APPLICATION OF THE DOCTRINE OF LAST SEEN IN HOMICIDE TRIALS IN NIGERIA CRIMINAL JUSTICE SYSTEM
Author: O. M. Atoyebi S.A.N FCIArb. (U.K.)., Contributor: ABDULWASIU MOHAMMED
It is a given that no man is an island. Even in the predate society, Man as a social being is bestowed with an inalienable right of association. The significance of this freedom to associate with other persons cannot be overemphasized especially as it helps man to realize his dreams and aspirations. However, there are instances wherein such an exercise of the right of association amounts to apparent tragedy and inherent illegality. This can manifest in an instance where one is the last person seen before the unlawful taking of a deceased’s life. The correlative question is; Do our laws punish the last person seen with the deceased? To what extent does the “Doctrine of last seen” apply in proof of murder?
It is important to note that there is an exception for every general rule, and one exception to the Doctrine of “presumption of innocence” is the doctrine of last seen. The general position of the law under our Criminal Justice System is that the burden of proving an act or omission lies strictly on the prosecution. The burden never shifts, as the law at all material times presumes the accused person to be innocent until proven guilty.
If Mr A was last seen with Mr B and Mr B suddenly turned up dead, (i.e. the deceased was not previously sick or previously showing any sign of death), the law is that it will be presumed that it was Mr who killed or who is responsible for the death of Mr B This is called the “doctrine of last seen”.
This doctrine of last seen stands as a negation or an exception to the doctrine of “presumption of innocence” as it is the law that where the victim was last seen with the accused person and has not been found after a period, the death of the lost person will be presumed, it will also be presumed the person that he was last seen together with is responsible for his disappearance or death.
The doctrine of last seen, in simpler terms, means that the law presumes that the person who was last seen with a deceased individual bears full responsibility for their death.
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, 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[1] [1].
Under the common law, murder was defined as the unlawful killing of a human being by another with malice aforethought.
Section 315 of the Criminal Code Act defined unlawful Homicide as follows:
“Any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter, according to the circumstance of the case[2] [2]’’.
Section 316 of the Criminal Code is instructive of the meaning of murder. It provides that; Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say-
a. If the offender intends to cause the death of the person killed or to some other person some grievous harm;
b. If the offender intends to do to the person killed or to some other person some grievous harm;
c. If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
d. If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without a warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
e. If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
f. If death is caused by willfully stopping the breath of any person for either of such purposes; is guilty of murder[3] [3].
In ordinary parlance, Murder means the unlawful taking of life of a human being.
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[4] [1],“
The Doctrine of last seen has been deployed in a plethora of cases by the Nigerian Courts. In Igabele V. The State[5] [2], (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) [6] [3], 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.
CONCLUSION
“It would seem that the doctrine thrives on 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. It means, in effect, that the law presumes that the person ‘last seen’ with him is responsible for his death.”
[1] https://projectchampionz.com
[2] Nigerian Criminal Code Act, https://en.m.wikipedia.org>wiki
[3] Policy and Legal Advocacy Center https://www.placng.org [4] > laws, Nigerian Criminal Code https://en.m.wikipedia.org>wiki
[4] ‘’Evidence Act, 2011” Nigerian Law Guru http://www.nigerianlawguru.com [5] > “Evidence Act, 2011” Refworld https://www.refworld.org [6] >
[5] “Igabele V. The State” Nigeria-law.org http://www.law.org [7] >
[6] “Archibong V. The State” Barrister NG.com https://barristerng.com [8]