APPLICATION OF THE DOCTRINE OF LAST SEEN IN HOMICIDE
The offence of murder is not alien to us, and as such our laws in its form of dynamism have devised means to curb such menace in society. One of these means of getting rid of murder in our society is through the instrumentality of the ‘doctrine of last seen’. The Supreme Court developed the presumption of fact known as the doctrine of last seen, which is based on circumstantial evidence. Statutorily, this presumption could be found in section 167 of the Evidence Act.
Section 167 of the Evidence Act (2011) provides as follows:
“The court may presume the existence of any fact which it deems likely to have happened, taking into account the common course of natural events, human conduct, and public and private business in relation to the facts of the particular case, and in particular the court may presume that-
a. a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession;
b. a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence;
c. the common course of business has been followed in particular cases;
d. evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; and
e. when a document is created and is in the hands of the obligator. The obligation has been discharged,“
The Doctrine of last seen has been deployed in a plethora of cases by the Nigerian Courts. In Igabele V. The State, (2006) 6 NWLR (pt,975) page. 100. The Appellant was convicted for murder. The case of the Prosecution was that the Appellant motor driver and the deceased conductor, both went out with their vehicle but did not return home. The vehicle was later returned by another driver about four days later and the next day the owner of the vehicle reported the matter to the Police. The body of the deceased was discovered about one month later with vital organs missing and the Appellant was arrested about two months later. The Appellant claimed that the deceased got off the vehicle somewhere to see his brother but did not say where. Later, he said that the deceased fell off the vehicle somewhere and died.
The Supreme Court affirmed the conviction of the Appellant. Oguntade JSC said, after asking the following question; Are the facts of his case compatible with the innocence of the Appellant? Are the facts capable of explanation upon any other reasonable hypothesis than the guilt of the Appellant?
“I agree that in a criminal trial, the burden is always on the prosecution to prove the guilt of the accused person beyond all reasonable doubt. Generally speaking, therefore, there is no duty on the accused to prove his innocence. However, where circumstances arise, as in this case, some explanation may be required from the Accused person as the facts against him are strong. Where he fails to offer such an explanation as happened in this case, his failure will support an inference of guilty against him.”
In Archibong V. The State, (2006) LCN/3473 (SC) , the Appellant was convicted of murder. The case of the Prosecution was the deceased, and the Appellant went to a hotel for drinks after which they checked into a room. About two hours later, the waiter knocked on the door of the room but there was no response. He opened the door and found that the Appellant was no longer in the room but the deceased lay naked and motionless on the floor with foam around her mouth and nose. The Supreme Court applied the doctrine of last seen and convicted the Appellant.
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 purpose of showing that he was not the one who killed Mr A.