It is a given that no man is an island. As a social being, man, even in the predate society, is bestowed with an inalienable right of association. The significance of this freedom to associate with other persons cannot be overemphasized, especially as it helps man to realize his dreams and aspirations. However, there are instances wherein such exercise of the right of association amounts to apparent tragedy and inherent illegality. This can manifest in an instance where one is the last person seen before the unlawful taking of a deceased’s life. The correlative question is; Do our laws punish the last person seen with a deceased? To what extent does the “Doctrine of last seen” apply in proof of murder? This work seeks to review the Doctrine of last seen and its applicability in proof of murder in the Nigerian Legal System.



Under the common law, murder was defined as the unlawful killing of a human being by another with malice aforethought.

Section 316 of the Criminal Code is authoritative of the meaning of murder. It unequivocally provides that a person has committed murder:

(1) if the offender intends to cause the death of the person killed or that of some other person;

(2) if the offender intends to do to the person killed or to some other person some grievous harm;

(3) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act  is of such a nature as to be likely to endanger human life;

(4) if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without a warrant, or for  the purpose of facilitating the flight of an offender who has committed or attempted to commit  any such offence;

(5) if death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;

(6) if death is caused by wilfully stopping the breath of any person for either of such purposes, is guilty of murder.

In ordinary parlance, murder means the unlawful taking of the life of a human being.


In Tajudeen Iliyasu v. The State (2013) AELR 1857(CA),  the court stated that: “The doctrine of ‘last seen’ 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 turned up dead, thus where a defendant was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other safe conclusion, then there is no room for acquittal. It is the duty of the defendant in such damnifying circumstances to give an explanation relating to how the deceased met his or her death, and in the absence of such an explanation, surely and certainly, a trial court will be perfectly justified in drawing the necessary inference that the defendant must have killed the deceased.” Succinctly put, the doctrine of last seen means that the full responsibility of the death of a deceased person tilt towards the last person seen with the deceased person.


The offence of murder is not alien to us, and as such, our laws in its form of dynamism have devised means to curb such menace in society. One of these means of getting rid of murder in our society is through the instrumentality of the ‘doctrine of last seen.’ This presumption of fact, known as the doctrine of last seen, which is based on circumstantial evidence, was developed by the Supreme Court. Statutorily this presumption could be found in section 167 of the Evidence Act. Section 167 of the Evidence Act provides as follows: The court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular, the court may presume that-

(a) a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession;

(b) a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist is still in existence;

(e) the common course of business has been followed in particular cases:

(d) evidence which could be and is not produced would. if produced, be unfavourable to the person who withholds it; and

(e) when a document creating an obligation is in the hands of the obligor. the obligation has been discharged,

The Doctrine of last has been deployed in a plethora of cases by the Nigerian courts. In Igabele v The State (2006) 2 All N.L.R. 221, the appellant was convicted of murder. The case of the prosecution was that the appellant motor driver and the deceased conductor both went out with their vehicle but did not return home. The vehicle was later returned by another driver about four days later, and the next day the owner of the vehicle reported the matter to the police. The body of the deceased was discovered about one month later with vital organs missing, and the appellant was arrested about two months later. The appellant claimed that the deceased got off the vehicle somewhere to see his brother but did not say where. Later, he said that the deceased fell off the vehicle somewhere and died. The Supreme Court affirmed the conviction of the appellant. Oguntade JSC said, after asking the following questions; Are the facts of this case compatible with the innocence of the appellant? Are the facts capable of explanation upon any other reasonable hypothesis than the guilt of the appellant?

“I agree that in a criminal trial, the burden is always on the prosecution to prove the guilt of the accused person beyond all reasonable doubt. Generally speaking, there is no duty on the accused to prove his innocence. However, where circumstances arise, as in this case, some explanation may be required from the accused person as the facts against him are strong. Where he fails to offer such an explanation as happened in this case, his failure will support an inference of guilt against him.”

In Archibong v The State, (2006) LCN/3473(SC),  the appellant was convicted for murder. The case of the prosecution was that the deceased and the appellant went to a hotel for drinks, after which they checked into a room. About two hours later, the waiter knocked on the door of the room, but there was no response. He opened the door and found that the appellant was no longer in the room, but the deceased lay naked and motionless on the floor with foam around her mouth and nose. The Supreme Court applied the doctrine of last seen and convicted the appellant. See also Adepetu V. The State (1998) JELR 45657 (SC).


There is a presumption in law that the person last seen with a deceased person is presumed to have committed the offence of murder if it turns out that the person last seen with him has turned up dead. The burden lies heavily on the defendant to discountenance such presumption in law. Failure to rebut such beyond reasonable doubt leads to the conviction of such person. 


Oringo Bamidele Gabriel is a student of Faculty of Law, University of Calabar. Bamidele is an astute law student who is very sedulous in his academic pursuit.

He is a legal researcher, writer and seasoned scholar. He serves currently as the Director of Research, Roots Associates, a student Chamber in the University of Calabar. He is also an officer in The Ministry of Justice, Students’ Union Government, University of Calabar, Calabar.

Bamidele has an interest in Entertainment Law, Environmental Law, Criminal Law, Intellectual Property, amongst other areas of law. Oringo Bamidele Gabriel can be reached via; WhatsApp – +234 7064509087; Facebook – Statutory flavour or mail: