CRIMINAL LAW – murder – what the prosecution needs to prove in order to secure conviction
CRIMINAL LAW – murder – circumstances that amount to the act of committing the offence
CRIMINAL PROCEDURE – arraignment – requirements for a valid arraignment
EVIDENCE – circumstantial evidence – can sustain conviction of an accused without the need for an eyewitness if cogent, positive, and points unequivocally to the accused as the perpetrator of the offence charged – need for circumstantial evidence to eliminate the possibility of some other person as the perpetrator of the of the offence so as not to create doubts
EVIDENCE – presumption of regularity – arraignment and trial of an accused held to be substantially regular if no objection is raised by accused person or his counsel
EVIDENCE – presumptions – the doctrine of ‘Last Seen’ – if a person who was last seen alive in the company of another is found dead, that other in whose company the deceased was last seen alive is presumed to be responsible for the death of the deceased – when court may rely on the doctrine – when time-gap between ‘‘last seen together’’ and perpetration of crime is so circumstantial that no possibility can exist of other persons interposing halfway
LEGISLATION – Section 215 of the Criminal Procedure Code Law stipulated three essentials that must be met for the arraignment of an accused person to be valid
PRACTICE AND PROCEDURE – trial proceedings – appeal against – where a party actively participates in a court proceeding and or is represented by counsel and raised no objection to any feature of the proceeding while it was on-going he cannot be heard to complain later
PRACTICE AND PROCEDURE – trial proceedings – where an accused does not understand language in which the trial was conducted – duty of the accused or his counsel to bring to the notice of the court otherwise it will be assumed that he has no cause of complaint
The Appellant, who was 1st accused in the trial High Court, was convicted and sentenced to death for conspiracy to murder and for murder punishable under Section 324 of the Criminal Code, Cap 30 Volume II, Laws of Eastern Nigeria, as applicable in Abia State. It was alleged that the Appellant and other persons now at large conspired and murdered one Nnenna Nwosu by performing or assisting in performing an unsuccessful illegal abortion after which they threw her corpse into a septic tank in the premises where the Appellant resided with the deceased 2nd accused. The 2nd accused died shortly after his conviction and sentence.
At the court of trial, the prosecution relied on, and the court also made findings, of circumstantial evidence. PW1, the father of the deceased, testified that his wife, the deceased’s mother, were friends with his wife since they moved into a residence opposite the house where appellant resided with deceased 2nd accused. For some reason PW1’s wife left for the village in 1998, entrusting the care of the deceased, who was aged 17 years old at the time, to the accused/appellant.
Accused/Appellant admitted that she was the deceased’s only friend, and that the deceased used to take care of her baby and keep her house keys with her. In his evidence the deceased 2nd accused testified that appellant introduced the deceased to him as her sister; he also admitted that he was the deceased’s boyfriend and that he enjoyed sex regularly with the deceased. Both the appellant and the deceased 2nd accused admitted that the deceased was last seen alive with them. Both of them also admitted that the body of the deceased was later seen in the septic tank in their own backyard, and that it was 1st accused that led 2nd accused to the septic tank. Meantime, only the appellant and deceased 2nd accused knew that the body of the deceased was in the septic tank until 2nd accused decided to tell PW2, the caretaker of the premises.
The evidence of PW4, a specialist in forensic and hysto-pathology medicine, stated that the cause of death was not self-inflicted but was due to the combined effect of perforation/laceration of the womb with external protrusions of the internal organs from her vagina, as well as fracture of the spine of the neck. The trial court also found that the accused persons lied and contradicted each other, and that their conduct after the deceased was last seen with them was more consistent with their guilt than their innocence.
On appeal, the Court of Appeal affirmed the decision of the trial High Court.
The Appellant further appealed to the Supreme Court to contest her conviction and sentence on the basis, inter alia, that she was not given a fair hearing by the trial court in that, according to her, the manner of taking her plea at her arraignment was improperly enacted and also that since there was no record of the language in which the charge was read and interpreted to the accused/appellant, the evidence of prosecution witnesses could be presumed to have been taken in the English language, the official language of the court, which the accused/appellant neither spoke nor understood, and that this was contrary to Section 36(6)(a) of the 1999 Constitution and Section 215 of the Criminal Procedure Law of Eastern Nigeria, 1963, as applicable in Abia State and that accordingly the entire trial, conviction and sentence of the accused/appellant was vitiated by the trial court’s failure record the language in which the charge was read and interpreted, and urged the apex court to nullify the trial, conviction and sentence of the accused/appellant on the ground, amongst others, that she was not properly arraigned before the trial court. Referring to the testimony of PW1, PW2, DW1 and DW2, appellant’s counsel contended that those witnesses testified in their native Igbo language, but that there was no record to show that their testimonies were interpreted to the trial court in the court’s official language, which he said meant that the appellant was not heard in her defence, and as a result that whatever the trial court may have ascribed to the appellant as her evidence before the court was not based on fact or investigation, but can at best be only hypothetical or speculative, which is not the province of the court.
Appellant’s counsel also argued at the apex court that the trial court’s reliance on the Doctrine of Last Seen and subsequent affirmation by the Court of Appeal of the trial court’s judgment, violated appellant’s constitutional right to presumption of innocence guaranteed by section 36(5) CFRN 1999. As it was succinctly put by Olu Ariwoola JSC, who wrote the lead judgment, ‘‘The issue bothers on the doctrine of ‘Last Seen’. That is, if a person who was last seen alive in the company of another is found dead, that other in whose company the deceased was last seen alive is presumed to bear full responsibility for the death of the deceased.’’ Appellant’s counsel attacked the doctrine of last seen which originated with the maxim that the last person in whose company a deceased person was last seen is presumed to be the deceased’s murderer is a basic generalization, not of law but of common-sense, that should no longer be accepted or used as a basis for making a finding of guilt in a murder case like the instant one, for the reason that it requires the accused to offer explanations of what happened to the deceased simply because the deceased was last seen in her company and where she failed to offer an acceptable explanation, the accused would be presumed to have killed the deceased. Appellant’s counsel reasoned that this was equivalent to compelling the accused to prove her innocence, contrary to the position of the law which places the burden of proving the guilt of the accused beyond reasonable doubt on the prosecution and not with the order reversed. He urged the apex court to declare that the principle embodied in the Doctrine of Last Seen is bad law and to overrule itself in previous cases where the Supreme Court had upheld the principle.
It was also argued on behalf of the appellant that there was no nexus between the accused/appellant and the commission of the alleged illegal abortion which resulted in the fatal dissolution of the deceased, and that the circumstantial evidence relied upon by the prosecution and approbated by both the trial court and the Court of Appeal was insufficient for the trial court to found the conviction of the accused/appellant upon it, as the circumstantial evidence did not exclude the possibility that the alleged illegal abortion may have been committed by any other person such as a quack.
Finally, appellant’s counsel contended that other areas where the prosecution’s case was open to reasonable doubt include the fact that no sharp object as described by PW4 was recovered from the appellant’s house, as well the failure of the prosecution to pinpoint the exact date and time of the death of the deceased and to investigate accused/appellant’s plea of alibi.
On their own part, the Respondent contended, in the main, that the appellant and her counsel participated in the trial from the beginning to the end without any complaint or objection to any feature of the proceedings and that, not having raised any complaint bordering on procedural irregularities during the pendency of the proceedings, it was too late in the day to raise any objection, even on appeal. The prosecution further contended that appellant was afforded an opportunity to be heard at the trial court, in that she took her plea after the charge was read and explained to her, cross-examined the prosecution witnesses through her counsel, defended herself in a language she understood, that is, Igbo language, and was present in court on all the days that the matter came up. Respondent also contended that circumstantial evidence is only one species of evidence on which the appellant’s conviction was based but that, howbeit, from the facts proved there exists ample, cogent, positive and compelling circumstantial evidence which divulged the existence of other facts that warrant the inference of the accused/appellant’s guilt of committing the murder of the deceased, notwithstanding the absence of direct evidence or eyewitness account.
Finally, Respondent argued that the case against the accused was proved beyond reasonable doubt and hence that the Court of Appeal was right in affirming the conviction and sentence to death of the appellant by the trial court; and also that the concurrent findings of facts by the two courts below should be upheld by the apex court as there is no perversion in the instant case. The prosecution urged the Supreme Court to dismiss the appeal.
ISSUES [as formulated by Appellant and adopted by the Supreme Court]
1. Whether the lower court was right when it upheld the conviction and sentence of the appellant by the trial High Court, when the arraignment of the appellant did not comply with the mandatory provisions of Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria 1999 and Section 215 of the Criminal Procedure Laws of Eastern Nigeria, 1963 as applicable to Abia State.
2. Whether the lower court was right when it relied on the evidence of the PW1, PW2, DW1 and DW2 in affirming the judgment of the trial court convicting and sentencing the Appellant to death for the alleged murder of the deceased.
3. Whether the appellant was given fair hearing.
4. Whether the lower court was right when in affirming the conviction and sentence of the Appellant to death by the trial court, it relied on the alleged piece of evidence that the appellant was the last person with whom the deceased was last seen alive.
5. Whether the prosecution proved its case against the appellant beyond reasonable doubt to warrant the lower court to have sustained or upheld the conviction and sentence of the appellant to death for the murder of the deceased Nnenna Nwosu.
HELD, dismissing the appeal,
1. In compliance with Section 215 of the Criminal Procedure Code Law, for the arraignment of an accused person to be valid, the following three essentials must be met:
(a) The accused must be placed before the court unfettered unless the court shall see cause otherwise to order
(b) The charge or information shall be read over and explained to the Accused to the satisfaction of the court by the Registrar or other officer of the court; and
(c) The Accused shall then be called upon to plead thereto unless, of course, there exists any valid reason to do otherwise such as objection to want of service where the Accused is entitled by Law to service of a copy of the Information and the court is satisfied that he has in fact not been duly served therewith. [See: Oguniye vs. The State (1999) 5 NWLR (pt. 604) 548 at 565; Idemudia vs. The State (1999) 7 NWLR (pt. 610) 202 at 204]
2. There is nothing on record to dispute the fact that the trial court in the instant case complied with the mandatory requirement of the Constitution and the Law. The Appellant was arraigned before the trial court unfettered, the charge was duly read and explained to the appellant and she was called upon by the court to plead to the charge, to which she accordingly pleaded and was so recorded. If the charge had been read to the accused without an explanation in the language she understands [sic] she should have said so, or her counsel should have raised an objection. That is, at least, the natural human reaction. In Paul Onyia vs. The State  12 SCM (pt.2) 620 at 631, a case in which the accused person speaks Igbo which is not the language of the court but where the Information was read out in English and explained in Ibo language to the accused person, this court on appeal for an alleged failure to comply with the requirement of the Law, opined as follows: -
‘‘It is a common spontaneous human reaction in court for an accused person who does not understand the language used to say so openly in court or protest that he needs an interpretation to the language that he understands.’’
[See also: Madu vs. State (1997) 1 NWLR (pt. 482) 386; Nwachukwu vs. The State (2007) 12 SCM (pt. 2) 447]
3. Furthermore, it is clear on record that the appellant and DW2 testified in court in Igbo language. See pages 55-57 of the record of proceedings. In the same vein, PW1 and PW2 also testified in Igbo language, same language spoken and understood by the appellant. See pages 41-47 and 57-62 respectively of the record of proceedings. It is noteworthy that throughout the hearing, the appellant was present in court and was represented by counsel of her choice who dutifully cross-examined the prosecution witnesses.
4. It is the duty of the appellant and counsel to raise the issue before the trial court, that she didn’t understand the language being spoken by the prosecution witnesses. If after such objection was raised the court overruled it and yet proceeded with the case, the story would have been different. Not having stated that an objection or complaint was raised or made, it is safe in my view to assume that the appellant had no cause to complain. See: Francis Durwode vs. The State (2000) 82 LRCN 3038 at 3065; FWLR (pt. 36) 950 at 971-2, in which case this court opined as follows:-
‘‘In the realm of criminal justice, it is the cardinal principle of our criminal jurisprudence that it is the duty of the accused or his counsel acting on his behalf to bring to the notice of the court the fact that he does not understand the language in which the trial was conducted otherwise it will be assumed that he has no cause of complaint.’’
[See also: Adeniji vs. The State (2001) FWLR (pt. 57) 809 at 817]
Earlier, this court per Adio JSC (of blessed memory) in Mallam Madu vs. The State (1997) 1 NWLR (pt. 482) 306 at 402, had stated thus:
‘‘The fact that the accused does not understand the language in which the trial court is being conducted is a fact well known to the accused and it is for him to take the initiative of bringing it to the notice of the court at the earliest opportunity or as soon as the situation has arisen. If he does not claim the right at the proper time …… he may not be able to have a valid complaint, afterwards, for example, on appeal.’’
I am therefore convinced that the court below was right in affirming the judgment of the trial court, relying on the evidence of PW1, PW2, DW1 and DW2 all of who spoke and understood Igbo language in which each of them testified.
5. According to the Criminal Code, an offence of murder is committed when a person unlawfully kills another under any of the following circumstances, that is to say:
· If the offender intends to cause the death of the person killed, or that of some other person;
· If the offender intends to do to the person killed, or to some other person some grievous harm;
· If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
· If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that an offender may be arrested without a warrant, for the purpose of facilitating the flight of an offender who has committed or attempted to commit such an offence;
· If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
· If death is caused by wilfully stopping the breath of any person for either of such purposes;
In the second case above, it is immaterial that the offender did not intend to hurt the particular who is killed.
In the third case, it is immaterial that the offender did not intend to hurt any person.
In the last three cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.
6. It is trite law that in a charge of murder the burden is on the prosecution to prove that the deceased died, that the death was caused by the accused, that the accused intended to either kill the victim or grievously harm him. [See: Durwode vs. The State (supra), Idemudia vs. State (2001) FWLR (pt. 55) 549 at 564, Akpam vs. State (2001) FWLR (pt. 56) 735]
7. In other words, in a murder charge, prosecution owes it duty [sic] to discharge by proving the death of the victim, responsibility of the accused by commission or omission of the accused with knowledge that it could cause grievous bodily harm or death. See: Ubanu & Ors. Vs. State (2004) FWLR (pt. 191) 1533 at 1546, Godwin Igabele vs. The State (2006) 3 SCM 143 at 151, Alewo Agebede vs. State (1996) 5 NWLR (pt. 448) 270
8. It is a misconception and misleading, to say the least, for the learned counsel to the appellant to come to the conclusion that the doctrine of ‘‘last seen’’ is rooted only in common sense but not law, therefore urging this court to overrule itself on the previous decisions based on the doctrine. The doctrine is indeed of global application. In some other jurisdictions, it is called ‘‘the last seen theory. In the Indian case of Rajashkhanna vs. State of A.P. (2006) 10 SCC 172, the Indian Supreme Court noted as follows:
‘‘The last seen theory comes into play when the time gap between the point of time when the accused and the deceased is found dead is so small that possibility of any other person other than the accused being the author of the crime becomes impossible.’’
However, in S.K. Yusuf vs. West Bengal (2011), the same Supreme Court after referring to its earlier stand above further held 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.’’ Even if time gap is less and there is no possibility of others intervening, it is said to be safer to look for corroboration.
9. In the instant case, it is very clear without an iota of doubt as found by the trial court and concurred by the court below, that the circumstances from which the inference of guilt was drawn were fully established by unimpeachable evidence beyond a shadow of doubt. The circumstances are of a determinative tendency unerringly pointing towards the guilt of the appellant.
10. From the circumstantial evidence adduced by the prosecution, I am convinced and I so hold that the court below was right in affirming the conviction and sentence of the appellant by the trial court based on the doctrine of ‘‘last seen.’’ The case was therefore proved before the court beyond reasonable doubt.