OBASI v. STATE (2020)

OBASI v. STATE

(2020)LCN/15272(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/IB/64C/2017

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Nonyerem Okoronkwo Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

SAMUEL OBASI APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

In Criminal Prosecution, it is trite that the required standard is that of proof beyond reasonable doubt. Under Section 135 (1) of the Evidence Act, 2011, if the commission of a crime by a party to any proceedings is directly in issue, either Civil or Criminal, it must be proved beyond reasonable doubt.
See the following cases:-
ABIRIFON VS THE STATE (2013) 13 NWLR PART 1372 PAGE 619.
ALO VS THE STATE (2015) 9 NWLR PART 1464 PAGE 238.
Nevertheless proof beyond reasonable doubt does not mean that the Prosecution must prove its case beyond any shadow of doubt. When the ingredients of any particular offence the accused is charged with has been proved, then the Prosecution is said to have proved its case beyond reasonable doubt.
See the following cases:-
DIBIE VS STATE (2007) 3 SCNJ PAGE 160 AT 170 PARTICULARLY AT PAGE 178. ABIRIFON VS THE STATE (SUPRA). PER BADA, J.C.A.

METHOD OF PROVING THE GUILT OF AN ACCUSED PERSON

The guilt of an accused can be proved through any of the following methods:-
(i) Through Confessional Statement.
(ii) Through circumstantial evidence, or
(iii) Through the testimony of eye witness/witnesses.
See the following cases:-
ITU VS THE STATE (2016) 5 NWLR PART 1506 PAGE 443.
ADEGBOYE VS THE STATE (2017) 16 NWLR PART 1591 PAGE 248. PER BADA, J.C.A.

INGREDIENTS TO PROVE TE OFFENCE OF MURDER

The Appellant was convicted for murder, the ingredients of the offence of murder are:-
(1) That the deceased died.
(2) That the death of the deceased was caused by the accused/accused persons on trial and
(3) That it was the act or omission of the accused that caused the death of the deceased and that such act or omission was intentional or with the knowledge that death or grievous bodily harm was the probable result or consequence.
The ingredients mentioned above must co-exist. If any of them is missing, then, the offence of murder cannot be said to have been proved, hence, the Prosecution cannot obtain conviction for murder against the accused person and the Court must exonerate him and acquit him of the offence of murder. PER BADA, J.C.A.

WHETHER OR NOT AN UNCHALLANGED EVIDENCE IS DEEMED ADMITTED

The law is trite and settled that unchallenged evidence are deemed admitted and ought to be acted upon by the Court before whom it is given. See the following cases-
– CHUKWU VS. STATE (2013) 4 NWLR PART 1343 PAGE 1.
– OLUDE VS. THE STATE (2018) 10 NWLR PART 1627 PAGE 292.
– ZUBAIRU VS. THE STATE (2015) 16 NWLR PART 1486 PAGE 504.
– OKIKE VS. LPDC (2005) 15 NWLR PART 949 PAGE 7.
In OKOSI VS. THE STATE (1989) 1 NWLR PART 100 PAGE 642. It was held among others by the Supreme Court that:
“The serious and incriminating testimonies of the PW1 and PW2 were thus left substantially unchallenged. In all criminal trials the defence must challenge all the evidence it wishes to dispute by cross-examination. PER BADA, J.C.A.

WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED ON THE EVIDENCE OF A SINGLE WITNESS

It is trite law that the Court can convict an accused on the evidence of a single witness.
In MOHAMMED VS. THE STATE (1991) 5 NWLR PART 192 AT PAGE 438 AT PAGE 442. It was held that –
“There is no rule of law or practice which makes a Court hesitates in convicting upon the evidence of one witness if the Court is satisfied with the evidence.” See also ALI VS STATE (2015) 10 NWLR PART 1466 PAGE 1.PER BADA, J.C.A.

JIMI OLUKAYODE BADA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Justice, Ogun State of Nigeria holden at Ijebu-Igbo Judicial Division in charge No: HCB/11C/2008 – BETWEEN: THE STATE VS SAMUEL OBASI delivered on the 3rd day of February, 2012 wherein the Appellant was found guilty of murder and was sentenced to death by hanging.

Briefly the facts of the case are that on the 26/11/2006 at about 7.45pm, the Appellant called the deceased (Ifeanacho Egbe) on phone to meet him at a car wash location in Ijebu-Ode. The deceased invited his friend Sunday Ogbonna to escort him. On getting to the location, the Appellant invited two men to follow him to Ijebu-Igbo to collect money. The two men went along with the Appellant in his Mercedes Benz car to a Restaurant where he brought them to drink. Thereafter the Appellant invited the deceased to follow him somewhere leaving his friend Sunday Ogbonna behind at the restaurant.

After about two to three hours later the Appellant came back without the deceased, Sunday Ogbonna enquired after the deceased and he Appellant stated that the deceased was waiting across the road that, they were to leave the restaurant and meet him there. Sunday therefore followed the Appellant in his car who instead of going back headed into the bush somewhere in Ijebu-Igbo where he instructed Sunday Ogbonna to get down. They both got down and the Appellant brought out a knife and started stabbing him on his neck, chest, ribs, leg and head. Thus Sunday Ogbonna noticing that the Appellant was bent on killing him pretended that he was dead and fell to the ground. The Appellant thinking he was dead drove off.

Sunday Ogbonna was found 3 days later by an unknown person and taken to the motor park towards Ijebu-Ode where his brother’s landlord reported the matter to the Police.

Upon the arrest of Appellant he made confessional statement. The Appellant led the IPO to scene of where the decomposing body of Ifeanacho Egbe was found in the bush along Atan Road, Ijebu-Igbo Ogun State.

The Appellant was later charged to Court and tried by the High Court of Justice Ogun State on one count of murder contrary to Section 316 (2) of the Criminal Code Law volume 1 Revised Edition, Laws of Ogun State 2006.

At the trial, the Appellant testified for himself and denied the charge.

At the end of the trial, the learned trial Judge found that the offence of murder as charged has been proved beyond reasonable doubt. And the Appellant was sentenced to death by hanging.

The Appellant who is dissatisfied with the Judgment of the lower Court appealed to this Court.

The learned Counsel for the Appellant formulated two issues for the determination of the appeal. The said issues are set out as follows:-
“1. Whether the Confessional Statement Exhibit “A” is sufficiently corroborated and consistent with the other facts in evidence to ground a conviction for murder (Distilled from grounds 2, 3, and 5).
2. Whether the doctrine of “last seen” as applied by the trial Court is appropriate in the circumstances of this case (Distilled from ground 4).

The learned Counsel for the Respondent in her own case also formulated two issues for the determination of the appeal. The said issues are set out as follows:-
“1. Whether from the totality of evidence adduced at the trial, the trial Court rightly admitted and relied on the Appellant’s Confessional Statement (Exhibit A) as well as evidence of PW1, PW2 and PW3 in convicting the Appellant for the offence of murder.
2. Whether there is material contradictions in the evidence of the Prosecution which rendered the evidence unbelievable or raised doubt as to the guilt of the Appellant.”

At the hearing of this appeal on 12/3/2020, the learned Counsel for the Appellant stated that the appeal is against the Judgment of Ogun State High Court delivered on 3/2/2012. The Notice of Appeal was filed with the leave of Court on 19/2/2018 while the Record of Appeal was compiled and transmitted on 21/5/2018. The said record was deemed as properly compiled and transmitted on 22/11/2018.

The Appellant’s brief of argument was filed on 19/2/2019 and it was deemed as properly filed on 27/1/2020. The Appellant’s Reply brief of argument was also filed on 28/1/2020.

The learned Counsel for the Appellant adopted and relied on the said appellant’s brief of argument as well as the Appellant’s Reply brief as his argument in urging that this appeal be allowed.

On the other hand, the learned Counsel for the Respondent referred to the Respondent’s brief filed on 15/11/2019 and deemed as properly filed on 27/1/2020. She adopted and relied on the said brief as her argument in urging that the appeal be dismissed.

I have perused the issues formulated for determination of this appeal by Counsel for both parties. The issues are like half a dozen and six. But I am of the view that the issue formulated for the determination of this appeal on behalf of the Appellant are apt in the determination of this appeal. I will therefore rely on the said issues.
ISSUES FORMULATED FOR THE DETERMINATION
OF THIS APPEAL:
(1) Whether the Confessional Statement Exhibit “A” is sufficiently corroborated and consistent with the other facts in evidence to ground a conviction for murder. (Distilled from grounds 2, 3 and & 5)
(2) Whether the doctrine of “last seen” as applied by the trial Court is appropriate in the circumstances of this case. (Distilled from ground 4).

ISSUE NOS 1 & 2 (Taken Together)
The learned Counsel for the Appellant submitted that the Confessional Statement Exhibit “A” was not sufficiently corroborated or consistent with the other facts in evidence to justify a conviction for murder. He relied on the following cases:-
SAMUEL OJEGELE VS THE STATE (1988) 1 NWLR PART 71 PAGE 414.
KABIRU VS A. G. OGUN STATE (2009) 5 NWLR PART 1134 PAGE 209 AT 225-226.

It was submitted on behalf of the Appellant that for the conviction of the Appellant to stand, it must be apparent from the facts and circumstances of the evidence available that the Appellant’s conviction on the statement Exhibit “A”, have sufficiently complied with the tests laid down in decided authorities referred to above.

It was stated by Counsel for the Appellant that in Exhibit “A” the Appellant referred to one Okafor Ikpozu as his accomplice that stabbed the deceased while the Appellant held him. He went further that both PW1 and PW2 did not allude to the existence of any other person involved in the murder of the deceased.

Therefore, learned Counsel argued that Exhibit “A” ought not to have been relied upon by the trial Court.

Learned Counsel for the Appellant also referred to the statement of the Appellant in Exhibit “A” to the effect that he stabbed PW1 and PW1 ran away, whereas the PW1 stated in evidence that he pretended to be dead after the stabbings. He contended that facts stated by PW1 contradicted facts stated in Exhibit “A”. He submitted that Exhibit “A” failed the credibility test and should not have been relied upon.

Furthermore learned Counsel referred to Exhibit “A” which stated that the murder was committed on 1/12/2006 but that PW1 stated in his evidence that the offence was committed on 27/11/2006. He contended that the offence was committed on 1/12/2006.

Learned Counsel for the Appellant submitted that the Confessional Statement Exhibit “A” is unreliable and that it should not have been relied upon by the trial Court.

He relied on the case of:
ALMU VS STATE (2009) 10 NWLR PART 1148 PAGE 31 AT 50.

ON ISSUE N0. 2
The learned Counsel for the Appellant contended that the doctrine of “last seen” was based on the uncorroborated evidence of PW1 therefore the evidence of PW1 should not have been relied upon. He relied on the case of AMODU VS STATE (2010) 2 NWLR PART 1177 PAGE 47 AT 78 PARAGRAPHS F-G.

He therefore urged that this appeal be allowed.

On his own part, the learned Counsel for the Respondent in her response submitted that the Prosecution in a murder case must prove beyond reasonable doubt that:
(i) The deceased died.
(ii) That the death of the deceased resulted from the act of the Appellant.
(iii) That the said act of the Appellant was intentional.
He relied on the case of EDOHO VS THE STATE (2010) 6 SCM PAGE 52 AT 56.

She submitted that the ingredients of the offence of murder must be proved beyond reasonable doubt for the Prosecution to succeed.

She relied on the following cases:
UGO VS THE COMMISSIONER OF POLICE (1972) 11 SC PAGE 37.
AMEH VS THE STATE (1978) 6-7 SC PAGE 27.
DIBIE VS THE STATE (2007) SCM PAGE 101 AT 118-119.

Learned Counsel for the Respondent contended that the Court can rely and believe the evidence of a single witness in a murder charge. She relied on the case of OBIDIKE VS THE STATE (2014) 7 SCM PAGE 104 AT 111.

She submitted that the evidence of PW1 that was not challenged or controverted under cross examination is cogent, direct, positive and unequivocal to establish that the deceased is dead and that his decomposing corpse with deep stab wounds was found along the road side where the Appellant had taken PW2 and his team to as the scene of crime.

On the second and third ingredients of murder, learned Counsel commended Exhibit “A” to the Court. She submitted that the facts before the trial Court, from the evidence of the Prosecution witnesses and the Appellant’s Confessional Statement proved beyond reasonable doubt that the Appellant did intentionally killed the deceased.

It was also submitted that contrary to the submission of Counsel for the Appellant on veracity and correctness of the alleged Confessional Statement that the lower Court sought other evidence outside the Confessional Statement of the Appellant which made it probable that the confession is true and this made the trial Court to convict the Appellant.

He urged this Court not to disturb the finding and decision of the trial Court.

Concerning the second issue on the doctrine of “last seen” the learned Counsel for the Respondent submitted that it is a duty imposed on the Prosecution to lead sufficient evidence to establish prima facie case against the defendant to require an explanation for the disappearance of the deceased and that the absence of a reasonable explanation can support the inference of guilt. He relied on the case of:-
IGABELE VS STATE (2004) 15 NWLR PART 896 PAGE 314.

It was finally submitted on behalf of the Respondent that going by the evidence of PW1, PW2 and Exhibits “A”, “B”, “C”, “D”, “E” and “F” the Prosecution has been able to clearly link the Appellant as the last person to be seen with the deceased and no one else.

Learned Counsel for the Respondent urged this Court not to disturb the findings and decision of the trial Court.

In the appellant’s reply brief of argument, the learned Counsel for the Appellant submitted that reliance of the trial Judge on Exhibit “A” does not offer a proof beyond reasonable doubt when the facts stated therein are inconsistent with other pieces of evidence presented by PW1 and PW2.

He finally urged that this appeal be allowed.

RESOLUTION
The Appellant Samuel Obasi was charged before the lower Court on one count charge of murder contrary to Section 316 (2) of the Criminal Code Law Volume 1 (Revised Edition) Laws of Ogun State 2006, and he was convicted for the offence of murder and sentenced to death.

In Criminal Prosecution, it is trite that the required standard is that of proof beyond reasonable doubt. Under Section 135 (1) of the Evidence Act, 2011, if the commission of a crime by a party to any proceedings is directly in issue, either Civil or Criminal, it must be proved beyond reasonable doubt.
See the following cases:-
ABIRIFON VS THE STATE (2013) 13 NWLR PART 1372 PAGE 619.
ALO VS THE STATE (2015) 9 NWLR PART 1464 PAGE 238.
Nevertheless proof beyond reasonable doubt does not mean that the Prosecution must prove its case beyond any shadow of doubt. When the ingredients of any particular offence the accused is charged with has been proved, then the Prosecution is said to have proved its case beyond reasonable doubt.
See the following cases:-
DIBIE VS STATE (2007) 3 SCNJ PAGE 160 AT 170 PARTICULARLY AT PAGE 178.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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ABIRIFON VS THE STATE (SUPRA)

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In this appeal under consideration, the fact that the deceased (Ifeanacho Egbe) died is not in doubt. Exhibit “A” – The Confessional Statement of the Appellant and Exhibit “F” – The medical report dated 5/12/2006 both showed that the Ifeanacho Egbe is dead. See also page 107 of the record of Appeal.

The PW1 also gave a detailed evidence as to how the deceased was called on phone by the Appellant. The deceased invited the PW1 to escort him. The Appellant took the deceased and PW1 along with him in his Mercedes Benz car to a restaurant in Ijebu Igbo. The Appellant took the deceased out of the restaurant and did not return with him, and when asked about where about of the deceased, he stated that the deceased was across the road waiting. It was the attempt to kill the PW1 by the Appellant that led to the report of murder and attempted murder at Ijebu-Ode Police Station. The report was made to the Police Headquarters where the Appellant was arrested and he confessed to the crime.

PW2 was detailed to investigate the crime and he testified in Court after the Appellant was charged to Court that the Appellant led his team of Policemen to Atan Road along Ijebu-Igbo in Ogun State where the decomposing corpse of Ifeanacho Egbe was found with deep stab wounds all over back, abdomen, armpit and his body.

The testimony of the PW1 and other witnesses were not controverted under cross examination.
It is therefore my view that the uncontroverted or unchallenged evidence of the witnesses were rightly admitted by the lower Court.
The law is trite and settled that unchallenged evidence are deemed admitted and ought to be acted upon by the Court before whom it is given. See the following cases:-
– CHUKWU VS. STATE (2013) 4 NWLR PART 1343 PAGE 1.
– OLUDE VS. THE STATE (2018) 10 NWLR PART 1627 PAGE 292.
– ZUBAIRU VS. THE STATE (2015) 16 NWLR PART 1486 PAGE 504.
– OKIKE VS. LPDC (2005) 15 NWLR PART 949 PAGE 7.
In OKOSI VS. THE STATE (1989) 1 NWLR PART 100 PAGE 642. It was held among others by the Supreme Court that:
“The serious and incriminating testimonies of the PW1 and PW2 were thus left substantially unchallenged. In all criminal trials the defence must challenge all the evidence it wishes to dispute by cross-examination.

This is the only way to attack any evidence lawfully committed at the trial.
For when evidence is primary, admissible in the sense that it is not hearsay or opinion and not that of an expert, and an accused person wants to dispute it, the venue for doing so is when that witness is giving evidence in the witness box. The witness should be cross-examined to elucidate facts disputed, for it is late at the close of the case to attempt to negative what was left unchallenged, it is even far an exercise in futility to demolish it on appeal and it is like building a castle in the air to find fault in such evidence in this Court…”

As I stated earlier in this Judgment the evidence of the PW1 was not challenged or controverted under cross-examination, the evidence is cogent, direct, positive and unequivocal to establish that the deceased is dead and that his decomposing corpse with deep stab wounds was found along the road side where the Appellant had taken PW2 and his team of Policemen to as the scene of the crime. Also PW3 stated that on 5/12/2006 while working as a medical doctor at Ijebu-Igbo General Hospital, a decomposing corpse was brought to the Hospital for a post mortem, thereafter she made a report of her findings to the police i.e. Exhibit “F”.

On the second and third ingredients of murder earlier enumerated in this Judgment, a careful perusal of Exhibit ”A” (i.e. the confessional statement of the Appellant) would reveal that the Appellant instructed the deceased at the restaurant where he took the deceased and PW1, to follow him and he drove his Mercedes Benz car with the Deceased to the bush along Atan Road where he instructed the deceased to get down unknown to him that one Ikpozu Okafor was waiting. The Appellant then held the deceased’s arms while the said Ikpozu Okafor stabbed the deceased to death. This was stated in detail in the record of Appeal in particular pages 60 – 65, 90 – 97.

The testimony of PW1 on how he and the deceased person were lured from Ijebu-Ode to the restaurant at Ijebu-Igbo where the Appellant instructed PW1 to wait while the Appellant took the deceased away.PW2 also investigated the crime and testified that the Appellant took the police to the scene of crime. The PW3 also put up a detailed medical report on the deceased following a post mortem examination in respect of the deep laceration all over the trunk and armpit and protruded tongue of the deceased which gave the diagnosis of the cause of death to be hemorrhagic shock secondary to the deep lacerations.

It is therefore clear from the foregoing that the Appellant was with the deceased on the 26/11/2006 and that it was the act of the Appellant that led to the death of the deceased.

Furthermore it is my view that the Exhibits and evidence before the lower Court satisfies the burden of proof required in this case and this has shown clearly that killing of Appellant was intentional.
See the following cases:-

OGUNLEYE TOBI VS. THE STATE (2019) LPELR – 46537 (SC).
DAHIRU VS. THE STATE (2018) LPELR – 44497 (SC).
THE PEOPLE OF LAGOS STATE VS. MOHAMMED UMARU (2014) 7 NWLR PART 1407 PAGE 584.
Although the weapon used by the Appellant was not recovered but the Appellant in Exhibit “A” stated among others that:-
“… the knife I used to kill and stab both boys I later threw it inside the bush…”
(See page 18 of the record of appeal).
In AKPAN VS. STATE (1994) 9 NWLR PART 368 PAGE 347, It was held by the Supreme Court that:-
“The correct legal position is that where a person attacked another person with a lethal weapon and the other person died on the spot, it is not necessary to prove the cause of death. It can properly be inferred that the wound inflicted on the deceased caused the death. In BAKURI vs STATE (1968) NMLR PAGE 163 what happened was that a son killed his father by stabbing him in his stomach. It was held that it was the wound inflicted that caused the death of his father who died almost instantaneously. A post mortem examinations or a medical report was not absolutely necessary for the purpose of establishing the cause of death of the deceased. It was in this case proved beyond reasonable doubt that it was the act of the Appellant that caused the death of the deceased.”
See also OGBA VS. THE STATE (1992) 2 NWLR PART 222 PAGE 164 AT 199.
In this case, I am of the view that the Prosecution has proved the ingredients of murder against the Appellant beyond reasonable doubt as required by law.

Concerning the issue of Exhibit ”A” which is a confessional statement. Under Section 28 of the Evidence Act 2011 a Confession was defined as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.
The Evidence Act stated further in Section 29(1) that in any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceeding and is not excluded by the Court in pursuance of this Section.
A confessional statement is the best evidence in our Criminal Procedure. And once a confessional statement is admitted, the prosecution need not prove the case against the accused person beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the accused.
A person can be convicted on confessional statement alone where same is direct, positive and proved. This is because there cannot be a more appropriate person to give evidence of the guilt of the accused more than the accused himself.
The trial Judge found that the Appellant made the confessional statement Exhibit “A” in a stable mind and voluntarily and not under duress. The trial Judge is therefore right to convict the Appellant in the circumstances of the evidence proffered in this case.
See AKPA VS. STATE (2008) 14 NWLR PART 1106 PAGE 72.
A perusal of the testimony of PW1 and that of the Appellant during trial along with Exhibits “A” and “F” leaves no one in doubt that the only conclusion to draw is that the Appellant was one of those who murdered the deceased.
The law is that where there is direct evidence linking the accused/Appellant with the commission of the offence of murder as is in this case, he can safely be convicted for the commission of the offence of murder.
The learned Counsel for the Appellant urged this Court to hold that Exhibit “A” is not reliable and Appellant also in his testimony at the lower Court retracted Exhibit ”A”.
The position of the law is that retraction of a confessional statement i.e. Exhibit “A” will not affect the said Exhibit adversely once the Court is satisfied as its truth. As I stated earlier in this Judgment the Court can rely solely on the said Exhibit “A” in convicting the Appellant where it is found to be direct, cogent and positive. Although it is desirable to have outside the confession some evidence of circumstances no matter how slight which makes it probable that the confession is possible.
– NWACHUKWU VS. STATE (2007) 17 NWLR PART 1062 PAGE 31.
– ONOCHIE & OTHER VS. THE REPUBLIC (1966) 1 ANLR PAGE 82.
It is trite that corroboration need not be direct evidence that the accused committed the offence. It is sufficient if it is merely circumstantial evidence.

The PW2 testified that the Appellant was transferred from Nigeria police, Ijebu-Igbo Division Ogun State to SCID Eleweran Abeokuta in Ogun State on the case of murder and attempted murder. Upon the Appellant volunteering his statement, he took the police from SCID office to a bush along Atan Road, Ijebu-Igbo Ogun state where he pointed to the scene of the crime, same as seen in the picture of the decomposing body of the deceased taken by the photographers attached to the Ijebu-Igbo Divisional police station. This evidence was corroborated and confirmed by the testimony of PW2.

It must not be forgotten that when Exhibits “B”, “C”, “D” and “E” were tendered in evidence, there was no objection whatsoever.
Exhibit “B” – Military camouflage Singlet
Exhibit “C” – Short knicker
Exhibit “D” – Samsung mobile phone
Exhibit “E’ – Padlock key

See the following cases:-
ADELEKE VS. STATE (2013) 16 NWLR PART 1391 PAGE 556.
SHURUMO VS. THE STATE (2010) 12 SCNJ PAGE 109.
OSENI VS. THE STATE (2012) 2 SCNJ PAGE 215 AT 253.
SULE VS. STATE (2009) 17 NWLR PART 1169 PAGE 33.

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HARUNA VS. A.G. FEDERATION (2012) 9 NWLR PART 1306 PAGE 419.

I am therefore of the view that the pieces of evidence referred to above corroborates the contents of Exhibit ”A” that the Appellant was one of those that murdered the deceased.

The learned Counsel for the Appellant submitted that there are discrepancies and contradictions upon which this Court should set aside the Judgment of the lower Court.
But I am of the view that it is not all discrepancies, contradictions and/or inconsistency that will affect the substance of a criminal case in which there has been credible and unchallenged evidence. To succeed in upturning a decision, the contradiction must be relevant and be of great magnitude that it would cause miscarriage of Justice.
In this case there are no discrepancies or contradictions of that nature. The contradictions are not material to this case.
The material things are:-
– That the deceased died,
– The act of the Appellant caused the death of the deceased, and
– That the Appellant intended to cause the death of the deceased or cause grievous bodily harm to him.

All that the Prosecution needs to do is to call material witnesses to prove its case. It does not lie in the mouth of the Appellant i.e. the defence to urge the Prosecution to call a particular witness. Where the Prosecution fails to call a particular witness, there is nothing stopping the defence i.e. Appellant in this case from calling that witness.
See the following cases:-
– EBEINWE VS. STATE (2011) 7 NWLR PART 1246 PAGE 402.
– AFOLALU VS STATE (2010) 16 NWLR PART 1220 PAGE 584.

The learned trial Judge was therefore right in convicting the Appellant upon the confessional statement Exhibit “A” and the other evidence before the Court.

The learned Counsel for the Appellant also raised an issue on whether the Doctrine of “last seen” as applied by the trial Court is appropriate in the circumstances of this case.
It is trite that it is the duty of the Prosecution i.e. the Respondent in this Court to lead sufficient evidence to establish prima facie case against the accused/Appellant to require an explanation for the disappearance of the deceased and the absence of a reasonable explanation can support the inference of guilt.

See – Section 167 of the Evidence Act.
Excerpt of the testimony of PW1 before the lower Court are that:-
“Myself and Ifeanacho went to meet him at a car wash. On getting there the accused told us that we should follow him to Ijebu-Igbo to collect money. He took us in his Mercedes Benz to Ijebu-Igbo.”…
Later he left me at the Restaurant and went out with Ifeanacho Egbe and told me that he was coming back.
The Accused and Ifeanacho left the Restaurant. After about two to three hours, the Accused came back to the Restaurant without Ifeanacho Egbe.
The accused told me that we should go. I then asked him about Ifeanacho and he told me that he was at the other side and that we would see him.” (see page 55 of the Record of Appeal)
“… I again asked for Ifeanacho since we did not see him again. He refused to tell the where about of Ifeanacho Egbe”
(See – page 56 of the Record of Appeal.)
In ISMAIL VS. STATE (2011) 17 NWLR PART 1277 PAGE 601. It was held among others by the Supreme Court that:-
“…The rebuttable presumption is that the person last seen with the deceased before his death was responsible for his death. In the absence of any credible evidence to exculpate the Appellant from guilt, the circumstantial evidence is overwhelming and points to the Appellant and no one else.”
In this appeal, the evidence of PW1 during trial was not controverted nor was he cross-examined on the facts he stated part of which was set out earlier in this Judgment, therefore the facts remains admitted in evidence against the Appellant.
I am of the view that in the application of the “Doctrine of last seen” it is the duty of the accused Person/Appellant to give explanation as to how the deceased met his death. And going by the evidence of PW1, PW2 and Exhibits “A”, “B”, “C”, “D” “E” and “F” the Prosecution has been able to link the Appellant as the last person seen with the deceased Ifeanacho Egbe and no one else.
See the following cases:-
ARCHIBONG VS. THE STATE (2006) 14 NWLR PART 1000 PAGE 349.
IGABELE VS. STATE (2004) 15 NWLR PART 896 PAGE 314.
Consequent upon the foregoing, I am of the view that the “Doctrine of last seen” as applied by the lower Court is appropriate in the circumstances of this case.

Therefore, issue Numbers 1 and 2 are hereby resolved in favour of the Respondent and against the Appellant.

This appeal lacks merit and it is hereby dismissed.

The Judgment of the lower Court in charge NO-HCB/11C/2008 BETWEEN – THE STATE VS SAMUEL OBASI delivered on the 3rd day of February, 2012 is hereby affirmed.

Appeal dismissed.

NONYEREM OKORONKWO, J.C.A.: In this heinous murder case, the appeal judgment record at page 3 thereof shows as follows:
Upon the arrest of Appellant he made confessional statement. The Appellant led the IPO to scene of where the decomposing body of Ifeanacho Egbe was found in the bush along Atan Road, Ijebu0Igbo Ogun State.

The Appellant was later charged to Court and tried by the High Court of Justice Ogun State in Ota Judicial Division on one count of murder contrary to Section 316 (2) of the Criminal Code Law Volume 1 Revised Edition, Law of Ogun State 2006.

At the trial, the Appellant testified for himself and denied the charge.

At the end of the trial, the learned trial judge found that the offence of murder as charged has been proved beyond reasonable doubt. And the Appellant was sentenced to death by hanging.

The confession of the appellant is so direct and positive as to justify the conviction.

I agree with the judgment of my lord Bada J.C.A.

FOLASADE AYODEJI OJO, J.C.A.: I have read in draft the Judgment just delivered by my Learned brother, JIMI OLUKAYODE BADA JCA.

One of the issues thrown up by this appeal is the doctrine of “last seen”. The doctrine raises a rebuttable presumption that the person last seen with the deceased person bears full responsibility for his death. It means that where an accused person is the last person seen In the Company of the deceased person, he has a duty to give an explanation on how the deceased met his death. The doctrine is an exception to the Constitutional presumption that a person is presumed innocent until proved guilty. It is important to state that the doctrine comes into play when the time gap between when the accused person and the deceased were last seen alive and when the deceased was found dead is so small that it is impossible that any other person other than the accused person is the author of the crime. When the time between when the accused person and the deceased were seen alive and the time he was found dead is long then there is the possibility that other persons may have intervened to actuate or author the crime, the doctrine of last seen would not apply. See OLUDE VS. STATE (2018) 10 NWLR (pt. 1627) 292; ILIYASU VS. STATE (2015) 15 NWLR (pt. 1696) 448; MADU VS. THE STATE (2012) 15 NWLR (pt. 1324) 405.
In the instant appeal, P.W.1 gave evidence that the deceased was last seen with the Appellant. There is also evidence that the Appellant was arrested after he attempted to kill P.W.1. There is also evidence that it was the Appellant that took the Police investigation team to the locus criminis where the decomposing body of the deceased was found.
From circumstantial evidence before the lower Court, it became Imperative for the trial Judge to Invoke the last seen doctrine. He was right to have done so.

It Is for the above and the fuller reasons contained in the lead Judgment that I also dismiss this appeal and affirm the decision of the lower Court.

Appearances:

FEMI ONIBALUSI For Appellant(s)

MRS. ABIMBOLA AKISANYA (Chief State Counsel, Ogun State Ministry of Justice) For Respondent(s)