➥ CASE SUMMARY OF:
Imo Akpan Bassey v. State (2019) – SC
by “PipAr” B.C. Chima
Supreme Court – SC.900/2016
➥ JUDGEMENT DELIVERED ON:
Thursday, 21st February, 2019
➥ AREA(S) OF LAW
Doctrine of last seen.
➥ NOTABLE DICTA
⦿ BURDEN OF PROOF ALWAYS ON THE PROSECUTION; BURDEN FOR INSANITY ON THE ACCUSED
The law is trite, that in all criminal cases in common law countries like Nigeria which operates from time immemorial, common law jurisprudence, the burden of proof is always on the prosecution. This notion is entrenched in Section 135 of the Evidence Act which further put the standard of such proof to be beyond reasonable doubt. SeeOgundiyan Vs The State (1991) 3 NWLR (pt.181)519 or (1991)4 SCNJ 44 or (1991)3 SC 100. It needs to be emphasized however, that the burden of proof always remains on the prosecution, except of course, in few limited circumstances such as in the defence of insanity in which the law presumes an accused person to be sane and therefore it casts the burden of establishing the contrary on the accused. — A. Sanusi, JSC.
⦿ THREE WAYS OF PROVING CRIMINAL OFFENCES
The law recognises three ways of proving criminal offences namely:- (a) Through confessional statement of the accused person; or (b) By direct eye witness account of the commission of the offence charged, or (c) through circumstantial evidence. See Akpan v State (2009) 39 WRN 27; (2008)14 NWLR (pt.1106)72; Bassey v State (2012) 12 NWLR (pt.1314)209; Haruna v AG Fed (2012)9 NWLR (pt.1306)419. — A. Sanusi, JSC.
⦿ INGREDIENTS TO PROVE OFFENCE OF MURDER
The law is well settled that in murder cases, (as in this instant case) the prosecution, in order to obtain conviction must prove the under mentioned ingredients of the offence of murder, beyond reasonable doubt. They include the followings:- (1) That the deceased died (2) That the death of the deceased was caused by the act(s) or omission of the accused person/appellant. (3) That the act or omission of the accused/appellant was intentional or with knowledge that death or bodily harm was its probable consequence. See Okin Nsibehe Edoho vs The State (2010) 14 NWLR ( pt. 1214) 651; Audu v State (2003) 7 NWLR (pt.820) 516; R. V. Nwokocha (1949)12 WACA 453; R v Owe (1961) 2 SCNLR 354; State v Omoni (1969)2 ALL NLR 337. — A. Sanusi, JSC.
⦿ CONFESSIONAL STATEMENTS ARE TO BE SUBJECT TO SIX TESTS
However, in multiplicity of judicial authorities of this Court, it has been decided that before relying solely on confessional statement to convict an accused or in the process of evaluation of same, trial Courts are desired to subject the confessional statement to the following six tests; namely (a) Is there anything outside the confession to show that it is true? (b) Is it corroborated (c) Are the relevant statements made on it in fact true as they can be tested? (d) Was the accused one who had the opportunity of committing the offence? (e) Is the confession possible; and (f) Is it consistent with the other facts which have been ascertained and have been proved? Once a confessional statement is subjected to these six tests, this Court has held that same can be safely relied upon to ground a conviction. See Musa V State (2013) 2-3 SC (pt.II) 75 at 94; Nwachukwu vs The State (2007)7 SCM (pt.2) 447 at 455; Ikpo v State (1995)9 NWLR (pt.421)540 at 554. — A. Sanusi, JSC.
⦿ THE DOCTRINE OF LAST SEEN – MURDER CASES
As stated in the lead judgment, the doctrine of “last seen” also applies in this case. It was held by this Court in Haruna Vs A.G. Federation (2012) 9 NWLR Pt.1306) 419, that the doctrine of “last seen” means that the law presumes that the person last seen with the deceased bears full responsibility for his death. It will apply where the circumstantial evidence is overwhelming and leads to no other conclusion than that the accused killed the deceased. It is also the law that in such circumstances, it is the duty of the appellant to give an explanation as to how the deceased met his death. Where no such explanation is forthcoming, the Court is entitled to draw the inference that the accused person killed the deceased. — Kekere-Ekun, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Amiru Sanusi, JSC.
⦿ FOR THE APPELLANT
Chioma A. Wogu.
⦿ FOR THE RESPONDENT
Uwemedimo Nwoko Esq.
➥ CASE HISTORY
The case of the prosecution was that one Emem Effiong Etuk (an estranged wife of the accused (complainant) travelled to pay a visit to the accused person/appellant who was keeping custody of her two children, namely Philip Imon Akpan and Magdalene Imoh Akpan at Udem Ebom, after she was informed that the accused/appellant had relocated to Mbiabong (the last known address of the accused) to the said Ndom Ebom. It was also the case of the prosecution that the complainant did not meet the two children and when she asked of their whereabouts the appellant could not give reasonable or satisfactory explanation. Sequel to that, the complainant reported a case of child stealing at Ifia-gon Police station and the accused/appellant was thereupon arrested. The appellant initially informed the police that he sold the two children to one “Alhaji” at the cost of N100,000. The case was later transferred to the State CID where the accused person thereupon volunteered two statements, dated 16/12/2007 and 17/1/2007 both of which were tendered at the trial and admitted as Exhibits A and B respectively. In Exhibit A, the appellant stated that he sold the two children, but further investigation revealed that he actually killed the two children to which he later confessed in Exhibit B. Both of them were aged three years at the time of their untimely death.
This is a criminal appeal against the judgment of the Calabar division of the Court of Appeal (“the lower or court below” for short) delivered on 26th day of April, 2016 which affirmed the decision of the Akwa-Ibom State High Court, Uyo judicial division (Coram Imeh E. Umanah J) of 30th day of June, 2011 in Suit No.HU/21C/2007 wherein the accused person now appellant, was convicted of the offence of murder and sentenced to death. The offence with which the accused/appellant was charged and tried was that of murder, contrary to Section 323 (1) of Criminal Code, Cap 38 Vol.II, Laws of Akwa-Ibom State.
➥ ISSUE(S) & RESOLUTION
I. Was the Court of Appeal (lower Court) not right in affirming the conviction and sentence of the appellant for murder of the deceased?
RULING: IN RESPONDENT’S FAVOUR.
A. “The appellant, as per his confessional statement Exhibit B also admitted that he threw his two deceased children into the river. It should be noted that the said confessional statement Exhibit B was voluntarily made by the accused/appellant and admitted in evidence without any objection. To my mind therefore, the first element of whether death had been established, had been adequately proved through those pieces of evidence highlighted above.” “On the second ingredient of murder, I am also fully convinced that the two children died as a result of the dastardly act of the appellant simply on the flimsy excuse of alleged impecuniosity or poverty. The second ingredient of the offence of murder has also been established. I am also convinced that the act of the accused/appellant was intentional. He committed the offence without any provocation or physical attack before throwing the two 3years old twins into the river. Surely, by his act, the appellant knew or had reason to believe that death was going to be the resultant effect of his cruel act.”
B. “Again in this present case, the Doctrine of Last Seen’ is also apposite and applicable. The doctrine means that a person last seen with a deceased bears full responsibility of his death. In short, where an accused person was the last to be seen in the company of the deceased and circumstantial evidence overwhelmingly leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give proper explanation as to how the deceased died. See Haruna v AG Federation (supra). In the absence of sufficient explanation, the trial Court in this case was right in drawing the inference that it was the appellant that killed his two children. See Igabele V State (2006) 6 NWLR (pt.975) 100; Sabina Chikaodi Vs The State (2012)LPELR 7867 SC; Obosi v State (1955) NMLR 140. From the facts and circumstances of this case the two deceased children were throughout their lives in custody of their father, the accused/appellant herein and he confessed throwing them into the river. There is therefore the presumption that he was the one who murdered them since he failed to rebut such presumption. He is therefore culpable as he had advanced no evidence to exculpate himself from guilt. The circumstantial evidence is overwhelming and points to no one else but the accused/appellant. See Rabi Ismail v The State (2011) LPELR 9352(SC).”
“Apropos of the above, I find this appeal to be lacking in substance or merit. The appeal therefore fails and is accordingly dismissed. I affirm the judgment of the lower Court which had also earlier been affirmed the conviction and sentence of death passed on the present appellant by the trial Court. Appeal dismissed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)