Legalpedia Citation: (2023-07) Legalpedia 02467 (SC)

In the Supreme Court of Nigeria

Holden At Abuja

Fri Jul 7, 2023

Suit Number: SC.CR/605/2021

CORAM

John Inyang Okoro Justice, Supreme Court

Uwani Musa Abba Aji Justice, Supreme Court

Ibrahim Mohammed Musa Saulawa Justice, Supreme Court

Adamu Jauro Justice, Supreme Court

Emmanuel Akomaye Agim Justice, Supreme Court

PARTIES

KAZEEM SOMEFUN

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE

SUMMARY OF FACTS

The deceased set out for his daily business as a commercial motorcyclist on 6/8/2005 but strangely did not return home to his wife at close of work. The wife informed Simon Monday Udoh who organized a search party for him, disseminating the motorcycle particulars used by the deceased to different motorcycle units within neighboring communities. Ten days after the disappearance, the deceased motorcycle was recovered from one Kehinde Sesan, the 1st accused person, who was trying to sell the motorcycle. It is this Kehinde Sesan that named the Appellant as his partner in the crime of conspiracy to commit murder and indeed murder of the deceased. Upon his arrest on 17/8/2005, the Appellant confessed to committing the crime for ritual purposes and further to the confession, led the police to the spot where the decapitated trunk of the deceased was buried. The Appellant however denied making the confession voluntarily and claimed he was being framed on account of a chieftaincy tussle between his father and a Chieftain of the O’dua Peoples Congress [OPC).

The PW1 identified the body by the red shirt on black trousers which deceased wore on the day he was last seen and also the wound he sustained on his shoulder few days before his disappearance.

The learned trial Judge found the Appellant guilty of conspiracy to commit murder and murder and sentenced him to death by hanging. His appeal to the Court of Appeal was dismissed whereof he has now lodged a further and final appeal to this Court.

 

HELD

Appeal dismissed

ISSUES

Whether the lower Court was right in upholding the decision of the trial Court that the charges of murder and conspiracy to commit murder had been proven against the Appellant beyond reasonable doubt whilst relying on the confessional statement of the Appellant and corroborative circumstantial evidence?

RATIONES DECIDENDI

CONCURRENT FINDINGS – CONDUCT OF THE SUPREME COURT TO CONCURRENT FINDINGS OF LOWER COURTS

…this Court will not readily interrupt concurrent findings of facts of lower Courts unless the Appellant is able to show that such findings of facts were perverse or not supported by the evidence before the trial Court or occasioned a miscarriage of justice. See Woluchem v Gudi (1981) 5 SC 291, 326; Chinwendu v Mbamali (1980) 3 – 4 SC 31; Ogbu v State (1992) 8 NWLR (Pt 259) 255; Akpabio v State (1994) 7 NWLR (Pt 359) 635; Ejikeme v Okonkwo (1994) 8 NWLR (Pt. 362) 266; Ibrahim v State (2015) 11 NWLR (Pt 1469) 164. – Per J. I. Okoro, JSC

 

LAST SEEN PRINCIPLE – THE MEANING AND APPLICATION OF THE LAST SEEN PRINCIPLE

For now, I wish to observe that the last seen principle relied upon by the lower Courts to convict and sentence the Appellant is a rebuttable presumption that the person last seen with a deceased bears the responsibility of his death unless he is able to give an explanation as to how the deceased met his death. The applicability of the doctrine is to a large extent inferred from circumstantial evidence which must be overwhelming and lead to an irresistible conclusion that it was the accused person who was last seen with the deceased that killed him. In the absence of an explanation from the accused on how the deceased met his death, the Court will be justified to convict the accused for the death of the deceased. See State v Sunday (2019) LPELR – 46943 (SC); Jua v The State (2010) 4 NWLR (Pt. 1184) 217; Madu v The State (2012) 15 NWLR (Pt. 1324) 405; (2012) 6 SCNJ129; Iliyasu v State (2015) 11 NWLR (pt. 1469) 26. I need to state that the applicability of the doctrine of last seen is not restricted to the Nigerian Criminal Jurisprudence only but is of global application. See the Indian case of Rajashkhanna v State of A.P. (2006) 10 SCC172; Rabi Ismail v The State (2011) 17 NWLR (Pt. 1277) 601. – Per J. I. Okoro, JSC

PROOF – CONDUCT OF THE PROSECUTION IN PROVING THE GUILT OF THE ACCUSED

In the discharge of the onus of proof put upon it, the prosecution would be at liberty to employ all or either of circumstantial evidence, evidence of an eye witness or confessional statement of the accused person to prove the guilt of the accused person. See Olaoye v State(2018) LPELR – 43601 (SC); Afolabi v State(2016) LPELR – 40300 (SC); Nigerian Navy v Lambert (2007) 18 NWLR (Pt 1066) 300; Kamila v State (2018) LPELR – 43603 (SC). – Per J. I. Okoro, JSC

CONFESSIONAL STATEMENT – THE FATE OF A RETRACTED CONFESSIONAL STATEMENT – SIX TESTS FOR DETERMINING THE VERACITY OF A RETRACTED CONFESSIONAL STATEMENT

The position of the law as often expounded by this Court is well settled that notwithstanding the retraction of a confessional statement, it is admissible and must be considered along with other creditable evidence admitted by the trial Judge who at the end would decide whether the confessional statement was positive, direct and a truthful account of what transpired. See Hassan v State. (2001) LPELR – 1358 (SC); Nwangbomu v. State (1994) LPELR – 2105 (SC); Akpa v. State (supra). In the case of Nwangbomu v. State (supra), Wali, JSC observed as follows:

“It is not always possible to get any eyewitness to corroborate the voluntary confessional statement of an accused person in all cases of murder in such a situation, the prosecution will resort to circumstantial evidence”.

Indeed, in determining the veracity or otherwise of retracted confessional statements, Courts are enjoined to scrutinize the confession in the light of the six tests laid down in R Vs. Sykes (1913)1 Cr. App. R.233 as follows:

(i) Is there anything outside the confession to show that it is true?

(ii) Is it corroborated;

(iii) Are the relevant statement made in it of facts, true as far as can be tested;

(iv) Was the accused person one who has the opportunity of committing the crime;

(v) Is the accused person’s confession possible;

(vi) Is the confessional statement consistent with other facts which have been ascertained and proved.

See also Osetola v. State (2012)17 NWLR (Pt.1329) 201; Oseni v State (2012)5 NWLR (Pt.1293) 351; Ikemson v State (1989)3 NWLR (Pt.110) 455; Alarape v State (2001)5 NWLR (Pt. 705)79. – Per J. I. Okoro, JSC

TRIAL-WITHIN-TRIAL – DUTY OF THE ACCUSED WHERE A TRIAL-WITHIN-TRIAL WAS CONDUCTED BEFORE ADMITTING A RETRACTED CONFESSIONAL STATEMENT

In this appeal, suffice to say that the confessional statements under consideration were admitted after a trial-within-trial which presupposes that the trial Court had in a mini-trial carefully considered the Appellant’s argument challenging the voluntariness of his statements sought to be tendered in evidence by the prosecution. Upon the admissibility of Exhibits G, J and J1 after the trial-within-trial, the Appellant cannot dispute that he made the confession voluntarily without first impugning the trial-within-trial. See Bouwor v State (2016) LPELR – 26054 (SC). It follows that the mini-trial having not been impugned, the Court was safe to rely on the confessional statements having been satisfied that they were direct, positive and properly proved to convict the Appellant. See Milia v The State (1985)3 NWLR (Pt.11) 190; Bature v The State (1994)1 NWLR (Pt.32)267; Atano v Attorney-General, Bendel State (1988)2 NWLR (Pt.75)201; Sunday Effiong v The State (1998)59 LRCN 361 at 3975. – Per J. I. Okoro, JSC

 

LAST SEEN – THE NATURE OF THE LAST SEEN DOCTRINE – DUTY OF THE ACCUSED WHERE THE LAST SEEN DOCTRINE IS APPLIED

Although the doctrine of last seen is a rebuttable one, the onus lies on the Appellant to explain otherwise. On the Application of the doctrine of last seen and duty on the accused person to give an explanation as to the death of a deceased where he is the last person seen with same, Per OGBUAGU, JSC, in  JUA V. STATE (2010) LPELR-1637(SC) (PP. 40 PARAS. B), held:

“I am aware that the Last Seen doctrine, is a mere presumption which like all other presumptions, is rebuttable. It means in effect however, that the law presumes that the persons last seen with the deceased, bears the full responsibility for his death if it turns out that the person last seen with him, is dead…In other words, whereas in the instant case, direct evidence of eye witnesses is not available, the Court may infer from the facts proved, the existence of other facts that may legally tend to prove the guilt of the accused person or the Appellant.” – Per U. M. Abba-Aji, JSC

GUILT – HOW THE GUILT OF AN ACCUSED PERSON MAY BE ESTABLISHED

It is trite that the guilt of an accused person can be established by one or more of the following:

(a) The accused person’s confessional statement(s);

(b) Circumstantial evidence;

(c) Evidence of eye witness(es).

See IGWE V. STATE (2023) LPELR – 59771 (SC); ONWUTA V. STATE OF LAGOS (2022) LPELR – 57962 (SC); MUSA V. STATE (2016) LPELR – 42803 (SC); AKWUOBI V. STATE (2016) LPELR – 41389 (SC); OGEDENGBE V. STATE (2014) LPELR – 23065 (SC). – Per Adamu Jauro, JSC

CONFESSIONAL STATEMENT – WHEN A CONFESSIONAL STATEMENT OF THE ACCUSED IS ADMITTED

Having admitted the Appellant’s confessional statements as voluntarily made, the lower Court was entitled to rely solely thereon to convict him, notwithstanding the Appellant’s retraction of the statements. See STATE V. FAFURU (2022) LPELR – 58482 (SC); SALIU V. STATE (2014) LPELR – 22998 (SC); HASSAN V. STATE (2001) LPELR – 1358 (SC).    Nevertheless, in line with the admonition of this Court in a plethora of cases, the learned trial Judge examined other evidence on record and found that the Appellant’s confession was adequately corroborated. – Per Adamu Jauro, JSC

CASES CITED

STATUTES REFERRED TO

1. Criminal Code Law (Cap 29) Laws of Ogun State.

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