Doctrine of last seen and extent of its application

LEAD JUDGMENT DELIVERED BY JOHN INYANG OKORO, J.S.C.
FACTS OF THE CASE
This appeal is against the judgment of the Court of Appeal, Calabar Division delivered on January 17, 2013 wherein the trial Court set aside the conviction and sentence to death of the appellant by the Trial High Court of Akwa Ibom State.
The facts of the case is that the respondent, Raphael Ifiok Sunday was charged at the High Court of Akwa Ibom State with a one count charge of murder of his father, one Norbert Sunday, contrary to Section 319(1) of the Criminal Code.

The facts upon which the charge was brought was that on April 6, 1996, the respondent went to the house of the complainant (PW1), Etim Udah, Deputy Family Head of Nnung Ibanga Ekpa of Afaha Oku Village, Uyo and reported that he had not seen his father for five days. Upon inquiry by PW1, the respondent informed 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 village head, Obong Akpan Essien Ekpe questioned the respondent as to the whereabouts of his father. The respondent stated 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 then reported to the police. The respondent then led the police to the pit toilet where the corpse of his father was found.

In the course of investigation, Sergeant Asuquo Essien (PW3) visited the scene of the incident, the house of the deceased located at No. 81A Ikpa Road, Uyo and recovered a handwritten note left by the deceased, which stated that if he died, it was the accused who killed him. At the end of his investigation, PW3 tendered a report in evidence. Based on these findings, the respondent was arraigned and charged with the murder of the deceased. In his defence, the respondent denied knowing anything about his father’s death. Both in his statement to the police and evidence in Court.

Upon the conclusion of trial, judgment was delivered on November 19, 2007 and 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, Calabar.

ISSUES FOR DETERMINATION
The Court determined the appeal on the issues formulated by both parties.
Appellant 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 cause of death was fatal to the appellant’s case.
3. Whether or not the lower Court was right when it held that there is no circumstantial evidence that has led irresistibly to the guilt of the respondent.
Respondent issues: 1. Whether the Court below was right when it held that per Joseph Tine Tur JCA at page 165 – 166 of the record that: “I am of the candid opinion that the doctrine of “LAST SEEN” was wrongly applied by the learned trial judge in this given circumstances.”
2. Whether the Court below was right in stating that the trial Court was wrong in dispensing with medical evidence when there was no direct evidence linking the respondent with the death of the deceased.
3. Whether in the circumstances of this case, there was sufficient circumstantial evidence irresistibly pointing to the guilt of the accused and none other as to warrant the Court below to affirm the findings of the trial Court on this issue.

APPELLANT’S COUNSEL SUBMISSIONS
On issue one, the appellant submitted that the learned trial Judge carefully considered the overwhelming evidence of the prosecution witnesses before the Court and rightly came to the conclusion that the respondent was the last person who saw the deceased. That this was not a case where the evidence of an eyewitness who saw the respondent with the deceased was needed to secure conviction.

On issue two, the appellant submitted relying on the cases of Adekunle v. The State (2006) 14 NWLR (pt 1000) 717 at 737 and Ubani v. The State (2003) 18 NWLR (pt 851) 224 to buttress the trite law 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.

On issue three, the appellant submitted that there was evidence of the blood stained shirt belonging to the deceased which was found in the deceased person’s room by the IPO and this confirms that the deceased actually returned home after his visit to the PW2 on 2/4/96.

RESPONDENT’S COUNSEL SUBMISSIONS
On issue one, the respondent submitted that the Court below was right in coming to the conclusion that the learned trial Judge was wrong in applying the doctrine of “LAST SEEN” in the circumstance of this case. That this conclusion did not come out of the blues but was arrived at after reviewing the evidence adduced during the trial and the relevant authorities as applied by this Court in similar cases.

On issue two, the respondent submitted placing reliance on the case of Oforlete v The State (2000) 12 NWLR (pt 681) 415 to stress that a Court should not speculate on a case but should rely on hard facts. He also relied on the case of Onah V State (1985) 3 NWLR (pt 12) 236 at 246 where the appellant’s appeal was allowed notwithstanding the fact that the corpse of the deceased was found in a farm five yards away from the appellant’s compound, blood stains were on his wrapper and machete, because medical evidence was not called to confirm the blood stains was human blood and the machete was not subjected to forensic test to show the finger print on it marching that of the appellant.

On issue three, the respondent submitted that the evidence of the prosecution witnesses were not cogent and compelling enough and lacks credibility and does not point to one direction but three. He submitted that there was too much doubt in the case and such ought to be resolved in favour of the respondent, relying on Archibong v. The State (2006) 14 NWLR (pt 1000) 349 at 374 paragraphs G – H, Adekunle v. State (2006) 4 NWLR (pt 1000) 717 at 737, Amala v. The State (supra).

RESOLUTION OF ISSUES
The Court in resolving issue one strongly agreed with the Court below on this issue and held that there is no iota of evidence to sustain the theory of “last Seen” in respect of the instant case. Nobody testified that the deceased was last seen with the respondent on April 2, 1996 when he disappeared. Rather, all the witnesses agree that the deceased visited the PW2 on that date, meaning that PW2 was in fact the person last seen with the deceased. There was no evidence that the deceased arrived home safely when he left PW2’s house on 2/4/96. The Court stated that in criminal trials 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. In the instant case however, the Court had serious doubt about what happened to the deceased on April 2, 1996 when he visited PW2.

The Court concluded by saying that the theory of ‘Last Seen’ applied by the learned trial Judge was done without evidence on record. Accordingly, the Court agreed with the Court below that the principle was wrongly applied and thus, resolved issue one against the appellant.

Resolving issue two, the Court stated that in view of the weak circumstantial evidence adduced by the prosecution against the respondent, the Court also agreed with the Court of Appeal that though medical evidence is not a sine qua non to prove the cause of death, it was desirable in the circumstance of the instant case. The Court further stated that by withholding the blood stained shirt and the death note found in the room, such act is to the detriment of the prosecution’s case and that 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 unfavorable to the person who withholds it.

The Court relied on The State v. Salawu (2011) 18 NWLR (pt 1279) 580 (2011) LPELR -8252 (SC) and held that the Court would also presume that if the autopsy report was tendered or the medical doctor called, it would have been unfavorable to the appellant’s case especially as the deceased was a habitual drunkard and sickler. Issue two was also resolved against the appellant.

Resolving issue three, the Court stated that 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. The Court relied on 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).

The Court concluded by stating that the fact that the deceased was a habitual drunkard and very sick are also issues, which could suggest he may have fallen into the pit toilet by himself. Based on the above, the Court agreed with the Court of Appeal that the circumstantial evidence led by the prosecution was not cogent enough to ground a conviction of murder.
HELD
On the whole, the Court dismissed the appeal, acquitting and discharging the accused person.
Appearances:
Samuel Akpabio, Esq. with him, Ameh Peter, Esq. – For Appellant
S. Oko-Jaja, Esq. – For Respondent
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