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EFFIONG v. STATE
CITATION: (2016) LPELR-42052(CA)
In the Court of AppealIn the Calabar Judicial Division
Holden at Calabar
ON WEDNESDAY, 16TH NOVEMBER, 2016Suit No: CA/C/383C/2014
Before Their Lordships:
MOJEED ADEKUNLE OWOADE Justice, Court of AppealCHIOMA EGONDU NWOSU-IHEME Justice, Court of AppealJOSEPH OLUBUNMI KAYODE OYEWOLE Justice, Court of Appeal
BetweenEYO ASUQUO EFFIONG - Appellant(s)
AndTHE STATE - Respondent(s)
RATIO DECIDENDI1. COURT - DUTY OF COURT: Duty of Court where there is no eye witness account in a charge of murder
"In a charge of murder, where there is no eye witness account, as in this case, and it is only the evidence of theAppellant that is available, it is the duty of the Court to believe it or else there is no evidence to believe. See,Ogunwumiju J.C.A in Osuoha V. State (Supra) page 418.It was for this same reason that I held that the last seen doctrine was not appliable in the earlier cited case ofOsuoha V. State (Supra) pages 414 - 415."In this appeal, the prosecution also invoked the last seen doctrine to justify the conviction of the Appellant by thetrial Court. Truly, the law presumes that the person last seen with the deceased, bears full responsibility for hisdeath if it turns out that the person last seen with him is dead...In my humble opinion the facts and circumstances of this case would not permit the operation of the presumption oflast seen.Again, from the uncontradicted evidence of the Appellant, there was an explanation as to the where about of thedeceased when he was stillalive...Any attempt to still invoke the presumption of last seen after the Appellant had given an explanation of thedeceased's where about while the deceased was still alive would be tantamount to shifting the burden of proof whichis permanently on the prosecution to the Appellant."Per OWOADE, J.C.A. (Pp. 25-26, Paras. A-B) - read in context
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2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MANSLAUGHTER: How to sustain a conviction formanslaughter"Now, to succeed in a charge of manslaughter, the prosecution must prove that the act of the accused caused thedeath of the deceased. Where it is impossible to identify the precise cause of death from evidence, the accusedperson must be acquitted. R. V. Abengowe (1936) 3 W. A. C. A. 85, Odido v. State (1995) 1 NWLR (Pt. 369) 88."PerOWOADE, J.C.A. (P. 26, Paras. B-C) - read in context
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3. EVIDENCE - HEARSAY EVIDENCE: Position of the law on hearsay evidence in relation to documents"The position of the law is that any evidence which is sought to be admitted must be of sufficient relevance.R. V.Blastland (1986) A. C 41, 81 CR APP. Rep 266 HL Evidence is relevant if it is logically probative or disprobative ofsome matter which requires proof. DPP V. Kilbourne (1973) AC 729 at 756, 57 CR APP. Rev 381 at 417.Evidence which is relevant will not necessarily be admissible, for while relevance is a condition precedent toadmissibility, further rules of exclusion exist which may serve to exclude evidence which would generally beconsidered to be relevant. R. V. Bond (1906) 2 KB 389 at 410 CCR; R. V. Blast land (1986) SC 41 at 53; R. v Turner(1975) 1 All ER 70 at 74; R. v. Duncan (1944) KB 713 30 CR. App Rep. 70 CCA. Thus evidence must be (1) relevantand (2) admissible according to the rules of exclusion.?In relation to the instant case Exhibits 1 and 2 are relevant and
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perhaps also admissible to prove the fact that they were made that is as statements by the mother and uncle of thedeceased to the I. P. O, the PW1.However, because neither the mother nor the uncle of the deceased, that is the makers of Exhibits 1 and 2 werecalled as witnesses of the trial, Exhibits 1 and 2 could not be utilized or admitted for the purpose of proving the truthof an assertion. In the context of this case, what does it mean to prove the truth of an assertion or the truth of theassertion.What this means is that the relevance of Exhibits 1 and 2 ends when they are used only to prove the fact that theywere made. The attempt by the prosecution and also the Learned trial Judge to use Exhibits 1 and 2 to show that thedeceased might have died of injuries inflicted by matchet cuts as alleged by the makers of those statements becomea flagrant breach of the Rule as regards hearsay evidence.This is because of common law and under the Nigerian Evidence Act, it is a fundamental rule of evidence thathearsay is inadmissible.Teper v. R. (1952) AC 480 at 486, (1952) 2 All ER, 447 at 499 PC. Myers v. DPP (1965) AC1001 at 1009, 48 CR App. Rep. 348 at 356 HC. The hearsay rule provides that an assertion other than one made by aperson while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. Evidence of astatement made to a witness by a person who is not himself called may or may not be hearsay. It is hearsay andinadmissible where the object of the evidence is to establish the truth of what is contained in the statement, but it isnot hearsay and is admissible where it is proposed to establish by the evidence, not the truth of the statement, butthe fact that it was made. See Subramaniam v. Public Prosecutor (1956) 1 WLR 965 at 970. Ratten v. R. (1972) AC378 at 387.In the instant case, the Learned Counsel for the Appellant was right when he submitted that Exhibits 1 and 2 arespecies of documentary hearsay evidence and therefore not admissible in evidence to prove any truth therein as theLearned trial Judge did. In Opolo V. State (1977) N. S. C. C 439 at 441 for example, the conviction of the Appellant forobtaining by false pretences was quashed by the Supreme Court because it was based predominantly on Exhibit B,which was inadmissible evidence by reason of the fact that the person who made Exhibit was not called as a witness.Bello J.S. C. (as he was then) observed inter alia at page 441."...We may pause to state that in criminal proceedings, all facts, except as may be permitted by Law, must beproved by direct oral evidence of a witness who has personal knowledge of the facts in issue. A letter, such asExhibit B, written by a person who has not been called as a witness is inadmissible and cannot be used for thepurpose of treating its contents as evidence of facts stated therein. The Learned trial Judge therefore erred in law byadmitting Exhibit B and by relying upon its contents in its Judgment."Relatedly, Learned Counsel for the Appellant also submitted and rightly in my view that in the alternative, no weightor probative value should be accorded Exhibits 1 and 2 because both documents were not tendered through theirrespective makers or authors. The mother and the uncle of the deceased that made Exhibits 1 and 2 did not giveevidence of the trial. The law is that a document should be tendered through its maker except in circumstances ofexceptions to documentary hearsay evidence as provided under Section 83 of the Evidence Act 2011. (which is notthe case here). The rationale is that the maker is the person who can normally answer questions regarding thedocument and so his attendance may be necessary to facilitate cross examination. Lateef V. F. R. N (2010) 37 W. R.N 85 Agbom v. State (2012) 39 W. R. N 94. Lambert v. Nigerian Navy (2006) 7 NWLR (Pt. 980) 514 at 547. Iniama v.Akpabio (2008) 17 NWLR (Pt. 1116) 225 at 300. Olatunji V. Waheed (2012) 7 NWLR (Pt 1298) 24 at 47 .The facts ofOsuoha v. State (2010) 16 NWLR (Pt. 1219) 364 bears close similarity to the facts of this case. In thatcase, the police officer who authored Exhibit B, the investigation police report was not called to testify in the case.Instead, Exhibit B was admitted in evidence through another police officer, PW3. The Appellant was convicted ofmurder. He appealed.In allowing the appeal, I delivered the leading Judgment and I spoke for the Court of Appeal (Owerri Division) asfollows:"In my opinion, in the instant case, Exhibits 'B' has no probative value. The maker of the document did not giveevidence at the trial and therefore was not exposed to cross-examination. Exhibit 'B' was based on informationpassed to the maker by third parties. What is more? The content of Exhibit related to the truth of the assertions andnot merely the fact that it was made- when in fact neither the maker nor the tenderer of Exhibit 'B' was capable ofgiving direct oral evidence of its contents. A Court of law cannot attach probative value to such an Exhibit".Also in Olatunji v. Waheed (2012) 7 NWLR (Pt. 1298) 24 at 47. It was held that the proper person to tender adocument is the maker of such document. Where the maker of a document is not called to testify before a Court andsubjected to cross-examination as to the sources of information, the Court cannot attach any probative value to suchdocument."Per OWOADE, J.C.A. (Pp. 16-21, Paras. B-D) - read in context
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4. EVIDENCE - DOCTRINE OF LAST SEEN: When the doctrine of last seen will not be applicable"The second aspect of the sole issue formulated by the Appellant in this case is the propriety of the application of thedoctrine of "last seen" to convict the Appellant. Unfortunately, the misapplication of the doctrine of "last seen" bythe Learned trial Judge was intricately linked with the wrongful admission of Exhibits 1 and 2.?At pages 59-60 of the Record, his Lordship in stating that Appellant unlawfully caused the death of the deceased,held as follows:"And then there is the doctrine of last seen which means that the law presumes that the person last seen with thedeceased, bears full responsibility for his death if it turn out (Sic) that the person last seen with him is dead. Seelgabele V. State (2006) 6 NWLR (Pt. 975) 100 or (2006) LPELR -1441 (SC) and State V. Nwakevendu & Ors (1973) 3ECSLR (Pt. 11) 757 Etc.In the case at hand, the accused person had himself stated that he was in company of the deceased whoaccompanied him to a child's dedication ceremony on the day of the incidents, but that the deceased was knockeddown by a hit and run vehicle which led to his death which account the prosecution had faulted on grounds that theinjuries seen on the body of the deceased as described in the statement of deceased's mother and uncle i.e. Exhibit(sic) 1 and 2 could not have been caused by a car accident..."In the first place it is not right even logically to apply the doctrine of "last seen" to the case of the Appellant when infact the deceased was still seen alive by the Appellant, the deceased's mother and uncle before his death. It is anundisputed fact that the deceased died in the process of his being taking to the hospital for treatment."Per OWOADE,J.C.A. (Pp. 21-23, Paras. E-A) - read in context
5. EVIDENCE - CIRCUMSTANTIAL EVIDENCE: Conditions that must be met before a conviction can be sustained bycircumstantial evidence"...circumstantial evidence can only ground a conviction if it irresistibly and unequivocally leads to the guilt of anaccused person, there is no other reasonable inference that could be drawn from it, and there are no co-existingcircumstances which could weaken the inference. See Okereke V. State (1998) 3 NWLR (Pt. 540) 75, Adepetu V.State (1998) 9 NWLR (Pt. 565) 185 Idowu v. State (1998) 11 NWLR (Pt. 574) 354, Akinmoju v. State (2000) 4 SC (Part1) 64 Durwode V. State (2000) 12 SC (Part 1) 1. The State V Ogbubuajo (2001) 13 WRN 1 at 3."Per OWOADE, J.C.A.(Pp. 23-24, Paras. F-B) - read in context
6. EVIDENCE - SPECULATION: Whether the Court can determine a case based on speculation"a trial Court must not as it was done in the instant case base its decision on speculation and extraneous matter notsupported by the evidence before the Court as this will occasion a miscarriage of justice. Onuoha v. State (2002) 1NWLR (Pt. 748) 406." Per OWOADE, J.C.A. (P. 24, Paras. C-D) - read in context
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MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering theLeading Judgment): This is an Appeal against theJudgment of S. M. Anjor. J. of the Cross River State HighCourt, Akpabuyo Judicial Division delivered on 16/4/2014.
The Appellant was charged on a single count charge ofmurder in an information filed on 15/8/2011 to the effectthat on or about 20th March, 2011 at Ikot Asuquo Edemvillage, Akpabuyo Judicial Division, murdered KinsleyBetulah Godwin contrary to Section 319 (1) of the CriminalCode C.16 Vol. 13 Laws of Cross River State 2004.
The Appellant pleaded not guilty to the charge. Theprosecution called only the investigating police officer asPW1 while the Appellant gave evidence in defence as DW1.In addition, the prosecution tendered Exhibit 1, 2, 3,4 Aand 4B.
The case for the prosecution is that on or about the 20thMarch, 2011, the Appellant went to the house of thedeceased at about 6.00 pm and took him out to attend achild dedication party, the deceased did not return homealive from the prosecution's account the deceased was lastseen in the company of the Appellant and that Exhibit 1 and2 suggested that
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Appellant could have died from wounds inflicted from
matchet cuts.
The Appellant gave evidence in defence and said that as
they were returning, they met the deceased's girlfriend
who told them her shoes were seized by one Eteobong at
Ikot Edem village after Ikot Ewa all in Akpabuyo. That they
went with deceased and 4 others and when they got there
and enquired of the said Eteobong they were attacked. That
the deceased was over powered and as he tried to run
across the road, he was knocked down by a hit and run
vehicle. That he went and reported the matter to the
deceased's mother. That the deceased's mother took him to
the hospital at Ikot Ene but the same had closed and when
deceased was to be taken to the hospital at Calabar, he
died on the way and the mother took the corpse back to the
village.
At the end of the trial, the Learned trial Judge agreed that
the prosecution have proved their case beyond reasonable
doubt against the Appellant but that:
"since deceased is said to finally died while being
taken to the hospital, rather than murder, he is both
given all the circumstances of this case and on the
doctrine of "last seen is guilty of manslaughter
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pursuant to Section 179 (1) and (2) of Criminal
Procedure Act and the case of cause of Adeniyi (sic)
and Ors V. F. R. N (2011) LPELR - 8805 (CA)
Shosimbo v State (1974) 10 S. C 91 and Ogunade &
Anor V. A. G Federation (1971) LPELR - 2320 (SC)".
Consequently, the Learned trial Judge convicted the
Appellant for the lesser offence of manslaughter and
sentenced the Appellant to imprisonment for 18 years.
Dissatisfied with this Judgment, the Appellant filed a Notice
of Appeal containing two Grounds of Appeal in this Court
on 14/5/2014.
At the hearing of this Appeal on 31/10/2016, Learned
Counsel for the Respondent withdrew his Cross-Appeal and
the Cross- Appeal was accordingly struck out.
The relevant Briefs of Argument for the Appeal are as
follows:
i. Appellant's Brief of Argument dated 4/10/2014 and
filed on 9/10/2014- settled by Godwin Omoaka.
ii. Respondent's Brief of Argument filed on 12/2/2015
was deemed filed on 31/10/2016- settled by Lucianne
Ingiana Eriom Esq. (Senior State Counsel 11CRS).
iii. Appellant's Reply Brief dated 15/1/2016 filed on
22/01/2016 but deemed filed on 31/10/2016 - settled
by Godwin Omoaka.
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Learned Counsel for the Appellant nominated a sole issue
for determination in this appeal. It is:
"Was the Learned trial Judge right, on the state of the
evidence, to convict the Appellant of the offence of
manslaughter?"
Learned Counsel for the Respondent adopted the sole issue
nominated by the Appellant. On the sole issue for
determination, Learned Counsel for the Appellant
submitted that the conviction of the Appellant for the
offence of manslaughter was improper and unjustified. He
reiterated the ingredients of the offence of manslaughter
by reference to the provision of Section 315 of the Criminal
Code and the cases ofApugo v. State (2007) 5 W. R. N.
89 at 107, (2006) 15 NWLR (Pt. 1002) 227, Ajisogun
V. State (1998) 13 NWLR (Pt. 581) 236 at 253. Odido
V. State (1995) 1 NWLR (Pt. 369) 88 and R. V.
Abengowe (1936) 3 W. A. C. A 85.
He submitted that for a killing to amount to manslaughter,
it must be unauthorized, or unjustified or not excused by
law. Also, that for the prosecution to prove the charge of
manslaughter beyond reasonable doubt, it must be proved
not only that the act of the accused person could have
caused the death of the
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deceased but that it did. Each of the above ingredients
must be established with certainty. Counsel submitted that
there is no convergence of the ingredients of manslaughter
in this case, as the prosecution failed irredeemably to prove
the presence of each of the elements. As such, said Counsel
, the Learned trial Judge ought not to have convicted the
Appellant of manslaughter. He submitted that whilst
evaluating the evidence the Learned trial Judge relied
extensively on Exhibits 1 and 2, statements made by the
mother and uncle respectively of the deceased to the I. P.
O. but neither of whom was called to give evidence in the
matter. He argued that it was entirely wrong for the
Learned trial Judge to rely on Exhibits 1 and 2 to convict
the Appellant for two distinct reasons.
a) PW1 was the recorder of Exhibits 1 and 2. None of
these persons testified at the trial. For this reason,
Exhibits 1 and 2 are documentary hearsay and
inadmissible.
b) Alternatively, even if Exhibits 1 and, 2 are not
hearsay and therefore admissible, since the authors
or makers of the documents were not called to give
evidence at the trial, the trial Court ought not to
attach
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any weight or probative value to either or both
Exhibits 1 and 2.
In developing the first leg of the Appellant's Counsel
submission in (a) above, he referred to the cases of
Nathaniel Okeke V. Akunkwe Obidike & Ors (1965)
NWLR 113, Okpara V. State (1977) N. S. C. C. 166,
(1977) 4 S. C 53. Opolo v. State (1977) N. S. C. C. 439,
(1977) 11 S. C. 6.
He submitted that the Learned trial Judge have relied on
the context of Exhibits 1 and 2 in entering a guilty verdict
on the Appellant. He further referred to the cases of Shittu
V. Fashawe (2005) 14 NWLR (Pt. 946) 671, Onochie V.
Odogwu (2006) 6 NWLR (Pt. 975) 65. Dagaci of Dere
V. Dagaci of Ebwa (2006) 7 NWLR (Pt. 979) 382.
Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 and
submitted that Exhibits 1 and 2 are inadmissible and should
be expunged from the record.
On another wicket and in the alternative, Appellant's
Counsel submitted that no weight or probative value should
be accorded Exhibits 1 and 2 because both documents were
not tendered through their respective makers or authors.
He referred to the case of Lateef v. F. R. N. (2010) 37 W.
R. N 85, Agbom V. State (2012) 39 W. R. N. 94 and
Lambert
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v. Nigerian Navy (2006) 7 NWLR (Pt. 980) 514 at 547,
U. B. N v. Ishola (2001) 15 N. W. L. R. (Pt. 735) 47.
He argued that if a person who did not make a document
tendered the document, the trial Court should not attach
any value to it because the person tendering the document
would not be able to answer questions arising from any
Cross-examination. Accordingly, Exhibits 1 and 2 were only
admissible in evidence in proof of the fact that they were
made and no more. Appellant's Counsel emphasized that
both documents cannot be used to establish that it was the
Appellant who killed the deceased. But, unfortunately, that
was the use to which the Learned trial Judge put both
Exhibits in this case. He referred to the cases of Iniama V.
Akpabio (2007) 17 NWLR (Pt. 1116) 225 or 300.
Olatunji v. Waheed (2012) 7 NWLR (Pt. 1298) 24 at
47. Osuoha V. State (2010) 16 NWLR (Pt. 1219) 364
and declared that Exhibits 1 and 2 are completely
worthless and ought not to be evaluated nay given
prominence by the Learned trial Judge.
He opined that if Exhibits 1 and 2 are either expunged or
discountenanced, there would be no sufficient evidence on
record to show that
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Appellant's unlawful act caused the death of the deceased,
and consequently sustain the conviction for manslaughter.
Learned Counsel for the Appellant reminded us that the
Learned trial Judge anchored the Appellant's conviction on
two major planks.
a) The heavy reliance placed on Exhibits 1 and 2 and
b) The doctrine of last seen.
Counsel submitted that even the Application of the "last
seen doctrine" by the Learned trial Judge at pages 59-61 of
the Record was wrong in Law.
He noted in agreement with the Learned trial Judge that
the doctrine of "last been" raises a presumption, albeit a
rebuttable one, that the person last seen with the deceased
bears full responsibility for his death.
However, that for the doctrine to apply, the circumstantial
evidence against the accused person must be
overwhelming and must irresistibly point to the accused as
the killer of the deceased. After referring to the Supreme
Court decisions in Haruna V. A.G Federation (2012) 9
NWRL (Pt. 1306) 419 at 447 and Archibong v. State
(2006) 14 NWLR (Pt. 1000) 349 at 395, Appellant's
Counsel asked rhetorically - Given the principles, is the
circumstantial
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evidence overwhelming in this case? He answered in the
negative. That while it is true that the deceased was last
seen with the Appellant, it cannot be gainsaid that
satisfactory explanation was offered by the Appellant as to
how the deceased met his untimely death.
He submitted that the Learned trial Judge did not properly
evaluate the evidence of the Appellant which is
uncontroverted and uncontradicted in any way. That,
rather, his Lordship took a narrow view of the evidence by
assessing the Appellant's evidence in reference to Exhibits
1 and 2 only, which has argued are clearly inadmissible.
Appellant's Counsel submitted further relying on the
decision of the Supreme Court in Ahmed v. State (1999)
7 NWLR (Pt. 612) 671 at 681 that the fact that the
Appellant almost regurgitated the contents of his statement
Exhibit 3 three years after in evidence is not mere
coincidence. Rather, it is evidence of a witness of truth.
And the Learned trial Judge should have believed and acted
on the evidence given the remarkable tally between Exhibit
3 and the Appellant's evidence in Court.
Further, and significantly, said Counsel, not an ounce of
evidence was
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adduced by the prosecution to contradict the Appellant. It
is horn book law that where evidence is unchallenged or
uncontroverted, such evidence will be accepted as proof of
a fact it seeks to establish.
He referred to the cases of State v. Oladotun (2011) 10
NWLR (Pt. 1256) 542-558, Odibo v. Azege (1991) 7
NWLR (Pt.206) 724, Okere V. State (2001) 2 NWLR
(Pt. 697) 397 and submitted that a trial Court is entitled
to rely and act on uncontradicted evidence.
He urged us to accept the unchallenged evidence of the
Appellant more so because, the Report of the medical
practitioner Exhibit 4 materially corroborates the
Appellant's evidence that the deceased did not die of stab
on machete wounds.
That in Exhibit 4, the doctor who performed the autopsy
wrote:
"Embalmed corpse lying supine 1. 58m height, dark
skin and hair. Multiple deep bruises measuring 6x4 in
dimension noted over the occipital region, the right
temporal region, right shoulder, right iliac region,
with a penetrating wound measuring 1 x 0.5m on the
right third inter costal space ..."
And that as regards the cause of death, Exhibit 4 states:
"I hereby certify the cause of
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death in my opinion to be
i. Severe head injury following trauma
ii. Hypovachemic shock following haemorrhage."
He submitted that the above stated cause of death is not
consistent with machete or stab wounds and debunks the
deceased mother's claim in Exhibit I that "it was matchet
(sic) cut inflicted all over his (deceased's) body including
his head" and the uncle's assertion in Exhibit 2 that "I saw
dagger wounds on the head, hand, stomach and the
back...".
He argued that "bruises" are not synonymous with or akin
to either "Machete cut" or "dagger wounds" the bruises and
head injury are more in sync with the evidence of the
Appellant that deceased was hit by a car.
Astonishingly, said Counsel in his tortuous evolution of the
evidence, Anjor. J did not ascribe any probative value to
Exhibit 4. No mention whatsoever was made of Exhibit 4 in
the Judgment. It was wrong of Learned trial Judge to have
ignored Exhibit 4, a vital piece of evidence favorable to the
Appellant.
He submitted that the explanation put forward by the
Appellant as to the cause of the deceased's death defeated
the doctrine of "last seen" which, on the facts, does
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not apply to this case.
That, having satisfactorily explained the cause of the
deceased's death, the onus shifted to the prosecution to
prove that it investigated the explanation of the Appellant
and found it to be false. He referred to the case ofOsuoha
V. State (2010) 16 NWLR (Pt. 1219) 364.
Appellant's Counsel reiterated that as early as when Exhibit
3 was made, the Appellant gave the police detailed
explanation of the incident that led to the death of the
deceased. That even though PW1 claimed to have
investigated the explanation in Exhibit 3, he did not as
much as contradict Exhibit 3 or say the explanation was
false. Instead PW1 merely sought solace in the fact that
Appellant was last seen with the deceased. In the
circumstance, said Counsel, the Learned trial Judge was
obligated to believe the Appellant.
Learned Counsel concluded, relying again on the decision
of the Supreme Court in Apugo V. State (supra) that in
the instant case, it is impossible to ascribe the death of the
deceased to an act of the Appellant. No evidence
whatsoever was adduced by the prosecution to show that in
fact the deceased died as a result of the unlawful act of the
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Appellant.
Learned Counsel for the Respondent on the other hand
submitted that the Appellant's explanations as to the cause
of deceased injuries was of variance with the marks found
on the body of the deceased as described in Exhibit 4.
He referred to the cases of Moses Jua v. State (2010) 5
NCC at 143 at 150, Chikaodi Madu v. State (2012) 7
NCC 550 at 593 and submitted that the Appellant is
caught by the doctrine of "last seen".
Respondent's Counsel submitted that the prosecution's
case is based on circumstantial evidence with reliance on
the totality of the evidence adduced including Exhibits 1, 2,
3 and 4 the testimony of DW1 and indeed the testimony of
the Appellant as DW1.
Counsel submitted that manslaughter and murder are
kindred offences and the ingredients of one is subsumed in
the other. It follows that where murder has been proved as
the prosecution had done and attested to by the trial Judge
in his Judgment, manslaughter is also proved. On the
admissibility of Exhibits 1 and 2, Respondent's Counsel
submitted that relevancy is the basis for admissibility "once
evidence is relevant for the proper determination of any
fact in issue
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the Court is bound to admit it"
He referred to the cases of Haruna V. AG Federation
(2012) LPELR 7821 Unic V. Ucic Ltd (1999) NWLR
(Pt. 593) 17 at 24. He submitted that Exhibits 1 and 2
were relevant to prosecution's case and were accordingly
tendered and admitted in evidence without objection.
He referred to the cases of Ajikobi v. Akomolafe (1995)
7 NWLR (Pt. 408) 461 at 469, Igbodun & Ors v.
Obianke & Ors (1976) 1 NMLR 212 at 219 -220 and
Joseph Oyewole v. Karima Akande & Anor NSCQLR
Vol. 39 (2009) page 207 and submitted that the worst
fate to befall documents not tendered by their makers is
that they become pointers to the fact that they were made,
they are not worthless.
Accordingly, said counsel, the Court is duty bound to take
cognizance of all admitted facts and decide what weight to
attach to some in conjunction with the surrounding
circumstances Respondent's Counsel submitted that
Appellant never called any evidence to establish his claim
of accident especially when he stated under cross
examination that they were many people at the scene of the
accident neither did he attempt to describe the hit and run
vehicle.
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Respondent's counsel referred to the cases of Omotola v.
State (2009) 4 NLC 89 at 95 and Ukorah V State
(1977) 4 SC 111 at pages 115-116, 117, and reiterated
the fact that circumstantial evidence is as good as,
sometimes better than any other sort of evidence. He added
that proof beyond reasonable doubt does not mean proof
beyond all doubt or shadow of doubt and that when the
prosecution has proved his case beyond reasonable doubt,
the burden shifts to the defence.
On this, he referred to the provision of Section 135 (3) of
the Evidence Act 2011, as amended and the case of
Ugwanyi V. FRN (2012) 7 NCC 105 at 110 and urged us
to dismiss the appeal.
There are two sub-issues in the sole issue formulated for
determination in this appeal. The first is the propriety or
otherwise of the admissibility of Exhibits 1 and 2 and the
second is the rightness or otherwise of the application of
the doctrine of last seen to the facts and circumstances of
this case. It would be recalled that the essence of the
submission of the Learned Counsel for the Respondent on
the admissibility of Exhibits 1 and 2 is the fact that
admissibility of a piece of evidence
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including documents is relevance and that a piece of
evidence which is relevant to the fact in issue is thereby
admissible.
The above view of the Learned Counsel for the Respondent
has not with respect stated the position of the law fully and
clearly.
The position of the law is that any evidence which is sought
to be admitted must be of sufficient relevance.R. V.
Blastland (1986) A. C 41, 81 CR APP. Rep 266 HL
Evidence is relevant if it is logically probative or
disprobative of some matter which requires proof. DPP V.
Kilbourne (1973) AC 729 at 756, 57 CR APP. Rev 381
at 417.
Evidence which is relevant will not necessarily be
admissible, for while relevance is a condition precedent to
admissibility, further rules of exclusion exist which may
serve to exclude evidence which would generally be
considered to be relevant. R. V. Bond (1906) 2 KB 389
at 410 CCR; R. V. Blast land (1986) SC 41 at 53; R. v
Turner (1975) 1 All ER 70 at 74; R. v. Duncan (1944)
KB 713 30 CR. App Rep. 70 CCA. Thus evidence must be
(1) relevant and (2) admissible according to the rules of
exclusion.
In relation to the instant case Exhibits 1 and 2 are relevant
and
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perhaps also admissible to prove the fact that they were
made that is as statements by the mother and uncle of the
deceased to the I. P. O, the PW1.
However, because neither the mother nor the uncle of the
deceased, that is the makers of Exhibits 1 and 2 were
called as witnesses of the trial, Exhibits 1 and 2 could not
be utilized or admitted for the purpose of proving the truth
of an assertion. In the context of this case, what does it
mean to prove the truth of an assertion or the truth of the
assertion.
What this means is that the relevance of Exhibits 1 and 2
ends when they are used only to prove the fact that they
were made. The attempt by the prosecution and also the
Learned trial Judge to use Exhibits 1 and 2 to show that the
deceased might have died of injuries inflicted by matchet
cuts as alleged by the makers of those statements become a
flagrant breach of the Rule as regards hearsay evidence.
This is because of common law and under the Nigerian
Evidence Act, it is a fundamental rule of evidence that
hearsay is inadmissible.Teper v. R. (1952) AC 480 at
486, (1952) 2 All ER, 447 at 499 PC. Myers v. DPP
(1965) AC 1001 at 1009, 48 CR
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App. Rep. 348 at 356 HC. The hearsay rule provides that
an assertion other than one made by a person while giving
oral evidence in the proceedings is inadmissible as
evidence of any fact asserted. Evidence of a statement
made to a witness by a person who is not himself called
may or may not be hearsay. It is hearsay and inadmissible
where the object of the evidence is to establish the truth of
what is contained in the statement, but it is not hearsay
and is admissible where it is proposed to establish by the
evidence, not the truth of the statement, but the fact that it
was made. See Subramaniam v. Public Prosecutor
(1956) 1 WLR 965 at 970. Ratten v. R. (1972) AC 378
at 387.
In the instant case, the Learned Counsel for the Appellant
was right when he submitted that Exhibits 1 and 2 are
species of documentary hearsay evidence and therefore not
admissible in evidence to prove any truth therein as the
Learned trial Judge did. In Opolo V. State (1977) N. S. C.
C 439 at 441 for example, the conviction of the Appellant
for obtaining by false pretences was quashed by the
Supreme Court because it was based predominantly on
Exhibit B, which was inadmissible
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evidence by reason of the fact that the person who made
Exhibit was not called as a witness. Bello J.S. C. (as he was
then) observed inter alia at page 441.
". . .We may pause to state that in criminal
proceedings, all facts, except as may be permitted by
Law, must be proved by direct oral evidence of a
witness who has personal knowledge of the facts in
issue. A letter, such as Exhibit B, written by a person
who has not been called as a witness is inadmissible
and cannot be used for the purpose of treating its
contents as evidence of facts stated therein. The
Learned trial Judge therefore erred in law by
admitting Exhibit B and by relying upon its contents
in its Judgment."
Relatedly, Learned Counsel for the Appellant also
submitted and rightly in my view that in the alternative, no
weight or probative value should be accorded Exhibits 1
and 2 because both documents were not tendered through
their respective makers or authors. The mother and the
uncle of the deceased that made Exhibits 1 and 2 did not
give evidence of the trial. The law is that a document
should be tendered through its maker except in
circumstances of exceptions to documentary hearsay
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evidence as provided under Section 83 of the Evidence Act
2011. (which is not the case here). The rationale is that the
maker is the person who can normally answer questions
regarding the document and so his attendance may be
necessary to facilitate cross examination. Lateef V. F. R. N
(2010) 37 W. R. N 85 Agbom v. State (2012) 39 W. R.
N 94. Lambert v. Nigerian Navy (2006) 7 NWLR (Pt.
980) 514 at 547. Iniama v. Akpabio (2008) 17 NWLR
(Pt. 1116) 225 at 300. Olatunji V. Waheed (2012) 7
NWLR (Pt 1298) 24 at 47 .
The facts ofOsuoha v. State (2010) 16 NWLR (Pt. 1219)
364 bears close similarity to the facts of this case. In that
case, the police officer who authored Exhibit B, the
investigation police report was not called to testify in the
case. Instead, Exhibit B was admitted in evidence through
another police officer, PW3. The Appellant was convicted of
murder. He appealed.
In allowing the appeal, I delivered the leading Judgment
and I spoke for the Court of Appeal (Owerri Division) as
follows:
"In my opinion, in the instant case, Exhibits 'B' has no
probative value. The maker of the document did not
give evidence at the trial and therefore was
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not exposed to cross-examination. Exhibit 'B' was
based on information passed to the maker by third
parties. What is more? The content of Exhibit related
to the truth of the assertions and not merely the fact
that it was made- when in fact neither the maker nor
the tenderer of Exhibit 'B' was capable of giving
direct oral evidence of its contents. A Court of law
cannot attach probative value to such an Exhibit".
Also in Olatunji v. Waheed (2012) 7 NWLR (Pt. 1298)
24 at 47. It was held that the proper person to tender a
document is the maker of such document. Where the maker
of a document is not called to testify before a Court and
subjected to cross-examination as to the sources of
information, the Court cannot attach any probative value to
such document.
The second aspect of the sole issue formulated by the
Appellant in this case is the propriety of the application of
the doctrine of "last seen" to convict the Appellant.
Unfortunately, the misapplication of the doctrine of "last
seen" by the Learned trial Judge was intricately linked with
the wrongful admission of Exhibits 1 and 2.
At pages 59-60 of the Record, his Lordship in stating that
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Appellant unlawfully caused the death of the deceased,
held as follows:
"And then there is the doctrine of last seen which
means that the law presumes that the person last
seen with the deceased, bears full responsibility for
his death if it turn out (Sic) that the person last seen
with him is dead. See lgabele V. State (2006) 6 NWLR
(Pt. 975) 100 or (2006) LPELR -1441 (SC) and State
V. Nwakevendu & Ors (1973) 3 ECSLR (Pt. 11) 757
Etc.
In the case at hand, the accused person had himself
stated that he was in company of the deceased who
accompanied him to a child's dedication ceremony on
the day of the incidents, but that the deceased was
knocked down by a hit and run vehicle which led to
his death which account the prosecution had faulted
on grounds that the injuries seen on the body of the
deceased as described in the statement of deceased's
mother and uncle i.e. Exhibit (sic) 1 and 2 could not
have been caused by a car accident..."
In the first place it is not right even logically to apply the
doctrine of "last seen" to the case of the Appellant when in
fact the deceased was still seen alive by the Appellant, the
deceased's mother
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and uncle before his death. It is an undisputed fact that the
deceased died in the process of his being taking to the
hospital for treatment.
Second, having found that Exhibits 1 and 2 were wrongfully
admitted by the Learned trial Judge, there is nothing left in
the evidence of the prosecution to contradict Exhibit 3 and
the viva voce evidence of the Appellant. The evidence of
the Appellant as regards the event which led to the death of
the deceased that is, that the deceased was injured by a hit
and run vehicle remain uncontradicted and uncontroverted.
Meanwhile, Learned Counsel for the Respondent believes
that the prosecution has proved its case by circumstantial
evidence, based on the doctrine of last seen and on the
general principle that circumstantial evidence is capable of
proving a proposition with the accuracy of mathematics.
See e.g. Haruna V. A. G. Federation (2012) 9 NWLR
(Pt. 1306) 419 at 447. Igabele V State (2006) 6 NWLR
(Pt. 975) 100. Obiakor V. State (2002) 10 NWLR (Pt.
776) 612.
However, circumstantial evidence can only ground a
conviction if it irresistibly and unequivocally leads to the
guilt of an accused person, there is
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no other reasonable inference that could be drawn from it,
and there are no co-existing circumstances which could
weaken the inference. See Okereke V. State (1998) 3
NWLR (Pt. 540) 75, Adepetu V. State (1998) 9 NWLR
(Pt. 565) 185 Idowu v. State (1998) 11 NWLR (Pt.
574) 354, Akinmoju v. State (2000) 4 SC (Part 1) 64
Durwode V. State (2000) 12 SC (Part 1) 1. The State V
Ogbubuajo (2001) 13 WRN 1 at 3.
Moreover, a trial Court must not as it was done in the
instant case base its decision on speculation and
extraneous matter not supported by the evidence before
the Court as this will occasion a miscarriage of justice.
Onuoha v. State (2002) 1 NWLR (Pt. 748) 406.
In the instant case, after the explanations of the Appellant
in Exhibit 3 and the viva voce evidence of the Appellant as
to the fight between the deceased and others and how the
Appellant was hit and injured by a hit and run vehicle
before his death which was witnessed by his mother, the
onus shifted on the prosecution to prove that they have
investigated the explanation of the Appellant and found it
to be false. This, the prosecution failed to do.
In the absence of any evidence or report of
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investigation that the explanations of the Appellant was
false, the Learned trial Judge was obliged by law to believe
the explanation.
In a charge of murder, where there is no eye witness
account, as in this case, and it is only the evidence of the
Appellant that is available, it is the duty of the Court to
believe it or else there is no evidence to believe. See,
Ogunwumiju J.C.A in Osuoha V. State (Supra) page
418.
It was for this same reason that I held that the last seen
doctrine was not appliable in the earlier cited case of
Osuoha V. State (Supra) pages 414 - 415.
"In this appeal, the prosecution also invoked the last
seen doctrine to justify the conviction of the
Appellant by the trial Court. Truly, the law presumes
that the person last seen with the deceased, bears full
responsibility for his death if it turns out that the
person last seen with him is dead...
In my humble opinion the facts and circumstances of
this case would not permit the operation of the
presumption of last seen.
Again, from the uncontradicted evidence of the
Appellant, there was an explanation as to the where
about of the deceased when he was still
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alive...
Any attempt to still invoke the presumption of last
seen after the Appellant had given an explanation of
the deceased's where about while the deceased was
still alive would be tantamount to shifting the burden
of proof which is permanently on the prosecution to
the Appellant."
Now, to succeed in a charge of manslaughter, the
prosecution must prove that the act of the accused caused
the death of the deceased. Where it is impossible to identify
the precise cause of death from evidence, the accused
person must be acquitted. R. V. Abengowe (1936) 3 W.
A. C. A. 85, Odido v. State (1995) 1 NWLR (Pt. 369)
88.
In the instant case, Exhibits 1 and 2, are hearsay,
inadmissible in evidence and cannot form the basis of a
conviction. The doctrine of "last seen" is inapplicable to the
facts of the case. The prosecution did not lead evidence to
show that the deceased died as a result of the unlawful act
of the Appellant.
Either way, the Appellant cannot legally be found liable for
the death of the deceased either on a charge of murder or
manslaughter.
In the circumstance, the sole issue formulated in this
appeal is resolved in favour of the
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Appellant.
The appeal is meritorious and it is allowed. The conviction
of the Appellant for the offence of manslaughter by S. M.
Anjor J. in Charge No. HCA/8C/2011 on 16th April, 2014 is
hereby set aside.
A verdict of acquittal and discharge is entered in favour of
the Appellant.
CHIOMA EGONDU NWOSU-IHEME. J.C.A.: I read in
advance the lead judgment just delivered by my Learned
Brother, M. A. Owoade , JCA in this criminal appeal. I adopt
the facts of this case as narrated in the lead judgment.
Having resolved the sole issue in favour of the Appellant
and against the Respondent, there is no doubt that this
appeal is meritorious and same is hereby allowed.
The conviction of the Appellant for the offence of
manslaughter by S.M. Anjor , J , in Charge No.
HCA//8C/2011 delivered on the 16th of April, 2014 is
hereby set aside and in its place, a verdict of discharge and
acquittal is entered for the Appellant.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had
the privilege of reading the draft of the lead judgment just
delivered by my learned brother MOJEED ADEKUNLE
OWOADE, JCA and I agree with
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the reasoning and conclusions therein. Where the
prosecution failed to lead evidence sufficient to establish
the criminal allegation against the criminal defendant or
accused person beyond reasonable doubts, the accused
person must be acquitted. In the entire circumstances
therefore, I equally find merit in this appeal and I
accordingly allow it. I adopt the consequential orders in the
lead judgment.
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