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1.1 Background of the Research

The doctrine was stated with much clarity, weight and legal force in the Moses Jua case  thus:

The position as firmly settled, is that if Mr. A was last seen alive with or in company of Mr. B and the next thing that happened, was the disappearance of Mr. A, the irresistible inference is that Mr. A was or had been killed by Mr. B. The onus is on Mr. B. to offer an explanation for the purposes of showing that he was not the one who killed Mr. A.


It would seem that the doctrine thrives in hasty conclusions in the sense that once someone disappears, no effort may be made to prove that he is dead before concluding that someone else had killed him. Nonetheless, the “last seen” doctrine is a mere presumption which, like all presumptions, is rebuttable. It means in effect however, that the law presumes that the person “last seen” with the deceased bears the full responsibility for his death if it turns out that the person last seen with him is dead.

In Nigeria, the doctrine is firmly settled, established and/or entrenched, but in other common law jurisdictions, it is applied with caution and flexibility so as to guard against a miscarriage of justice. Applying the doctrine to the law of evidence, the Indian Legal writers , maintained that:


The mere fact that the accused and the deceased were together in the field prior to the occurrence does not by itself lead to irresistible inference that the accused must have murdered the deceased…it could not be deemed to be conclusive unless it is further established that during the interval between the time when they were last seen together and the time at which the victim died, every circumstance was inconsistent with the innocence of the accused. The theory of last seen together is extremely a weak piece of evidence.


This seems to be a better view of the doctrine and its application in deserving circumstances. This is so because, presumptions are created to permit orderly civil and criminal trials. The Supreme Court of Pennsylvania  and the Supreme Court of Indiana  defined the function and legal significance of presumptions as follows:


…a presumption of law is not evidence nor should it be weighed by the fact finder as though it had evidentiary value. Rather, a presumption is a rule of law enabling the party in whose favour it operates to take his case to the jury without presenting evidence of the fact presumed. It serves as a challenge for proof and indicates the party from whom such proof must be forthcoming. When the opponent of the presumption has met the burden of production thus imposed, however, the office of the presumption has been performed, the presumption is of no further effect and drops from the case.


The problem here is that presumption is too vague a concept upon which to hang the fate of an accused person in capital offences such as murder. Again, it imposes on the accused person, a “reverse burden” of proof by calling on him to prove his innocence and this is inconsistent with our adversary system of criminal justice which imposes a legal burden on the prosecution to prove its case against the accused beyond reasonable doubt. The adversary system preserves the presumption of innocence embedded in our criminal jurisprudence and this is inconsistent with the presumption associated with the “last seen” doctrine which is an offshoot of circumstantial evidence.

There is also the “time-lag” principle which is deeply associated with the “last seen” doctrine though consistently glossed-over by the Nigerian courts in their application of the “last seen” doctrine. The principle runs thus:


The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and where the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases” .


1.2       Statement of the Research Problem

The presumption of innocence is an essential component of the adversarial criminal justice system which is often argued to be undermined by the doctrine of last seen. Following this the practice of the courts of requiring an accused charged with murder, to offer some explanation on how the deceased met his/her death solely on the grounds that he was the last person seen with the deceased, appears to subjugate the presumption of innocence. This subjugation is the problem this research hopes to address.

1.3             Aim and Objectives of the Research

The material guide titled application of the “doctrine of last seen” in homicide trials in Nigeria criminal justice system will focus on analyzing if the last seen doctrine undermines the presumption of innocence.


1.4       Scope of the Research

The scope of this  material guide is limited to Section 36(5) of The 1999 Constitution and The Evidence Act of 2011.


1.5       Significance of the Research 

This research will be useful source of material to legislators, executives, the judiciary, lawyers, student engaging in related studies and the general public

1.6 Research Methodology

The research methodologies adopted for this material guide are doctrinal and empirical research methodology.  Doctrinal method means “theorizing without considering the practical consequences. It is called a visualized research, imaginative research,   unpractical research, a visionary research or conceptual research.


1.7       Literature Review

It is becoming the practice to divide offences into conduct and result offences. Conduct crimes are those where only the forbidden conduct needs to be proved to ground conviction. An example is dangerous driving contrary to Road Traffic Laws[1] . Under such laws, one does not need to show that anything occurred. The accused is guilty if he drove a motor vehicle dangerously on the road. There need not be harmful consequences, such as the accused driving a car on a public road so dangerously that someone was knocked down. Also, in “perjury” cases[2] , the accused is guilty if he makes a statement on Oath, knowing or believing it to be false. The outcome of the case need not be affected. “Perjury”, like dangerous driving, is therefore a “conduct” crime. In result crimes, the act and the forbidden consequences are part of the definition of the actus reus. The prosecution shall prove that the forbidden consequences resulted and/or occurred due to the conduct of the accused. It then follows that, in result offences, what is forbidden is the result and not the conduct of the accused which led to the result. The reverse may apply in respect of conduct crimes. In the offences of murder and manslaughter, someone must be killed. The forbidden results must be caused by the accused. Murder and manslaughter are therefore good examples of “results crimes”. With regard to “conduct” crimes, there is no problem normally with ‘causation’, since no results need be proved. But in result crimes, the accused must be proved to have caused the prohibited consequence. The various tests applied by the courts in determining the causal link between the conduct of the accused and the forbidden result remain problematic and inconsistent. They are not the focus of this paper4



In a charge of murder or manslaughter, as the case may be, the burden is on the prosecution to prove the following ingredients; (a) that the deceased, a human being had died, (b) that the death of the deceased was caused by the act of the accused, and (c) 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.[3] The burden of proof placed on the prosecution in a charge of murder is not discharged unless the prosecution establishes not only the cause of death but also that the act or event which caused the death of the deceased, emanated from the accused.[4] Our main focus here, is ingredient (b) which demands that he prosecution must prove that the death of the deceased was caused by the act of the accused and which puts on the front burner, the legal concept of causation in result offences.


 [1] Section 2 of the English Road Traffic Act, 1988 (as amended) provides in relation to the “actus reus”, that a person is guilty when he is driving a mechanically propelled vehicle on the road if dangerously done. See also, sections 28 and 29, Road Traffic Act (Cap. 548) LFN (Abuja) 1990 which used the expression “recklessly or negligently” and “without due care and attention” or “without reasonable consideration for other road users” et cetera.

[2] See Section 117, Criminal Code Act (Cap. C38) LFN, 2004, Sections 156-165, Penal Code Act (Cap.

532) LFN (Abuja) 1990, dealing with “False Evidence”. 4 For the tests, see Alili N., op. cit at pages 91-94.

[3] Adekunle v. the State (2006)14 NWLR (pt. 1000)717 at 736, 737. See also, Ogba v. The State (1992)2 NWLR (pt. 222)164, Nwaeze v. the State (1996)2 NWLR (pt. 428)1, Gira v. The State (1996)4NWLR (pt. 443) 375, et cetera.

[4] Edobo v. The State (2004)5NWLR (pt. 865)17 at 43, Uguru v. The State (2002)9 NWLR (pt. 771)90 at 106, Omini v. The State (1999)9-10 SCNJ 1 at 15, Gira v. The State (1996)4SCNJ 95 at 101, Abogede v.

The State (1996)4 SCNJ 223 at 228, Idowu v. The State (2000)7SCNJ 245 at 262, Nwaeze v. The State (1994)12 SCNJ 140 at 149. See also, sections 316 and 317, Criminal Code Act, Sections 220 and 221, Penal Code Act.



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