Doctrine of Last Seen: Effect on Presumption of Innocence of Accused Person
Acertain Mr. R.A. Adisa, who was a Lecturer at the College of Education, Okene, travelled to Lagos to purchase a car. PW.2 accompanied him to the Car Lot, and he bought the car in his presence. Owing to his inability to drive the car from Lagos to Okene, he engaged the services of the Appellant to drive the car, against protests from PW2. The Appellant and Mr. Adisa embarked on the journey to Okene from Lagos, but that was the last time Mr. Adisa was seen alive. He neither got to Okene, nor went back to Lagos. The Appellant however, returned to Lagos with the car. He took the car to the house of PW1 (his father) to park it and ask for his blessings, claiming that he had bought the car. PW1 who was quite suspicious of the Appellant, refused to offer his blessings, and ordered the Appellant to take the car away. The Appellant thereby, took the car to the house of PW3 and parked it there on the pretext that, his Uncle overseas, who sent him money to buy the car, wanted to sell it urgently to raise cash. Based on this information, PW3 assisted the Appellant to sell the car. After some days, the relatives of Mr. Adisa became anxious, and decided to trace his movements which led to the arrest of the Appellant.
The Appellant confessed to killing Mr. Adisa singlehandedly, and took the Investigators, including PW5, the Investigating Police Officer (IPO) to the scene of the crime along Lagos-Ibadan Express Way, and showed them where he murdered and buried the deceased. The Appellant was consequently, charged for the murder of the deceased, before the High Court of Lagos State. During arraignment, the Appellant pleaded not guilty. The Respondent’s case was presented by five witnesses, whilst the Appellant testified in his own defence. The learned trial Judge found the Appellant guilty as charged, based on the evidence before the Court, and sentenced him to death by hanging. His appeal against the judgement, was found to be unmeritorious. The Appellant appealed to the Supreme Court, imploring the Court to set aside the concurrent finding of the lower Courts.
Issue for Determination
The issue adopted for determination of the appeal was: Whether, considering the state of evidence on record before the Court of Appeal, the judgement of the lower Court should be affirmed by the Supreme Court.
Arguments
For the Appellant, it was argued that since the Appellant was charged with the offence of murder, the Prosecution had a duty to prove the offence beyond reasonable doubt. He argued that the conviction was based solely on the application of Section 164(1) of the Evidence Act, 2011, and that the trial Court ignored submissions made in favour of the Appellant, in breach of his right to fair hearing. Counsel submitted further that, Exhibits P1 - P4, the extra-judicial statements to the Police, were inadmissible and ought to be expunged; and further contended that, the court did not rely on the testimonies of PW1 – PW5 and the contents of Exhibit P4, in arriving at the conclusion that the deceased person died.
Counsel for the Respondent, on his part, referred to the records of Court and pointed out that, the Appellant by his confession, stated that he murdered the deceased as per Exhibit P4. In addition, that the Court relied on circumstantial evidence, to come to the conclusion that the ingredients of the offence were established by the Respondent, which showed that the Appellant caused the death of the deceased. This is more so, as the Appellant was the last person seen with the deceased. He contended that, the argument on breach of fair hearing was irrelevant, as the Court did not rely solely on the seven year rule, to establish the death of the deceased.
Court’s Judgement and Rationale
Deciding the issue, the Supreme Court reiterated the trite principle of law, that a free and voluntary confession of guilt, whether judicial or extra-judicial, if it is direct and positive and properly established, is sufficient proof of guilt, and is enough to sustain a conviction so long as the court is satisfied with the truth thereof. The court relied on, OKEGBU v THE STATE (1984) 8 SC 65; KIM v THE STATE (1992) 4 SCNJ 81. By Exhibits P1 – P4, the Appellant admitted committing the offence as charged. The Appellant did not challenge the voluntariness of the statements, but argued that ASP Michael Oluelu, PW5, through whom the document was tendered, was not the recorder of the statements, but the head of the team that investigated the Appellant. The insistence by the Appellant that, reliance on the Exhibits by the Courts below was fatal to their findings, does not have a basis in law.
Their Lordships observed that, the lower Courts made concurrent findings on the unchallenged testimonies of the PW1 - PW5, and added that where evidence of a witness is uncontradicted or unchallenged, the Supreme Court would relate it to the applicable law. STATE v OKA (1975) 9-11 SC 17, AGBEGHON v STATE (2000) 7 NWLR (PT. 666) 686. More so, the Supreme Court does not lightly interfere with the concurrent findings of lower Courts, unless such findings were shown to be perverse or not the result of a proper exercise of discretion. Therefore, Counsel for the Appellant has the duty to demonstrate the perversity of those concurrent findings, and having failed to do so in the instant case, there was no basis for the Court to interfere with them. SOKWO v KPONGBO (2008) ALL FWLR (PT. 410) 680, 695-696 H-A.
The trial Court after evaluating Exhibit P4 alongside other testimonies of PW1 (the father of the Appellant) and PW3 (the friend), was convinced from the testimonies, that the Appellant had the opportunity to commit the alleged offence and therefore, gave evidential value to Exhibit P4, as a direct confession of the Appellant. Further, the deceased was last seen alive with the Appellant; thereby presupposing that it was the Appellant who could explain what happened to him. Having failed to explain what happened to the deceased, the trial Court was right in invoking the last seen doctrine against the Appellant.
ILIYASU v STATE (2015) LPELR – 24403 (SC) 44-46; E-F.
The last seen doctrine as applied in homicide cases, is said to create a rebuttable presumption to the effect that, the person last seen with a deceased person, bears full responsibility for his or her death. Therefore, where an accused person was the last person seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death, and in the absence of such an explanation, a trial Court, and even an appellate Court, will be justified in drawing the inference that the accused person killed the deceased person. IGABELE v STATE (2006) 6 NWLR (PT. 975) 100. The doctrine has been held to be, an exception to the watertight constitutional provision that a person is presumed innocent until proven guilty. MADU v STATE (2012) LPELR -7867 (SC) 51-52; (2012) 15 NWLR (PT.1324) 405.
Relating the above holding to the instant case, aside the failure of the Appellant to explain the whereabouts of the deceased, he admitted in his confessional statement, that he killed the deceased in cold blood and robbed him of his Honda aloon car. The fact that he resiled from his statement in Court, did not affect its admissibility.
On the legal effect of the Appellant resiling from Exhibit P4, the Court agreed with the position of law as detailed by the trial Court that, having resiled from his statement, the law is that the Exhibit will be considered and evaluated alongside other available evidence in reaching a decision, notwithstanding that the Appellant has resiled therefrom in his testimony in open Court. EGBOHONOME v STATE (1993) 7 NWLR (PT. 306) 383.
Regarding the issue of fair hearing raised by the Appellant, the Court relied on ADEBAYO v A-G OGUN STATE (2008) LPELR-80SC 23-24, where the Supreme Court held that, the fair hearing provision in the Constitution is the machinery for justice; not a spare part to propel or invigorate the case
of the user. The court particularly noted that, fair hearing is a formidable and fundamental Constitutional provision, available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case; it is available to a party just for the asking.
Also, the Appellant relied on the provision of Section 50 of the Evidence Act, 2011 to disrobe Exhibit P4 of any probative value, but the Court noted that the provision did not avail the Appellant. The Court relied on its earlier decision in IKPO &
ANOR v THE STATE (1995) 9 NWLR (PT. 421) 540, where it was held that Section 34(3) (now Section 50 Evidence Act, 2011), simply makes provision to the effect that the absence of a Public Servant required to give evidence in a judicial proceedings, is sufficiently accounted for by the production of a Gazette, or telegram or letter purporting to emanate from his head of department sufficiently explaining his absence to the satisfaction of the Court. On that note, the Supreme Court disagreed that the provision of the Section could avail the Appellant, as it was the evidence that PW5 was the head of the investigating team, and had read the statement, as well as supervised the recording. He further testified in Court that, Corporal Ewemade could not attend the Court session, due to his dismissal from the Police Force. It follows that provisions of the Section, could not avail the Appellant.
Based on the foregoing, the Supreme Court dismissed the appeal for being unmeritorious. The conviction of and sentence on the Appellant by the lower Courts, were affirmed.
Appeal Dismissed.
Representation:
Emmanuel Umoren for the Appellant R.A.O. Adegoke for the Respondent.
Reported by Optimum Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))
“THE LAST SEEN DOCTRINE AS APPLIED IN HOMICIDE CASES, IS SAID TO CREATE A REBUTTABLE PRESUMPTION TO THE EFFECT THAT, THE PERSON LAST SEEN WITH A DECEASED PERSON, BEARS FULL RESPONSIBILITY FOR HIS OR HER DEATH....THE DOCTRINE HAS BEEN HELD TO BE, AN EXCEPTION TO THE WATERTIGHT CONSTITUTIONAL PROVISION THAT A PERSON IS PRESUMED INNOCENT UNTIL PROVEN GUILTY”