IKON v. STATE (2021)

IKON v. STATE

(2021)LCN/15100(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 12, 2021

CA/C/482C/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

JOHN EYO IKON APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

DUTY OF THE COURT BEFORE DRAWING THE INFERENCE OF GUILT FROM CIRCUMSTANTIAL EVIDENCE

It is trite that circumstantial evidence must be narrowly examined by the Court as it is a type of evidence which may be fabricated to cast suspicion on an innocent person. The Court, before drawing the inference of guilt from circumstantial evidence, must ensure that there are no other co-existing circumstances which could weaken or destroy the inference being drawn therefrom. In other words, in order to sustain a conviction on circumstantial evidence, all the circumstances proved must be consistent with the hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that he is innocent or such as to exclude every other reasonable or rational hypothesis. It should have nothing to do with guess work or suspicion. Rather, to ground conviction circumstantial evidence must be cogent, compelling and irresistibly and conclusively pointing to the accused as the only person who committed the act. See UBANI VS. STATE (2003) 4 NWLR (pt. 809) 51; IGABELE VS. STATE (2006) 6 NWLR (pt. 975) 100; IKOMI VS. STATE (1986) 3 NWLR (pt. 28) 340. PER MOJEED ADEKUNLE OWOADE, J.C.A.

WHETHER A MERE SUSPICION CAN TAKE THE PLACE OF LEGAL PROOF

,,, a mere circumstance of suspicion, however strong, cannot take the place of legal proof. See ABIEKE VS. STATE (1975) 9-11 SC 97; ABACHA VS. STATE (2002) LPELR – SC 290/2001 (-R); ONAH VS. STATE (1985) 3 NWLR (PT. 236) 237. PER MOJEED ADEKUNLE OWOADE, J.C.A.

APPLICATION OF THE DOCTRINE OF LAST SEEN

The law presumes that the person last seen in company of the deceased bears full responsibility for his death. Thus, where an accused person was the last person to be seen in company of the deceased and the circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquitted. In effect, it is the duty of the appellant to give an explanation relating to how the deceased met his death in such circumstances. And in the absence of a satisfactory explanation, the trial Court and even an appellate Court will be justified in drawing the inference that the accused person killed the deceased. See HARUNA V. A.G. FEDERATION (2012) LPELR-7821(SC). However, for the doctrine of last seen to apply, there must not be other possibilities however slight of other people seen the deceased while alive. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State, Uyo Division, delivered by Hon. Justice Okon A. Okon on the 24th day of April, 2017.

The Appellant was charged for the murder of one Paul Eyo Ikon on or about 29th day of January, 2015 at Utang Street in Uyo.
The case of the prosecution through the PW1 and PW2 was/is that on the 26th day of January, 2015, the deceased in company of the Appellant; accused person, went for repair work at a cousin’s place at Nwaniba Road Uyo and that both returned to their house at No. 4 Utang Street that evening, where after they both went to their separate rooms. And, that was the last time the deceased was seen alive.

The Appellant gave evidence and denied the killing of the deceased. Before then, he made several extra judicial statements to the police, none of which he said he killed the deceased.
The prosecution called four (4) witnesses PW1 – PW4 and tendered several exhibits. The Appellant did not call any other witness in his defence.

The learned trial Judge noted that there was no eye witness to the killing of the deceased and that the Appellant did not make any confessional statement. He however convicted and sentenced the Appellant for the offence of murder based on what he termed circumstantial evidence particularly on the presumption of the doctrine of “last seen”.
Some of the notable but curious statements in the summation of the evidence and the law on which the learned trial Judge based the Appellant’s conviction are reproduced from the record of appeal.
First, at page 87 of the records:
“Discounting eye witness account and confessional statement not available to the prosecution upon the facts of this case, the prosecution only had to rely on circumstantial evidence to prove the guilt of the accused person beyond reasonable doubt.”
Second, at pages 92 -93 of the record:
It is necessary and important to remark here that the accused did not deny at any point in time being the maker of Exhibits B, B1 and B2, his extra-judicial statements to the Police in connection with this case. A fortiori, Exhibit B, B1 and B2 were tendered by the prosecution, and

without objection whatsoever, admitted by the Court as the statements of the accused made to the Police following his arrest in connection with the death of the deceased. Juxtaposed with Exhibits B, B1 and B2, it is clear to the Court that the evidence of the accused at the trial is significantly and materially at variance on how the accused person came to know about the death of the deceased.
In his statements to the police, the accused claimed variously that his son, Joseph John informed him when he (the accused) returned to his house from church or along Barracks Road, Uyo that the deceased was found dead and he went to see the corpse of the deceased. In Court, the accused gave evidence that it was his wife who told him that the deceased died in the house and that he received this information while he was on his way back from Ebonyi State.
Again, the claim by the accused that he was in Ebonyi State working for somebody or that he knew about the death of the deceased as he was returning there-from is inconsistent with his previous statements to the police.

Third, at pages 93 – 94 of the record:
I accept and believe the evidence of PW1 that PW2 called her on 1st February, 2015 to inform her that the deceased was last seen on 29th January, 2015. I believe the evidence of the prosecution witnesses supported by the accused person himself that the deceased was found dead in his room with wound in the head affecting the two eye balls and lying in the pool of his blood. I also accept and believe the evidence of PW2 tacitly supported by the accused person in Exhibit B that it was the son of the accused who opened the door leading to the room of the deceased where the deceased was found already dead.
Fourth, at page 95 of the record:
From available circumstantial evidence before this Court including the conduct of the accused in his failed efforts to conceal the death of the deceased, I find it irresistible to infer that it was the accused person who caused the death of the deceased in this case after which he locked the corpse of the deceased inside the room and fled the house leaving behind members of his family.
Whether on 28th January, 2015 or 29th January, 2015 there is evidence before the Court that the accused person last saw the deceased alive. The law is settled that

where a person is found dead and an accused person was the last person to have been seen with the deceased alive, the accused person has to account for the death of the deceased – BABATUNDE VS. THE STATE (2014) 2 NWLR (pt. 1391) 298 at 330-331, H-A.
Fifth, and finally at page 98 of the record, the learned trial Judge concluded by imputing mens rea over and above his finding of circumstantial evidence and his application of the “last seen” doctrine. He held thus:
I come to the conclusion, therefore that the accused person herein had the necessary mens rea not only to cause the deceased grievous bodily harm but to kill him. The accused had or reasonably ought to have had knowledge that grievous bodily harm or death was the probable and natural consequence of his using a dangerous weapon to stab the deceased on the forehead as disclosed in evidence before the Court.

Dissatisfied with this judgment, the Appellant filed a Notice of Appeal containing two (2) grounds of appeal on 14th May, 2018.
Appellant’s brief of Argument was filed on 6th May, 2020 but it was deemed filed on 18th June, 2020. It is settled by Chief Victor Iyanam.

Respondent’s brief of Argument was filed on 10th February, 2021 and deemed filed the same day. It is settled by Joseph Umoren Esq, DPP Akwa Ibom State.
Learned counsel for the Appellant nominated a sole issue for determination of the appeal.
It is:
Whether the circumstantial evidence relied upon by the learned trial judge to convict the Appellant for the offence of Murder was sustainable.

Learned counsel for the Respondent also formulated a sole issue to wit:
Whether from the totality of the evidence adduced at the trial, the prosecution has proved the offence of Murder against the Appellant beyond reasonable doubt.

Learned counsel for the Appellant pointed out that the learned trial Judge relied exclusively on circumstantial evidence to come to the conclusion on guilt of the Appellant. He referred to the caution of Idigbe JSC (of blessed memory) of the danger inherent in reliance on circumstantial evidence. He submitted that there was misapprehension of the facts in the instant case by the learned trial Judge. That at page 94 of the records, the learned trial Judge said:

I prefer and believe the evidence of PW2 that it was the Accused himself who reported the death of the deceased to PW2 who in turn informed PW1 and down the line …

He submitted that this finding his preverse because it is not supported by evidence on record. There is no record of the Appellant calling PW2 at any time to report the death of the deceased to her. That in her testimony, PW2 stated that the Appellant called her three times but none of those times was to report the death of the deceased.

Learned counsel for the Appellant submitted that the error of the Court below in holding that the Appellant reported the death of the deceased to the PW2 was significant in that it formed the basis for the improper evaluation of the evidence purportedly leading to the conclusion of the learned trial Judge. He submitted that the evidence of PW2 is largely hearsay containing no relevant direct evidence at all.

He submitted that there is ample evidence showing that the deceased and the Appellant lived in separate apartments within the same compound alongside about 11 other occupants/tenants. That there is also the uncontroverted evidence that the Appellant’s son broke the deceased’s room and discovered the decomposing body.

He submitted that the trial Judge had made up his mind on the culpability of the Appellant even before hearing the evidence. That at page 95 of the record, he said:
“When the Accused person was looked for in the house, the accused had fled and absconded from the house following the death of the deceased.”

Also, that in the 2nd paragraph of page 95, the learned trial Judge went on:
“From available circumstantial evidence before the Court, including the conduct of the accused in his failed efforts to conceal the death of the deceased, I find it irresistible to infer that it was the Accused person who caused the death of the deceased in this case after which he locked the corpse of the deceased inside the room and fled the house, leaving behind members of his family.”

Appellant’s counsel submitted that the above findings are not based on facts. That it is fallacious, misconceived and perverse. That there was no evidence of the person who saw the Appellant concealing the death. There was no evidence linking the Appellant with the murder weapon. He

referred to the case of SOPAKIRIBA IGBIKIS VS. THE STATE (2017) LPELR – SC 316/2014 per Ogunbiyi JSC that findings based on inadmissible evidence will be held as perverse.

Learned counsel for the Appellant further quoted extensively the findings of the learned trial Judge at pages 95-96 of the record especially the paragraph:
Whether on 28th January, 2015 or 29th January, 2015, there is evidence before the Court that the Accused person last saw the deceased alive …

Appellant’s counsel juxtaposed the above with the fact that in his final address, the prosecutor urged upon the learned trial Judge firstly to accept his case that the date in issue is 26th January, 2015 and NOT 28th or 29th January, 2015 as the trial Court insisted upon in its judgment.

Secondly, that the prosecution’s basis and platform was that upon their arrival at No. 4 Utang Street, both went to their separate rooms. That it is on record that the deceased and the Appellant do not share the same room. They were also living in a compound cohabited by at least 11 other co-tenants.

Learned counsel for the Appellant submitted further that all parties are in agreement that the Appellant and the deceased returned home after an assignment at a cousin’s place. The prosecutor submitted that the date was 26th January, 2015. The learned trial Judge now postulates that having returned home with the deceased, in a crowded compound where about 11 other families also reside, the Appellant also bore the onerous responsibility, thereafter of catering for the whereabouts of the deceased upon his return home.

He reasoned that the conditions for the application of the doctrine of Last Seen were completely absent in the circumstance of this case. That in the case of THE STATE VS. RAPHAEL IFIOK SUNDAY (2019) LPELR – 46943 (SC) the Supreme Court in reflecting on the doctrine of Last Seen was emphatic and used such terms as “Overwhelming” “compelling”, “damnifying”, Lead to “Irresistible conclusion” when it explained the doctrine in the following words, per Okoro JSC:
“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 VS. THE STATE (2006) 6 NWLR (pt. 975) 100; GABRIEL VS. THE STATE (1989) 3 NWLR (pt. 122) 457; IGHO VS. THE STATE (1978) 3 SC 87; MADU VS. THE STATE (2012) 15 NWLR (pt. 1324) 405; TAJUDEEN ILIYASU VS. THE STATE (2015) LPELR – 24403 (SC).”

He added that in the case of THE STATE VS. RAPHAEL IFIOK SUNDAY (supra) where the facts were even more compelling than the present case, the Supreme Court held the doctrine of last seen not applicable because, just like this case, there was no evidence that the accused was the last person to see the deceased.

Appellant’s counsel referred to excerpts from the evidence of PW1 and PW2 both of whom insinuated possible motives that the Appellant and the deceased disagreed on sale of family land pieces of evidence which could have casted suspicion on the Appellant.

On this, counsel referred to the cases of ABACHA VS. STATE (2002) LPELR – SC 290/2001 (-R); ABIEKE VS. STATE (1975) 9-11 SC; ONAH VS. STATE (1985)3 NWLR (pt. 236) 237 and submitted that a mere circumstance of suspicion, however strong, cannot take the place of legal proof.

Learned counsel for the Appellant further referred to findings by the learned trial Judge on pages 94-95 of the record.
There is incontroverted (sic: uncontroverted) that the deceased and the Accused person lived at least in the same compound. According to the Accused person, he instead went to search for the deceased at Ibom Plaza. There is evidence

from PW2 that the Accused told her that the deceased was seen on 31st January, 2015 at Nsukara wearing boxer and hanging a singlet on his shoulder, the same dresses that the deceased was found wearing when his dead body was discovered. Given the hoax that the information that the deceased was seen on 31st January, 2015 wearing boxer and hanging singlet on his shoulder turned out to be, the corollary question to ask is how the Accused person, who last saw the deceased on 28th January, 2015, according to his claim aptly described how the deceased adorned the same dresses he wore on the discovery of his corpse in his room. When the Accused person was looked for in the house, the accused had fled and absconded from the house following the death of the deceased. In Court, the Accused person stigmatized the deceased as an epileptic and mentally deranged.
From available circumstantial evidence before this Court including the conduct of the accused in his failed efforts to conceal the death of the deceased, I find it irresistible to infer that it was the Accused who caused the death of the deceased in this case after which he locked the corpse of the deceased inside the room and fled the house leaving behind members of his family.

Appellant’s counsel described the findings by the learned trial Judge as largely perverse in so far as there is no support in the evidence before the Court on those findings. He specifically repeated:
a) There is no evidence on the record that the Appellant locked the corpse of the deceased inside the room and fled the house leaving behind the members of his family.
b) There is no evidence on the record that when the Accused person was looked for in the house, the accused had fled and absconded from the house following the death of the deceased.
c) There is no evidence on record that the boxer and singlet worn by the deceased on the 31st January, 2015 as described by the Appellant was the same boxer and singlet worn by the deceased when he was discovered to be dead.

He submitted that the learned trial Judge engaged in speculations of very dangerous proportions when he went on to speculate that the boxer was the same worn by the deceased when he died, leading him to come to a perverse conclusion.

Learned counsel for the Appellant concluded that it is abundantly clear from the records that none of the prosecution witnesses saw the commission of any crime by the Appellant. That clearly the findings of the trial Judge were perverse and unwarranted. The death of the deceased remains a mystery, the police having done little or no investigation at all. The medical evidence was also unhelpful.
He urged us to set aside the judgment of the trial Court and acquit and discharge the Appellant.

Learned counsel for the Respondent agreed with the summary of facts by the Appellant that from the evidence of PW1, PW2 and the Appellant, it is established, that on the 26th of January, 2015, the deceased person in company of the Appellant, went for repair work at a cousin’s place at Nwaniba Road Uyo and they both returned to their house at No. 4 Utang Street that evening, where after they both went to their separate rooms. That was the last time the deceased was seen alive.

Respondent’s counsel nevertheless submitted that the law presumes that the person last seen with the deceased before his death was responsible for his death, and the accused is expected to provide an explanation of what happened.

He referred on this to the cases of ISMAIL VS. STATE (2011) 47 NSCQR 89 at 131; HARUNA VS. AG FEDERATION (2012) 9 NWLR (1306) 419.

He submitted that the onus lies on the accused person to give “minimum explanation of what he knows about the deceased death.” In the absence of an explanation, and in the face of overwhelming circumstantial evidence, the Court is entitled to infer that the accused person killed the deceased.

In the instant case, said counsel, PW2 informed the Court, that the accused person called her to inform her that her brother was missing. After some days, he called her again and informed her that the deceased was seen at Nsukara Offort, Nwaniba Road, wearing just singlet and boxer and that he and one of their tenants went to look for him. She further told the Court, that upon her inquiry from the said tenant, he told her that such search never occurred.

That to further strengthen the fact that such an unlawful act could only have been committed by the accused person, the corpse of Paul Eyo Ikon was found wearing the exact clothing which the accused person had told the PW2 that he was putting on at Nsukara Offort.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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He concluded by saying that the Appellant was prepared to dig a grave at the backyard for the deceased to be buried. That PW2 stated that the Appellant never wanted the police to be involved in the case. And, that these acts would suggest that the Appellant killed the deceased.

RESOLUTION OF SOLE ISSUE
The facts of this case on appeal present a classical but unfortunate scenario in the application of the principles of circumstantial evidence in particular the “last seen doctrine” in unwarranted circumstances.
The undisputed fact of the case is that the Appellant and the deceased went out to work in a cousin’s house. On their return, each of them left for his separate way and that was when last the Appellant saw the deceased. There was no eye witness of any account. There was no incriminating statement or evidence of any sort by the Appellant. The large question is when does the doctrine of last seen apply? As was pointed out even by the learned counsel for the Respondent in this appeal, the doctrine of last seen is a rebuttable presumption of guilt of an accused person who failed to offer explanation about the whereabout of

a victim whom to all intent and purposes he was the only person who saw him last before his death. In this respect, the ‘last seen doctrine’ is a specie of rebuttable presumption of evidence in the application of circumstantial evidence. It goes without saying that in the application of the ‘last seen doctrine’ or indeed circumstantial evidence each case would depend on its own facts.
In the instant case, the evidence on record even as presented by the prosecution does not require any other explanation by the Accused Appellant. The reason for this is that, the facts cannot presume that the Appellant was the last person that saw the deceased alive. The Appellant and the deceased went into their different rooms in a compound with eleven (11) or more tenants – “a thousand” other people would probably have seen the deceased alive ever before he met his death. The doctrine of “last seen” can only apply where other possibilities however slight of other persons seen the deceased while alive have been eliminated by the prosecution. This was not the case here.

At pages 95-96 of the record, the learned trial Judge referred to the cases of BABATUNDE VS. THE STATE (2014) 2 NWLR (pt. 1391) 298 at 330 -331 and OKETAOLEGUN VS. THE STATE (2015) 13 NWLR (pt. 1477) 538 at 565. With respect, none of these cases could be said to be on fours with the instant case.
In the case of BABATUNDE VS. THE STATE (supra) for example, the deceased permitted the gateman, PW3 to go on break and instructed the Appellant his driver to man the gate pending PW3’s return to his duty post from his break. The Appellant/driver who was alone in the house with the deceased killed the deceased before the return of the gateman to his duty post. It was in those circumstances in the case of BABATUNDE VS. THE STATE (supra) that Chukwuma – Eneh JSC who delivered the leading judgment of the Supreme Court held at pages 330 – 331 of the Law Report that:
“Let me now/come to the doctrine of last seen that has arisen from the overwhelming circumstantial evidence in this case and that as found by the two lower Courts has evincingly pointed to the murder of the deceased by the Appellant. The Appellant has been the last person to have been seen with the deceased alive and

as rightly held he has to account for his sudden death in the house where both of them stayed before his death.
…
The Appellant has been inside the house with the deceased at all material times. And if I may emphasize, the deceased has been discovered dead after the Appellant has emerged from the house. Therefore, there is a strong prima facie case that the Appellant has killed the deceased. After all the deceased looked hale and hearty when he returned to his house from the shopping complex. He, the Appellant has not rebutted the presumption of guilt arising from the finding of a prima facie case – – – based on the circumstances – – -“
Notice that unlike the present case, in the case of BABATUNDE VS. THE STATE (supra) it was only the driver/Appellant that was with the deceased in the house while the gateman went on break. On coming back, the Appellant emerged from the house and the gateman PW1 found his master dead in a pool of blood.
In the instant case, the decomposed body of the deceased was found in his room after the Appellant’s son living in the same compound forced the door to open.

It is trite that circumstantial evidence must be narrowly examined by the Court as it is a type of evidence which may be fabricated to cast suspicion on an innocent person. The Court, before drawing the inference of guilt from circumstantial evidence, must ensure that there are no other co-existing circumstances which could weaken or destroy the inference being drawn therefrom.
In other words, in order to sustain a conviction on circumstantial evidence, all the circumstances proved must be consistent with the hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that he is innocent or such as to exclude every other reasonable or rational hypothesis. It should have nothing to do with guess work or suspicion. Rather, to ground conviction circumstantial evidence must be cogent, compelling and irresistibly and conclusively pointing to the accused as the only person who committed the act. See UBANI VS. STATE (2003) 4 NWLR (pt. 809) 51; IGABELE VS. STATE (2006) 6 NWLR (pt. 975) 100; IKOMI VS. STATE (1986) 3 NWLR (pt. 28) 340.

The remaining aspect of this case which was also highlighted by the learned counsel for the Appellant are findings and conclusions of

the learned trial Judge based on inadmissible evidence and unwarranted and perverse inferences leading to suspicion of guilt.

It must be stated for the upteenth time that a mere circumstance of suspicion, however strong, cannot take the place of legal proof. See ABIEKE VS. STATE (1975) 9-11 SC 97; ABACHA VS. STATE (2002) LPELR – SC 290/2001 (-R); ONAH VS. STATE (1985) 3 NWLR (PT. 236) 237.

In the instant case the learned trial Judge was in error not only in invoking the doctrine of “last seen” to convict the Appellant on the uncontroverted facts of the case but also to believe that the Appellant’s conviction can be justified by circumstantial evidence.
The sole issue in the appeal is resolved in favour of the Appellant.
This appeal is meritorious and it is allowed.

The judgment conviction and sentence of the Appellant by the Hon. Justice Okon A. Okon sitting at Uyo Division of the High Court of Akwa Ibom State on the 24th day of April, 2017 are hereby set aside.
The Appellant John Eyo Ikon is accordingly acquitted and discharged of the offence of murder.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the lead judgment just delivered by my learned brother Mojeed Adekunle Owoade, JCA. I agree that there is merit in the appeal.

There was no circumstantial evidence pointing to the guilt of the Appellant. The doctrine of “last seen” was not applicable in this case.
For the reason more ably stated in the lead judgment, I too allow the appeal.

The conviction and sentence of the Appellant by the Court below are hereby quashed.
The Appellant is acquitted and discharged.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother Mojeed A. Owoade, JCA and I agree with his reasoning and conclusion in allowing the appeal.

explanation relating to how the deceased met his death in such circumstances. And in the absence of a satisfactory explanation, the trial Court and even an appellate Court will be justified in drawing the inference that the accused person killed the deceased. See HARUNA V. A.G. FEDERATION (2012) LPELR-7821(SC).
However, for the doctrine of last seen to apply, there must not be other possibilities however slight of other people seen the deceased while alive. In the instant case, the appellant and the deceased went out to work in a cousin’s house. In their return, each of them left for his separate ways and that was when last the appellant saw the deceased. Thus, the record shows that the appellant was not the last person seen with the deceased in any event. The evidence relied upon by the learned trial Judge was predicated solely on mere suspicion which cannot take the place of legal proof.
The appeal is allowed per force and the appellant is discharged and acquitted.

Appearances:

Chief Victor Iyanam, Esq. For Appellant(s)

Joseph Umoren, Esq. For Respondent(s)