The Doctrine of Last Seen and The Extent of it’s Application

CASE TITLE:  SOMEFUN v. STATE (2023) LPELR-61096(SC)

JUDGMENT DATE: 7TH JULY, 2023

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: JOHN INYANG OKORO, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Criminal Law and Procedure.

FACTS:

This appeal is against the judgment of the Court of Appeal, held at Ibadan, in appeal No. CA/IB/112c/2019, delivered on 9/6/2021.

The case of the prosecution was that the deceased set out for his daily business as a commercial motorcyclist on 6/8/2005 but strangely did not return home to his wife at the close of work. The PW1 therefore organized a search party for him, disseminating the motorcycle particulars used by the deceased to different motorcycle units within neighboring communities. Ten days after the disappearance, the deceased motorcycle was recovered from Kehinde Sesan, the first accused person, who was trying to sell the motorcycle. Kehinde Sesan named the Appellant as his partner in the crime of conspiracy to commit murder and indeed murder of the deceased. Upon his arrest on August 17, 2005, the Appellant confessed to committing the crime for ritual purposes and further to the confession, he led the police to the spot where the decapitated trunk of the deceased was buried. The PW1 identified the body by the red shirt and black trousers that the deceased wore on the day he was last seen, as well as the wound he sustained on his shoulder a few days before his disappearance.

The Appellant made two confessional statements, which were admitted after a trial-within-trial as Exhibits G and J1. However, at the trial, the Appellant denied making those confessional statements voluntarily. He denied committing the offence charged, contending that he was being framed on account of a chieftaincy tussle between his father and a chieftain of the O’dua People’s Congress [OPC].

The learned trial Judge found the Appellant guilty of conspiracy to commit murder and murder and sentenced him to death by hanging. His appeal to the Court of Appeal was dismissed and the conviction and death sentence passed on the Appellant by the trial Court were affirmed. Still aggrieved, the Appellant appealed to the Supreme Court.

ISSUES FOR DETERMINATION:

The Court adopted the Respondent’s sole issue for the determination of the appeal, thus:

“Whether the lower Court was right in upholding the decision of the trial Court that the charges of murder and conspiracy to commit murder had been proven against the Appellant beyond reasonable doubt whilst relying on the confessional statement of the Appellant and corroborative circumstantial evidence.”

DECISION/HELD:

The appeal was dismissed for lack of merit. Consequently, the decision of the Court of Appeal which upheld the conviction and sentence of the Appellant by the trial Court was affirmed.​

RATIOS:

• CRIMINAL LAW AND PROCEDURE – GUILT OF AN ACCUSED PERSON – Ways of proving the guilt of an accused person, whether they are conjunctive
• EVIDENCE – CONFESSIONAL STATEMENT – Whether the retraction of a confessional statement renders it inadmissible; tests for determining the weight to attach to a confessional statement before a court can convict on same
• EVIDENCE – TRIAL WITHIN TRIAL – Whether an accused person can challenge the voluntariness of his confessional statement admitted after a trial-within-trial without first impugning the trial-within-trial
• EVIDENCE – DOCTRINE OF LAST SEEN – Application of the doctrine of last seen; duty on accused to give an explanation as to the death of a deceased where he is the last person seen with same
• CRIMINAL LAW AND PROCEDURE – GUILT OF AN ACCUSED PERSON – How to establish/prove the guilt of an accused person
• EVIDENCE – CONFESSIONAL STATEMENT – Whether a Court can convict solely on a confessional statement; need for corroborative evidence where a confessional statement is retracted

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