The Principle and Application of the Doctrine of Last Seen

CASE TITLE: EGWUCHE v. STATE (2022) LPELR-58763(CA)

JUDGMENT DATE: 14^TH OCTOBER, 2022

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

​ This appeal borders on Criminal Law and Procedure.

FACTS:

This appeal is against the judgment of the High Court of Kogi State, delivered on 19/2/2015, presided over by E.O. Haruna, J.

It is the case of the Respondent that the Appellant went to the house of the deceased (one Victoria Moses) on 8/7/2011 at about 8 p.m. to invite her to his house to buy fish. She however informed him that she would be coming the next day as it was already late at night to carry out the transaction. The next day 9/7/2011, the deceased informed her brother-in-law (PW1) that she was heading to the house of the Appellant to buy the fish. However, the transaction fell through or failed as the Appellant considered the price the deceased offered for the fish to be too low. The deceased thereafter left for another village to make purchases. The Appellant and his co-accused however followed the deceased, dispossessed her of the sum of N20, 000.00 and inflicted machete cuts on her body, leading to her death. Having waited for the deceased’s return till the next day, PW1 reported the matter at the Odeke Police Station and the Appellant was subsequently arrested.

Thus, the Respondent charged the Appellant and co-accused for the offences of conspiracy and culpable homicide punishable with death punishable under Sections 97(1) and Section 221(a) of the Penal Code respectively.

The Appellant in the evidence before the trial Court admitted that the deceased came to his house on 9/7/2011 to buy fish and that both of them have failed to agree on the price to be paid for the fish, the deceased left for somewhere else to get the same.

When the confessional statements were tendered by the Respondent, the Appellant and co-accused raise an objection contending that same were involuntarily obtained. Thus, trial within trial was conducted by the trial Court and the said confessional statements were admitted in evidence and marked as Exhibits 2 and 3 and subsequently, marked as Exhibits T2 and T3 in the main trial.

The Respondent called three witnesses and tendered various exhibits while the Appellant testified on his own behalf as DW1 and called no other witness. He also did not tender any Exhibit.

At the conclusion of trial, the trial judge convicted the Appellant and co-accused of the offences with which they were charged and accordingly, sentenced each of them to death. Dissatisfied, the Appellant lodged an appeal at the Court of Appeal.

ISSUES FOR DETERMINATION:

The appeal was determined on a lone issue viz:

“Whether or not the lower Court was right in holding that the Prosecution/Respondent proved its case against the Appellant beyond reasonable doubt having regard to the evidence (documentary and oral) adduced before it.”

DECISION/HELD:

In conclusion, the appeal was allowed and the judgment of the trial High Court containing the conviction and sentence passed on the Appellant was set aside. Furthermore, the Court discharged and acquitted the Appellant of the offences.

RATIOS:

• EVIDENCE – PROOF BEYOND REASONABLE DOUBT – Meaning of proof beyond a reasonable doubt; when the prosecution will be said to have proved its case beyond reasonable doubt
• CRIMINAL LAW AND PROCEDURE – OFFENCE OF CULPABLE HOMICIDE – Ingredients the prosecution must prove to secure conviction for the offence of culpable homicide; standard of proof required
• CRIMINAL LAW AND PROCEDURE – OFFENCE OF CONSPIRACY – Proper approach to an indictment which contains a charge of conspiracy and a substantive charge
• EVIDENCE – TRIAL WITHIN TRIAL – Whether separate trial within trial must be conducted where there is more than one confessional statement
• EVIDENCE – CONFESSIONAL STATEMENT – Whether there is a need to re-call an interpreter of a confessional statement during the main trial where he has given evidence during a trial within a trial
• EVIDENCE – DOCTRINE OF LAST SEEN – Nature of the doctrine of last seen
• CRIMINAL LAW AND PROCEDURE – OFFENCE OF CONSPIRACY – Whether a charge of conspiracy founded on the same facts as the substantive charge will fail where the charge for the substantive offence fails