ABAH v. STATE (2020)

ABAH v. STATE

(2020)LCN/13989(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Tuesday, March 31, 2020

CA/EK/81C/2018

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Between

JAMES ABAH APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

TEH STANDARD OF PROOF REQUIRED FOR THE PROOF OF THE OFFENCE OF MURDER

As strongly submitted by the respective Counsel for the parties, the standard of proof required for proof of the offence of murder is proof beyond reasonable doubt and not proof beyond shadow of doubt. This can only be achieved by proof of the ingredients of the offence of murder, that is to say, (1) That the deceased died. (2) That it was the act or omission of the accused that caused the death of the deceased. (3) That the act or omission of the accused which caused the death of the deceased was intentional with the full knowledge that death or grievous bodily harm was its probable result. The three ingredients must co-exist and must be proved beyond reasonable doubt. It is trite that those ingredients can be proved via any of the following:(1) Direct evidence of an eyewitness. (2) Circumstantial evidence or (3) Confessional Statement of the accused. PER ORJI-ABADUA, J.C.A.

THE DOCTRINE OF LAST SEEN

At the same time, the apex Court has unequivocally entrenched the doctrine of “last seen”. Okoro, JSC, in State vs. Sunday (2019) LPELR-46943 articulated that:
“The doctrine of “last seen” relied upon by the trial Court to convict and sentence the respondent to death but which was set aside by the lower Court means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with him has been found dead. Therefore, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to an irresistible conclusion that it was the accused that was last seen with the deceased and no other person, and then there is no room for an acquittal. A trial Court can safely convict on such evidence. It is the duty of an accused person who is faced with compelling and damnifying circumstantial evidence to give explanation relating to how the deceased met his death and in the absence of such explanation, a trial Court will be justified to hold that it was the accused who killed the deceased being the person last seen with him. See Igabele v The State (2006) 6 NWLR (pt 975) 100, Gabriel v The State (1989) 3 NWLR (pt 122) 457, Igho v the State (1978) 3 SC 87, Madu v The State (2012) 15 NWLR (pt 1324) 405, Tajudeen Iliyasu v The State (2015) LPELR – 24403 (SC).”

Then this Court, per Orji-Abadua, JCA, in Iliyasu vs. The State (2014) 15 NWLR Part 1430 page 245, explained further:
“The evidence of “last seen” may be relied upon or may form the basis for conviction which however, would depend upon the facts and circumstances of each case. In Mbang vs. The State (2009) 18 NWLR Part 1172 page 140, Oguntade JSC, relied on Nwaeze vs. State (1996) 2 SCNJ page 42, where Adio, JSC, said: “Circumstantial evidence may ground a conviction where it is unequivocal, positive and points irresistibly to the guilt of the accused person. See Oladejo vs. The State (1987) 3 NWLR (Part 61) 419. The position then is that Mr. A was last seen alive with or in company of Mr. B. And the next thing that happened was the discovery of the corpse of Mr. A. The inevitable inference is that Mr. A was killed by Mr. B. The onus will then be on Mr. B to offer explanation for the purpose of showing that he was not the one who killed Mr. A. In Igho v. The State (1978) 3 SC. 87, the deceased was last seen alive with the appellant who gave her a ride in the back of his bicycle. The corpse of the deceased was later found that night. The conviction of the appellant was upheld by the Court. The same conclusion was reached in Amusa v. State (1987) 4 SC 199; (1986) 3 NWLR (Pt. 30) 536 in which on 10/1/78 the appellant went out with the deceased and from that day no one saw the deceased alive until the corpse was discovered on the 21/1/78. The inference that was drawn was that the appellant killed the deceased. The foregoing is the legal implication of the appellant being the person with whom the deceased was last with or seen alive with… The foregoing is the legal implication of the appellant being the person with whom the deceased was last with or seen alive with…” Further, in Haruna vs. A.G, Federation (2012) LPELR – SC.72/10, it was stated by the Supreme Court that the doctrine of “last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death. The onus is on the person last seen with the deceased to offer a minimum explanation of what he knows about the death of the deceased. Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal.” PER ORJI-ABADUA, J.C.A.

WHETHER OR NOT THE DOCTRINE OF LAST SEEN SHIFTS THE BURDEN OF PROOF ONTO THE ACCUSED

It is established that the last seen evidence, i.e. doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on the part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances. 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 vs. 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 Part 975 page 100; Obosi vs. State (1965) NMLR 140; Nwaeze v The State [1996] 2 SCNJ 47, 61- 62; Gabriel v. State [1989] 3 NWLR Part 122 page 457; Adeniji v. State (2001) 87 LRCN 1970; Madu vs. The State(supra); Igho v The State (1978) 3 SC 87,254; [1978] 3 SC 61, 63. PER ORJI-ABADUA, J.C.A.

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): An Information of one Count containing the charge of murder of one Ezekiel Alabion or about the 12th day of January, 2016 contrary to Section 316 of Criminal Code Law, Cap 16, Laws of Ekiti State was filed against the Appellant as the 1st accused and one Albert Daramola as the 2nd accused on the 20th October, 2016. On the 30th November, 2016, the charge was read to them which they understood and pleaded not guilty thereto. Then on the 19th January, 2017, trial commenced with the daughter of the deceased testifying as P.W.1, and one Felix Ogunsola giving evidence as P.W.2.

However, on the 7th February, 2017, a fresh Information containing two counts of conspiracy to murder and murder of one Ezekiel Alabi on or about the 12th day of January, 2016 at Araromi Farm, Ise Ekiti within the jurisdiction of the Court was filed in substitution for the previous one. On the 8th February, 2017, the Prosecution intimated the Court that it filed a new Information and proof of evidence and then sought the leave of the Court to substitute the charge with a new one which was obliged by the lower

Court. The new Information was read in English language but was explained and interpreted to them in both Yoruba and Pidgin English languages. After the substitution and fresh plea, the Prosecution called its third witness, one Dr. Ahmed Azeez Atanda, the Medical Director in the General Hospital Ise-Ekiti on the 23rd February, 2017.The Prosecution further called PW4, PW5 and PW6. The Defence presented three witnesses. Then at the conclusion of the hearing, the Trial Court delivered its judgment on the 9th November, 2017 and found the Appellant guilty of the offence of murder and he was convicted accordingly. He was sentenced to death by hanging until he be dead while the 2nd accused was discharged and acquitted.

The Appellant filed his original Notice of Appeal on the 13th December, 2017 which was anchored on one ground of appeal. The Notice of Appeal was amended pursuant to the order of this Court made on 28/11/2018 by introducing two additional grounds of appeal then bringing the total grounds to three. The Amended Notice of Appeal was filed on 4/12/2018. The record of appeal was compiled and transmitted to this Court on 24/9/2018 while the

Appellant’s Brief and Respondent’s Brief were respectively filed on 13/03/2019 and 5/7/2019.

Only one issue was formulated by the Appellant for determination in this appeal and the same was adopted by the Respondent. The lone issue is:
“Whether from the totality of the evidence adduced at the trial, the Prosecution proved the charge of murder preferred against the Appellant beyond reasonable doubt to warrant the learned trial Judge convicting him.”

In his submission contained in the Appellant’s Brief, the learned Counsel for the Appellant, Adeboye A. Sobanjo, Esq. relied on Section 36(5) of the 1999 Constitution as amended, Section 135(1) of the Evidence Act, the cases of Abokokuyanro vs. State (2016) All FWLR Part 849 page 807; Igabele vs. State (2006) 6 NWLR Part 975 page 100; Okoro vs. State (2012) All FWLR Part 621 page 1471; Ebonyi vs. State (2012) All FWLR Part 633 page 1945 and Ekaidem vs. State (2012) All FWLR Part 631 page 1587 and stated that the burden is on the Prosecution to prove the guilt of the Appellant beyond reasonable doubt. Then to secure conviction on a charge of murder, the Prosecution must

prove that the deceased died, that the act or omission of the accused person caused the death of the deceased and that the act or omission of the accused which caused the death of the deceased was intentional with the full knowledge that death or grievous bodily harm was its probable consequences. There are three ways a murder charge can be proved i.e. by (a) direct evidence, (b) circumstantial evidence and (c) free and voluntary confessional statement.

Counsel however stressed that in the instant appeal, there is no eye witness to the death or cause of death of the said Ezekiel Alabi, there was no confessional statement of the Appellant nor of his co-accused, Albert Daramola arraigned together with the Appellant as the 2nd accused. He emphasised that the Appellant’s conviction in the absence of direct evidence and confessional statement was based on the doctrine of last seen on the ground that the Appellant was the last person seen together with the deceased before his death. He referred to the remarks made by the Trial Court at page 115 of the record on the doctrine of last seen and contended that there is no evidence before the Trial Court that

the deceased died when the deceased and the Appellant slept inside the hut. He argued that the doctrine would have been applicable had the body of the deceased been found inside the hut or the evidence of the Appellant that he did not see the deceased when he woke up was controverted by the Prosecution. He strongly argued that the fact that the body of the deceased was found outside the hut with his lamp beside him points to the fact that there is an opportunity for a third party to kill him. He referred to the evidence of the Appellant as DW1 at page 67 of the record where he explained that they used to go to the toilet in the bush even at night and contended that the Appellant was not cross-examined on that. He cited the Supreme Court decision in Simon vs. State (2017) All FWLR Part 885 page 1929 at 1956 where it was decided that when a witness (the adversary) testifies on a material fact in controversy in the case, the other party, if he does not accept the evidence as true, should cross-examine him on that fact or at least show that he does not accept the evidence as true. Where he fails to do either of them, the Court can take his silence as an acceptance

that the party does not dispute the fact.

He further explained that there were other people in the huts nearby. He referred to the evidence of DW1 at page 66 of the record where he stated that he went to a nearby hut to look for him and he was told that they did not see him. Learned Counsel further highlighted the evidence of DW1 which claimed that night hunters usually pass through the hut which PW5 confirmed under cross-examination. He strongly argued the possibility of the deceased being killed by a third party when he ventured out of his hut with his lamp in his hand. He further cited the Supreme Court case of Madu vs. State (2012) All FWLR Part 641 page 1416 at 1441 where the Supreme Court referred to the Indian Supreme Court case of S.K. Yusuf vs. West Bengal (2011) and held that “where there is a long gap between “last seen together” and crime, and there is the possibility of other persons intervening, it is hazardous to rely on the theory of “last seen together”. Even if the time gap is less and there is no possibility of others intervening, it is safer to look for corroboration.”

He said that evidence

abound that any other person had the opportunity of killing the deceased but the Trial Court strictly applied the doctrine of last seen and convicted the Appellant. It was further claimed that the Trial Court failed to consider the evidence of PW4 and the observations made by it at pages 114 and 115 of the record in the light of the fact that there is no post mortem evidence that the deceased was killed inside the hut to warrant the said observations made. He further submitted that the evidence of PW4 that it was not possible for him to know the exact point where the deceased was murdered even though they saw traces of how the deceased was dragged on ground to the point where he was dropped is clear that PW4 did not know the exact point where the deceased was murdered and it was not part of his evidence that the deceased was dragged from the hut. He further argued that by the testimony of PW3, the cause of death was strangulation.

Learned Counsel speculated that the deceased could have been attacked from the back without having the opportunity to struggle, scream, shout and cry out. He cited the case of Onwe vs. State (2018) All FWLR Part 924 page 1 at 28

and submitted that the duty of the Court is to determine a case based on the available evidence and not to supply the missing link. He referred to the evidence of PW1 where she narrated how they searched for the deceased but to no avail and then argued that if the deceased was dragged from a place to where his corpse was eventually found as stated by PW4, then it would not have been difficult for the search parties to discover the body of the deceased at the earliest time before reporting to the Police. He also referred to the evidence of PW5 on how the body of the deceased was found in the bush about 50 meters from his hut. He was found with cloth around his waist and there were bruises all over his body. Some teeth were removed. He then argued that the evidence of PW4 that the body of the deceased was dragged on the ground was exaggerated. He contended that the Prosecution via its witnesses, PW1, PW2, PW4 and PW5 woefully failed to link the death of the deceased to the Appellant. PW4 even said they suspected the 2nd accused because of the rift between them. He argued that by the evidence of animosity between the 2nd accused and the deceased, the 2nd accused

had opportunity of killing the deceased.

He made reference to the Supreme Court cases of Nwalu vs. State (2018)All FWLR Part 966 page 262 at 276 and Onwe vs. State(2018) Part 924 page 1 at 49 and submitted that the circumstantial evidence that entitles a Court to convict an accused is devoid of other co-existing circumstances which create doubt in the Court’s mind and makes the inference that the accused and no other person is the guilty party. The evidence must allow one and only one inference from it, that the accused alone committed the offence. He argued that the evidence of PW1, PW2 and PW4 showed that the Appellant is not responsible for the death of the deceased and that ought to have created a doubt in the mind of the Court. He therefore urged the Court to resolve the lone issue in favour of the Appellant.

To counter the contentions of the Appellant, the Respondent through its learned Counsel, Olawale Fapohunda, Esq. the Attorney General of Ekiti State, cited the cases of Igabele vs. State (2004) 15 NWLR Part 896 page 314; Idiok vs. State (2008) All FWLR Part 421 page 797 at 818 and Jua vs. The State (2010) All FWLR Part 521 page 1427

at 1443-1444 wherein it was held that it is not every case of murder or every case of culpable homicide punishable with death that is proved by eyewitness. An accused can be convicted of the offence of culpable homicide punishable with death if there exists cogent and compelling circumstantial evidence to the fact that the accused person killed the deceased. He submitted there are circumstances which constitute a complete and unbroken chain of evidence that led cogently and unequivocally to the conclusion that the act of the Appellant caused the death of the deceased in this case.

He narrated that the evidence of PW1 established the fact that the deceased employed the Appellant as a labourer working in his cocoa plantation. The Appellant and the deceased both left for Araromi farm on 6/1/2016 on a motorcycle rode by the Appellant. The Appellant and the deceased lived in the same hut (farm house) on the deceased’s farmland and they both slept in the hut on 8/1/2016. The Appellant, on 9/1/2016 at about 3pm reported to PW1, the daughter of the deceased that the deceased was missing. The deceased family members searched for the deceased to no avail.

The case was then reported to Kabiesi Arinjale who ordered the hunters to join the Police in searching for the deceased. The Appellant attempted to escape from the town. The body of the deceased was discovered in the bush with a cloth tied round his waist, bruises all over his body with heaps of maggots and some teeth already removed. He further explained that the hut is a small hut with one entry door and two rooms facing each other. There were traces of how the deceased was dragged on the ground to the point where he was dumped and there were bruises at his back which showed he was actually dragged to the point where his remains was discovered. He further pointed out that the front door of the small hut where the Appellant and the deceased lived and slept that night was not broken. The post mortem examination showed that the deceased was brutalized and humiliated to the point that his upper teeth were totally removed. He said it was clear that the deceased was last seen with the Appellant and after, it was the deceased’s corpse that was discovered. He made reference to the cases of Miller vs. The State (2005) 4 FWLR Part 294 page 2291;

Madu vs. State(supra); Chikaodi vs. State (2012) LPELR 7867; iliyasu vs. State(2015) LPELR 24403; Esseyin vs. State (supra) at 390; State vs. Oladotun (2011) All FWLR Part 586 page 399 at 410; Uluebeka vs. State (2000) FWLR Part 11 page 1827 at 1847; and B. C. Udedibia vs. The State (1976) 11 SC 133 and submitted that evidence adduced in Court as relevant and has neither been challenged nor successfully debunked becomes good and credible evidence which ought to be relied upon by the trial Court and accord full evidential value.

On the contention of the Appellant that there is a possibility of a third party killing the deceased, it was submitted that there is no evidence before the lower Court suggestive of that. There is no evidence that any hunter was seen or sighted at the scene in the night of the incident and no gunshot injury or wound was found on the deceased when the autopsy was conducted on the deceased. He referred to Exhibit A, the autopsy result which says that the deceased died as a result of cardiopulmonary failure due to strangulation and neck injury. He referred to Exhibit A which contained the facts that there were signs of violence around the mouth,

bruises and numerous teeth eruptions. The trachea was fractured at the proximal part showing strangulation and neck injury. Learned Counsel contended that the Appellant in the instant case intended to cause the death of the deceased when he inflicted those injuries as shown in Exhibit A. He knew that death could result from his actions.

Regarding allegation of non-evaluation of evidence made by the Appellant, learned Counsel submitted that it is the party who raised the issue of non-evaluation of evidence that has the duty to identify the evidence not properly evaluated or not evaluated and how the error if corrected would have assisted the Appellant. He cited Garba vs. The State(2000) FWLR Part 24 page 1448; State vs. Yusuf (2007) All FWLR Part 377 page 1001 at 1004; Igago vs. State (2) ACLR page 104. He submitted that it is the function of the Trial Court to evaluate the evidence and where it has done so, it is not the business of the appellate Court to interfere and to substitute its own views for the view of the Trial Court. It is certainly not the function of the appellate Court to re-appraise the evidence and come to a different conclusion.

He therefore, urge this Court to resolve the sole issue against the Appellant.

The record bears out that about six witnesses testified in support of the Prosecution’s case. As strongly submitted by the respective Counsel for the parties, the standard of proof required for proof of the offence of murder is proof beyond reasonable doubt and not proof beyond shadow of doubt. This can only be achieved by proof of the ingredients of the offence of murder, that is to say, (1) That the deceased died. (2) That it was the act or omission of the accused that caused the death of the deceased. (3) That the act or omission of the accused which caused the death of the deceased was intentional with the full knowledge that death or grievous bodily harm was its probable result. The three ingredients must co-exist and must be proved beyond reasonable doubt. It is trite that those ingredients can be proved via any of the following:(1) Direct evidence of an eyewitness. (2) Circumstantial evidence or (3) Confessional Statement of the accused.

Much as Section 316 of Criminal Code Law, Cap 16, Laws of Ekiti State clearly created the offence of murder and the attendant punishment.

The apex Court has in a number of cases cautioned the Courts to be circumspect in evaluation of the evidence produced before it particularly in the trial of heinous offences. Tobi, J.S.C., in Suleman vs. C.O.P. Plateau State (2008) 8 NWLR Part 1081 page 298 said that “murder is a capital offence, a most heinous offence, therefore, before an accused is charged with murder, there must be sufficient materials by way of proof of evidence to justify and back up the offence. Also in Iriri vs. The State (2018) LPELR-45043 (CA) Bada, JCA, cautioned that there is need for Courts to be meticulous when handling murder cases. He said that the conviction for murder which is a capital offence carries sentence of death without any option, therefore, care must be taken by the trial Judge in ensuring that the evidence produced by the prosecution unequivocally point to the guilt of the accused person.

sentence the respondent to death but which was set aside by the lower Court means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with him has been found dead. Therefore, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to an irresistible conclusion that it was the accused that was last seen with the deceased and no other person, and then there is no room for an acquittal. A trial Court can safely convict on such evidence. It is the duty of an accused person who is faced with compelling and damnifying circumstantial evidence to give explanation relating to how the deceased met his death and in the absence of such explanation, a trial Court will be justified to hold that it was the accused who killed the deceased being the person last seen with him. See Igabele v The State (2006) 6 NWLR (pt 975) 100, Gabriel v The State (1989) 3 NWLR (pt 122) 457, Igho v the State (1978) 3 SC 87, Madu v The State (2012) 15 NWLR (pt 1324) 405, Tajudeen Iliyasu v The State (2015) LPELR – 24403 (SC).”

night. The conviction of the appellant was upheld by the Court. The same conclusion was reached in Amusa v. State (1987) 4 SC 199; (1986) 3 NWLR (Pt. 30) 536 in which on 10/1/78 the appellant went out with the deceased and from that day no one saw the deceased alive until the corpse was discovered on the 21/1/78. The inference that was drawn was that the appellant killed the deceased. The foregoing is the legal implication of the appellant being the person with whom the deceased was last with or seen alive with… The foregoing is the legal implication of the appellant being the person with whom the deceased was last with or seen alive with…” Further, in Haruna vs. A.G, Federation (2012) LPELR – SC.72/10, it was stated by the Supreme Court that the doctrine of “last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death. The onus is on the person last seen with the deceased to offer a minimum explanation of what he knows about the death of the deceased. Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads

to no other conclusion, there is no room for acquittal.”

In the instant case, there was no single eyewitness account to the crime of murder allegedly committed by the Appellant. In the absence of direct and confessional evidence, the trial Court then invoked the doctrine of “last seen” to convict the Appellant because he was the last person presumably seen with the deceased.

It is stark in the lower Court’s consideration that a particular extraneous circumstance was introduced in the judgment although the Court took a holistic view of how the Appellant ought to have naturally reacted if he had not been the one responsible for the gruesome murder of the deceased. The trial Court observed that the deceased was dragged from the hut to the point where he was finally dumped. The Respondent faulted this finding and contended that there was no such evidence adduced before the trial Court. I must observe that the evidence of PW4, one of the Investigating Police Officers, a member of the team that investigated the homicide case, is bereft of the exactness of the location where the deceased was murdered, and, the point from which his body

was dragged to the point he was dumped. He said that they saw the trace of how the deceased was dragged on the ground to the final point where he was dumped. He clearly stated that it was not possible for him to know the exact point where the deceased was murdered.

It is interesting to note that PW4 in his evidence did not say that the deceased was murdered inside the hut or was dragged from the hut, though their investigation revealed that the Appellant was the only one with the deceased in the hut that night. PW5, another member of the investigating team, said that they discovered the body of deceased in the bush about 50 meters from his hut. They saw one lamp beside him and a cloth was tied around his waist and there were bruises all over his body.

It is pertinent to observe that no forensic evidence nor analysis or any scientific proof of any of the stains on the items i.e. the lantern found beside the body of the deceased and the piece of cloth tied around his waist was proffered by the Police so as to establish the possible presence of the human connected with his death or who actually dragged him to that spot.
The circumstances

surrounding the case as per the testimony and extrajudicial statement of the daughter of the deceased, Fasakin Modupe, who testified as PW1, are that on 6/1/2016, the Appellant approached her father, the deceased, who engaged the Appellant to assist him in his cocoa plantation, came to meet her father, and the two left together in her presence on a motorcycle to the farm on the same 6/1/2016. Then on 9/1/2016 at about 3pm, she saw the Appellant who enquired about her father and she reminded him that two of them left for the farm on 6/1/2016. Immediately, he told her that he did not see her father in the farm but he observed that the doors of their hut in the farm were left open but that her father was not there. She asked him to go and look for him. Then 30 minutes later, he came back and she asked him if he had already been to the farm that was about seven miles away from their house. He then asked her to go and summon her family members and report the incident so that they could conduct a thorough search for him at the farm because he could not locate him in the farm. She immediately proceeded to inform her siblings and their relations who then geared up and

rushed to the farm to search for him. Interestingly, the Appellant did not go with them. They searched for him on that Saturday but could not find him and they returned home. The following day being Sunday, they assembled themselves for further search and when they saw the Appellant and asked him to join them to the farm, he attempted to run away saying that one Pa Albert Ademola (2nd Defendant) advised him to run away to his hometown. The said Albert Ademola was the one who introduced him to the deceased. Eventually they all went to the farm and conducted a second search and still did not see the deceased. The Appellant asked them to take him back to the hut, and as they went there, he relayed to them the conversation he had with the said Pa Albert Ademola concerning the deceased. After a while he demanded to be taken back to the town so that he could reveal further things to them. On getting to the town, and after demanding to be allowed to use the convenience, he took to his heels and attempted to escape through the toilet. At that point they alerted the Police who came and arrested him and took him to the Station. His statement was recorded by the Police

on that Sunday. Later on, the Kabiesi, Arinjale of Ise came to their house and directed that all of them should come to his palace on Monday morning. They all appeared before Kabiesi Arinjale on Monday as he had commanded and presented their respective matters before him after which he instructed the hunters to go and conduct a thorough search for the deceased in the farm. The hunters then zoomed into the bush and eventually recovered the corpse of her father in the bush. His teeth were pulled out and there were bruises all over his back. He was taken to Ise Ekiti General Hospital for autopsy. The next day Pa Ademola came to their house but they invited the Police to arrest him since the Appellant told them that he came to enquire from him if the deceased would be going to his house that Friday. She described her father’s hut in the farm as a mud house of two rooms. Her father was using one room while the Appellant was using the opposite room. The rooms were facing each other.

Under cross-examination, she said she was not present when her father died as she did not sleep in the farm. She said that since she was not in the farm she would not know

the cause of death of her father but the accused persons were the last people that had contact with her father. She further stated that her father was killed in the night of Friday but the Appellant reported the matter to her on Saturday.

The Appellant himself testified and narrated how the deceased, after seeing him working for Pa Ademola, then invited him to come and work for him which he accepted. Then on 8/1/2016, he went to the farm at about 4pm and met the deceased. The deceased cooked yam and they ate and after his bath, they entered their respective rooms and slept. He then woke up about 7 am and discovered that the door to the room of the deceased was open. He left and went to two places to seek for job but could not find any. He then came back to their hut and did not see the deceased following which he went to nearby places to search for him. He narrated how he searched for him and after failing to see him, he decided to go to the town. On getting to the town, he went to his house first to change his clothes. As he went to his house he saw the 2nd accused, Pa Ademola and told him that he did not see the deceased at the farm, he asked if he had

informed his family. He told him he was just going to do that. He later went to the house of the deceased and met PW1 and narrated the story to her.
Under cross-examination he admitted that it was only him and the deceased that slept in the hut on 8/1/2016. The door leading to the main entrance to the hut was not broken that day and there are two rooms in the hut but they are not close and there are two doors to the hut. Neither of the two doors was broken. He said that the 2nd accused did not visit them at the hut on that 8/1/2016.

As I observe earlier, there was no forensic evidence or analysis adduced for proof of the owner or owners of the possible finger prints on those two items recovered alongside the body of the deceased to aid inappropriate identification of the culprit. Also, there was no evidence from the prosecution that any fingerprint analysis was conducted on those materials so as to match them with those of the Appellant. I am of the candid opinion that the scope of our evidential law has to be broadened in the sense that forensic or scientific investigation should strictly be made an integral part of the Police investigation, that

is to say, prior to arraignment of any suspect before any Court of law for a heinous crime such as this, the Investigating Police Officers must conduct scientific or forensic examination of all the items found at the scene of crime to avoid unjustly jailing an innocent person. This is absolutely necessary so as to eliminate every possibility, allusion or the minutest doubt that would be suggestive of the fact that someone other than the suspect committed the crime.

It is surprising that neither PW4, PW5 nor PW6 who participated in the investigation of the crime was able to give a detailed account of their investigations particularly as it relates to the point or direction from which the body of the deceased was dragged or where indeed he was murdered. The much they could unabashedly offer as IPOs was that they saw trace of how the deceased was dragged on the ground to the point where he was dumped. The question is: “Dragged from where”. Of course there was no explanation in that direction. None of them could explain that. Even, PW4 echoed under cross-examination that they suspected the 2nd Defendant of killing the deceased because of the rift

between them thereby suggesting uncertainty or exposing their doubt in the actual identity of the perpetrator of the crime.

Again, at the time the Appellant made a statement claiming that the deceased used to go out into the bush in the night to answer the call of nature with his lantern as they did not have toilet inside the hut, and, that hunters used to pass through the bush in the night, it still did not dawn on the Investigating Police Officers to conduct a comprehensive investigation so as to eliminate any iota of doubt or the possibility of speculating if the crime could have been perpetrated by someone other than the Appellant. Although, I must confess that some writers had unreservedly expressed their dissatisfaction with the use of fingerprints. According to Wikipedia:
“The validity of forensic fingerprint evidence has been challenged by academics, Judges and the media. In the United States, fingerprint examiners have not developed uniform standards for the identification of an individual based on matching fingerprints. In some countries where fingerprints are also used in criminal investigations, fingerprint examiners are required

to match a number of identification points before a match is accepted. In England 16 identification points are required and in France 12, to match two fingerprints and identify an individual. Point-counting methods have been challenged by some fingerprint examiners because they focus solely on the location of particular characteristics in fingerprints that are to be matched. Fingerprint examiners may also uphold the one dissimilarity doctrine, which holds that if there is one dissimilarity between two fingerprints, the fingerprints are not from the same finger. Furthermore academics have argued that the error rate in matching fingerprints has not been adequately studied. And it has been argued that fingerprint evidence has no secure statistical foundation. See Paul Roberts (2017) Expert Evidence and Scientific Proof in Criminal Trials. Research has been conducted into whether experts can objectively focus on feature information in fingerprints without being misled by extraneous information, such as context. See Dror, I. E., Charlton, D. and Peron, E. A. (2006) Contextual Information Renders Experts Vulnerable to making erroneous identification.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Fingerprints can theoretically be forged and planted at crime scenes. See May, Kristi (2003) Latent Fingerprint Fabrication: Simple Steps to Prevent Fabrication and Ensure the Integrity of Legitimate Prints.

Nevertheless, it seems obvious that it is unresolved scenarios such as the aforementioned that reared their heads in the present case, that triggered the Courts, particularly the apex Court to embrace the doctrine of “last seen” applied by other jurisdictions to solve the mystery of sudden disappearance and death of a person last seen with another individual.

The last seen doctrine is a doctrine of global application as was expounded by Ariwoola, JSC in Madu vs. The State (2012) 15 NWLR Part 1324 page 405 thus: “It is a misconception and misleading to say the least for the learned counsel to the appellant to come to the conclusion that the doctrine of “last seen” is rooted only in common sense but not law therefore urging this Court to overrule itself on the previous decisions based on the doctrine. This doctrine is indeed of global application. In some other jurisdictions, it is called “the last seen theory”. In the India case of

Rajashkhanna vs. State of A.P (2006) 10 SCC 172, the Indian Supreme Court noted as follows: “The last seen theory, comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.” However, in S. K. Yusuf vs. West Bengal (2011) the same Supreme Court after referring to its earlier stand above further held that where there is a long time – gap between “last seen together” and the crime, and there is possibility of other persons intervening, it is hazardous to rely on the theory of “last seen together”. Even if time gap is less and there is no possibility of others intervening, it is said to be safer to look for corroboration.”
It is established that the last seen evidence, i.e. doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. Failure on the part of the accused to furnish any explanation in this regard, as in the

case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances. 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 vs. 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 Part 975 page 100; Obosi vs. State (1965) NMLR 140; Nwaeze v The State [1996] 2 SCNJ 47, 61- 62; Gabriel v. State [1989] 3 NWLR Part 122 page 457; Adeniji v. State (2001) 87 LRCN 1970; Madu vs. The State(supra); Igho v The State (1978) 3 SC 87,254; [1978] 3 SC 61, 63. The position as firmly settled, is that if Mr. A was last seen alive with or in company of Mr. B and the next thing that

happened, was the disappearance of Mr. A, the irresistible inference is that Mr. A was or had been killed by Mr. B. The onus is on Mr. B. to offer an explanation for the purposes of showing that he was not the one who killed Mr. A
As was remarked by some writers, it would seem that the doctrine thrives in hasty conclusions in the sense that once someone disappears, no effort may be made to prove that he is dead before concluding that someone else had killed him. Nonetheless, the “last seen” doctrine is a mere presumption which, like all presumptions, is rebuttable.
In Nigeria, the doctrine is firmly settled, established and/or entrenched, but in other common law jurisdictions, it is applied with caution and flexibility so as to guard against a miscarriage of justice.

In the instant appeal, the lower Court in its finding, relied wholly on the last seen doctrine which appears more probable. The trial Court in its evaluation of the evidence adduced before it stated thus:
“PW1 said in her evidence that both the deceased and the 1st Defendant left home for the farm on the 6/1/2016. That the 1st Defendant returned home on 9/1/2016 to

inform her that the deceased was missing. The 1st Defendant both in the two statements he made to the Police, Exhibit B and C and his oral testimony in Court admitted that they both entered there different rooms in the same hut in the night of 8/1/2016 and slept and on the following day, the deceased disappeared only to be found dead few days later. The question is where was the 1st Defendant who slept in the adjacent room in the same hut with the deceased when he was attacked if he was attacked by unknown person(s) as the 1st Defendant would want me to believe? Another crucial and decisive question is can the deceased be attacked by assailants from outside in a hut described by PW4 as small without the knowledge of the 1st Defendant? Post mortem examination revealed that the deceased was brutalized and humiliated to the extent that his upper teeth were completely removed, strangulated and dragged on ground from the hut to the point where he was finally dumped.

“PW3 in his evidence said the body of the deceased and the numerous teeth eruption showed that the deceased was battered. In my humble opinion, the deceased during the battering would have screamed shouted

and probably cried to the high heaven for help. Would the scream and shout of the deceased not have been enough to wake up the 1st defendant who was neither in coma or dead? I don’t think anybody could have slept in a situation like that in a lonely farmhouse. What is more, there is no evidence that there was any attack on the deceased and the 1st defendant in the night of 8/1/2016. The 1st defendant admitted during cross examination that the door to the hut was not broken. So how did the killers enter the hut without the support of somebody inside the house?
In my view, no one other than the 1st defendant can say with certainty how Pa Ezekiel Alabi truly met his death. The facts and circumstances of the case call for an explanation from the 1st defendant and since no explanation is forthcoming from the 1st defendant, available circumstantial evidence will be sufficient proof.
The question is whether the doctrine of “last seen” is invocable in the case as rightly submitted by the learned counsel for the prosecution, Mr. Awoniyi. The doctrine of last seen postulated that if the person who was last seen alive in company of another is found dead, that

other in whose company the deceased was last seen alive, in law, is presumed to bear full responsibility of the death of the deceased. He certainly has some explanation to give as to what caused the death, if he says he did not kill the deceased. SEE Oketaolegun vs. State. (supra) at page 698.
The 1st defendant who was the only person in the same hut with the deceased that night and therefore last fixed with him should explain the circumstances surrounding the death of the deceased. The evidence of the factor (PW5) who performed post mortem examination on the deceased is to be effect that the fractured trachea showed that there was strangulation. He added that strangulation of the neck will compromise cardiopulmonary failure must have led to death of the deceased. The only influence which can be drawn and which I have drawn is that the 1st defendant who was the only person with the deceased in the hut that night was the only person who could have strangulated the deceased.”

I cannot but agree more. Even though the Appellant had feigned ignorance of how and when the deceased left the hut in which two of them had slept and, painted a sorry

picture of an innocent soul, there is a great lacuna in his explanations as was observed by the lower Court. He admitted he went to the farm with the deceased and that two of them went to their respective rooms inside the hut, which faced each other to sleep for the night, and there was no evidence of any intruder or a third party breaking into the hut, but he failed to explain to the Court how naturally uncharitable and unintelligible it were for him to have supposedly woken up, observed the absence of his employer so to say, or the man who brought him to the farm and contracted him to work for him in the farm, and never, in the least, bothered to look for him that morning to establish his whereabouts. According to him, he assumed he must have gone out to work. The question is “to where”? The man who slept with him under the same roof, a small hut, to be precise, with the rooms opposite one another, was gruesomely murdered and dragged to about 50 metres away from that hut without him hearing his screams, and bothering to look for him in the morning. According to him it was when he came back in the afternoon he started looking for him and when he

got to the town, he first and foremost went to his house to change his clothes before going to the house of the deceased. He was the only one within the vicinity of the farm and inside the hut with the deceased. He mentioned the possibility of hunters being responsible but he forgot that that could have been a well thought-out story by him to tell. The worst that could happen in this case is letting a brutal and merciless murderer go scot-free because no one saw him directly killing the deceased when every fact shows that only him and the deceased were last seen together the previous day and only two of them slept in the small hut of only two rooms on the opposite side. There is no time gap in the present case because two of them slept in the same hut with two opposite rooms.

It is said that the last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and where the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. See Oladejo vs. The State (1987) 3 NWLR (Part 61) 419 where it was espoused

that the position as firmly settled is that if Mr. A was last seen alive with or in company of Mr. B. And the next thing that happened was the discovery of the corpse of Mr. A. The inevitable inference is that Mr. A was killed by Mr. B. The onus will then be on Mr. B to offer explanation for the purpose of showing that he was not the one who killed Mr. A.

I, therefore, agree with the findings of the trial Court that no reasonable explanation was offered by the Appellant for the gruesome murder of his supposed master, who PW1 saw came with him to the farm on 6/1/2016. He admitted sleeping with him under the same roof inside the small hut of two bedrooms and bade him good night on the night of 8/1/2016. The explanation given by him appeared unreasonable and unsatisfactory. Accordingly, this appeal is dismissed and the conviction and sentence of the Appellant are hereby affirmed.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

Appearances:

Kayode Oyeyemi, Esq., holding the Brief of Adeboye A. Sobanjo, Esq. For Appellant(s)

Olawale Fapohunda, Esq., Hon. A. G., Ekiti State, with him, L. B. Ojo, Esq., Solicitor General, Ekiti State, S. B. J. Bamise, Esq., Director Civil Litigation, Julius Ajibare Esq., Director Public Prosecution, Tosan Odudu, Esq., A.C.L.O, Ibironke Odetola, Esq., P.L.O., Oluwaseun Olasanmi, Esq., S.L.O. and Sheila Onah, Esq., L.O. For Respondent(s)

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