Conviction Based on Doctrine of Last Seen 

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 8th day of April, 2022

Before Their Lordships

       Mary Ukaego Peter-Odili

Kudirat Motonmori Olatokunbo Kekere-Ekun

  Amina Adamu Augie

  Abdu Aboki

Ibrahim Mohammed Musa Saulawa

       Justices, Supreme Court

SC./513/2017

Between

Solomon Bem Kwenev Appellant

And

 The State           Respondent

     (Lead Judgement delivered by Honourable Amina Adamu Augie, JSC)

Facts

The Appellant hired the deceased who was a commercial motorcyclist, to take him to Akoodo in Benue State. The father of the deceased – PW1, testified before the court that, when the deceased did not return, he got information from PW2 who is also a motorcyclist, that it was the Appellant who hired the deceased at their motorcycle stand to go somewhere. When PW1 went to look for the deceased at Akoodo, he learnt that the corpse of a 15 year old boy was discovered at Gwarche Road, and the Police accompanied him to a mortuary where he identified the body of the deceased. PW1, in search of his motorcycle, went to the Appellant’s house and met his mother who told him that she saw the Appellant in company of a young boy who carried him away. PW1 went with some vigilantes and some Policemen to the address given by the Appellant’s mother, where the Appellant was arrested with the motorcycle. 

The Appellant was taken to Wannune Police Station with the motorcycle, where he admitted to committing the offence with one Justine Terdoo Ishor. Justine Terdoo was also arrested thereafter, and made a confessional statement admitting to committing the offence with the Appellant. The Appellant and Justine Terdoo were consequently arraigned before the High Court of Benue State on a three-count charge of criminal conspiracy, armed robbery and culpable homicide punishable with death. The Prosecution called three witnesses in proof of its case: PW1- the father of the deceased, PW2 – the motorcyclist and a relation of the deceased who claimed he saw when the Appellant hired the services of the deceased, PW3 – Inspector Peter Abuma, an officer who investigated the case. The Appellant and the co-accused person testified for themselves, and raised the defence of alibi.

The trial court found both accused persons guilty as charged, and sentenced them to death. Dissatisfied with the decision of the trial court, the Appellant and the co-accused person filed appeals to the Court of Appeal. At the Court of Appeal, parties were invited to address the court on an issue raised suo motu, on whether the Appellant’s conviction for culpable homicide punishable with death can be sustained on the evidence on record and findings by the trial court  on the doctrine of last seen, other than his confessional statement. Counsel for the Appellant filed a filed and adopted his written address, in respect of the issue raised suo motu. The Court of Appeal, in its judgement, expunged Exhibit 2, the confessional statement of the Appellant which was admitted in evidence by the trial court. The appellate court, therefore, discharged and acquitted the Appellant of the offence of criminal conspiracy and armed robbery. The Court of Appeal, however, affirmed the trial court’s conviction of the Appellant on culpable homicide punishable with death on the doctrine of last seen, which issue was raised by the appellate court. Nonetheless, they discharged and acquitted Justine Terdoo of all offences charged. The Appellant appealed to the Supreme Court.

Issues for Determination 

The following issues were considered for determination by the Supreme Court:

1. Whether the doctrine of last seen raised suo motu by the Court of Appeal is incompetent, having not arisen from any of the grounds of appeal and not being the basis of the judgement of the trial court, and if the answer is in the positive, whether the affirmation of the conviction of the Appellant for culpable homicide punishable with death by the Court of Appeal is not liable to be set aside.

2. Whether the Court of Appeal was right to have affirmed the conviction of the Appellant for culpable homicide punishable with death on the doctrine of last seen on the sole evidence of PW2, in the absence of any other evidence (Exhibit 2 having been expunged) vis-à-vis the evidence of the Appellant at the trial court denying the alleged offence and giving unchallenged evidence of his whereabout when the offence allegedly took place.

3. Whether the court below was right when it affirmed the decision of the trial court, that the failure of the Prosecution to tender the first statement made by the Appellant at Wannune Police Station upon his arrest was not fatal to its case.

4. Whether the Court of Appeal was right to have held that the failure of the Prosecution to investigate the defence of alibi raised by the Appellant upon his arrest was not fatal, on the ground that PW2’s evidence fixed the Appellant to the scene of the crime.

Arguments

On issue one, counsel for the Appellant argued that since the decision of the trial court was not based on the doctrine of last seen, the Grounds of Appeal had no bearing on the issue raised suo motu by the Court of Appeal, and having expunged Exhibit 2 on which the conviction of the Appellant by the trial court was based, the Court of Appeal ought to have allowed the whole appeal. Counsel posited that the Court of Appeal cannot rely on the provisions of Section 15 of the Court of Appeal Act on the general powers of the court, to go outside the case before it. In response to the above, counsel to the Respondent argued that although the issue was not contained in the Grounds of Appeal and was not the basis of the trial court’s judgement directly, it is competent; and the provisions of Section 15 of the Court of Appeal Act 2004 is succinct and very clear, obviating the need for the issue to be so over-flogged. 

 On issue two, it was submitted for the Appellant that it is only the evidence of PW2 that the Court of Appeal found to be “enough evidence” for the said doctrine of last seen. Counsel reproduced PW2’s evidence in full, and submitted that apart from the shaky, inconsistent, and unreliable evidence of PW2, there is no evidence, direct or circumstantial, in support of the conviction on the doctrine of last seen by the Court of Appeal. Per contra, counsel for the Respondent argued that even if Exhibit 2 had not been expunged, it has no bearing on the evidence of PW2, and it was not out of place for the Court of Appeal to look at PW2’s evidence to see if there was not enough evidence to sustain the conviction of the Appellant for culpable homicide punishable with death on the doctrine of the last seen alone, apart from the confessional statement. 

Arguing issue three, counsel for the Appellant contended that the failure of the Prosecution to tender the statement he made at the Wannune Police Station in Benue State, after his arrest, was fatal to its case, because it failed to prove that he was arrested in Taraba State, and he told the Police at the earliest opportunity that he knew nothing about the incident, and clearly stated his whereabout within the period. In response, counsel argued for the Respondent that the Court of Appeal was right to uphold the trial court’s decision and the Prosecution’s failure to tender the statement made at Wannune Police Station was not fatal. He submitted that the Appellant should have called for the statement produced, like that of the 2nd accused person, which was produced and tendered by their counsel as Exhibit 6. He submitted that failure to call for his own statement from Wannune Police Station showed the insincerity on the part of the Appellant, and that the provision of Section 167(d) of the Evidence Act applies only if they had requested for the statement which was not produced. 

Regarding issue four, counsel argued for the Appellant that the only flimsy escapist excuse given by PW3, the Investigating Police Officer, was that he did not know whether the Appellant pleaded alibi in his statement at the Wannune Police Station, the statement which he agreed receiving from the IPO. He submitted that the fact that the Appellant raised alibi when he was arrested and made a statement was not categorically denied; and that PW3 was only evasive in that regard. Opposing the submissions above, counsel argued for the Respondent that flowing from the doctrine of last seen, the issue of alibi raised by the Appellant cannot hold water. He argued that the alibi raised by the Appellant is flawed and wholly unreliable; PW2’s evidence unequivocally pinned him at the scene, the defence could not avail him. He argued further that the onus was on the accused to establish the plea of alibi raised by him, on the balance of probability.

Court’s Judgement and Rationale

In deciding issue one, the Supreme Court raised the question whether the Court of Appeal has the power to raise an issue suo motu and answered same in the affirmative. Their Lordships held there are occasions when the court may feel that a point, which has not been raised by any of the parties, is necessary for consideration to reach a correct decision in a case. But, the key element is that, the court must bring it to the notice of parties, so that they may address it on the point before basing its decision on it – OJE v BABALOLA (1991) 4 NWLR (Pt. 185) 270. In this case, the Appellant’s counsel addressed the court on the said issue raised suo motu, and the hullaballoo over this issue is without substance. More so, in an appeal, the appellate court is to determine whether the judgement of the court is right, and not if the reasons therefore are right – HILARY FARM LTD. v M.V. “MAHTRA” (2007) 14 NWLR (Pt. 1054) 210 at 229. 

On issue two, the Apex Court held that since the evidence of PW2 was unchallenged, the Appellant is reasonably expected to give an explanation as to his involvement with the deceased and lead evidence that the deceased took him to his destination and departed from him alive. There is nothing on record to help the Appellant, in the task of rebutting the presumption arising from his being the last person that the deceased was seen alive with. Therefore, the Court of Appeal was right to apply the doctrine of last seen to this case, and affirm his conviction for culpable homicide punishable with death. Regarding the effect of expunging Exhibit 2 by the Court of Appeal, it was held that the resultant effect of an Exhibit being expunged from the record, is that such exhibit should be regarded as if it had not been tendered and admitted. Thus, it cannot be legal evidence upon which the court can properly make a finding of fact. The pertinent question here, is whether the Appellant hired the services of the deceased on the fateful day. This has nothing to do with what the Appellant said in the statement in Exhibit 2, which was expunged from the record. The court is thus, left with whether the evidence of PW2 was enough to convict the Appellant, and the Court of Appeal found it was enough to validate the conviction based on the doctrine of last seen.

Deciding issue three, the Supreme Court held that commonly, the provision of Section 167(d) of the Evidence Act relates to withholding of documentary evidence where a party is in possession of a document, contents of which are material, he is expected to produce it. If he fails to, it may reasonably be presumed that if the party had produced it, the contents would have spoken against that party. In this case, the Prosecution did not refuse to produce the statement made earlier by the second accused person when asked by the defence counsel. Invoking Section 167(d) of the Evidence Act in this case is, certainly, out of the question.

On issue four, the Apex Court reiterated the settled position of law that where there is sufficient evidence to fix an accused at the scene of a crime, there would be no need for Police to embark on the voyage of investigating an alibi. In this case, the Respondent is right that, because of the doctrine of last seen, which the Court of Appeal applied to convict the Appellant, his defence of being elsewhere at the time in question “cannot hold water”. Since he failed to give any explanation of what happened to the deceased, the Court of Appeal grounded his conviction on the said doctrine of last seen. 

Appeal Dismissed.

Representation

E.O. Okoro with F.C. Pam, J.O. Ibegbunam, H.O. Ugwu for the Appellant.

A.K. Obekpa (C.S.C, MOJ, Plateau State) for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR) (An affiliate of Babalakin & Co.)