Doctrine of Last Seen in a Charge of Murder

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In the Supreme Court of Nigeria Holden at Abuja On Friday, the 11th day of June, 2021

Before Their Lordships Amina Adamu Augie Uwani Musa Abba Aji Mohammed Lawal Garba Tijjani Abubakar Emmanuel Akomaye Agim Justices, Supreme Court

SC. 996C/2018

Between

Nancy Aiwuyor Appellant

And

The State Respondent

(Lead Judgement delivered by Honourable Mohammed Lawal Garba, JSC)

Facts

The Appellant and two other persons were charged and tried for offences bothering on conspiracy, child stealing and murder, contrary to the provisions of Sections 516, 317 and 319 (1) of the Criminal Code. Five witnesses testified for the prosecution; while the Appellant was the sole witness. The trial court convicted the Appellant and others for the offences charged, and they were sentenced to death for the offence of murder. The Appellant’s appeal to the Court of Appeal, was dismissed. The Appellant further appealed to the Supreme Court.

Issue for Determination

The Supreme Court considered the following sole issue as being central to the appeal and decided the appeal thereon:

“Whether the lower court was right, that the prosecution had proved the offences the Appellant was charged with beyond reasonable doubt by the evidence adduced before the trial court.”

Arguments

Relying on the decision of court in COP v AMUTA LPELR- 41386(SC), counsel for the Appellant submitted that in criminal trials, the burden of proof is beyond reasonable doubt, and this burden rests on the prosecution throughout trial. Counsel contended that the burden is to be discharged by credible and cogent evidence, which is sufficient to eliminate reasonable doubt that it was the accused person who committed the offence he was charged with. Counsel relied on IGBABELE v STATE (2006) 5 NWLR (Pt. 975) 100 for the three ingredients of the offence of murder which the prosecution is required to prove together or conjunctively, in order to satisfy the proof beyond reasonable doubt. It was the position of counsel that the prosecution did not, by the evidence adduced at trial, prove any of the offences against the Appellant, particularly murder, beyond reasonable doubt. He argued that the witnesses called in the case did not give evidence in that regard, and that the Court of Appeal erred in law to have affirmed the conviction of the Appellant in the absence of proof beyond reasonable doubt. Further relying on the case of ORISA v STATE (2018) 11 NWLR (Pt. 1631) 457, Counsel argued that the evidence of the Appellant was cogent, unequivocal, and remained unshaken during cross-examination, but the trial court simply disregarded it in its judgement. Counsel argued that it is the duty of the trial court to resolve any doubt in the circumstantial evidence in favour of the accused person where it is capable of two interpretations; one showing the innocence and the other, the guilt of the accused person.

In response to the submissions above, counsel argued for the Respondent that the prosecution had discharged the burden of proof of the offences the Appellant was charged with, and that the trial and lower court were right to have convicted and affirmed the conviction of the Appellant; respectively. Counsel submitted that the concurrent findings of the two courts are not only borne out of abundance of evidence, but also based on relevant principles of law in Section 135(1) of the Evidence Act. Relying on OSENI v STATE (2012) 208 LRCN 151, he posited that that proof could be in any of the following ways: confessional statement by an accused person, circumstantial evidence or evidence of eyewitness of the crime. Counsel submitted that conspiracy, which is an offence that may not always be proved by direct evidence, and is distinct from the main offence, can be inferred from the facts and circumstances of a case – IKEMSON v STATE (1989) 3 NWLR (Pt. 110) 455. Counsel contended that the evidence of the prosecution witnesses, depicted vividly how the Appellant in company of the 1st & 2nd accused persons in consensus ad idem, stole and eventually murdered the victim for ritual purposes, and that the evidence of DW1 and DW2 corroborated the prosecution evidence to prove the charge of conspiracy as required by law. For the offence of child stealing, counsel argued that citing the evidence of PW1 and statement of the Appellant, established that the Appellant actively participated in the commission of the offence and that no evidence was given in rebuttal by the Appellant. On the offence of murder, counsel relied on EDAMINE v STATE (1996) 3 NWLR (Pt. 438) 530 for the essential ingredients of the offence, and argued that the law is settled that where the victim was last seen with the accused person and has not been found after a period of more than seven years, death would be presumed by virtue of Section 164(1) of the Evidence Act. Learned counsel submitted that the evidence before the trial court, was that the victim was last seen by and with the Appellant who received her from the 2nd accused person, and the victim has not been seen or found since February 24th, 2009, thereby giving rise to the reasonable presumption of death. Counsel submitted further that concurrent findings by the two lower courts, was rooted in the evidence which sufficiently established the ingredients required to prove the offences beyond reasonable doubt against the Appellants.

Court’s Judgement and Rationale

Before deciding the sole issue, the Supreme Court pointed out that the law permits a Respondent who did not file a Cross-appeal or a Respondent’s Notice of Appeal, to formulate issues from the grounds of appeal filed by the Appellant, and in so doing, adopt a favourable slant. Such Respondent does not have to adopt the form or style of the Appellant, in the formulation of the issues for determination -ATANDA v AJAYI (1989)3 NWLR (Pt. 111) 511.

Deciding the sole issue, the Supreme Court held that it is elementary in all superior courts of record in Nigeria, that by the combined provisions of Section 131, 132, 135(1) and 139 of the Evidence Act 2011, the burden of proof in all criminal trials is on the prosecution, to prove the offences which the accused persons are alleged to have committed beyond reasonable doubt. Another settled principle of law is that, the burden of proof imposed on the prosecution in criminal trials can be effectively discharged, and the presumption of innocence in favour of an accused person completely displaced by any of the following ways: confessional statement of the accused person which satisfies the requirements of law, direct eyewitness evidence or circumstantial evidence which meets or satisfies the requirements of the law – IGBABELE v STATE (2006) 5 NWLR (Pt. 975).

The court held that for the evidence to be adduced by the prosecution in the discharge of the burden of proof in any of these ways, by law, all material ingredients or elements which constitute the offence with which he was charged before the court, must be established together or conjunctively. Where a trial court failed or omitted to adequately, properly, and fairly consider a defence disclosed in the evidence before it which is open and available to an accused person before convicting him for the offence he was charged with, an appellate court would readily consider such defences in the event of an appeal on the failure or omission by the trial court – OJO v STATE (1973) 11 SC. An appellate court lacks the judicial competence to consider, deal with, pronounce and decide any issue or point which is outside of and not related to the grounds of an appeal contained on the Notice of Appeal filed before. In this instance, however, the Appellant did not, by his Grounds of Appeal or the issues submitted to the lower court for its determination, raise the issue of omission or failure by the trial court to consider the defence raised by the Appellant during trial, in the judgement appealed against. Not being an issue submitted to it or arising from any of the grounds of appeal before it, the lower court had no obligation or duty in law, to deal with or make pronouncement on the alleged omission or failure by the trial court to consider the defence raised by the Appellant at the trial court – IYAJI v EYIGEBE (1987) 1 NWLR (Pt. 61) 523.

Further, the proof of the offence of conspiracy lies in the inferences to be drawn from subsequent illegal acts or conducts by the individual conspirators. towards meeting or achieving the common intention and purpose. From the series and sequence of the acts and conduct by the accused persons, as narrated in their respective statements, there is no reasonable doubt that they could only come from the personal knowledge and common intention of persons who had agreed to commit an illegal act for a common purpose as envisaged by the provisions of Sections 7 and 8 of the Criminal Code, in order to constitute the offence of conspiracy between them. The evidence adduced by the prosecution through PW3 – the victim’s father, established beyond reasonable doubt that the victim who was a three-year-old at the material time, was taken away from their care, possession, and protection, forcibly and with the clear intention to steal her for an illegal purpose. The evidence leaves no reasonable doubt that the offence of child stealing under Section 371 of the Criminal Code was committed, in furtherance and pursuit of the common intention by the Appellant and her co-conspirators; the first and second accused persons. Consequently, the offences of conspiracy to commit felony and child stealing have been proved by the evidence, adduced by the prosecution, beyond reasonable doubt, as required by the law and the lower court was right to have affirmed her conviction for the said offences.

On the charge of murder, the court held that the law is firmly settled, as seen in loads of judicial authorities, that for the prosecution to secure a conviction for the offence of murder, the following crucial, vital and essential elements must be proved conjunctively, beyond reasonable doubt, that the death of the human has actually and in fact, taken place or occurred, the death was caused by the acts done or attributable to the accused person charged with the offence and the acts was done by the accused person with the intention to cause the death or that at the material time he knew or had reason to know that death was the probable, and not only a likely consequence of the act- OKORO v STATE (1988) 12 SCNJ.

In this case, the child who the Appellant and other accused persons conspired with, and stole was not found up to the time her trial commenced and ended. The lower court believed and relied on the evidence that since the Appellant and the co-accused conspired and stole the missing child who had not been seen or found for a period of seven years thereafter, there was the presumption of her death, and the Appellant had the duty to explain what happened to her because they were last seen with her. As shown by the evidence, the Appellant and the 2nd accused person were the last persons seen with the victim, when she was handed over to them by the 1st accused person on the 24th February, 2009 and they took her away alive, but she had since then, not been traced, seen or heard of or about. The Appellant has the duty to give or offer an acceptable explanation on the whereabouts, the condition or situation that the baby victim has been from the time they took her away from the village until she was traced, found or heard of or about, if ever. The fact that there was no direct evidence of her death or that her dead body was not found, would not affect or detract from the statutory presumption of her death, or its proof by the cogent and compelling circumstantial evidence placed before the trial court – STATE v SUNDAY (2019) 9 NWLR (Pt. 1676) 115. The court held further that the lower court was right that the presumption provided for and envisaged in the provisions of Section 164(1) of the Evidence Act applied in the Appellant’s case such that until rebutted by the Appellant, it was safe to say that the death of the child was proved beyond reasonable doubt in the circumstances of the case.

On the element that the death of the child was attributable to or resulted from the acts of the Appellant, the court held that the prosecution has proved, beyond reasonable doubt, that the acts of the Appellant along with her co-conspirators, caused the statutorily presumed death of the child they stole for ritual purposes. Thus, the second element of the offence of murder was thereby, satisfied. On the last of the elements, their Lordships held that with the brutal removal of nine fingers and the hair of the three year old victim, no reasonable doubt exists in the Appellant’s case that she indeed intended and knew that the death of their unfortunate victim was the inevitable result or consequence of their nefarious acts. The court therefore, affirmed the conviction of the Appellant.

Appeal Dismissed.

Representation
Olayiwola Afolabi for the Appellant.
Paulyn O. Abhulimen for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)