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Kwenev V. The State

KWENEV V. THE STATE (2022) 13 NWLR {PT 1847} AT 273

Courtesy: Moruff O. Balogun, Esq.

Summary of facts:
The appellant and one Justine Terdoo Ishor were arraigned before the High Court of Benue state Makurdi, on a 3-count charge of conspiracy, armed robbery, and culpable homicide punishable with death. The duo allegedly conspired to rob keghtor Igyel, the deceased, of his motorcycle, while armed with a cutlass, and caused the death of the deceased by cutting off his head with the cutlass. They pleaded not guilty.

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At the trial, the prosecution called three witnesses, including one Inspector Peter Abuma, the Investigating Police Officer (I.P.O), with the state C.I.D, Makurdi, as PW3. He testified that the case was transferred to state C.I.D from Tarka police station, and after it was assigned to his team, he interviewed the I.P.O. from Tarka division, who gave him an explanatory statement, and that the appellant volunteered a statement, which (he) recorded in English language.

When the prosecution applied to tender the statements made by the two accused persons in evidence, defence counsel objected on the ground that the accused persons informed him that they were obtained under duress, and he applied for a trial within trial to determine their voluntariness. At the end of the trial within trial, the objection was overruled and the statement dated 31-3-06 was admitted in evidence as Exhibit 2.

The defence opened with the appellant as DW1. He denied knowledge of the incident and testified that he was working for one Mr. Ange somewhere else when four policemen from Wannune arrested him.

At the close of the hearing, the trial court found the charge against the accused persons proved by the prosecution beyond reasonable doubt and thereafter convicted the 1st and 2nd accused persons as charged in the 3-count charge. They were sentenced to death.

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Dissatisfied with the decision of the trial court, the appellant appealed to the court of appeal. The court raised suo motu, the issue of the doctrine of “last seen” and, after it had reserved judgment, invited the parties to address it on it.

The court of appeal allowed the appeal in part. The conviction and sentence of the appellant for armed robbery and conspiracy was set aside, while the conviction and sentence to death for culpable homicide punishable with death was affirmed.

Dissatisfied with the decision, the appellant appealed to the Supreme Court.
Held: Unanimously dismissing the appeal.
On purport and application of doctrine of “last seen” in proving murder and its exception thereto:

The doctrine of last seen means that the law presumes that the person last seen with the deceased bears full responsibility for his or her death.

Thus, where an accused person was the last person to be seen in company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion. There is no room for acquittal. It is the duty of the accused person to give an explanation relating to how the deceased met his or her death.

In the absence of an explanation, a trial court and even an appellate court will be justified in drawing the inference that the accused person killed the deceased.

On exception to the doctrine of last seen. The inference that a person seen last alive with a person found to have been murdered was the murderer could not be drawn in every case.

It is an inference which may or may not be drawn depending on the ascertained evidence as to the manner the deceased met his death. It needs be said that where there is undisputed evidence as to how the deceased met his death, the necessity to draw ably interference that it was the person last seen with him alive who killed him would be irrelevant and unnecessary.

In the instance case, the exception could not apply because the evidence of PW2 pointed at the appellant as the person last seen with the deceased.

On application of doctrine of “last seen”
The doctrine of “last seen” indicates that any accused person charged with murder or culpable homicide punishable with death, would be required to offer some explanations as to how the deceased met his death.

The doctrine of “last seen” enjoins the court in a criminal trial to draw the inference that a person who was last seen alive with a person, and that person was later found to have been killed or murdered, must bear the full responsibility for his death.

In the instant case, the evidence of PW2 before the trial court that the appellant was the last person seen with the deceased, was cogent and found credible by the two lower courts.

Furthermore, the conclusive evidence that the appellant was the last person seen with the deceased shortly before his death, effectively dislodged the defence of alibi raised by him.

On duty of court raising issue suo motu to hear parties thereon
Where a court raises an issue suo motu, it must afford the parties an opportunity to address it on the issue so raised. This is in keeping with the principle of fair hearing enshrined in section 36 of the 1999 Constitution, as amended.

In the instant case, the Court of Appeal invited the parties to address it on the issue it raised suo motu. The appellant’s counsel duly filed a written address in respect of the issue. Counsel for the respondent did not file an address.

Having been afforded an opportunity to address the court on the issue raised suo motu and having duly taken advantage of the opportunity, it must be said that there was no breach of the appellant’s right to fair hearing. Counsel did not show that the appellant suffered a miscarriage of justice thereby.

On principles governing raising issue suo motu and duty on court.

The term suo motu is an abbreviation of latinex proprio suo motu” ‘by its own’ motion, and it relates to an action taken by a court of its own accord, without any request by the parties involved.

There are occasions when the court may feel that a point, which has not been raised by any of the parties is necessary for consideration to reach a correct decision in a case. But, and that is the key element, the court must bring it to the notice of parties, so that they may address it on the point before basing its decision on it.

In other words, a procedure whereby an appellate court takes up a point before parties or their counsel are heard and decides the issue is most inappropriate and irregular.

In this case, the Appellant conceded that the court of appeal has power to raise issues suo motu, and as the respondent rightly submitted, the Court of Appeal invited the parties’ counsel to address it on the issue after reserving judgment.

The court of appeal has power to raise issues suo motu, if parties are heard before it hands down its decision on the issue. In this case, the Appellant’s counsel address the court on the said issue raised suo motu and the hullaballoo over the issue is nothing but smoke, no fire. It lacked merit.

On meaning of “alibi” and duty on prosecution when raised
Alibi is Latin for “elsewhere”. The defence of alibi is based on the physical impossibility of an accused person being guilty by placing him in another location at the relevant time. It also means the fact or state of having been elsewhere when an offence was committed.

Once the defence of alibi is properly raised, it is the duty of the police to investigate it and for the prosecution to disprove it.

However, to be worthy of investigation, the defence must be precise and specific in terms of where the accused was and the person or persons he was with and possibly what he was doing there at the material time. Where there is sufficient evidence to fix an accused at the scene of a crime, there would be no need for the police to embark on the voyage of investigating an alibi.

In the instant case, because of the doctrine of last seen which the Court of Appeal applied to convict the appellant, his defence of being elsewhere at the time in question could not hold water.

The two lower courts believed the evidence of PW2 that he saw the appellant on the day in question at the said okada stand when he hired the deceased to take him somewhere. In the circumstances, the question of whether PW2 or any other person saw the appellant killing the deceased did not arise.

His defence of alibi crumbled when the two lower courts believed the evidence of PW2 that fixed him at the scene where the deceased was last seen with him before his death. So, he could not be elsewhere when he was seen with the deceased that day.

In other words, the prosecution provided superior evidence that fixed the appellant at the last place the deceased was last seen alive riding off with him, and since he failed to give any explanation of what happened to the deceased, the court of appeal grounded his conviction on the said doctrine of last seen.

On purpose of cross-examination
There are four specific aspects of cross-examination, they are:

(a) to destroy the material parts of the evidence-in-chief
(b) to weaken the evidence where it cannot be destroyed;
(c) to elicit new evidence, helpful to the party cross-examining; and
(d) to undermine the witness or shake his credit as it is commonly expressed by showing that he cannot be trusted to speak the truth or that he is deposing (however honestly) to matters of which he has no real knowledge.

So, where a party or his witness(es) testifies on a material fact in controversy in a case, the other party should, if he does not accept his testimony as true, cross-examine him on that fact or at least show that he does not accept the evidence of the witness as true.

Thus, one of the main purposes of cross examination is to test the veracity of a witness. The focus of the cross-examination was on whether the appellant came to hire the services of the deceased at 6pm, as PW2 said in examination-in-chief, or 7pm, as he had stated in Exhibit 1.

His evidence that he was present when the appellant came to hire the services of the deceased on the day in question, 25/3/2006 remained unchallenged. There was no reason for the lower courts not to believe the evidence of

, and since it ran on parallel lines with Exhibit 2; they never ran into each other.

On effect and treatment of exhibit expunged
The resultant effect of an exhibit being expunged from the record is that such an exhibit should be regarded as if it had not been tendered and admitted. Thus, it cannot be legal evidence upon which the court can properly make a finding fact.

In this case, Exhibit 2 having been expunged by the trial court; it could not be relied upon by the Supreme Court.

About the Author

Moruff O. Balogun Esq.
Vice Chairman, NBA Ijebu Ode branch.
08052871414
09121207712 [WHATSAPP]

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