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”.