THEOPHILU PIUS v. THE STATE
(2019)LCN/12745(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of February, 2019
CA/EK/52C/2017
RATIO
CRIMINAL LAW: DOCTRINE OF LAST SEEN
“The Last Seen doctrine, is a presumption which like all other presumptions, is rebuttable. Therefore, the law presumes that the person last seen with the deceased will bear the full responsibility for his death if it turns out that the person last seen with him, is dead. See the cases of THE STATE V. OGERE UKE & 2 ORS 1981 1 MSLR 107, THE STATE V. GODWIN NWAKERENDU & 3 ORS. 1973 3 ECSLR PT.11 757, THE STATE V. KALU 1993 7 SCNJ. 113 124 125, and ADEPETU V. THE STATE 1998 1 SCNJ 83. The position of the law is that it is the duty of an accused person, to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the Court is and will be justified in drawing the inference that the accused killed the deceased. See further the case of ADENIJI V. THE STATE 2001 5 SCNJ 371, ARCHIBONG V. THE STATE 2006 14 NWLR PT.1000 349, IGHO V. THE STATE 1978 3 SC 87, GABRIEL V. THE STATE 1989 5 NWLR PT. 122 457 and JUA v. STATE supra.” PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
CRIMINAL LAW: WHETHER A CRIME MUST BE PROVED BEYOND REASONABLE DOUBT
“Although the law requires that a crime must be proved beyond reasonable doubt, it does not envisage that such proof be beyond the shadow of doubt. This proposition of the law is well echoed by Lord Denning in the case of Miller v. Minister of Pensions 1947 2 All E. R. Page 372 which is encapsulated thus:- ‘Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.'” PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
EVIDENCE: TO DETERMINE THE CREDIBILITY OF WITNESS
“An appellate Court, not having the privilege of watching and hearing the witness testify is, by reason of that handicap not in a position to determine the credibility of witnesses as issues of fact, questions on demeanor and credibility are pre-eminently those of the Court of trial. See the cases of CYPIACUS NNADOZIE & ORS V. NZE MBAGWU 2008 LPELR-SC 249/2002, GABRIEL OKUNZUA V. MRS E. B. AMOSU & ANOR. 1992 LPELR SC 178/1990, WILLIAMS V. JOHNSON 1937 2 WACA 253 and OGBERO EGRI V. EDEBO UKPERI 1974 NMLR 22.”PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
JUSTICE
AHMAD OLAREWAJU BELGOREJustice of The Court of Appeal of Nigeria
PAUL OBI ELECHIJustice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODUJustice of The Court of Appeal of Nigeria
Between
THEOPHILU PIUSAppellant(s)
AND
THE STATERespondent(s
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.(Delivering the Leading Judgment):
This appeal emanated from the Judgment of the Ekiti State High Court, Ikere-Ekiti delivered by Hon. Justice A. A. Adeleye on February 24th 2014, wherein, the Appellant was found guilty of the death of one Anthonia Ogechukwu Okeke, and was sentenced to death by hanging. The Appellant has appealed against the decision being dissatisfied.
At the Court below, the Appellant was prosecuted on a two count charge as follows:
COUNT 1
STATEMENT OF OFFENCE
Kidnapping, contrary to Section 364 (2) of the Criminal Code Act Cap C38, Laws of the Federation of Nigeria 2004
PARTICULARS OF OFFENCE
Theophilus Pius, on or about the 19th of December 2008, at Ilawe Ekiti in the Ikere Ekiti Judicial Division, Kidnapped one Anthonia Ogechukwu Okeke.
COUNT 2
STATEMENT OF OFFENCE
Murder, Contrary to Section 319 (1) of the Criminal Code Act, Cap C38, Laws of the Federation of Nigeria 2004.
PARTICULARS OF OFFENCE
Theophilus Pius on or about the 19th of December 2008, at Ilawe Ekiti in the Ikere Ekiti Judicial Division murdered one Anthonia Ogechukwu Okeke.
The brief gist of the case at the Court below according to the prosecution was that the Appellant kidnapped one Athonia Ogechukwu Okeke, a National Youth Corper and subsequently murdered her on December 19th 2008 at Ilawe -Ekiti, Ekiti State. That, the Appellant, a commercial motorcyclist who had always carried Anthonia within and outside Ilawe and knew her residence was supposed to have carried her on 19/12/08 to Onitsha motor park as she intended to travel to Enugu for Christmas break and she had since not been found or heard of. She informed her brother, one Obinna Okeke and fellow Corpers, Joshua Ibrahim and Julian Onyeama of her journey proposed for 19/12/08. Julian who got to the park by 5.a.m of 19/12/08 waited and searched without success for Anthonia, along with other Corpers then reported to the Police and the Appellant was arrested on 21/12/2008. Certain items which were identified as properties of Anthonia were found in the residence of the Appellant following a search conducted by the Police. The matter was tried, seven (7) prosecution witnesses were called, the Appellant testified for himself, eighteen (18) exhibits were admitted and the Court found the Appellant guilty, convicted and sentenced him to death by hanging as afore said.
This appeal was argued on the amended Appellants Notice of Appeal, filed April 24th 2018 and deemed on September 26th 2018, with ten (10) grounds of appeal. The following reliefs are being sought:
a. Allow the appeal and set aside the judgment of the honourable court below.
b. Quash the conviction of the Appellant.
c. Discharge and acquit the Appellant on all counts.
In compliance with the Rules of this Court, parties filed and exchanged their briefs of argument. The Appellants brief was dated and filed September 26th 2018 and settled by M. O. Folorunsho Esq. and the Respondents which was dated and filed on October 15th 2018 was settled by Gbemiga Adaramola Esq.
ISSUES SUBMITTED BY THE PARTIES
APPELLANTS THREE (3) ISSUES
1. Whether in law, Exhibits A04, A05, A09, A10-A013 and A018 are admissible or entitled to any probative value accorded to the exhibits by the noble trial Judge (Grounds 3, 8 and 10).
2. Whether there is any inferential evidence positive and sufficient enough to warrant the conviction of the Appellant for the offence of Murder (Grounds 1, 2, 4 and 5).
3. Whether there is any inferential evidence positive and sufficient enough to warrant the conviction of the Appellant for the offence of kidnapping (Ground 7).
RESPONDENTS SOLE ISSUE
Whether the Trial Court was not right in deciding that upon the totality of evidence adduced by the Respondent, the case of Murder and Kidnapping pressed against the Appellant was proved beyond reasonable doubt.
In my view and humbly, a sole issue would sufficiently determine this appeal and as this Court is so empowered, one shall adopt a sole issue as follows:
Whether or not the Court below was right in its conviction and sentence of the Appellant given the evidence presented before it.
APPELLANTS SUBMISSION
The learned Appellants Counsel, Mr. M. O. Folorunsho Esq on weight to be attached to an exhibit contended that, it was correct that, the learned Director of Public Prosecutions of the Ministry of Justice Ekiti State, Ado-Ekiti, tendered Exhibit AO4 but because it was from the Bar and the Appellant had no opportunity to test its veracity as the DPP was not sworn, therefore, no evidential value should be given to it. In support, he cited the cases of EMMANUEL V. UMANA & 5 ORS. NO. 2 2016 2 SC PT. 1 P. 1, BELGORE V. AHMED 2013 8 NWLR PT. 1355 60 and UTTEH V. STATE 1992 2 NWLR PT. 223 257. That, only if an officer of NYSC tendered the Exhibit AO4 could veracity be attached thereto.
He submitted in the same vein with regard to Exhibits AO5, AO9, AO10 and AO13 as they were tendered pursuant to Exhibit AO4, therefore, were inadmissible documentary hearsay evidence and cited further in support the case of OKORO V. STATE 1998 12 SC 134 and urged that they be expunged. In support, he cited the case of OPARA V. A.G FEDERATION 2017 5 SCM 163. For Exhibits AO11 and AO12, the learned Counsel argued that, the covering letters to them were not made by persons, either natural or juristic, known to law as they were signed by Commercial Legal Department. He cited in support, the case of OMORINBOLA II V. GOV. ONDO STATE 1995 9 NWLR PT. 418 201. On the issue that the said letters were computer generated documents, he argued further that, they were inadmissible by virtue of Section 84 of the Evidence Act, 2011 and cited in support the cases of KUBOR V. DICKSON 2013 4 NWLR PT. 1345 534 and OMISORE V. AREGBESOLA 2015 15 NWLR PT. 1482 205. He urged therefore that, they be expunged and that the findings of the Court be upturned therefore.
The learned Counsel submitted that there was no evidence before the Court of death as none of the seven (7) prosecution witnesses gave such evidence, that, the missing Anthonia is dead or alive. He contended that, there was no evidence that the underwear of Anthonia was found in the house of the Appellant and is only so contained in the Judgment which therefore makes it perverse and should be set aside. In support, he cited the cases of YARO V. AREWA CONST. LTD. 2007 17 NWLR PT. 1063 333 and ADEOSUN V. JIBESIN 2001 11 NWLR PT. 724 290. Therefore, he submitted that, there was no conclusive inferential evidence that the socks found were those of the missing Anthonia and that Exhibit AO8 was wrongly admitted and cited in support, the cases of VALENTINE ADIE V. THE STATE 1980 ALL NLR P. 39, ABOKOKUYANRO V. THE STATE 2016 4 SCM 54 and THE STATE V. AJAYI 2016 12 SCM 117.
There was no positive evidence of the killing of the deceased and consequently the doctrine of last seen cannot apply herein he contended and in support, cited the cases of IGHO V. THE STATE 1978 NSCC 166, ARICHE V. THE STATE 1993 6 NWLR PT. 302 752, ADEPETU V. STATE (1998) 9 NWLR P. 565 and OMOREGIE V. STATE 2018 ALL FWLR PT. 925 P. 1. He contended further that, there was no inferential evidence for the conviction of the offence of kidnapping since the prosecution failed to prove that the said Anthonia was seized and taken away against her wish. In conclusion, the learned Counsel urged this Court to allow the appeal and acquit the Appellant.
RESPONDENTS SUBMISSION
The learned Counsel for the Respondent, Mr. Gbemiga Adaramola Esq. argued that, the doctrine of the last person seen with Anthonia was rightly applied herein by the Court and cited in support the cases of OMOREGIE V. STATE 2018 ALL FWLR PT. 925 1, HARUNA V. A-G FEDERATION 2012 ALL FWLR PT. 632 1617 and IGABELE V. STATE 2006 ALL FWLR PT. 311. That, the Appellant himself admitted that he conveyed the said Athonia to the park in Ado- Ekiti where her name was not found on the Manifests of those who travelled that day. Further that, Exhibits AO5, AO9, AO10 and AO13 which are legally admissible by virtue of Section 83 of the Evidence Act clearly established the fact that the Appellant never took Anthonia to the Park on the fateful day. Exhibit AO10, which clearly referred to Nokia phone, the NYSC socks and underwear of the said Anthonia assisted the case of the prosecution inspite of his denial regarding the battery.
The pieces of evidence all pointed irresistibly against the Appellant as the person responsible for the death of Anthonia, that, circumstantial evidence is the best evidence in proving murder in the instant case, he submitted. In support, he cited the cases of OMOREGIE V. STATE supra, MOHAMMED V. STATE 2007 11 NWLR PT. 1045 303 CHUKWU V. STATE 2007 ALL FWLR PT. 389 1224 and ADEKUNLE V. STATE 2006 ALL FWLR PT. 332 1452. Further that, as the Court below had unquestionably evaluated the evidence presented before it, this Court has no business in interfering with the decision reached thereby and cited in support the cases of OKOROJI V. STATE 2001 FWLR PT. 77 871, IGAGO V. STATE 2001 2 ACLR 104, RASHEED V. STATE 2014 16 WRN 127 and BOLANLE V. STATE 2010 WRN VO. 4 P. 26. In conclusion, he urged this Court to dismiss the appeal and affirm the Judgment of the Court below in respect of the conviction and sentence of the Appellant for the offences of kidnapping and murder of Anthonia.
THE POSITION OF THIS COURT
Before I commence with the consideration and determination of the singular issue as adopted herein, one finds that no issue was formulated from Ground 6 of the Appellants amended Notice of Appeal. It is elementary that a ground of appeal is deemed abandoned where no issue is predicated thereupon. Therefore, Ground 6 herein, is so deemed and is hereby struck out accordingly. See the cases of A.N.P.P. V. INEC 2004 7 NWLR PT. 871 16, BHOJSONS PLC. V. DANIEL-KALIO 2006 5 NWLR PT. 973 330, BAYERO V. MAINASARA & SONS LTD. 2006 8 NWLR PT. 982 391.
THE SOLE ISSUE
Whether or not the Court below was right in its conviction and sentence of the Appellant given the evidence presented before it.
I have very carefully considered the printed Record before this Court together with all the Exhibits and the briefs filed and exchanged by the Parties herein as aforesaid. Having so very carefully done, I shall proceed first with the consideration of the findings of the Court below thus:
The two charges against the Appellant as afore stated are;
(i)Kidnapping contrary to Section 364 (2) of the Criminal Code Act, Laws of the Federation of Nigeria 2004 and
(ii) Murder contrary to Section 319 (1) of the same Criminal Code Act.
Section 364 – Kidnapping
Any person who-
(2). Unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a court for his release or from discovering to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned, is guilty of a felony and is liable to imprisonment for ten years.
Section 319 – Murder
(1)Subject to the provisions of this section of this Code, any person who commits the offence of murder shall be sentenced to death.
The Court found as clearly seen in the Record that, there was no controversy about the fact that the Appellant was at Anthonias residence on the morning of December 19th 2008 at about 4.15 a.m. upon her invitation to be conveyed to the Onitsha motor park at Ado-Ekiti for her journey to Enugu for the Christmas break. See page 86 of the Record, where the Appellant acknowledged the statement he made at Ilawe, pages 173 in respect of Exhibit AO15, the Appellants statement volunteered to the Police at Ado-Ekiti on 8/1/2009 and Exhibit AO19 dated 23/3/2009 on page 174 of the Record. The Court, in my view and humbly, properly admitted Exhibit AO 15 which the Appellant denied making in spite of the objection raised by the defence which was not on the voluntariness or otherwise of it as it stated thus on page 178 of the Record:
The court in the course of its evaluation found that the confession of the accused person in exhibit AO13 is consistent with other facts, which had been led before the Court. Other evidence led by Dw1 himself, as well as the prosecution witnesses show that the contents of Exhibit AO15 are true.
This Court in the case of FASINU V. STATE 2016 LPELR-41431 CA clearly stated the position of the law with respect to retraction of statements to the effect that, where an accused in Court through his Counsel failed to object to his confessional statement be admitted, there can be no retraction as that question can no longer be raised or considered. Any further testimony by the accused inconsistent with the statement admitted is a reprobation which the law forbids as it is, Qui approbat non reprobate so far as the said statement is properly evaluated along with other facts adduced at the trial as it was done herein according to the Record before this Court. See also the cases EDHIGERE V. STATE 1996 8 NWLR PT. 464 P. 1, CHUKWUKA OGUDO V. THE STATE2011 LPELR-860 SC, STEPHEN HARUNA V. THE A-G FEDERATION 2012 LPELR-7821 SC, R V. OMOKARO 1941 7 WACA P. 146 ORLU V. ONYEKA 2018 3 NWLR PT. 1607 467 and SHUAIBU V. STATE 2018 LPELR-45023 CA.
It found that Anthonia did not make any call from 4. 00 a.m. and no other call came in as contained in Exhibits AO11 and AO12, therefore, she had no contact with any other person save the Appellant as contained on page 180 of the Record. On page 181 it stated thus:
From the foregoing, Anthonias telephone line ceased working from the moment the accused person came to pick her from her residence at Ilawe Ekiti.
The Court from what transpired during the trial rightly stated as follows on pages 186-187 of the Record:
The conduct of the accused person at the time he opened his defence, and during cross-examination leaves room for the Court to place little or no weight on the oral evidence led.
The accused person had on him, a prepared statement. It was discovered by the prosecution counsel, who drew attention of the Court to the act. The accused person led evidence, and under cross-examination gave testimony on the prepared statement.
I find the line of evidence not to be from the personal knowledge of the accused person any longer. He tried to do a repair job by it.
I do not accept the evidence of the accused person in the circumstance. The Emeka/Uches involvement is an afterthought.
An appellate Court, not having the privilege of watching and hearing the witness testify is, by reason of that handicap not in a position to determine the credibility of witnesses as issues of fact, questions on demeanor and credibility are pre-eminently those of the Court of trial. See the cases of CYPIACUS NNADOZIE & ORS V. NZE MBAGWU 2008 LPELR-SC 249/2002, GABRIEL OKUNZUA V. MRS E. B. AMOSU & ANOR. 1992 LPELR SC 178/1990, WILLIAMS V. JOHNSON 1937 2 WACA 253 and OGBERO EGRI V. EDEBO UKPERI 1974 NMLR 22.
Still on the findings of the Court, it stated on page 188 of the Record that, the Police investigated the Appellants evidence that he was not the last person with Anthonia and found that Emeka and Uche were not around the Onitsha motor park as claimed by the Appellant. The Court consequently held on pages 188-189 of the Record and correctly in my considered view, thus:
From the evidence of the prosecution, which I have found to be reliable, point irresistibly to Theophilus Pius, the accused person to have been the last person seen with Anthonia Ogechukwu Okeke before her disappearance. The facts led in evidence by the prosecution are unequivocal. They disclose circumstances, the accumulation of which clearly suggest that the accused person did not take Anthonia to the Onitsha motor park at Ado-Ekiti and had taken her elsewhere.
Further stated thus:
There are no surrounding circumstance that destroy the cogency of the circumstantial evidence led against the accused person. The accused person is caught in the web of last seen theory.
See page 189 of the Record.
On the items found in the residence of the Appellant pursuant to a search warrant, the Court held and correctly thus on page 192 of the Record:
No satisfactory explanation was given as to the ownership of pair of NYSC socks recovered from the residence of the accused person. The accused person is not a member of the NYSC. Seun Pius is not a member either. The items recovered from the house of the accused person are evidence of the offence. The exhibits point irresistibly to the guilt of the accused person.
The conclusion reached by the Court was as follows:
Nobody can access Anthonia. She definitely cannot gain her freedom from wherever the accused person had taken her to …From the circumstances of this case there are no other possibilities than (sic) it was the accused person who kidnapped Anthonia Ogechukwu Okeke.
On the last seen theory, the explanation given by the accused person are unbelievable. There are other facts outside the confessional statement that strengthen the case of the prosecution.
The accused person, Theophilus Pius is hereby sentenced to 10 years imprisonment, pursuant to Section 364 (2) of the Criminal Code.”
See pages 193-194 of the Record.
With regard to the charge of murder, the Court correctly held that the fact of death is provable by circumstantial evidence, despite the absence of corpus delicti. It stated as follows on page 195 of the Record following its evaluation of the evidence presented:
In the case in hand, there are sufficient compelling evidence that lead to the inference that Anthonia Ogechukwu Okeke had been killed. The circumstances of the case as proven by the prosecution fix the accused person as the person that killed Anthonia Ogechukwu Okeke. On the record, there are testimonies of witnesses, and the items identified to belong to Anthonia Ogechukwu Okeke that link the accused person. The Court can draw the conclusion that it was the accused that killed Anthonia Ogechukwu Okeke.
As already stated, the Court found and held that the theory of last seen applied, that, Anthonia was last seen with the Appellant, could no longer be found since December 19th 2008 and in consequence, found the Appellant guilty of the murder of Anthonia, the Youth Corper.
As already stated an appellate Court, not having the privilege of watching and hearing the witness testify is, by reason of that handicap, not in a position to determine the credibility of witnesses as issues of fact, questions on demeanor and credibility are pre-eminently those of the Court of trial.
The burden of proof in a criminal case is on the prosecution and must be established beyond reasonable doubt as provided in Section 138 (1) of the Evidence Act says. The subsection provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceedings, civil or criminal, it must be proved beyond reasonable doubt. As is being upheld by the Courts, what the term beyond reasonable doubt entails was clearly and simply stated by the apex Court per Aloma Mariam Mukhtar JSC in the case of JUA v. STATE 2010 LPELR-1637 SC thus:
Although the law requires that a crime must be proved beyond reasonable doubt, it does not envisage that such proof be beyond the shadow of doubt. This proposition of the law is well echoed by Lord Denning in the case of Miller v. Minister of Pensions 1947 2 All E. R. Page 372 which is encapsulated thus:- “Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
It is settled law that circumstantial evidence is often the best evidence and to ground a conviction thereby, it must be positive and point irresistibly to the accused person. The facts thereof must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. As stated by the apex Court per IKECHI FRANCIS OGBUAGU, J.S.C P. 39, in the case of JUA v. STATE supra thus:
The circumstantial evidence that will meet the requirement of onus of proof in criminal cases, is the evidence that fixes the accused, to the crime with sufficient cogency and which excludes the possibility that someone else had committed the crime.
See also the cases of FATOYINBO V. ATTORNEY-GENERAL WESTERN NIGERIA 1966 NMLR 4, AKPAN V. STATE 2001 15 NWLR P. 745, UKORAH V. STATE 1980 1 – 2 SC 116, ADENIJI V. STATE 2001 13 NWLR PART 730 P. 375, SAKA OLADEJO V. THE STATE 1987 LPELR SC 79/1986 and JOSEPH LORI V. THE STATE 1980 8-11 SC 81.
The apex Court as well as this Court have continued to maintain the position of the law with regard to the crime of murder where the corpus delicti is not found as in the instant appeal. The position was clearly stated in the case of JUA v. STATE supra by the apex Court thus:
“The law as regards the absence of corpus delicti is that a Court may still convict an accused person of murder even though the deceased’s body, cannot be found, provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man had been killed. See the cases of R. V. SALA 1938 4 WACA 14, R. V. ONUFREJEIGYK 1955 9 CAR 1, ADELAKUN AYINDE V. THE STATE 1972 4 S.C. 147, EDIM V. THE STATE 1972 4 S.C. 160. In other words, the fact of death, is provable by circumstantial evidence notwithstanding that neither the body nor any trace thereof, had been found and that the accused person, has made no confession of any participation in the crime. However, before the prisoner can be convicted, the fact of death should be proved by such circumstances as to render the commission of the crime certain and leave no ground for reasonable doubt.
The learned Court below, from my careful perusal of the Record herein, very carefully evaluated the evidence before it. See pages 140-198 of the Record. The submission by the learned Appellants Counsel that, no underwears were found, in my humble view cannot frustrate a conviction where conviction has been properly found. I find no miscarriage of justice from the mention of underwear in the Judgment of the Court below. The fact from the Record still shows that other items were actually found for which the Appellant could not give answers, as contained in the Record on page 190, “He kept mute.” The two pairs of NYSC socks and the Nokia battery that were identified as Anthonias, which were said to be found in an “obscure hidden place” in the Appellants residence, their being there was not explained satisfactorily. The explanation by the Appellants wife was that the battery identified as Anthonias was found by her beside a well within their compound. See pages 56-57 of the Record. It is necessary at this point to state that where exhibits point unequivocally to the guilt of an accused person, as evidence in this case, forensic is not necessary.” This is the law as stated by the apex Court per Niki Tobi JSC in the case of JUA v. STATE supra.
The Court found and correctly in my humble view that, the accused person was caught in the web of last seen doctrine as he was last seen with Anthonia who had since been found inaccessible, unable to gain her freedom from the time the Appellant went to pick her to the motor park. The uncontroverted facts in evidence as found all point to the death of Anthonia by the Appellant. The testimonies of the Prosecution witnesses and the said items identified as belonging to Anthonia found in the Appellants house linked him.
The Last Seen doctrine, is a presumption which like all other presumptions, is rebuttable. Therefore, the law presumes that the person last seen with the deceased will bear the full responsibility for his death if it turns out that the person last seen with him, is dead. See the cases of THE STATE V. OGERE UKE & 2 ORS 1981 1 MSLR 107, THE STATE V. GODWIN NWAKERENDU & 3 ORS. 1973 3 ECSLR PT.11 757, THE STATE V. KALU 1993 7 SCNJ. 113 124 125, and ADEPETU V. THE STATE 1998 1 SCNJ 83. The position of the law is that it is the duty of an accused person, to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the Court is and will be justified in drawing the inference that the accused killed the deceased. See further the case of ADENIJI V. THE STATE 2001 5 SCNJ 371, ARCHIBONG V. THE STATE 2006 14 NWLR PT.1000 349, IGHO V. THE STATE 1978 3 SC 87, GABRIEL V. THE STATE 1989 5 NWLR PT. 122 457 and JUA v. STATE supra.
It is pertinent at this point to consider the submission of the learned Counsel for the Appellant on Exhibits AO4, AO5, AO9, AO10, AO11, AO12, AO13 and AO18 which are hereunder listed in detail:
Exhibit AO4 — Letter from Nigeria Youth Service Corps Ekiti State confirming that Joshua Ibrahim and Julian Onyeama, Corpers at Ilawe Ekiti had completed their service and could not be located,
Exhibit AO5 – Joshua Ibrahims statement,
Exhibit AO9 -Joshua Ibrahims statement,
Exhibit AO10 – Additional statement of Joshua Ibrahim,
Exhibit AO11 – Letter from MTN to the Police on originating call logs,
Exhibit AO12 – Letter from MTN to the Police on terminating call logs,
Exhibit AO13 – Julian Onyeamas statement and
Exhibit AO18 – Police investigation report by the IGs team under the hand of the Commissioner of Police Ali Amodu.
With respect to Exhibits AO11 and Exhibit AO12, one fails to agree with the learned Counsels argument as the signatures on both of them were for MTN Nigeria Communications Limited. As regards Exhibit AO4, AO5, AO9, AO10, AO13 the contention is unacceptable. There was proper foundation laid as ruled by the Court (on page 41 of the Record) though Exhibit AO4 and Exhibit AO5 was tendered through the Investigating Police Officer, PW2, Corporal Ogundiran Ola, see pages 41 -42. The Court carefully stated why Exhibits AO4, AO5, AO9, AO10, AO11, AO12, AO13 and AO18, were admitted and from the Record, in my view and humbly, it can be seen that they were not the pillars that held the conviction even as the Court found on pages 177-198 of the Record.
From the testimonies of the PW3-PW6 which the Court found was corroborated by that of the PW2, the investigating Police Officer from Ilawe and the PW7, the investigating Police Officer from the Homicide Section, Ekiti State, together with the items recovered pursuant to the search warrant vide Exhibit AO7 (see pages 55-56 164, 189-193), as well as the Appellants statements, it found that the Appellant was caught in the web of last seen doctrine. On page 179 of the Record, it stated as follows in that regard, Outside Exhibit AO13,..Exhibit AO11, made available by Messrs MTN, her service provider, establish (sic) that there was a conversation between Julian Onyema, and Anthonia Okeke. It was the evidence from the investigation carried out by the PW7 that the Police found no truth in the alleged involvement of one Emeka and Uche at the motor park by the Appellant. Therefore, in my considered view, the Court found from the evidence of the prosecution witnesses that the Appellant did not convey Anthonia to the motor park, when it stated on page 189 of the Record that, There were no surrounding circumstance that destroy the cogency of the circumstantial evidence led against the accused person. Further on the findings of the Court in terms of the evidence evaluated for the conclusion reached, the Court specifically and rightly stated thus in respect of the search conducted at the Appellants residence as follows on page 190 of the Record, .The item was identified to the team led by Pw7.
It was meant for their investigation. In the absence of Joshua Ibrahim, Pw7 could be cross-examined on it. In deed from the Record on pages 63-66 69-73, the cross-examination of the PW7 at the trial is contained and the Court had this to say in that regard on page 191 of the Record, In spite of the absence of Joshua Ibrahim, the defence cross-examined Pw7 on the items recovered and identified to Pw7 who led the investigation team. The aim of cross examination is to test the veracity or truthfulness of the evidence led by the prosecution. It further stated in its evaluation of the evidence thus on page 195 of the Record, On the record, there are testimonies of witnesses, and the items identified to belong to Anthonia Ogechukwu Okeke that link the accused person. The Court can draw the conclusion that it was the accused that killed Anthonia Ogechukwu Okeke. From the foregoing, in my view and humbly, it is clear that, the Court in spite of the disputed Exhibits AO4, AO5, AO9, AO10 and AO13, made its finding on the responsibility and guilt of the Appellant in the kidnapping and murder of Anthonia. The Court specifically stated as follows on page 180 of the Record;
“I have calmly perused exhibits AO11 and AO12. The records show that no other call came through to Anthonia Okekes telephone line…This finding is outside exhibit (sic) AO5, AO9 and AO13 which are to the effect that nobody could reach Anthonia Okeke on phone, from 5.00am.”
Clearly, from the foregoing, one finds that the submission by the Appellants learned Counsel cannot hold in terms of the decision reached by the Court, the conviction and sentence of the Appellant, notwithstanding the analysis by the Court on the said pages 177-181 of the Record as argued by the learned Counsel.
In all, and in the light of the foregoing, one is of the considered view and humbly that, there is sufficient evidence supporting the findings of facts of the Court below. The contrary argument of the learned Appellants Counsel fails to point out the major error, which can be said to amount to miscarriage of justice where the verdict is affirmed as herein.
In the result, I am of the firm view that the findings and conclusion of the Court below should not be disturbed. Consequently, I affirm the judgment of the Ekiti State High Court delivered by Hon. Justice A. A. Adeleye on February 24th 2014. The conviction and sentence of the Appellant therein therefore stand.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the advantage of a preview of the judgement just delivered by my learned brother, E. O. WILLIAMS-DAWODU, JCA and, I agree that the appeal fails and is hereby accordingly dismissed.
The judgement of the Ekiti State High Court delivered on Febuary, 24th 2014 by Hon. Justice A. A. Adeleye is hereby affirmed. The conviction and sentences of the appellant by the lower Court stands.
PAUL OBI ELECHI, J.C.A.: I agree.
Appearances:
Mr. M.O Folorunsho, Esq. with him, Prince Samuel Amadi, Esq. and A.M Abass, Esq.For Appellant(s)
Mr. Gbemiga Adaramola (D.P.P) with him, A. A Moshood L.O and E.A Adedoye, Esq.For Respondent(s)
>
Appearances
Mr. M.O Folorunsho, Esq. with him, Prince Samuel Amadi, Esq. and A.M Abass, Esq.For Appellant
AND
Mr. Gbemiga Adaramola (D.P.P) with him, A. A Moshood L.O and E.A Adedoye, Esq.For Respondent
