALLEGED KILLERS

Due to the global increase in child delinquency and the lack of definite provisions dealing with children who are in conflict with the law’ or ‘in need of care and protection’ in the Nigerian Constitution, the concept of child justice administration in Nigeria was formalized with the enactment of the Children and Young Persons Act (CYPA)[10]and later, the Child Rights Act 2003[11]. Section 452 (1), of the Administration of Criminal Justice Act, has provided that when a child is alleged to have committed an offence the provisions of the Child Rights Act would apply. As a result of this, the Childs Right Act 2003 remains a key instrument in the child justice administration in Nigeria.

Section 277 of the Child Rights Act 2003, defines a child as a person under the age of eighteen years old. The term ‘child’ has also been defined in various international and regional instruments of which Nigeria is a signatory. The United Nations (UN) Standard Minimum rules for the Administration of Juvenile Justice (Beijing Rules)[12], for example, define a ‘juvenile’ as ‘a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult’. Similarly, article 1 of the United Nations Convention on the Rights of the Child (CRC)[13]defines a child as ‘any person under the age of 18 years unless, under the law applicable to the child, majority is attained earlier’. In Article 2 of the African Charter on the Rights and Welfare of the Child (African Children’s Charter), a child is defined more concisely as ‘every human being below the age of eighteen years.[14]

Before proceeding further, it is very important to note that the Child Rights Act 2003, provides for the substitution of the word ‘juvenile’ in the Children and Young Persons Act 1958 with ‘child offender’;[15] ‘juvenile court in the Children and Young Persons Act 1958 with ‘family court’[16] in the Child Rights Act 2003; and juvenile justice administration ‘in the Children and Young Persons Act 1958 with ‘child justice administration’[17] in the Child Rights Act 2003. Other changes include the substitution of the word ‘detention ‘in the Children and Young Persons Act 1958with ‘custody’[18] in the Child Rights Act 2003‘approved schools’ in the Children and Young Persons Act 1958with ‘children residential and children correctional Centers’[19] in the Child Rights Act 2003; and ‘probation and probation officers’ in the Children and Young Persons Act 1958 with ‘child care, guidance and supervision’[20] in the Child Rights Act 2003.[21]

Having stated the above it is important to note that upon suspicion that a child has committed an offence, an arrest can be made by the police or a petition by social workers. It is worth noting that before the start of an interview or interrogation, the parent or guardian and the child are provided with a copy of the written allegation against the child and are adequately informed about the child’s constitutional rights, including the right to remain silent,[22]the police have the right in the child justice system to release a child suspect to his or her parents or guardian on bond, except if the charge is one of murder or manslaughter or some other serious crime[23]. Going by the above provisions, upon arrest of the five boys if there is enough evidence pointing to the fact that they indeed might have committed the offence, their parent or guardian are entitled by law to be present at the questioning of the boys. And also going by the provisions of Section 222 of the Child Rights Act 2003, the alleged five boys could be detained by the Police since the instance case deals with the offence of Manslaughter.

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Having established the above, it is important to note that the combined effect of Sections 151 and 162 of the Child Rights Act 2003 means that the family court in Nigeria has unlimited and exclusive jurisdiction to hear and determine both civil and criminal matters relating to a child alleged to have committed an offence or a child in need of care and protection. And in the determination of any case before it the Court must note that by virtue of Section 221 of the Child Right Act 2003: 1) No child shall be ordered to be:

  • imprisoned; or (b) subjected to corporal punishment; or (c) subjected to the death penalty or have the death penalty recorded against him. And, where a child is found to have attempted to commit treason, murder, robbery or manslaughter, or wounded another person with intent to do grievous harm, the Court may order the child to be detained for such period as may be specified in the order. Where an order is made under the forgoing provisions, the child shall, during that period, be liable to be detained in such place and on such conditions as the Court may direct, and the child whilst so detained shall be deemed to be in legal custody.[24]

Flowing from the above, even though in normal circumstances, that is, if the boys were adults, their punishment ought to be a sentence to death or at best, life imprisonment[25], but the above provisions as prohibited such punishment for children who commits a capital offence, and instead, provided that they be detained for such period as the Court may deem fit. This is the fate of the five boys if found guilty of the offence of Murder, as alleged.

CONCLUSION

While the instant case is currently being trialed in court, the above research has shown that the dying declaration of a child would not be enough evidence to convict an accused person without corroboration. Therefore, before Sylvester’s dying declaration can be very effective, it must be corroborated. Also, the evidence given by his colleagues in school cannot sufficiently collaborate his statements, except if it can be shown that they are under the category of persons that can give a sworn evidence in Court.[26] And, finally, the alleged killers cannot be tried and convicted as an adult, even if found guilty of the allegations levelled against them. 

David Anifowose is a final year Law student of the Lagos State University, Davidiyanu592@gmail.com, 09080402559.

Footnotes

[1]Oyero Kayode, “Sylvester Oromoni: Over 100,000 sign petitions, demand swift prosecution of culprits.” PUNCH [Lagos, Nigeria], 5th December, 2021. Available at: https://www.google.com/amp/s/punchng.com/sylvester-oromoni-over-100000-sign-petition-demand-swift-prosecution-of-culprits/%3famp. (18/12/2021).

[2]International Journal of Scientific and Research Publications, Volume 9, Issue 12, December 2019.

[3](2016) LPELR-40012 (SC); see also: Aknife v. The State (1988) 3 NWLR (pt. 83), Ajiboye v. State (1994) 8 NWLR (pt. 364) 587 at 603

[4](1999) 9 NWLR (pt. 617) 43 at 68

[5]Amusa, K. O, Fact and Fiction about Child’s Evidence in Nigeria., (2014).  19, 49-53. Journal of Humanities and Social Science. Available athttps://doi.org/10.9790/0837-19234953 (assessed on 18/12/2021)

[6]PM news editor. “Sylvester Oromoni beaten by senor students: Dowen college mate speaks”. PM News [Lagos, Nigeria] 5th December 2021. Available at: https://www.google.com/amp/s/pmnewsnigeria.com/2021/12/05/sylvester-oromoni-beaten-by-senior-students-dowen-college-mate-speaks/%3famp=1 (Accessed at 18/12/2021).

[7]PM news editor. “Sylvester Oromoni beaten by senor students: Dowen college mate speaks”. PM News [Lagos, Nigeria] 5th December 2021. Available at: https://www.google.com/amp/s/pmnewsnigeria.com/2021/12/05/sylvester-oromoni-beaten-by-senior-students-dowen-college-mate-speaks/%3famp=1 (Accessed at 18/12/2021).

[8](1990) (Part 145) 4 NWLR 484-488).

[9]Section 209(3) of the Evidence Act 2011

[10]See the Children and Young Persons Act Cap 32, Laws of the Federation of Nigeria and Lagos, 1958.

[11]MA Abdulraheem-Mustapha, [‘Child justice administration in the Nigerian Child Rights Act: Lessons from SouthAfrica’] (2016) 16 African Human Rights Law Journal 435-457. http://dx.doi.org/10.17159/1996-2096/2016/v16n2a6. (Assessed on 16/12/2021)

[12]See Rule 2.2(a) Beijing Rules (n 19 above) http://www.un.org/documents/ga/res/ 40/a/40r033.htm (accessed 20 December 2021.)

[13]Art 1 CRC, http://www.nwu.ac.za (accessed 20 December 2021).

[14] African Charter on the Rights and Welfare of the Child, 1990.

[15]Section 213 Child Rights Act 2003

[16]Section 149 Child Rights Act 2003

[17]See Part XX of the Child Rights Act 2003

[18]Section 223(1)(f) Child Rights Act 2003

[19]Section 248 Child Rights Act 2003

[20]Part XXI Child Rights Act 2003

[21]MA Abdulraheem-Mustapha,[‘Child justice administration in the Nigerian Child Rights Act: Lessons from SouthAfrica’] (2016) 16 African Human Rights Law Journal 435-457.http://dx.doi.org/10.17159/1996-2096/2016/v16n2a6. (Assessed on 16/12/2021)

[22]Undersection 211 of CRA it is the responsibility of the police to inform the parents or guardian of the apprehended child as soon as practicable.

[23]Section 222 Child Rights Act 2003.

[24] Section 222 of the Childs Right Act, 2003

[25] Section 223& 229 of the Criminal Law of Lagos State, 2015

[26]14 years old and above.

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