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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