The State v Raphael Ifiok Sunday (2019) – SC


The State v Raphael Ifiok Sunday (2019) – SC

by “PipAr” B.C. Chima

Supreme Court – SC.709/2013

Friday, 8th March, 2019

Circumstantial evidence;
Doctrine of last seen.

“The doctrine of “last seen” relied upon by the trial Court to convict and sentence the respondent to death but which was set aside by the lower Court means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with him has been found dead. Therefore, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to an irresistible conclusion that it was the accused that was last seen with the deceased and no other person, and then there is no room for an acquittal. A trial Court can safely convict on such evidence. It is the duty of an accused person who is faced with compelling and damnifying Circumstantial evidence to give explanation relating to how the deceased met his death and in the absence of such explanation, a trial Court will be justified to hold that it was the accused who killed the deceased being the person last seen with him. See Igabele v The State (2006) 6 NWLR (pt 975) 100, Gabriel v The State (1989) 3 NWLR (pt 122) 457, Igho v the State (1978) 3 SC 87, Madu v The State (2012) 15 NWLR (pt 1324) 405, Tajudeen Iliyasu v The State (2015) LPELR – 24403 (SC).” — J.I. Okoro, JSC.

“Under our criminal jurisprudence, circumstantial evidence is defined as evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with mathematical exactitude, and that where direct evidence is unavailable, circumstantial evidence which is cogent, compelling and pointing irresistibly and unequivocally to the guilt of the accused is admissible to sustain a conviction. Circumstantial evidence consists of various pieces of evidence which in themselves alone cannot ground conviction, but when put together can constitute a good solid case for the prosecution. Circumstantial evidence is as good as, and sometimes better than any other sort of evidence. See Ukorah v The State (1977) 4 SC (Reprint) page 111 (1977) LPELR 3345 (SC), Peter v The State (1997) 12 NWLR (pt 531) page 1, Adie v The State (1980) 1 – 2 SC page 116 (1980) LPELR – 176 (SC).” — J.I. Okoro, JSC.

“Generally, in a murder charge, the prosecution must prove beyond reasonable doubt the following:- (1) That the deceased died. (2) That it was the unlawful act or omission of the accused person which caused the death of the deceased, and (3) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. The prosecution can rely on direct eye witness account or by circumstantial evidence. The prosecution can even prove same by the confession of the accused. See Kaza v The State (2008) 7 NWLR (pt 1085) 125, Akinlolu v The State (2015) LPELR 25986 (SC), Ogedengbe v The State (2014) 12 NWLR (pt 1421) 338, Durwode v The State (2000) 15 NWLR (pt 691) 467.” — J.I. Okoro, JSC.

Available:  James Afolabi v. The State [2016]

John Inyang Okoro, J.S.C.

Essien E. Udom Esq.
Samuel Akpabio, Esq.

Lawrence S. Oko-Jaja, Esq.

This appeal is against the judgment of the Court of Appeal, Calabar Division delivered on 17th January, 2013 wherein the lower Court set aside the conviction and sentence to death of the appellant by the Trial High Court of Akwa Ibom State. The appellant was convicted for the murder of his father, Norbert Sunday on or about the 2nd day of April, 1996 at No. 81A Ikpa Road Uyo, Akwa Ibom State.


I. Whether or not the lower Court was right when it held that the doctrine of last seen was wrongly applied by the trial Court in coming to the conclusion that the Respondent was the last person who saw the deceased alive and therefore responsible for his death.

A. “There is no iota of evidence to sustain the theory of “last Seen” in respect of the instant case. Nobody testified that the deceased was last seen with the Respondent on 2nd April, 1996 when he disappeared. Rather, all the witnesses agree that the deceased visited the PW2 on that date, meaning that PW2 was in fact the person last seen with the deceased. There is no evidence that the deceased arrived home safely when he left PW2’s house on 2/4/96.”

B. “My Lords, two things, the blood stained shirt and the note allegedly left behind by the deceased would have been illuminating in this matter but both were not tendered. The question is where are the note and blood stained shirt? Why were they withheld and not tendered in Court? The Court below said this much on page 175 of the record thus: – “Why would the deceased leave a note in his room at No. 8111 Ikpa Road, Uyo that if he died, it was the appellant who killed him? Where is that note? When was it written? Why was the note and the blood stained shirt of the deceased not tendered as exhibits? Where is the forensic evidence that the blood on the shirt was from the deceased when no prosecution witness had given evidence that the deceased had sustained bodily injury before or after his death?” ”

Available:  Adeniyi Olowu & Ors. v. Olabowale Aremu Olowu & Anor. (1985)

C. “Before an accused person is found guilty and ordered to be executed, the Court must be satisfied that the prosecution has proved its case against such an accused person beyond reasonable doubt. In the instant case, I have serious doubt about what happened to the deceased on 2nd April, 1996 when he visited PW2. The theory of Last Seen’ applied by the learned trial Judge was done without evidence on record. Accordingly, I agree with the Court below that the principle was wrongly applied. This issue is thus resolved against the appellant.”
II. Whether or not the lower Court was right when it held that dispensing with medical evidence and report as to cause of death was fatal to the Appellant’s case.

A. “In the instant case, there is no evidence as to when the deceased died and/or how he died. There is no evidence as to who killed him and the nature of the killing. There is also no evidence as to who dumped his body in the pit toilet of Akon Hanson Udo Ibanga alia Mmatte at No. 81B Ikpa Road, Uyo. The only reason the respondent is being accused of killing his father is that he once accused him of being a wizard. But the Respondent both in his extra judicial statements to the police and his evidence in Court also accused the PWs who are their family members as having accused his late father of being a wizard when his (Respondent’s) junior brother died. Evidence shows that it was the Respondent who went about searching for his father when he noticed that he was nowhere to be found. In my opinion, the circumstantial evidence against the Respondent is so weak that no reasonable and responsible Court can act upon.”

B. “In view of the weak circumstantial evidence adduced by the prosecution against the Respondent herein, I agree with the Court of Appeal that though medical evidence is not a sine qua non to prove the cause of death, it was desirable in the circumstance of the instant case. The withholding of the blood stained shirt and the death note found in the room is to the detriment of the prosecution’s case. By Section 167(a) of the Evidence Act 2011, the Court may presume that evidence which could be and is not produced, would, if produced, be unfavourable to the person who withholds it. See The State v Salawu (2011) 18 NWLR (pt 1279) 580 (2011) LPELR -8252 (SC). I also presume that if the autopsy report was tendered or the medical doctor called, it would have been unfavourable to the Appellant’s case especially as the deceased was a habitual drunkard and sickler. I resolve this issue against the appellant also.”
III. Whether or not the lower Court was right when it held that there is no circumstantial evidence that has led irresistibly to the guilt of the Respondent?

Available:  Mr. Charles Mekwunye v. Mr. Christian Imoukhuede (2019)

A. “It has already been established that in the instant case, there is no eye witness account and no confessional statement of the Respondent. The conviction of the Respondent was based on circumstantial evidence. I have said much on this while resolving issues one and two that the alleged circumstantial evidence relied upon by the learned Trial Judge to convict and sentence the Respondent is so weak and unreliable. None of the witnesses testified that he saw the deceased with the respondent on 2nd April, 1996 when he was last seen. The pit toilet in which the deceased was retrieved was in the premises of Madam Akon Hanson Ibanga at No. 81B Ikpa Road, Uyo and not the toilet at No. 81A Ikpa Road where the Respondent lived with the deceased. The last person to see the deceased alive on 2/4/96 was the PW2 whom the deceased visited. There is no evidence from any witness that he saw the deceased return home on 2nd April, 1996 after visiting the PW2. The Court below queried the non tendering of the note said to have been left by the deceased that if he died, it was the respondent that killed him.”

B. “I also ask why the prosecution withheld the said note. Again, the prosecution failed to tender the blood stained shirt allegedly recovered from the room and finally, failure to call the medical doctor to testify on the cause of death. All the above issues raised by the learned counsel for the Respondent create serious doubt on the alleged circumstantial evidence which could have fixed the Respondent to the murder. The fact that he may have accused the deceased of being a wizard was cancelled by the fact that other family members including the prosecution witnesses also accused the deceased of killing his son. The fact that the deceased was a habitual drunkard and very sick are also issues which could suggest he may have fallen into the pit toilet by himself. Based on the above, I agree with the Court below that the circumstantial evidence led by the prosecution was not cogent enough to ground a conviction of murder. The doubts in this case must be resolved in favour of the Respondent.”
“It is accordingly dismissed by me. The judgment of the Court of Appeal delivered on 17th January, 2013 is hereby affirmed. The Respondent is acquitted and discharged. Appeal Dismissed.”








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