KEHINDE OLUDE v. THE STATE(2018)

KEHINDE OLUDE v. THE STATE

(2018) LCN/4704(SC)

In The Supreme Court of Nigeria

On Friday, the 23rd day of March, 2018

SC.288/2014

RATIO

INGREDIENTS THE PROSECUTION IS OBLIGED TO PROVE IN SECURING A CONVICTION FOR MURDER

My Lords, as shown at the outset of this judgment, the appellant was charged with the offence of murder: an offence whose ingredients have been so frequently, commented upon that both the Prosecution and defence ought to be familiar with the decisions at the tip of their fingers. For instance, in Tajudeen Iliyasu v The State [2015] LPELR – 24403 (SC) 25; B -G, this Court [per Nweze, JSC] held that: Under the said section, the prosecution is obliged to prove: (1) that the deceased died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. These ingredients … have witnessed consistent espousal in many jurisdictions, for example, by English Courts, R v Hopwood(1913) 8 Cr. App. R. 143; Hyan v DPP (1974) 2 All ER 41; Woolmington v DPP (1935) AC 462; by Nigerian Courts, Madu v State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v State [2000] 15 NWLR (pt 691) 467; Idemudia v State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607 and by Courts in other Commonwealth jurisdictions, see for example, R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R. v. Tralka (1965) Qd, R. 225, (Queensland, Australia). PER CHIMA CENTUS NWEZE, J.S.C.

POSITION OF THE LAW WHERE EVIDENCE OF A WITNESS IS UNCONTRADICTED OR UNCHALLENGED

It is well-known that where evidence of a witness is uncontradicted or unchallenged, the Court would relate it to the applicable law, State v Oka (1975) 9 -11 SC 17; Aigbadion v State [2000] 7 NWLR (pt 666) 686; Pius v State (2015) LPELR – 24446 (SC) 1s -16; G -A; Ayeni v State (2016) LPELR- 40105 (SC). PER CHIMA CENTUS NWEZE, J.S.C.

MEANING AND APPLICATION OF THE DOCTRINE OF LAST SEEN

As this Court held in Iliyasu v State (2015) LPELR – 24403 (SC) 44 -46; E -F, [per Nweze, JSC]: The last seen doctrine, a doctrine of global application, Madu v The State (2012) LPELR -7867 (SC) 51-52; [2012] 15 NWLR (pt 1324) 405; [2012] 6 SCNJ 129; (2012) 6 SC (pt 1) 50; [2012] 50 NSCQR 67, also referred to as ‘the last seen theory’ Ralashkhanna v State of A.P (2006) 10 SCC 172, is applied in homicide cases in Nigeria, Rabi Ismail v The State (2011) MJSC 20, 77. It creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death, Jua v The State [2010] 2 MJSC 152, 186 -187. Thus, where an accused person was the last person to be 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. In the absence of such an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that he [the accused person] killed the deceased person, Igabele v State [2006] 6 NWLR (pt.975) 100; Obosi v State (1965) NMLR 140; Nwaeze v The State [1996] 2 SCNJ 47, 61- 62; Gabriel v. State [1989] 3 NWLR (pt122) 457; Adeniji v. State (2001) 87 LRCN 1970; Madu v The State(supra); Igho v The State (1978) 3 SC 87,254; [1978] 3 SC 61, 63. In view of the said doctrine therefore, it is the duty of the accused person to give an explanation relating to how the deceased met his or her death, Surely, 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, Igabele v The State (supra); Obosi v. State (supra); Adepetu v The State (1998) 7 SCNJ 83; [1998] 9 NWLR (pt. 565) 185; Adeniji v The State (supra); Emeka v The State (2001) 14 NWLR (Pt 734) 666, 683; (2001) 6 SCNJ 259; Uguru v The State (2002) 4 SCNJ 282, 293 (2002) 9 NWLR (Pt. 771) 90. The doctrine has been held to be an exception to the watertight constitutional provision that a person is presumed innocent until proved guilty, Madu v The State (supra) 84, A-D, citing lgho v. State (1978) 35 SC 57, 62 – 63; Igabele v State (supra); Nwaeze v State (supra); Obosi v State (supra); Uguru v. State (supra); The State v. Kalu (1993) 7 SSCNJ 113, 124 – 125; Adepetu v. The State (supra); Rabi Ismail v. The State (2011) MJSC 28, 77. PER CHIMA CENTUS NWEZE, J.S.C.

CONDITIONS THAT A CONFESSIONAL STATEMENT MUST MEET FOR IT TO BE SUFFICIENT TO GROUND A CONVICTION; QUESTIONS THAT MUST BE CONSIDERED FOR DETERMINING THE TRUTHFULNESS AND CORRECTNESS OF A CONFESSIONAL STATEMENT BEFORE A COURT CAN CONVICT ON SAME

It is no longer open to conjecture that a free and voluntary confession of guilt, whether judicial or extrajudicial, if it is direct and positive and, properly, established, is sufficient proof of guilt. As such, it is enough to sustain a conviction so long as the Court is satisfied with the truth thereof, Yesufu v The State [1976] 6 SC 167, 173; Okegbu v The State [1984] 8 SC 65; Kim v The State [1992] 4 SCNJ 81, 110; (1992) 4 NWLR (pt. 233) 17; Ikpo and Anor v. The State [1995] 2 SCNJ 64, 75; [1995] 9 NWLR (Pt. 421) 540. Other cases include: Igago v The State [1999] 12 SCNJ 140; [1999] 6 NWLR (pt. 608) 568; Hassan v The State [2001] 7 SCNJ 643; [2001] 7 NSCQR 107, 109; [2001] 15 NWLR (pt.735) 184; Olalekan v State [2002] 4 WRN 146; [2001] 18 NWLR (pt.746) 793, 824; Salawu v. State (1971) NMLR 249; Nwachukwu v The State (2007) LPELR -8075 (SC) 34, 36. However, outside the confession, it is desirable to have some corroborative evidence, no matter how slight, of circumstances which make it probable that the said confession is true and correct. The reason for this prescription is simple: Courts are not generally disposed to act on a confession without testing the truth thereof, Onochie and Ors v The Republic (1966) NMLR 307; R v. Sykes (1913) 8 CAR 233,236. For the purpose of the test, the Court would be expected to consider the question: whether the accused person had the opportunity of committing the offence charged and whether the confession was consistent with other facts which have been ascertained and proved at the trial? There are actually several cases on this point. However, only a handful will be cited here, Queen v. Obiasa (1962) 1 ANLR 65; [1962] 2 SCNLR 402; Ikpasa v. Attorney-General of Bendel State [1981] 9 SC 7; Akpan v The State (1992) 6 NWLR (pt. 248) 439, 460; [1992] 7 SCNJ 22; Kanu v The King (1952) 14 WACA 30; The Queen v. Obiasa (1962) 1 All NLR 651; [1962] 1 SCNLR 137; Obosi v The State (1965) NMLR 129; Jafiya Kopa v. The State (1971) 1 All NLR 750, Dawa v The State [1980] B -11 SC 236; Ejinima v The State [1991] 5 LRCN 1640, 1677; Arthur Onyejekwe v The State (1992) 4 SCNJ 1, 9; [1992] 3 NWLR (Pt. 230) 444; Aiguoreghian and Anor. v. The State (2004) 3 NWLR (pt 860) 367; (2004) 1 SCNJ 65; [2004] 1Sc (pt.1) 65. PER CHIMA CENTUS NWEZE, J.S.C.

JUSTICES

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

Between

KEHINDE OLUDE Appellant(s)

AND

THE STATE Respondent(s)

CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): The appellant herein was arraigned before the High Court of Lagos State for the offence of the murder of the deceased, R. A. Adisa. One Julius Adeniran Adeloye was charged with him. The Charge was subsequently, amended.

In the amended Charge, the appellant alone, was charged for the offence of the murder of the said deceased person, R. A. Adisa. Upon his arraignment on the amended Charge on May 9, 2005, the appellant pleaded not guilty. The respondent’s case was presented by five witnesses, namely, PW1; PW2; PW3; PW4 and PW5. On his part, the appellant, (as accused person], testified in his own defence.

Having heard the evidence of the witnesses for the Prosecution and the accused person [the appellant], the learned trial Jugde, Oyewole, J., (as he then was), convicted the appellant and sentenced him to death by hanging. His appeal against the judgment of the trial Court, having been dismissed by the Court of Appeal, Lagos Division, the appellant has approached this Court imploring it to set aside the concurrent findings of the lower Courts.

The appellant submitted the following four issues for the determination of this appeal, namely:
1. Whether in the absence of a Respondent’s Notice, the Court of Appeal had the jurisdiction in law to affirm the decision of the learned trial Judge on grounds other than the sole ground relied upon by the learned trial Judge
2. Whether by ignoring and giving no consideration whatsoever to the appellant’s arguments and submissions in his reply brief of argument, the Court of Appeal denied the appellant’s constitutional right to fair hearing
3. Whether from the facts and circumstances of this case, the Court of Appeal was right to hold that the respondent laid the legal foundation for the admission of exhibit P4 pursuant to Section 50 of the Evidence Act, 2011
4. Whether the Court of Appeal was right to hold that exhibit P4 was properly tendered and admitted in evidence

On the other hand, the respondent framed only one issue for the determination of this appeal. The sole issue was couched thus:
Whether considering the state of the evidence on record before the Court of Appeal, the lower Court’s judgment should be affirmed by this honourable

Court

Against the background of the principal agitations of the appellant in the Notice and Grounds of Appeal, I take the view that the respondent’s concise, albeit, commodious sole issue, neatly, encapsulates the four issues which the appellant put forward. This appeal would therefore, be determined based on this sole issue, that is-
Whether, considering the state of the evidence on record before the Court of Appeal, the lower Court’s judgment should be affirmed by this honourable Court

SUBMISSIONS OF THE PARTIES
APPELLANT’S CONTENTION
At the hearing of this appeal on January 11, 2018, Emmanuel Umoren, learned counsel for the appellant, adopted the Amended appellant’s brief filed on April 4, 2017. He also adopted the Reply brief filed on April 6, 2017. He urged the Court, based on the arguments in these briefs to allow the appeal.

In a nutshell, his arguments may be summed up thus. Since the appellant was charged with the offence of murder, the Prosecution had a duty to prove it beyond reasonable doubt. He cited the ingredients of the offence of murder. He contended that the trial Court found in favour of the

respondent based solely on the application of Section 164 (1), Evidence Act, 2011.

He contended that the trial Court did not rely on the testimonies of PW1 – PW 5 and the contents of exhibit P4, in arriving at the conclusion that the deceased person died, being the first ingredient of the offence of murder.
He maintained that the lower Court ignored submissions advanced in favour of the appellant. In his submission, this amounted to denial of fair hearing, Bayol v Ahemba [1999] 10 NWLR (pt 623) 3B1; Okafor v AG, Anambra State [1991] 6 NWLR (pt 200) 659, 678; Adigun v AG, Oyo State [1987] 1 NWLR (pt 53) 678; Obodo v Olomu [1987] 3 NWLR (pt 59) 111.

He canvassed the view that exhibits P1 – P4, appellant’s extra judicial statements to the Police were inadmissible, Section 34 (3) of the Evidence Act, 1990 [now, Section 50, Evidence Act, 2011]. He pointed out that, whereas the said exhibits were recorded by the IPO, Cpl Francis Ewemade, they were tendered at the trial by PW5, ASP Michael Oluelu, (Retd). He noted that Francis Ewemade’s absence was not explained,Njoku v State (1992) 8 NWLR (pt 262) 724 – 725. He urged the Court to expunge the said exhibits, Saidu

v The State [1982] NSCC (Vol 13) 70, 82. He observed that the appellant resiled from them, page 203 of the record.

Citing Section 34 (3) of the Evidence Act, he pointed out that the lower Court found that the exhibits were properly admitted in evidence, [page 279 of the record]. He complained that the respondent did not lay any foundation prior to the tendering of the said exhibits, page 156 of the record.

He maintained that the foundation for tendering exhibit P4 ought to be laid by the respondent before its admission in evidence, Olayinka v The State [2007] 9 NWLR (pt 1040) 561, 577 – 578. He urged the Court to hold that the lower Court, wrongly affirmed the admissibility of exhibit P4 and the same should be expunged.

He contended that the Prosecution’s evidence raised doubts as to the guilt of the appellant, Almu v State [2009] 10 NWLR (pt 1148) 31, 50; Ukwunnenyi v The State [1989] 4 NWLR (pt 114) 131, 156. He urged the Court to acquit and discharge the appellant.

RESPONDENT’S ARGUMENTS
On his part, the respondent’s counsel adopted the brief of argument filed on January 18, 2017, although, deemed filed on January 11, 2018. The

main thrust of the submissions may be summed up.

He referred to pages 203 – 204 of the record and contended that the ingredients of the offence of murder were clearly set out in those pages. He pointed out that this was a simple case of confession by the appellant to have murdered the deceased as per exhibit P4. He pointed out that, outside the said exhibit P4, the trial Court relied on other circumstantial evidence. Simply put, independent of the seven year rule, the trial Court relied on the appellant’s affirmation of the deceased person’s death together with all the other circumstantial evidence, including exhibit P4 to come to the conclusion that:
(a) The deceased was dead;
(b) His death was a result of the act of the appellant; and
(c) The act of the appellant was intended to cause the death of the deceased person.

He referred to pages 158 and 160 of the record for the appellant’s affirmation of the death of the deceased person.
He canvassed the view that the state of the evidence before the lower Courts points to the fact that deceased person was dead and it was the appellant who caused his death – he [appellant] killed

him [the deceased person] and did away with his corpse. He pointed out that Section 150 of the Evidence Act does not debar the preferment of a charge against a defendant when there is sufficient evidence pointing to the fact that he killed the deceased even in the absence of the corpse, Attah v State [1993] (sic) NWLR (pt 288) 406, 420 – 421. In the instant case, the appellant’s testimony was positive evidence of the death of the deceased person, Nwachukwu v State [2002] 12 NWLR (pt 782) 543, 569.

He submitted that the trial Court rightly relied on circumstantial evidence in coming to the conclusion about the deceased person’s death. Such circumstantial evidence, he pointed out, includes the fact that the appellant was the last person seen with the deceased person; the appellant was later established to be in possession of the deceased person’s newly-acquired car; the appellant procured PW3 to assist in disposing the deceased person’s newly-acquired car; the appellant admitted that the deceased person was actually dead while he offered no satisfactory explanation as to an alternative cause of death.

He drew attention to exhibits P1 – P4. In

Exhibit p4, the appellant confessed to killing the deceased person, Princewill v The State [1994] 6 NWLR (pt 353) 703, 713; Archie v State [1993] 6 NWLR (pt 302) 752, 770; Obidike v State (2014) 10 NWLR (pt1414) 53, 96 -97; Jua v The State [2010] 4 NWLR (pt 1184) 217, 258.

He pointed out that, in the instant appeal, the appellant’s confessional statements established a nexus between him and the commission of the offence charged, Section 28 of the Evidence Act, 2011; Torri v NPSN [2011] 13 NWLR (pt 1264) 365, 380 – 381; Hassan v The State [2011] 6 NWLR (pt 709) 286, 300 – 301; Shurumo v State [2010] 12 SC (pt 1) 73, 92; Amina Musa v State [2014] 25 WRN 101, 136 – 137.

Citing Section 30 of the Evidence Act, 2011, he drew attention to the concurrent findings of the lower Courts to the effect that the uncontradicted evidence derived from the testimonies of the Prosecution witnesses was sufficiently unequivocal as to the death of the deceased person and above all, that the appellant killed the deceased person. He referred to page 200 of the record for the trial Court’s findings on the un-discredited testimonies of the Prosecution’s witnesses. He contrasted

these with the trial Court’s findings that the appellant’s testimony was sly and calculated to deceive the Court, page 200 of the record. He pointed out that the trial Court had the primary duty to receive admissible evidence, Millitary Govt of Lagos State and Ors v Adeyiga and Ors [2012] SC (pt 1) 30, 114; Adeleke v Iyanda [2001] 13 NWLR (pt 729) 1, 20.

He drew attention to the lower Court’s affirmation of the above findings, [page 282 of the record]. These concurrent findings, in his submission, can only be tampered with if they are perverse, Obueke v Nnamchi (2012) 12 NWLR (pt 1314) 327, 355 -356; NP Plc v B. P. PTE Ltd (2012) 3 NWLR (pt 1333) 454, 487. He maintained that it was not enough for the appellant to allege perversity. He must show in what manner it has occasioned injustice, Onu v ldu (2006) 12 NWLR (pt 995) 657, 676.

He derided the submission on the inadmissibility of Exhibit P4, citing page 140 of the record. He maintained that Cpl Ewemade’s absence was explained [page 156 of the record. Above all, PW5 was the head of the team that investigated the matter. He distinguished Njoku v . The State (supra). He observed that PW5, apart from

being Ewemade’s boss, had personal knowledge and intimate relationship with the document in question, Ojo v Gharoro [2006] 10 NWLR (pt 987) 173, 203.

He contended that the appellant’s argument on fair hearing was irrelevant as the trial Court did not solely rely on the seven year rule to establish the death of the deceased person, F. M. H v C. S. A. Ltd [2009] 9 NWLR (pt 1145) 193, 222.; Wilson v Oshin [2000] 9 NWLR (pt 673) 442, 462 – 463 and Ntuks v NPA [2000] 1 NWLR (pt 654) 639, 650. He urged the Court to discountenance the submission on this point and affirm the concurrent findings of the lower Courts.

APPELLANT’S REPLY
As indicated earlier, the appellant’s counsel, equally adopted the Reply brief of April 6, 2017 which was deemed properly filed on January 11, 2018. He devoted paragraphs 2.01 – 2.18, pages 2-6 thereof to issues that are both relevant and otherwise.

RESOLUTION OF THE SOLE ISSUE
My Lords, as shown at the outset of this judgment, the appellant was charged with the offence of murder: an offence whose ingredients have been so frequently, commented upon that both the Prosecution and defence ought to be familiar with

the decisions at the tip of their fingers. For instance, in Tajudeen Iliyasu v The State [2015] LPELR – 24403 (SC) 25; B -G, this Court [per Nweze, JSC] held that:
Under the said section, the prosecution is obliged to prove: (1) that the deceased died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. These ingredients … have witnessed consistent espousal in many jurisdictions, for example, by English Courts, R v Hopwood(1913) 8 Cr. App. R. 143; Hyan v DPP (1974) 2 All ER 41; Woolmington v DPP (1935) AC 462; by Nigerian Courts, Madu v State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v State [2000] 15 NWLR (pt 691) 467; Idemudia v State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607 and by Courts in other Commonwealth jurisdictions, see for example, R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R. v. Tralka (1965) Qd, R. 225, (Queensland, Australia).

Now, at pages 203 – 204 of the record, the learned trial Judge, Oyewole,

J (as he then was), with reference to the appellant’s extra-judicial confessions, proceeded thus:
In each of the said statements, the defendant [now, appellant] supposedly gave various accounts of how the deceased [person] met his death and in exhibit P4 exonerated the various individuals to which (sic) he ascribed roles in the earlier statements. In the said exhibit P4, the defendant allegedly made direct confession to (sic) the crime and gave an account of how he murdered the deceased [person].
[page 203 of the record; italics supplied for emphasis]
The trial Court, then turned to the legal effect of the appellant’s resiling from exhibit P4. The Court correctly, stated the position of the law thus:
Having resiled from this statement, the position of the law is that the said statement, exhibit P4, will be considered and evaluated alongside other available evidence in reaching a decision notwithstanding that the defendant has resiled therefrom in his testimony in open Court, Egbohonome v State [1993] 7 NWLR (pt 306) 383; Ibina v State [1989] 5 NWLR (pt 120) 238, 248 and Nwosu v State [1998] 8 NWLR (pt 562) 433, 442.

Emboldened by these authorities, the trial Court went on to evaluate the said exhibit P4 with the other available evidence. These were the Court’s findings sequel to this exercise:
A cursory examination of the said statement, exhibit P4, alongside the testimonies of the Prosecution witness (sic) reveals that the account given in exhibit P4 is consistent with the testimonies of PW1, the defendant’s father and PW3, his friend who kept the car of the deceased [person] from (sic) him and also disposed it on his behalf. There is no doubt in my view of the accepted testimony of PW2 that the defendant had the opportunity to commit the alleged offence. In the entire circumstances therefore, I shall give evidential value to exhibit P4 as a direct confession of the defendant.

On the crucial first ingredient of the offence of murder, this was the trial Court’s finding:
It may be instructive to point out that while PW2 and PW4, who knew the deceased [person] in his lifetime did not refer to him as dead in their testimonies before the Court, the defendant in the witness box had no inhibition in referring to him as deceased indicating knowledge of the unfortunate situation

of the said gentleman.

Against the background of the above findings, the trial Court came to the conclusion that:
In totality therefore I hold that sufficient evidence exists before the Court to the inevitable conclusion beyond any reasonable doubt that the defendant murdered the named deceased [person], Mr R. A. Adisa, as alleged by the Prosecution, the defendant is not availed of any defence in respect thereof and I therefore find him guilty as charged and I hereby convict him accordingly.
[pages 203 – 204 of the record; emphases by the trial court]

The trial Court’s further findings on the probative force of the testimonies of the Prosecution’s witnesses vis–vis the probative value of the testimony of the appellant [as defendant] are worthy on note. Listen to this comparison:
None of the Prosecution witnesses was discredited under cross-examination. Their testimonies stand before the Court unshaken and shall be accorded necessary evidential value…
[page 200 of the record; italics supplied for emphasis]

On the contrary, the trial Court found that:
The defendant in his testimony was sly and obviously

out to deceive the Court. His posture that PW1, his father and PW3, his stated friend, lied against him hold no water. These are witnesses who were not subjected to any form of cross-examination thereby indicating an acceptance of all they stated, Offorlette v State (2000) (sic) FWLR (pt 12) 20181, 1202.
I find the testimony of the defendant unacceptable, it is riddled with lies and I totally reject it.
[page 200 of the record; italics supplied for emphasis]

The appellant’s appeal, as indicated earlier, was unsuccessful. Indeed, the lower Court affirmed the findings of the trial Court at pages 282 -283 of the record. Hear this:
The unchallenged evidence of the PW1 PW5 relied upon by the Court below put together and also disclosed that Mr R. A. Adisa was last seen alive with the appellant on 29 – 11 – 2000 and the appellant who is to explain what happened to Mr R. A. Adisa admitted in his confessional statement in exhibit P4 that he killed the deceased in cold blood and robbed him of his motor vehicle, a Honda saloon car, Exhibit P4, the confessional statement of the appellant, coupled with the evidence of the PW1 – PW5 were

therefore rightly relied upon by the Court below in its judgment in pages 202 – 203 of the record to convict the appellant….

My Lords, it would appear that the learned counsel for the appellant approached his duty most perfunctorily. If he had read the judgment of the lower Court in a fastidious manner, he would have realised that he had a herculean task at hand. Let me elucidate.

In the first place, the lower Courts made concurrent findings on the unchallenged testimonies of the PW1 – PW5. It is well-known that where evidence of a witness is uncontradicted or unchallenged, the Court would relate it to the applicable law, State v Oka (1975) 9 -11 SC 17; Aigbadion v State [2000] 7 NWLR (pt 666) 686; Pius v State (2015) LPELR – 24446 (SC) 1s -16; G -A; Ayeni v State (2016) LPELR- 40105 (SC).

Above all, this Court does not lightly interfere with the concurrent findings of lower Courts unless such findings are shown to be perverse or not the result of a proper exercise of discretion. Counsel for the appellant, thus, had a duty to demonstrate the perversity of those concurrent findings. Having failed to do so, there is no basis for this Court’s interference

with them,Sokwo v Kpongbo (2008) All FWLR (pt 410) 680, 695 – 696; H – A; Braimah v Abasi (1998) LPELR – 801 (SC) 34; C – E; Okonkwo v Okagbue [1994] 9 NWLR (pt 368) 301.
Simply put, if learned counsel wanted this Court to upset those concurrent findings of lower Courts he should have shown that there were exceptional circumstances for doing do. Thus, he had a duty to show that the findings are perverse; there was a miscarriage of justice or that a principle of Law or procedure was not followed, Ogbu v. State (1992) 8 NWLR (pt. 295) 255; Igago v State [1999] 14 NWLR (pt. 637) 1; Adeyemi v The State [1991] 1 NWLR (pt. 170) 679; Adeyeye v The State (2013) LPELR – 19913 (SC) 46; Akpabio v State (1994) 7 NWLR (pt 359) 635; Ejikeme v Okonkwo [1994] 8 NWLR (pt 362) 266. He failed in all respects.

Quite apart from the above, as the lower Court found, from:
The unchallenged evidence of the PW1 – PW5 relied upon by the Court below put together and also disclosed that Mr R. A. Adisa was last seen alive with the appellant on 29 – 11 – 2000 and the appellant who is to explain what happened to Mr R. A. Adisa.
[pages 283 -284 of the record; italics

supplied for emphasis]
The appellant failed to explain what happened to R. A, Adisa. The lower Court was thus right in invoking the last seen doctrine against the appellant. As this Court held in Iliyasu v State (2015) LPELR – 24403 (SC) 44 -46; E F, [per Nweze, JSC]:
The last seen doctrine, a doctrine of global application, Madu v The State (2012) LPELR -7867 (SC) 51-52; [2012] 15 NWLR (pt 1324) 405; [2012] 6 SCNJ 129; (2012) 6 SC (pt 1) 50; [2012] 50 NSCQR 67, also referred to as ‘the last seen theory’ Ralashkhanna v State of A.P (2006) 10 SCC 172, is applied in homicide cases in Nigeria, Rabi Ismail v The State (2011) MJSC 20, 77. It creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death, Jua v The State [2010] 2 MJSC 152, 186 -187.
Thus, where an accused person was the last person to be 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. In the absence of such an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that he

[the accused person] killed the deceased person, Igabele v State [2006] 6 NWLR (pt.975) 100; Obosi v State (1965) NMLR 140; Nwaeze v The State [1996] 2 SCNJ 47, 61- 62; Gabriel v. State [1989] 3 NWLR (pt122) 457; Adeniji v. State (2001) 87 LRCN 1970; Madu v The State(supra); Igho v The State (1978) 3 SC 87,254; [1978] 3 SC 61, 63.
In view of the said doctrine therefore, it is the duty of the accused person to give an explanation relating to how the deceased met his or her death, Surely, 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, Igabele v The State (supra); Obosi v. State (supra); Adepetu v The State (1998) 7 SCNJ 83; [1998] 9 NWLR (pt. 565) 185; Adeniji v The State (supra); Emeka v The State (2001) 14 NWLR (Pt 734) 666, 683; (2001) 6 SCNJ 259; Uguru v The State (2002) 4 SCNJ 282, 293 (2002) 9 NWLR (Pt. 771) 90.
The doctrine has been held to be an exception to the watertight constitutional provision that a person is presumed innocent until proved guilty, Madu v The State (supra) 84, A-D, citing lgho v. State (1978) 35

SC 57, 62 – 63; Igabele v State (supra); Nwaeze v State (supra); Obosi v State (supra); Uguru v. State (supra); The State v. Kalu (1993) 7 SSCNJ 113, 124 125; Adepetu v. The State (supra); Rabi Ismail v. The State (2011) MJSC 28, 77.

Apart from his failure to explain R. A. Adisa’s whereabout, he even “admitted in his confessional statement in exhibit P4 that he killed the deceased in cold blood and robbed him of his motor vehicle, a Honda saloon car,” (pages 283 of the record). In effect, the fact that he resiled from exhibit P4 in Court did not affect its admissibility.

140; [1999] 6 NWLR (pt. 608) 568; Hassan v The State [2001] 7 SCNJ 643; [2001] 7 NSCQR 107, 109; [2001] 15 NWLR (pt.735) 184; Olalekan v State [2002] 4 WRN 146; [2001] 18 NWLR (pt.746) 793, 824; Salawu v. State (1971) NMLR 249; Nwachukwu v The State (2007) LPELR -8075 (SC) 34, 36.
However, outside the confession, it is desirable to have some corroborative evidence, no matter how slight, of circumstances which make it probable that the said confession is true and correct. The reason for this prescription is simple: Courts are not generally disposed to act on a confession without testing the truth thereof, Onochie and Ors v The Republic (1966) NMLR 307; R v. Sykes (1913) 8 CAR 233,236.
For the purpose of the test, the Court would be expected to consider the question: whether the accused person had the opportunity of committing the offence charged and whether the confession was consistent with other facts which have been ascertained and proved at the trial
There are actually several cases on this point. However, only a handful will be cited here, Queen v. Obiasa (1962) 1 ANLR 65; [1962] 2 SCNLR 402; Ikpasa v. Attorney-General of Bendel State

[1981] 9 SC 7; Akpan v The State (1992) 6 NWLR (pt. 248) 439, 460; [1992] 7 SCNJ 22; Kanu v The King (1952) 14 WACA 30; The Queen v. Obiasa (1962) 1 All NLR 651; [1962] 1 SCNLR 137; Obosi v The State (1965) NMLR 129; Jafiya Kopa v. The State (1971) 1 All NLR 750, Dawa v The State [1980] B -11 SC 236; Ejinima v The State [1991] 5 LRCN 1640, 1677; Arthur Onyejekwe v The State (1992) 4 SCNJ 1, 9; [1992] 3 NWLR (Pt. 230) 444; Aiguoreghian and Anor. v. The State (2004) 3 NWLR (pt 860) 367; (2004) 1 SCNJ 65; [2004] 1Sc (pt.1) 65.

From its above findings, it is not in doubt that the trial Court, rigorously and meticulously, observed these prescriptions. Little wonder then why the lower Court had no hesitation in affirming its approach. For the avoidance of any doubt, this was how the trial Court approached the issue. At pages 203 – 204 of the record, the learned trial Judge, Oyewole, J (as he then was), with reference to the appellant’s extra-judicial confessions, proceeded thus:
In each of the said statements, the defendant [now, appellant] supposedly gave various accounts of how the deceased [person] met his death and in exhibit P4 exonerated the various

individuals to which (sic) he ascribed roles in the earlier statements. In the said exhibit P4, the defendant allegedly made direct confession to (sic) the crime and gave an account of how he murdered the deceased [person]
[page 203 of the record; italics supplied for emphasis]
His Lordship then, turned to the legal effect of the appellant’s resiling from exhibit p4. The Court correctly stated the position of the law thus:
Having resiled from this statement, the position of the law is that the said statement, exhibit p4, will be considered and evaluated alongside other available evidence in reaching a decision notwithstanding that the defendant has resiled therefrom in his testimony in open Court, Egbohonome v State [1993] 7 NWLR (Pt 306) 383; Ibina v State [1989] 5 NWLR (pt 120) 238, 148 and Nwosu v State (1998) 8 NWLR (pt 562) 433, 442.

The trial Court fully armed with these authorities, went on to evaluate the said exhibit P4 with the other available evidence. These were the Court’s findings sequel to this exercise:
A cursory examination of the said statement, exhibit P4, alongside the testimonies of the Prosecution witness (sic)

reveals that the account given in exhibit P4 is consistent with the testimonies of PW1, the defendant’s father and PW3, his friend who kept the car of the deceased [person] from (sic) him and also disposed it on his behalf. There is no doubt in my view of the accepted testimony of PW2 that the defendant had the opportunity to commit the alleged offence. In the entire circumstances therefore, I shall give evidential value to exhibit P4 as a direct confession of the defendant.

Learned counsel for the appellant, in what would appear to be the last attempt to drum up a defence for the appellant, raised the question of fair hearing at page 4.39 of the appellant’s brief of argument. With respect, this approach of the appellant’s counsel reminds me of the eloquent formulation in Adebayo v AG, Ogun State (2008) LPELR -80 (SC) 23- 24. For its bearing on the fortune of the appellant’s case, I crave Your Lordships’ indulgence to quote this Court’s view in extenso:
I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving

the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened.
They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it 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. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking.
[Italics supplied for emphasis]

From all indications, the appellant has nothing useful to advocate in favour of [his appeal]…. [Accordingly, he is advised to]

leave the fair hearing constitutional provision alone because it is not available to [him] just for the asking,”

Lastly, learned counsel for the appellant cited Section 50 of the Evidence Act, 2011 in an attempt to disrobe exhibit P4 of any probative value. The question is: does this section avail the appellant In my view, it does not. In Ikpo and Anor v The State [1995] 9 NWLR (pt 421) 540; (1995) LPELR – 1488 (SC) 13; B -D, this Court held that Section 34 (3) of the Evidence Act [now, Section 50 of the Evidence Act, 2011), simply makes provision to the effect that the absence of a public servant required to give evidence in a judicial proceeding is sufficiently accounted for by the production of a Gazette, or a telegram or letter purporting to emanate from his head of department sufficiently explaining his absence to the satisfaction of the Court.
In the instant case, it is in evidence that PW5 was the head of the Investigating team. He read the statement, exhibit p4 and supervised its recording. Above all, PW5 testified in Court that CPL Ewemade could not attend the Court session because he had been dismissed from the Police Force. I therefore,

do not see how this Section could avail the appellant.

In all, I find no merit in this appeal. I have no option than to enter an order dismissing it as most unmeritorious. Appeal is hereby dismissed. I affirm the conviction of and sentence on the appellant by the lower Courts. Appeal dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Nweze, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal lacks merit and should be dismissed. I too will dismiss the appeal as I do not have anything more to add.
Appeal dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I rely on the facts meticulously reproduced in the lead judgment of my learned brother CHIMA CENTUS NWEZE JSC just delivered in making this contribution purely for the sake of emphasis.

The sole question raised by the appeal is as adroitly put in the issue distilled by the respondent which reads:-
“Whether considering the state of the evidence on record before the Court of Appeal the lower Court’s judgment should be affirmed by this Court.”

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The issue, in my firm and considered view, questions the evaluation of evidence and ascription of probative value to same carried out by the trial Court as affirmed by the lower Court. Put differently, the appellant’s disaffection is on both Courts’ concurrent findings of his guilt in relation to the offence he was charged for. The gist of appellant’s complaint is that the evidence on record does not justify the conclusions of the two Courts leading to his conviction.

It is trite that it is the trial Court’s primary duty to review the evidence adduced by either side and from the probative value it assigns to the evidence, makes its findings of fact. Thus, the Court prefers the case of one side to the other where, because of the quality, admissibility, relevance and probative value, on being put on the imaginary scale, the evidence of the side weighs more. SeeMogaji V. Odofin (1974) 4-5 SC 91, Mogaji V. Cadbury (Nig) Ltd (1985) 2 NWLR (pt 7) 393 and Karibo v. Grend (199213 NWLR (pt 230) 426.
An appellate Court intervenes only where the trial Court fails in discharging this primary duty and where credibility of the witnesses who testified is not in

issue. See Onwuka V. Ediala (1989) 1 NWLR (Pt 96) 18 and Woluchem V. Gudi (1981) SC 291.

Appellant’s contention in this appeal is that notwithstanding exhibits P1 – P4 his extra judicial statements, and the evidence of PW1 – PW5, the death of R. A. Adisa, the most crucial ingredient of the offence of the latter’s murder, he is convicted for, remains lacking. In the circumstance therefore, learned appellant’s counsel submits, the concurrent findings of the two Courts on his guilt, in the absence of evidence on the overriding ingredient for the offence of murder, is unsustainable. Relying inter-alia on Obodo V. Olomu (1987) 3 NWLR (Pt 59) 111, Okafor V. AG Anambra State (1991) 5 NWLR (Pt 200) 559, learned counsel urges that the decisions of the two Courts which, in failing to uphold his concerns constitutes breach of his right of fair hearing, be set aside.

Learned counsel further contends that the value the two Courts assigned to exhibits P1-P4, his extra judicial statements to the police, which though admissible, is unjustified. Learned counsel insists that since the recorder of the statements was not called to testify, tendering the statements

through a witness other than the actual recorder and without necessary foundation being laid, disentitles both Courts from relying on the statements. The affirmation of appellant’s guilt by the lower Court largely on the basis of the weight wrongly assigned to the extra judicial statements, it is submitted, is wrong in law. The doubt such a contentious document engenders as to the guilt of the appellant disentitles both Courts’ from basing their conviction of the appellant principally on it. The decisions of this Court in Olayinka V. The State (2007) 9 NWLR (Pt 1040) 561, Ukwunnenyi V. The State (1989) 4 NWLR (Pt 114) 131 and Almu V. State (2009) 10 NWLR (Pt 1148) 31, it is submitted, support appellant’s case and entitles him to the resolution of the issue in his favour. Learned counsel prays that the appeal be allowed.

Learned respondent counsel’s reply though terse is more direct and vivid. He submits that beside appellant’s confessional statements, exhibits P1 – P4, the oral evidence of PW1- PW5, even if circumstantially, conclusively establish not only the fact of the death of the deceased but that it was the appellant who intentionally caused the

death. Inter-alia relying on Princewill V. The State (1994) 6 NWLR (Pt 353) 703, Jua V. State (2010) 4 NWLR (Pt 11841 217, Amina Musa V. State (2014) 25 WRN 101 at 136-137 and F.M.H V. C.S.A Ltd (2009) 9 NWLR (Pt 1145) 193 at 222, learned counsel concludes that on the resolution of the lone issue against the appellant, the unmeritorious appeal be dismissed.

Now, my examination of exhibits P1 – P4 leaves me in no doubt that, by them, the appellant admits committing the offence for which he is convicted. The law is that a voluntary confession of guilt that is consistent and probable may ground conviction for an offence that is clearly established to have been committed. Once a confession of guilt is properly established to have been made freely and voluntarily and is direct and positive, it constitutes proof of guilt to sustain a conviction. All it takes is for the Court to believe in its truth. See Dibie & Ors V. The State (2007) LPELR-941 (SC), Akpan V. The State (2001) 15 NWLR (Pt 737) 745 and Kolawole V. State (2015) LPELR-24400 (SC).

In the case at hand, the appellant does not contend that exhibit P1 – P4 are not his statements voluntarily

given. Even though ASP Michael Oluelu, PW5, through whom it was tendered was not the recorder of the statements, he was the head of the team that investigated the case against the appellant and had witnessed when Coporal Francis Ewemade, his subordinate, recorded the statements. The appellant insists that reliance on exhibits Pl – P4 by the two Courts is fatal to their concurrent judgments. That cannot be the law.

Besides exhibits P1 – P4 which clearly link the appellant with the commission of the offence for which he is convicted, there is the evidence of particularly PW3 whose assistance the appellant sought in his bid to sell-off the deceased’s car. With appellant’s admission of the fact of the death of the deceased and the absence of any explanation from him, being the last person seen with the deceased, both Courts are entitled to conclude that the appellant indeed caused the death of the deceased. Either on the basis of appellant’s own direct and positive confession as contained in exhibits P1 – P4 or on its being corroborated by the evidence of PW1 – PW5 as being probably true, the concurrent judgments of the two Courts cannot be said not have been

founded on the evidence on record. They remain unassailable. SeeR V Sykes 1913 8 CR APP 233, Bello Shurumo V. The State (2010) LPELR-3069 (SC) and Lekan Shodiya V. The State (2013) LPELR-20717 (SC).
The appeal is against the concurrent findings of appellant’s guilt by the two Courts below which the Court is very slow to interfere with except they are shown to be perverse. Having demonstrated, contrary to what the appellant contends, that the judgments are founded on the evidence on record, the appeal has accordingly failed.

It is for the foregoing and more so the fuller reasons contained in the lead judgment that I also dismiss the unmeritorious appeal and further affirm his conviction and sentence by the two lower Courts.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the privilege of reading in draft the judgment of my learned brother, CHIMA CENTUS NWEZE, JSC just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed.

Having carefully examined the record of appeal and the submissions of learned counsel in their respective briefs, I agree with my

learned brother that learned counsel for the appellant has an uphill task to satisfy this Court that the concurrent findings of the two lower Courts are perverse.

Contrary to learned counsel’s contention, it is not correct that the learned trial Judge relied solely on Section 164 (1) of the Evidence Act; 2011 to convict the appellant. Section 164(1) raises a presumption of death where a person has not been seen or heard from for a period of 7 years by those who, if he had been alive, would naturally have seen or heard from him. In the instant case, the lower Court noted that since the appellant was charged within 5 years of the disappearance of the deceased, the application of the provision of that section had not arisen. Nevertheless, the learned trial Judge did a thorough job of examining all the evidence before him before concluding that the prosecution had established its case beyond reasonable doubt,

Among the facts relied upon by the trial Court was the fact that the appellant was the last person seen with the deceased. The doctrine, which is a development of case law, requires that a person charged with murder who was the last person seen with

the deceased, should offer some explanation as to how the deceased met his death, failing which the accused person bears full responsibility for his death. See: Archibong Vs The State (2006) 14 NWLR (Pt. 1000) 249; Haruna Vs A.G. Federation (2012) 9 NWLR (Pt. 1306) 419; Kolade Vs The State (2017) LPELR – 42362 (SC).

Also relied upon was the appellant’s confessional statement, Exhibit P4. Although retracted at the trial, the Court was at liberty to consider it along with other evidence led at the trial. Once the Court was satisfied as to its truth, it could safely convict on it. See: Mumuni & Ors. Vs The State (1975) LPELR 1926 (SC); Okoh Vs The State (2014) LPELR – 22589 (SC); (2014) 8 NWLR (Pt. 1410) 502; Akpa Vs The State (2008) 14 NWLR (Pt. 1106) 72; Asuquo Vs The State (2016) LPELR – 40597 (SC).

The Court below noted that the learned trial Judge considered the contents of Exhibit P4 alongside the evidence of PW1 – PW5 and held that His Lordship correctly concluded that it was a true confession. His Lordship J.S. Ikyegh, JCA held at page 282 of the record:
“I am accordingly, satisfied that Exhibit P4, the confessional statement of

the appellant was free, direct, positive, unequivocal and truthful confession of the said crime by the appellant and was properly relied upon by the Court below to convict the appellant of the offence charged. What better evidence in a criminal case than the confession of the culprit himself which does not necessarily need further evidence, so long as it is corroborated by the surrounding circumstances of the case as stated in the unchallenged evidence of the PW1 – PW5 and rightly believed by the court below.”

I am in full agreement with the Court below in this regard. Learned counsel for the appellant has been unable to show any special circumstance that would warrant interference with the above finding by this Court. It is noteworthy that Exhibit P4 is quite detailed and contains facts that only the perpetrator of the crime could know.

It is also pertinent to state that having regard to the overwhelming evidence in this case, the failure of the prosecution to produce the corpse of the deceased was not fatal to its case. See: Abokokuyanro Vs The State (2016) 9 NWLR (Pt. 1519) 520; Akpa Vs The State (Supra); Jua Vs The State (2010) 4 NWIR (Pt.

1184) 217; Ubani Vs The State (2003) 18 NWLR (Pt.851) 224.

On the whole, I find no merit in this appeal. It is hereby dismissed. The judgment of the Court below, affirming the appellants conviction and sentence is hereby affirmed.

EJEMBI EKO, J.S.C.: The facts of this case are straight. One Mr. R. A. Adisa, a lecturer at the College of Education, Okene had gone to Lagos to buy a car. The PW.2 followed him to the car stand to buy the car. Mr. Adisa bought the car in his presence. Because he could not drive the car from Lagos to Okene he engaged the Appellant, against all protests from the PW.2, to assist him drive the car to Okene.

The Appellant and Mr. Adisa set off for Okene from Lagos. Since then Mr. Adisa had not been seen alive. He neither got to Okene, his destination, nor did he return to Lagos, his point of departure. The Appellant however returned, with the car bought by Mr. Adisa, back to Lagos. He brought the car to park in PW.1’s house and for blessing, purporting that he had bought it. The PW.1, Appellant’s own father, not convinced and very suspicious, refused to offer his blessings. He asked the

Appellant, his son, to take the car away from his house. The Appellant took the car to PW.3s house and parked it there, telling the PW.3 that an uncle overseas, who sent him money to buy the car, wanted to sell the car to raise cash urgently. On this story the PW.3 helped the Appellant to sell the car.

After several days, the people in Okene including the friends and relations of the deceased became anxious and restive. They decided to trace the movements of Mr. Adisa. The PW.4 was one of those persons.

At page 131 of the Record is the evidence of the PW.4, also a lecturer at the College of Education, Okene, that in his presence the Appellant, confessing to his killing of Mr. R. Adisa (the deceased), stated that he did the killing singlehandedly. This piece of evidence is confirmed by the PW.5, the investigating Police Officer (IPO).

Exhibit P1 – P4, tendered without objection, are the confessional statements made by the Appellant. They were recorded by the PW.5. They were voluntarily made according to the PW.5. There is nothing scathing or discrediting the evidence of the PW.5.

The PW.5 testified, unchallenged and uncontradicted at

page 156 of the Record, that the Appellant took the investigators, including the PW.5, to the scene of the crime along Lagos/Ibadan Express Way on 17th March, 2001 and showed where he murdered and buried the deceased. Some bones were found and recovered from the said locus criminis. The investigators, according to the PW.5, visited the scene of crime twice with the Appellant.

Satisfied, from the facts, that the murder of R. A. Adisa by the Appellant had been proved beyond reasonable doubt the trial Court (J.O.K Oyewole, J as he then was) convicted the Appellant for murder. The Court of Appeal, Lagos Division affirmed the conviction and sentence imposed on the Appellant.

At the trial the Appellant made efforts, albeit futile, to resile from his confession in Exhibit P4. The law is quite settled that a free and voluntary confession of guilt by an accused person, if it is direct and positive and its making is satisfactorily proved, is sufficient to warrant a conviction without any corroborative evidence: IN RE: OSAKWE {1994} 2 NWLR {pt. 326} 273 at 293 – 294. Even if it were necessary to find corroborative evidence that Exhibit P4 was made, there were

abundant credible evidence to that effect. The PW.4 was present when the Appellant confessed to the PW.5, the IPO, that he murdered the deceased, R. A. Adisa. Twice the Appellant led PW.4, PW.5 and others to the scene of crime. Thereat he showed where he murdered Mr. R. A. Adisa and buried him. Some bones were recovered from there. The car he robbed the deceased of was taken to the PW.1’s house and later to the PW.3. At page 161 the Appellant, testifying, identified the car he robbed the deceased of. Under cross-examination, at page 163 of the Record, the Appellant admitted telling the Police at Ketu that Mr. Adisa (the deceased) gave him the car to keep. He was however mute about the whereabouts of Mr. Adisa. The pieces of evidence, including the evidence of PW.2, PW.4 and PW.5, establish that the Appellant had the opportunity to kill the deceased who travelled in the same car with him from Lagos: KANU & ORS v. R (1952 55) 14 WACA 30; R v. OBIASA (1962) 2 SCNLR 402.

The Appellant was not convicted merely on the last-seen presumption. There was though, more than enough circumstantial evidence to sustain the conviction of the Appellant. The

confessions to the PW.4 and PW.5, and in Exhibit p4, are positive, direct and unequivocal. They are sufficient to warrant the conviction of the Appellant. The conviction of the Appellant is in my firm view, unassailable. I will not interfere with it. I hereby adopt lead judgment of my learned brother C. C. NWEZE, JSC, particularly for the fuller reasons therein.

There is no substance in this appeal. It is accordingly dismissed in its entirety. The decision of the Court of Appeal affirming the conviction and sentence imposed on the Appellant for the murder of R. A. Adisa is hereby affirmed. Appeal dismissed.

Appearances:

Emmanuel Umoren Esq. For Appellant(s)

A. O. Adegoke, Esq., with him,Oluwaseye Afolabi, Esq. For Respondent(s)

Appearances

Emmanuel Umoren Esq. For Appellant

AND

A. O. Adegoke, Esq., with him,Oluwaseye Afolabi, Esq. For Respondent