INTRODUCTION:
In absence of a direct evidence in a trial, the law allows the court to fetch the evidence from circumstances surrounding a case. Such evidence can be used at times as corroborative for a weakened direct evidence or stand on its own.
Direct evidence is given by a person or persons who witnessed the commission of a crime. It includes oral, real and documentary evidences. On the other hand, circumstantial evidence therefore is the evidence not of the fact in dispute but other facts from which the facts in dispute can be inferred. Where the direct testimony of eye witnesses is not available, the court is permitted to infer from the fact proved, which may logically assist them to prove the existence of other facts.
However, one of the greatest parts of circumstantial evidence is “Doctrine of last seen.” The doctrine is not a law but it receives a Global application. In some other jurisdictions, it is called “The last seen theory.”
The doctrine carries a premium mark in a homicide trial where the direct evidence is not available to connect the accused directly with offence, a successful proved of the doctrine of “last seen“ may be adduced to secure the conviction of the accused in as much as it is not genuinely rebutted by the accused’s explanation or by other evidence undermining the presumption.
MEANING OF THE DOCTRINE:
The doctrine of last seen is a principle in the offence of murder that presumes that the person who was last seen with the deceased is responsible for the death of the deceased. In other words, the doctrine of last seen is a legal principle used in criminal trials, particularly in cases involving murder or manslaughter. It’s not a statutory provision but a legal inference or presumption established by court decisions.
In liyasu v. state (2015) 11 NWLR (Pt. 1469) 26. The supreme court gave convinced explanation on the doctrine by saying that The doctrine, also referred to as the Las seen theory, which is a doctrine of global application, applies to homicide case in Nigeria, it creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death. Thus, where an accused person was the last person to be seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death. In the absence of such an explanation, a trial court and even an appellate court will be justified in drawing the inference that he (the accused person) killed the deceased person.
Also in Kwenev v. State (2022) 13 NWLR (Pt.1847) 273. A similar explanation was given by the court 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 was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. Where a person is found dead and the accused was the person last seen with the deceased alone, the accused is duty bound to account for his death”.
CONSEQUENCES OF THE DOCTRINE:
The doctrine of “last seen” thickens a multiple consequences in a homicide proceedings whenever it is invoked;
Firstly, It is an exception to constitutional provisions on presumption of innocence. Section 36(5) which provides that;
Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty: Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
This has received judicial interpretation in the case of Madu v. State (2012) 15 NWLR, part 1324, 405 at 447. Where the appellant was charged with conspiracy for killing and throwing the corpse into a soak-away pit. The trial court found the appellant guilty as charged relied on circumstantial evidence that the deceased was last seen alive with the appellant and the 2nd accused.
The judgment was affirmed by court of appeal and the Supreme Court in its judgment held that; it is an exception to the constitutional provision that a person is presumed innocent until proven guilty. In the instant case, the Court of Appeal was right to have affirmed the conviction and sentence of the appellant based on the avalanche of circumstantial evidence coupled with the doctrine of “last seen” rightly and properly invoked by the trial court.
Secondly, It places the onus on accused to give explanation relating to deceased’s demise. And instead of proving the accused’s guilt to the charge, it subjects the prosecutor to establish the fact that the accused was the last person seen with the deceased and he had everything reasonable and enough to murder the deceased.
This is the position in Omoregie v. State (2018) 2 NWLR (Pt.1604) 505. The appellant and co-accused were charged for conspiracy and murder of his Employer, they were seen with the deceased at his residence before he was stabbed to death, and they were both apprehended. The prosecutor relied on circumstantial evidence provided by PW1, who saw the accused and co-accused at the deceased’s residence shortly before the incident. At the conclusion of the trial, the trial court found the appellant and the co-accused guilty and convicted them. On the appeal, The court held that, The onus is always on the person last seen with the deceased to offer a minimum explanation of what he knows about the death of the deceased.
Also see Ojo Esseyin v. The State (2018) 14 NWLR (Pt. 1640) 491. The court per Galinje JSC stated that; The doctrine of “last seen” fully applies in this case. the appellant elected to rest his case on the prosecution’s case and therefore offered no explanation to rebut the convincing circumstantial evidence adduced by the Prosecution. The judgments of the two lower Courts have not been shown to be perverse. Therefore, the appeal is hereby dismissed.
DETERMINATION OF LONG GAP
It would be difficult in some cases to successfully apply the doctrine of “last seen” when the time the accused and the deceased were last seen alive and the time the deceased is found dead is not minuscule. For instance, if there is possibility of any other person rather than the accused could have intervened or contacted with the deceased, it may not be safe to rely on the doctrine.
This is observation of the court in indian case Rajashkhanna V State of A.P (2006) 10 SCC 172. It states that; 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 alive and 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.
This view was also held by the Supreme Court in Nigerian case Madu v. State (supra). That “Where there is a long time gap between “last seen together” and the crime and there is possibility of other persons intervening, it is hazardous to rely on the theory of “last seen together”. However even if the time gap is less and there is no possibility of others intervening, it is safer to look for corroboration”.
Another clause to the application of the doctrine is where the accused can sufficiently rely and prove the defense of alibi. i.e. he was with another person at the time the crime was committed.
It is worth to be noted that the doctrine requires an overwhelming circumstantial evidence in which some fact will be reasonably presumed in order to establish the guilt of accused. Otherwise, the doctrine is not applicable where it may lead to miscarriage of justice. See State v. Sunday (2019) LPELR-SC.709/2013. Where a father was allegedly accused to have murdered his son.
CONCLUSION:
To recapitulate, in a homicide trial, where the direct evidence is unable to produce or it is produced but not reliable, there is no room for acquittal if the doctrine of “last seen” is invoked. The doctrine places a person who was last seen with the deceased under a duty to offer a sufficient and believable explanation about how the deceased met his or her death. In the absence of such an explanation, a trial court and even an appellate court will be justified in drawing the inference that no one killed the deceased rather than the accused. See Jua v. State (2010) 4NWLR, part 1184,217.
This doctrine of last seen holds significant position In a cases where the cause and nature of an individual’s death are in question. However, no court will convict a person in any criminal matter solely based on the fact that he/she was the last person seen with the deceased. There must be an existence of overwhelming circumstantial evidence pointing to the guilt of such person. This simply implies that the doctrine is not a principle to be applied in isolation.
About the Author:
Salaudeen Ridwanullahi is an avid legal writer with passion in educating the public on trending legal issues. He can be reached at: 07038598949 or [email protected]