CORAM
PARTIES
THE STATE APPELLANTS
RAPHAEL IFIOK SUNDAY RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
This appeal is against the judgment of the Court of Appeal, Calabar Division delivered on 17th January, 2013 wherein the lower Court set aside the conviction and sentence to death of the Appellant by the Trial High Court of Akwa Ibom State. The Appellant was convicted for the murder of his father, Norbert Sunday on or about the 2nd day of April, 1996 at No. 81A Ikpa Road Uyo, Akwa Ibom State. The facts upon which the charge was brought was that on the 6th April, 1996 the Respondent went to the house of PW1 and reported that he had not seen his father for 5 days. Upon inquiry by PW1, the Respondent told him that his father was not sick and that he had not reported the fact of his being missing to his family members. PW1 advised the Respondent to inform his family members and together they went to their family head who convened a family meeting where the matter was discussed. The family head gave the Respondent three days to search for his father and report back to them. On the 3rd day when the Respondent reported that he still could not find his father, the matter was referred by the family to the village head, Obong Akpan Essien Ekpe. When questioned by the village head as to the whereabouts of his father, the Respondent said that he suspected that his father was in a pit toilet owned by one Akon Ibanga, the deceased’s brother’s wife. The matter was reported to the police. The Respondent then led the police to the pit toilet where the corpse of his father was found. The police visited the house of the deceased and found his room filled with faeces. A blood soaked shirt belonging to the deceased and a handwritten note left by the deceased, which stated that if he died, it was the accused who killed him were recovered but untendered at the trial. Upon the conclusion of trial, the learned trial Judge found the Respondent guilty of the offence of murder and accordingly, convicted and sentenced him to death by hanging. Being aggrieved with his conviction and sentence, the Respondent appealed to the Court of Appeal which in its judgment allowed the appeal, acquitted and discharged the Respondent of the offence of murder. The Appellant, being dissatisfied with the stance of the lower Court has appealed to this Court.
HELD
Appeal Dismissed
ISSUES
1. Whether or not the lower Court was right when it held that the doctrine of last seen was wrongly applied by the trial Court in coming to the conclusion that the Respondent was the last person who saw the deceased alive and therefore responsible for his death.
2. Whether or not the lower Court was right when it held that dispensing with medical evidence and report as to the cause of death was fatal to the Appellant’s case.
3. Whether the lower Court was right when it held that there is no circumstantial evidence that has led irresistibly to the guilt of the Respondent.
RATIONES DECIDENDI
DOCTRINE OF “LAST SEEN” – IMPORT OF THE DOCTRINE OF “LAST SEEN”
“The doctrine of “last seen” relied upon by the trial Court to convict and sentence the respondent to death but which was set aside by the lower Court means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with him has been found dead. Therefore, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to an irresistible conclusion that it was the accused that was last seen with the deceased and no other person, and then there is no room for an acquittal. A trial Court can safely convict on such evidence. It is the duty of an accused person who is faced with compelling and damnifying Circumstantial evidence to give explanation relating to how the deceased met his death and in the absence of such explanation, a trial Court will be justified to hold that it was the accused who killed the deceased being the person last seen with him. See Igabele v The State (2006) 6 NWLR (pt 975) 100, Gabriel v The State (1989) 3 NWLR (pt 122) 457, Igho v the State (1978) 3 SC 87, Madu v The State (2012) 15 NWLR (pt 1324) 405, Tajudeen Iliyasu v The State (2015) LPELR – 24403 (SC).” –
DOCTRINE OF “LAST SEEN” – APPLICABILITY OF THE “LAST SEEN “THEORY
“This “Last Seen” theory is not restricted to the Nigerian Criminal Jurisprudence alone. It is a principle of global application and is well settled and entrenched in this country. See the Indian case of Rajashkhanna v State of A.P. (2006) 10 SCC 172. See also Jua v The State (2010) 4 NWLR (pt 1184) 217, Archibong v The State (2006) 14 NWLR (pt 1000) 349 and Adepetu v The State (1998) 7 SCNJ 83.” –
CRIMINAL TRIAL – PREREQUISITE FOR THE FINDING OF GUILT OF AN ACCUSED PERSON
“Before an accused person is found guilty and ordered to be executed, the Court must be satisfied that the prosecution has proved its case against such an accused person beyond reasonable doubt.” –
MEDICAL EVIDENCE -WHETHER MEDICAL EVIDENCE IS A SINE QUA NON IN PROVING CAUSE OF DEATH
“The law is trite that as much as medical evidence is desirable to prove the cause of death, it is not a sine qua non as the cause of death may be established by sufficient satisfactory and conclusive evidence other than medical evidence showing beyond reasonable doubt that the death of the deceased resulted from a particular act of the accused person.” –
MEDICAL EVIDENCE – INSTANCE WHERE MEDICAL EVIDENCE CEASES TO BE OF ANY PRACTICAL OR LEGAL NECESSITY
“There is no doubt as espoused by both counsel in this case that in a charge of murder, much as medical evidence is desirable to establish the cause of death, it is clearly not a sine qua non, as cause of death may be established by sufficient satisfactory and conclusive evidence, showing beyond reasonable doubt that the death of the deceased resulted from the particular act of the accused. Thus, where death is instantaneous or nearly so, medical evidence ceases to be of any practical or legal necessity. See Ozo v The State (1971) ANLR 112, (1971) LPELR – 2891 (SC), Ben v The State (2006) 16 NWLR (pt 1006) 582, Nwachukwu v The State (2002) 12 NWLR (pt 782) 543.” –
MEDICAL EVIDENCE- INSTANCES WHERE MEDICAL EVIDENCE CAN BE DISPENSED WITH
“In Lori v The State (1980) 2 NCR 225 at 237, this Court held as follows per Nnamani, JSC
“It is conceded that medical evidence is not always essential. Where the victim dies in circumstances in which there is abundant evidence of the manner of death, medical evidence can be dispensed with. See Kumo v The State (6) and Bakuri v State (4). But that is not the situation in the instant case. A dead body was recovered in circumstances leading to a suspicion of foul play and accused persons were charged with the murder of the victim and the evidence which the prosecution relied on was circumstantial. More useful medical evidence would not only have unequivocally established the cause of death but may have provided the necessary nexus between the death of the victim and some act of the accused (i.e. the second appellant). Worse still, it raised several possibilities and questions which were never conclusively excluded or answered.” (underline mine for emphasis).” –
PRESUMPTION – PRESUMPTION OF WITHHOLDING EVIDENCE
“The withholding of the blood stained shirt and the death note found in the room is to the detriment of the prosecution’s case. By Section 167(a) of the Evidence Act 2011, the Court may presume that evidence which could be and is not produced, would, if produced, be unfavourable to the person who withholds it. See The State v Salawu (2011) 18 NWLR (pt 1279) 580 (2011) LPELR -8252 (SC).” –
CIRCUMSTANTIAL EVIDENCE- DEFINITION OF CIRCUMSTANTIAL EVIDENCE
“Under our criminal jurisprudence, circumstantial evidence is defined as evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with mathematical exactitude, and that where direct evidence is unavailable, circumstantial evidence which is cogent, compelling and pointing irresistibly and unequivocally to the guilt of the accused is admissible to sustain a conviction. Circumstantial evidence consists of various pieces of evidence which in themselves alone cannot ground conviction, but when put together can constitute a good solid case for the prosecution. Circumstantial evidence is as good as, and sometimes better than any other sort of evidence. See Ukorah v The State (1977) 4 SC (Reprint) page 111 (1977) LPELR – 3345 (SC), Peter v The State (1997) 12 NWLR (pt 531) page 1, Adie v The State (1980) 1 – 2 SC page 116 (1980) LPELR 176 (SC).” –
CHARGE OF MURDER – INGREDIENTS A PROSECUTION MUST PROVE IN A CHARGE OF MURDER
“Generally, in a murder charge, the prosecution must prove beyond reasonable doubt the following: –
(1) That the deceased died.
(2) That it was the unlawful act or omission of the accused person which caused the death of the deceased, and
(3) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
The prosecution can rely on direct eye witness account or by circumstantial evidence. The prosecution can even prove same by the confession of the accused. See Kaza v The State (2008) 7 NWLR (pt 1085) 125, Akinlolu v The State (2015) LPELR – 25986 (SC), Ogedengbe v The State (2014) 12 NWLR (pt 1421) 338, Durwode v The State (2000) 15 NWLR (pt 691) 467.”
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CIRCUMSTANTIAL EVIDENCE- MEANING OF CIRCUMSTANTIAL EVIDENCE
“In Mathew Nwalu v The State (Appeal No: SC.375/2014, delivered on March 23, 2018), this Court held [per Nweze, JSC] that:
“the category of evidence known as circumstantial evidence, which is, more often than not, the best evidence, Obosi v State (1965) MLR 119; Ukorah v State [1977] 4 SC 167; Lori v State (1980) NSCC 269; Onah v State [1985] 3 NWLR (pt 12) 236; Ebenehi v State [2009] All FWLR (pt 486) 1825, 1832-1833; Ijioffor v. State [2001] 9 NWLR (pt 718) 371, 385, is the evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics, Ijioffor v. State (supra) 385.”
The reason is not far-fetched. In their aggregate content, such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the accused person caused the death of the deceased person, Idiok v State [2008] All FWLR (pt 421) 797, 818. Put simply, it means that there are circumstances which are accepted so as to make a complete and unbroken chain of evidence, Omotola and Ors v State [2009] 7 NWLR (pt -1139) 148, 178; (2009) LPELR-2663 (SC) 42-43. Where such circumstances are established to the satisfaction of the Court, they may be properly acted upon, Wills on Circumstantial Evidence [Seventh edition] 324; A. Okekeifere, Circumstantial Evidence in Nigerian Law (Port Harcourt: Law-house Books, 2000) 1; Omotola v State (supra) 178.”–
CIRCUMSTANTIAL EVIDENCE – DUTY ON COURTS TO APPRAISE CIRCUMSTANTIAL EVIDENCE BEFORE CONVICTING AN ACCUSED PERSON THEREON
“Thus, where there is no eye witness account or direct evidence of the commission of an offence, a conviction may be based on circumstantial evidence, Igabele v State [2004] 15 NWLR (pt 896) 314. However, and this is very important indeed, such circumstantial evidence must point to only one conclusion, namely, that the offence had been committed and that it was the accused person who committed it, Dick v. C O. P. [2009] 9 NWLR (pt 1147) 530, 551. However, there is a snag here. For the purpose of drawing an inference of an accused person’s guilt from circumstantial evidence, there must not be other co-existing circumstances which would weaken or destroy that inference, Igho v State [1978] 3 SC 87:;State v Edobor [1975] 9-11 SC 69. Thus, all other factors and surrounding circumstances must be carefully considered for they may be enough to adversely affect the inference of guilt, Lori v State [1980] 8-11 SC 81; Udedibia v State [1976] 11 SC 133; Aigbadion v State [2000] 7 NWLR (pt 666) 686. The explanation for this need for circumspection is simple evidence that falls within this category may be fabricated to cast aspersion on other people, per Lord Normand in R v Tepper (1952) 480, 489 approvingly adopted in State v Edobor [1975] 9-11 SC 69, 77. That is why a Court must, properly, appraise the circumstantial evidence adduced by the Prosecution before convicting an accused person thereon, Adepetu v State [1998] 9 NWLR (pt 565) 185; Iko v State [2001] FWLR (pt 68) 1161; [2001] 14 NWLR (pt 732) 221; Orji v State [2008] All FWLR (pt 422) 1093, 1107.” –
CIRCUMSTANTIAL EVIDENCE – TEST TO BE SATISFIED BY CIRCUMSTANTIAL EVIDENCE BEFORE A CONVICTION THEREON
“It must be noted, however, that there is no yardstick by which any circumstantial evidence can be measured before a conviction can be entered against an accused person. Thus, each case depends on its own facts. However, one test which such evidence must satisfy is that it should lead to the guilt of the accused person and leave no degree to possibility or chance that other persons could have been responsible for the commission of the offence, Ijioffor v State (supra) 385; Ebenehi v State (supra) 1832. ” –
DOCTRINE OF LAST SEEN- MEANING OF THE DOCTRINE OF LAST SEEN
“The Last Seen Doctrine indicates that any Accused charged with murder, would be required to offer some explanation as to how the deceased met his death -see Archibong V. State (2006) 14 NWLR (Pt. 1000) 349 SC, and Haruna V. A.-G., Federation (2012) 9 NWLR (Pt. 1306) 419 SC, wherein this Court, per Adekeye, JSC, explained the meaning of the Doctrine, as follows:
The doctrine of “last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus, where an Accused Person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal.”-
CIRCUMSTANTIAL EVIDENCE -NATURE OF CIRCUMSTANTIAL EVIDENCE SUFFICIENT TO SUPPORT A CONVICTION
“It is settled that circumstantial evidence requires an inference to be made to establish a fact, and in certain cases, circumstantial evidence may be even more powerful than direct evidence, which proves or disproves a fact directly – see Lori & Anor V. State (1980) NSCC (Vol. 12) 269, wherein this Court per Nnamani, JSC, observed as follows:
Circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances, which is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial. But the circumstantial evidence sufficient to support a conviction must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the Prisoner, and no one else, is the murderer. The facts must be incompatible with innocence of the Accused and incapable of explanation on any other reasonable hypotheses than that of his guilt.” –
CASES CITED
None