INTRODUCTION
Man is a social being bestowed with an inalienable rights of association Man is created to interact not just with fellow human beings but also with his environment. Man like every other creature on earth cannot live in isolation. There is always the innate need to interact with others, It is upon this notion that the statement “no man is an island” is founded.
However, there are certain instances where the exercise of this freedom leads to certain tragedy, inherent illegality, and unfortunate circumstances. The manifestation of this can be seen where a person is the last person seen with a deceased person just before he or she was unlawfully deprived of life. This is indeed a very complicated situation. This raises several valid questions such as whether the law punishes a person last seen with a deceased person? To what extent does the doctrine of “last seen” apply in the proof of murder? It is crucial to note that to every general rule, there is always an exception. The most notable exception to the “presumption of innocence” as provided by section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) as amended is the doctrine of “last seen”.
- DEFINITION OF TERMS
HOMICIDE
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 circumstances of the case.”
MURDER
Under the common law, murder was defined as the unlawful killing of a human being by another with malice afterthought.
THE DOCTRINE OF “LAST SEEN”
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 the full responsibility for their death. In a criminal proceeding, the general position of law under the Nigerian Criminal Justice System is that the burden of proving an act or ommission lies strictly on the prosecution. The prosecution must discharge this burden by proving beyond reasonable doubt and linking the accused or defendant to the crime alleged. The onus or burden never shifts, as the law at all material times presumes the accused /defendant to be innocent until proven guilty.
For better understanding, if Mr. X was last seen with Mr. Y and Mr. Y suddenly turned up dead or is found dead (i.e. the deceased was not previously suffering from any terminal ailments or previously showing sign of death), the law is that it will be presumed that it was Mr. X who killed or who is responsible for the death of Mr. Y. This is a very clear scenario of the doctrine of “last seen.”
The 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/deceased was last seen with the accused or defendant and has not been found after a period, the death of the missing person will be presumed, it will also be presumed that the person last seen with the victim/deceased is responsible for his/her disappearance or death.
The doctrine of last seen comes into play when the time gap between the point of time when the accused/defendant were last seen and where the deceased is found dead is so small that the possibility of any other person than the accused/defendant being the author of the crime becomes impossible.[1]
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 circumstances of the case.”
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, sch as;
- If the offender intends to cause the death of the person killed or to some other person some grievous harm
- If the offender intends to do to the person killed or to some other person some grievous harm
- 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.
- 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.
- If death is caused by the administering any stupefying or overpowering things for either of the purposes last aforesaid
- If death is caused by willfully stopping the breath of any person for either of such purposes; is guilty of murder[2]
2.1 APPLICATION OF THE DOCTRINE OF LAST SEEN IN HOMICIDE
The offence of murder is not alien to the public and our law in its dynamism has devised means to curb the menace in our society. One of the cogent means of minimizing the offence of murder in our society is through the instrument of the doctrine of “last seen”. The presumption of fact known widely as the doctrine of ” last seen” was developed by the Supreme Court. The doctrine of “last seen” is based on circumstantial evidence. The presumption of the doctrine of “last seen” is statutorily provided for under section 167 of the Evidence Act 2011.
The principle of Last seen has been affirmed in several of plethora cases such as:
In IGABELE V. THE STATE[3] The Appellant was convicted for the offence of murder. The prosecutions case is 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 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 a month later with some vital organs missing and the Appeallant was arrested about two months later. The Appeallant claimed that the deceased got off the vehicle somewhere to see his brother but did not say where. Later, the Appeallant said the deceased fell off the vehicle somewhere and died.
The Supreme Court affirmed the conviction of the Appeallant. Oguntafe J.S.C, stated that, after asking the following question: Are the facts of his case compatible with the innocence of the Appeallant? Are the facts capable of explanation upon any other reasonable hypothesis than the guilt of the Appeallant?
“I agree that in a criminal trial, the burden is always on the prosecution to prove the guilt of the accused/defendant beyond reasonable doubt. 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 guilt against him.”
In ARCHIBONG V. THE STATE[4] : The Appeallant was convicted of the offence of murder. The case of the prosecution was that the deceased and the appellant visited 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.
It is critical to note that though the principle of “Last seen” has been established by plethora of decided cases in Nigeria, the Nigerian statutes and laws do not specifically provide for this doctrine. It has nevertheless gained notoriety in the criminal jurisprudence through various judicial pronouncements.
Adekeye J.S.C, (as he then was) in HARUNA V. AG OF FEDERATION[5] held that “The doctrine of “last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus, where an accused person was the last person seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal………”
Though the doctrine of “last seen” is an exception to the presumption of innocence, it is also a presumption on its own. Like every presumption in law, it is rebuttable. The onus of proof which is always rested on the prosecution shifts from the prosecution to the accused to adduce evidence to show that he or she was not the one who killed the deceased.
In the case of MADU V. THE STATE,[6] the court held “if it turns out that the person last seen with the accused is dead, the doctrine, therefore, lays a burden on the accused to give an explanation on how the deceased met his or her death.” In determining the guilt of the accused person, great attention is placed on the time gap by the Courts. If the time when the accused and the deceased were last seen alive and the deceased is found dead is so infinitesimal that the mere possibility of any other person other than the accused encountering the deceased becomes impossible, the doctrine may likely be applied.[7]
It is pertinent to note that the doctrine of last seen is not a principle to be applied in isolation. There must be the existence of overwhelming circumstantial evidence pointing to the guilt of the accused. Circumstantial evidence in criminal law is the proof of circumstances from which according to the ordinary course of human business, the existence of some fact may reasonably be presumed.
The principle of last seen was not applicable to the case of STATE V. SUNDAY[8] where the son was alleged to have murdered his father but noteworthy, the doctrine was applicable to the case of ANYASODOR V. STATE[9] where the lover of a deceased was alleged to have killed him. Hence, the applicability of the doctrine is based on the facts of each case and the circumstantial evidence. This is to avert the miscarriage of justice.
The position as firmly settled is that if Mr. X was last seen in the company of Mr. Y alive, and the next thing that happened was the disappearance and or death of Mr. X, the inference is that Mr. X was or had been killed by Mr. Y. The onus is on Mr. Y to explain the purpose of showing that he was not the one who killed Mr. X
CONCLUSION
It would seem at first instance that the doctrine of “last seen” thrives on hasty conclusions in the sense that once a person disappears, no effort may be made to prove that he is dead before concluding that someone else has killed him. The doctrine of ‘last seen” is a mere presumption which like some presumptions in law is rebuttable. It means that the law infers or presumes that the person last seen with a deceased is responsible for his death.
Also, the principle of last seen is not a principle to be applied in isolation. There must be the existence of overwhelming circumstantial evidence pointing to the guilt of the accused. This means that a court will not convict an accused person in any criminal matter solely relying on the fact that he/she was the last person to be seen with the deceased. This will amount to a miscarriage of justice. Other cogent facts of the case and the circumstantial evidence directly linking the crime to the accused person must be considered before a conviction is made.
[1] https://projectchampionz.com
[2] Policy and Legal Advocacy Center https://www.placng.org Nigerian Criminal Code
[3] (2006) 6 NWLR (PT. 975) pg. 100
[4] (2006) LCN/3473 (SC)
[5] (2012) LPELR-SC.72/ 2010, (Pp. 30-31, paras. F-B)
[6] 92012) LPELR-SC.12/2009
[7] LSP025: The Doctrine of Last Seen https://www.thelegalstandpoint.law.blog/2021/02/18/lsp025/
[8] (2019) LPELR-SC.709/2013
[9] (2018) LPELR-S.C.655/2015
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