NWLR This Week: The Last Seen Doctrine – Operation, Application and Presumption


Parties: Hayatu Umar v. The State

Appeal No: SC/505/2014

Court: Supreme Court

Justices: MUSA DATTIJO MUHAMMAD, J.S.C. (Presided)
KUMAI BAYANG AKA’AHS, J.S.C (Read the Leading Ruling)

Citation: (2018) 7 NWLR (Pt. 1617) P.72


At the High Court of Sokoto State, the Appellant along with two others was arraigned for the offences of conspiracy, culpable homicide punishable with death for the murder of one Dan-Gwamma and robbery.

According to the prosecution, the deceased went out with the Appellant but never came back alive. At the trial, PW4 who was the deceased’s wife testified that the Appellant visited her house four times in one day in search of the deceased. On the third visit, she asked the Appellant what he wanted from the deceased and he replied that someone wanted to engage the deceased to use his camel to carry some goods. It was on the fourth visit that he met the deceased and the two of them went out with the camel but the deceased never returned home alive.

In his own testimony, PW6 said he met the deceased and the Appellant riding on the deceased’s camel and going towards Wauru, where eventually the dead body of the deceased was found the next day with a cut on his neck by PW5 and without any trace of the camel.

The confessional statement of the Appellant which was recorded in Hausa Language and translated to English Language was tendered in evidence without any objection by the Appellant and same was marked as exhibit E1 and E2 respectively. In the said statement, the Appellant confessed to killing the deceased with his co-accused by hitting him with stick, marching him on the ground and slaughtered him on the neck and mouth. He further confessed that they collected the deceased camel and sold same.

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The Appellant however resiled from his statement during trial when he testified in court as D1. He denied from his statement to PW3. He equally denied knowing the PW4 and the deceased.

In its judgment delivered on the 25th day of June, 2012, the trial court found that the deceased was last seen alive with the Appellant. It held that the evidence against the accused was circumstantial. The trial court convicted and sentenced the Appellant and all the other accused persons to death based on their confessional statements for which corroboration was found in the evidence of the prosecution witnesses.

Dissatisfied, the Appellant appealed to the Court of Appeal, Sokoto Judicial Division. The Court of Appeal affirmed the judgment of the trial court and dismissed the appeal.

Still dissatisfied, the Appellant appealed to the Supreme Court. At the Supreme Court, the Appellant contended that the retracted confessional statement lacked independent corroboration since PW4 and PW6 were close relatives of the deceased and could not have given unbiased evidence against the Appellant.


On Operation and application of last seen doctrine-

The last seen doctrine is a doctrine of global application. It is also referred to as “the last seen theory”. It is applied in homicide cases in Nigeria. Thus, in murder or culpable homicide cases, where the deceased was last seen with the accused, such an accused, like the Appellant in the instant case, has a duty to explain or show the where-about of the deceased or how the deceased met his death, and where no explanation is forthcoming, the court has jurisdiction to draw conclusion that it was the accused that killed the deceased.

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Per AKA’AHS, J.S.C at page 87, paras. C-E
“In the instant case, the learned Trial Judge after summing up the evidence led by the prosecution and defence found that there were no eyewitnesses to the incidence that led to the death of the deceased but went on to consider PW6 evidence which was not controverted or discredited that he saw 1st accused with the deceased on a camel towards Wauru on the fateful day and was never found alive. He accepted and believed the evidence of PW6 to be true. He therefore held that in the absence of an explanation from the 1st accused, the court was justified to draw the inference the accused killed the deceased and so believed the evidence PW4, PW5 and PW6 which remained uncontroverted.”

Per OKOR, J.S.C at page 89, paras. E-F
“In the instant case, the Appellant was last seen riding on a camel with the deceased. So soon thereafter the deceased was gruesomely killed. Both the evidence of PW6 who saw the Appellant and the deceased riding on the camel and that of PW5 who discovered the corpse along the area they went, coupled with the injury on the neck of the deceased corroborate the confessional statement of the Appellant. The retraction of the confessional statement by the Appellant is of no moment.”

On presumption raised by the last seen doctrine-

The doctrine of the last seen creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death. Therefore, where an accused person was the last person to be seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death. In the absence of such an explanation, a trial court and even an appellate court will be justified in drawing the inference that he (the accused person) killed the deceased person.


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