Adewale Joseph V. The State (2009)
LawGlobal-Hub Lead Judgment Report
MODUPE FASANMI, J.C.A.
This is an appeal against the judgment of the High Court of Justice, Ogun State sitting at Abeokuta Judicial Division which was delivered on the 21st of July, 2004. In the said judgment, the learned trial Judge found the Appellant guilty of causing death by dangerous driving; dangerous driving and failure to stop after an accident contrary to Sections 6(1) and 13(a) respectively of the Federal Highways Act, Cap: 135 Laws of the Federation of Nigeria 1990.
Appellant was sentenced as follows:
On count I – 4 years imprisonment I.H.L.
On count II – 2 years imprisonment I.H.L.
On count III – 12 months imprisonment I.H.L
The Appellant was discharged and acquitted in respect of the offence of failure to report an accident contrary to Section 13(d) of the Federal Highways Act, Cap 135, Laws of the Federation of Nigeria 1990,
The brief facts of the case are that on the 12th of May, 2000, the Appellant being the driver in charge of a Nissan Taxi Cab with registration no Ogun XB 345 AKM drove the said vehicle in a dangerous/reckless manner at Shoyoye Village along Igbogila/Igbo-Ora Road/Ibara Orile- Sokoto Expressway and as a result caused the death of the deceased one Ebenezer Egbejimi Alabi, a Vehicle Inspection Officer on the said date.
At the hearing of the case, the prosecution called six witnesses and tendered four exhibits. They are:
Exhibit A – Accident Inspection Report dated 21/6/2000
Exhibit B – The Rough Sketch of the scene of accident dated 12/5/2000
Exhibit C- The Post Mortem Report dated 13/5/2000
Exhibit D – The Statement of the Accused person dated 14/5/2000
The Appellant adduced evidence in his own defence and called one witness.
Dissatisfied with the judgment, the Appellant filed a notice of appeal dated 23rd of July, 2004 and appealed to this Court for a reversal of the judgment. By the additional grounds of appeal filed on 31/8/07 before this Court which was deemed filed and served on 17/1/08 Appellant filed 5 grounds of appeal and distilled two issues for determination as follows:
(1) Whether the prosecution established beyond reasonable doubt the guilt of the Appellant for the offences charged to warrant his conviction.
(2) Whether the learned trial Court properly took judicial notice of the status of the road where the accident occurred as a Federal Highway pursuant to Section 74 of the Evidence Act, 1990.
The Respondent adopted the Appellants issues for determination as well.
On Issue One
Learned Counsel for the Appellant on issue one submitted that the burden of proof in criminal proceedings rests heavily on the prosecution and the burden of course does not shift. He referred to the cases of OLOKO VS THE STATE (1964) 1 ALL N.L.R at 423 and UMEH VS. STATE (1973) 2 S.C at 9. He contended that the essential ingredients of the charge of causing death by reckless or dangerous driving under Sections 5 and 6(1) of the Federal Highways Act, 1990 have been enunciated in a number of cases. He referred to AMUSA VS. STATE (2003) 3 M.J.S.C at 111; ARUNA VS. THE STATE (1990) 6 N.W.L.R Part 155 Page 125 at 135-137; THE STATE VS. USIFOR (1974) 1 N.W.L.R at 72 and ABDULLAHI VS. STATE (1985) 1 N.W.L.R Part 3 at 523.
Learned Counsel for the Appellant submitted that none of the prosecution witnesses gave evidence of the manner of driving of the Appellant except PW1 who during cross examination testified that the Appellant was speeding and driving recklessly. There was nothing on record for the trial court to conclude that the Appellant’s driving was reckless or dangerous. The fact that death resulted would not alone prove the guilt of the Appellant for the offence charged. See R VS.TATIMU (1952) 20 N.L.R at 60.
He submitted that none of the eye witnesses to the incident was present when Exhibit B – the rough sketch of the incident was prepared by P.W5. He went further to state that there was no interpreter to whatever P.W5 showed and explained to the Appellant on exhibit B. Exhibit D the statement of the Appellant was recorded through an interpreter Jimoh Taimiyu P.W.6. He contended that the defects pointed out in Exhibit B not only cast serious doubt about the truth of exhibit B but also fatal to the case of the prosecution. He argued further that the Appellant’s uncontroverted evidence of emergency or uncontrollable situation sufficiently explained the cause of the incident and indeed, the contents of Exhibit B.
Learned counsel for the Appellant submitted that the Appellant’s defence was that a tipper driver caused the accident by his reckless and dangerous driving and that the prosecution witnesses did not in any manner whatsoever contradict this evidence. He contended that the uncontradicted evidence of the prosecution witnesses and the doubt ought to be resolved in favour of the Appellant. The findings of the trial Court were erroneous and perverse. The prosecution failed woefully to prove conclusively the 1st and 2nd ingredients of the offence charged.
On the 3rd ingredient, he submitted that it is not in dispute that the accident occurred along Ibara Orile-Sokoto Soyeye Road on 12/5/2000.
However there is no evidence before the trial Court that the said road is a Federal Highway or a Federal Trunk Road. To this extent he submitted that the prosecution has failed woefully to prove that the accident occurred on a Federal Highway.
Learned Counsel for the Respondent on issue one submitted that the prosecution’s duty is to prove facts in issue and for this purpose, it is not obliged to call every or any number of witnesses. The prosecution’s duty is to call witnesses that will establish the guilt of the accused person. The burden never shifts. He referred to Section 138 of the Evidence Act and the cases of IDEMUDIA VS. THE STATE (1999) 7 N.W.L.R (Part 610) page 202 at 215 paras F – G; ALONGE VS. I.G.P (1959) S.C.N.L.R at 516 and UDEH VS. THE STATE (1994) 2 N.W.L.R Part 329 at 666 particularly at 685 para A where Niki Tobi J.C.A as he then was said:
“The type of number of witnesses to be called in a criminal trial, is the exclusive function of the prosecution, a function it does not or cannot in anyway share with the adverse party or the Court once the witnesses called are able to prove or establish the ingredients of the offence with which the accused is charged, the prosecution had done its duty and the Court has no option than to convict.”
Learned Counsel for the Respondent submitted that the prosecution has duly discharged the burden of proof placed on it by calling witnesses and tendering documents to prove the essential ingredients of the offences of causing death by dangerous driving and dangerous driving. The eye witnesses account of how the accident occurred given in evidence by PW1, PW2 & PW3 sufficiently established beyond reasonable doubt the reckless and dangerous manner in which the Appellant drove his Nissan Taxi Cab on 12/5/2000 when the accident occurred. The Investigating Police Officer testified and tendered the rough sketch admitted as Exhibit B. PW6 who interpreted the Accused/Appellant’s statement also testified. He submitted that the prosecution has established beyond reasonable doubt the guilt of the Appellant.
According to the learned Counsel for the Respondent the proven facts were not challenged nor contradicted by the Appellant at the Court below either in evidence in chief or under cross-examination. The Appellant is therefore deemed to have accepted the evidence led by the prosecution. He referred to the case of AZEEZ VS. THE STATE (1986) 2 N.W.L.R Part 23 at 541. He went further to submit that Exhibit C showed that the deceased died on 13/5/2000, the following day when he was rushed to the State Hospital.
Having established beyond reasonable doubt the guilt of the Appellant for the offences charged, learned Counsel for the Respondent contended that the findings of the learned trial Judge were not perversed and urged this court not to disturb the findings and the conviction. He urged the Court to resolve issue one against the Appellant.
It is a cardinal requirement of our criminal justice that the prosecution must prove its case beyond reasonable doubt. Section 138 subsection 1 of the Evidence Act says:
“If the Commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be prove beyond reasonable doubt.”
The law is also well settled that where there is doubt in a criminal trial such doubt is resolved in favour of the accused person. See the case of STATE VS. AZEEZ (2008) 35 N.S.C.Q.R Page 426 at 474 – 475 per I.T. Muhammed J.S.C where the court also cited with approval the case of CHUKWU VS THE STATE (1996) 7 N.W.L.R Part 463 page 686 at 701 paras G-H as per Wali J.S.C:
To determine whether or not the Respondent who was the prosecution at the lower court has established the charge against the Appellant beyond reasonable doubt, it is necessary to identify the ingredient (s) of each of the offences charged and to see whether or not upon the evidence before the court, the Respondent has discharged the burden placed on it in law.
What are the ingredients of the offences of
(1) Causing death by dangerous driving on a Federal Highway
(2) Dangerous driving on a Federal Highway
In proving that an accused person caused the death of the deceased by dangerous driving and that he drove dangerously under Sections 5 and 6 subsection 1 of the Federal Highways Act, 1990, the Supreme Court in the case of AMUSA VS THE STATE (2003) S.C Part III page 14 particularly at page 17 held that the prosecution must prove the following ingredients beyond reasonable doubt against the accused to wit:
(i) That the accused person’s manner of driving was reckless or dangerous
(ii) That the dangerous driving was the substantial cause of the death of the deceased
(iii) That the accident occurred on a Federal Highway”
See also the cases of ARUNA VS THE STATE (1990) 6 N.W.L.R Part 155 page 125 at 135 – 137; and ABDULLAHI VS. THE STATE (1985) 1 N.W.L.R Part 3 at 523. The case of ARUNA VS. THE STATE (supra) was equally cited with approval in the judgment of the Supreme Court under reference.
Applying the above principles to the evidence of P.W1 – P.W3 who were eye witnesses of the incident one could observe that it was the taxi cab with registration no XB 345 AKM which Egbejimi Alabi signalled to stop and which did not stop that hit or knocked down the said Egbejimi Alabi at the scene of the incident wherein they state as follows:
P.W1 – Kolade Dada at page 16 lines 8-20 stated thus:-
“On 12/5/2000, I and some others were along Igbogila/Ibara Orile/Sokoto expressway. We were on official duty patrolling as Road Traffic Officers. While in Government employment, I was attached to the Vehicle Inspection Unit of the Ministry of Works and Housing. In the course of our duty on 12/5/2000, I saw a Taxi Cab approaching. It was a Datum 120 Y vehicle and it had Reg. No. XB 345 AKM. One of my men, Mr. Egbejimi Ebenezer Alabi signalled to the driver of the taxi cab to stop but he failed to stop and eventually knocked Alabi down and did not stop at the scene thereafter. Immediately, I arranged to take Alabi to the hospital and on getting to the hospital, Alabi was attended
to by the doctor. The hospital Alabi was taken to is the State Hospital, Sokenu, Abeokuta”
At lines 23-24 P.w1 had this to say:
“The doctor confirmed to me that Alabi died at 6.05am on 13/5/2000”
At lines 30-31 he continued:
“The others on duty with me on 12/5/2000 were Mr. Reuben Babalola, Tajudeen Otusajo and the deceased Alabi”
Under cross examination, P.W1 stated:
“The driver of the taxi cab was speeding and driving recklessly when the incident occurred. The driver did not stop after knocking down Alabi he sped away.”
P.W2 – Tajudeen Otusajo at page 17 lines 23-32 stated thus:
“I remember 12/5/2000. On the day, myself and some other officials were along Igbogila/Ibara-Orile/Sokoto Expressway. We were Mr. Babalola, Kolade Dada (i.e PW1), Mr. Mosuru and Ebenezer Alabi. In the course of discharging our duties, I saw a taxi cab approaching one of us named Ebenezer Alabi signalled the driver to stop. The Taxi Cab had registration no. XB 345 AKM. The driver of the taxi cab refused to stop and I saw him hit Alabi with his vehicle. We the others on duty with Alabi then rushed him to the State Hospital, Sokenu, Abeokuta. That is all”.
P.W3 at page 19 lines 9 – 18 testified thus:
“I remember 12/5/2000 I was at work. This was along Ibara – Orile/Igbo Ora Road, at Soyoye village. I was there with three other officials of the Vehicle Inspection Office. They are (i) Alhaji Kolade Dada, (ii) Mr. Alabi Egbejimi (iii) Tajudeen Otusajo (i.e. P.W2). On the day, Alabi Egbejimi was knocked down by the driver of a Commercial Vehicle with Reg. No. XB 345 AKM who failed to stop when he was signaled to so stop by Egbejimi. The Commercial Vehicle was a Datsun 120Y. Alabi Egbejimi was rushed to the hospital as he sustained fractures from the collision of the vehicle with him.”
The Appellant testified that he sighted the V.I.O in the middle of the road from a distance of about 50 meters and under cross-examination admitted that he drove the vehicle in question on 12/5/2000 and that he hit someone at the scene of the incident. The Appellant by his manner of driving created the dangerous situation that led to the accident or put in another way the Appellant’s manner of driving in the circumstance was reckless or dangerous. He stated that he knew and saw the road on which he was driving very well and that it was a straight road. See page 28 lines 6-20 of the record. The issue of an interpreter cannot now be raised on appeal since the Appellant did not claim the right during his trial. See the cases of ONYIA VS THE STATE (2008) 36 N.S.C.Q.R at 1090 particularly at 1125; EGBEDI & ANOR VS. THE STATE (1981) 11 – 12 S.C at 98 or (1981) 10 S.C page 190 at 192 where Aniagolu J.S.C had this to say:
“Surely and certainly and this is settled that an accused who acquiesced to an irregular procedure that did not lead to a miscarriage of justice cannot be heard to complain of the procedure on appeal.”
Appellant cannot complain on appeal that Exhibit B was not explained to him through an interpreter as no miscarriage of justice was occasioned by the failure of PW5 to explain Exhibit B to the Appellant through an interpreter.
Exhibit B shows that the vehicle with Reg. No. XB 345 AKM veered from its straight course along its lane to the point of impact “X” and that the vehicle made a skid mark of 100 feet from the point of impact to a point marked X2. The resultant position of the Vehicle Inspection Officer from the point of impact “X” was 121 feet. PW4 who carried out an inspection on the vehicle registration no. XB 345 AKM was of the opinion that the said vehicle was not attributable to any mechanical fault and he tendered the Report of the inspection as Exhibit A. This evidence was not controverted by the Appellant. The skid mark shown in Exhibit B as well as the distance between the point of impact and the resultant position of the deceased showed that the dangerous driving of the Appellant was the substantial cause of the death of the deceased. Even though the Appellant was not present when Exhibit B was drawn. PW5 the I.P.O explained the rough sketch of the scene of the incident to the Appellant and he agreed it was correct before he signed it. The rough sketch was admitted as Exhibit B without any objection.
It is a piece of dangerous driving or reckless driving for the Appellant who prior to the point of impact or scene of incident was signalled to stop by a Vehicle Inspection Officer was not only speeding but had seen the said Vehicle Inspection Officer in the middle of the road from a distance of about 50 meters upon his refusal to stop to have veered off course (due to no mechanical defect in his vehicle) and to have hit or knocked down the said Vehicle Inspection Officer despite the fact that the Vehicle Inspection Officer was on the lane of the Appellant. The Respondent has established beyond reasonable doubt that it was the dangerous or reckless driving of the Appellant on 12/5/2000 along the Igbogila/Igbo-Ora road that resulted in the accident.
The evidence of PW1 – PW3 showed that out of the Vehicle Inspection Officers that were at Shoyoye Village along the Igbogila/Ibara-Orile/Sokoto Expressway, also referred to as Ibara-Orile/Igbo-Ora Road, it was only Egbejimi Alabi that was engaged in stopping of vehicle. Appellant testified that it was the Vehicle Inspection Officer that was in the middle of the road and engaged in the act of stopping vehicles that he hit. The totality of the evidence shows that the Appellant knocked down the deceased.
PW5 tendered the medical report issued by the doctor who performed the post mortem examination on the deceased as Exhibit C. The cause of death was stated to be head injury secondary to road traffic accident. Even in the absence of a medical report of the cause of death of the deceased, Egbejimi Alabi, the uncontroverted and unchallenged evidence adduced by the Respondent showing that the said Egbejimi Alabi died on 13/5/2000 being the date immediately following the date on which he was rushed to the hospital (i.e 12/5/2000) consequent to his being hit or knocked down by the vehicle driven by the Appellant on the said 12/5/2000 sufficiently linked his death to the said accident.
The 3rd ingredient “That the accident occurred on a Federal Highway” will be dealt with on issue 2 since it is basically what the issue is upon to avoid repetition.
The defence of the Appellant that a tipper lorry driver caused the accident by his reckless and dangerous driving does not hold water in view of the overwhelming evidence of the Respondent’s, who at the lower Court were prosecution witnesses.
From the totality of the evidence adduced before the trial Court, it is obvious that the trial Court did not believe the claim of the Appellant about another tipper lorry being present at the scene and which made the deceased to jump in front of the taxi cab driven by the Appellant. The learned trial Judge at page 46 lines 14-18 of his judgment stated thus:
“It is my view clear from the accounts of the accident as testified to by PW1 – PW3 that it is the case of prosecution that it was the accused person being the driver in charge of Vehicle reg. No. XB345 AKM that hit or knocked down Egbejimi Alabi upon his failure or refusal to stop when he was signalled to stop by the said Egbejimi at the scene of the accident.”
The learned trial Judge at page 48 lines 26 – 31 of the record found as follows:
“Now given the earlier finding that it was the dangerous or reckless manner of driving of the accused person on 12/5/2000 that resulted in the accident in question, I cannot but also find it established beyond reasonable doubt by the prosecution that the dangerous or reckless driving of the accused person substantially caused the death of the deceased Egbejimi Alabi.”
The trial Court had evaluated the evidence of the witnesses and found the Respondent’s witnesses credible. The trial Court who sees and hears the witnesses is in a better position than the Court of Appeal to assess the credibility of the witnesses. The Court of appeal cannot say it is wrong in accepting the evidence of prosecution witnesses in preference to the evidence of the defence. See the cases of YAKI VS. THE STATE (2008) ALL F.W.L.R Part 440 page 618 at 654 para D per Chukwuma Eneh J.S.C; CADBURY (NIG.) LTD VS. MAGAJI (2004) 23 W.R.N at 54 and EBOADE VS. ATOMESIN (1997) 5 N.W.L.R Part 506 at 590. Issue one is hereby resolved against the Appellant.
Issue 2
Whether the trial Court was right in taking judicial notice of the status of the road where the accident occurred as a Federal Highway.
Learned Counsel for the Appellant submitted that there is no iota of evidence before the trial Court that the road where the incident occurred was a Federal Highway or a Federal Trunk Road. It is not in doubt that Federal Highways include Federal trunk roads. He submitted that for the Court to take judicial notice that a road is a Federal Trunk Road or a Federal Highway the road must have been created, built or made pursuant to a particular legislation or subsidiary legislation or Order. He contended that the issue of Federal Trunk road cannot be an issue of common knowledge as to warrant judicial notice to be taken of it. Proof of such is necessary where there is no particular subsidiary legislation pursuant to which the court can base its action of taking judicial notice under Section 74 of the Evidence Act 1990 He referred to the case of AMUSA VS. THE STATE (2003) 1 S.C Part III at page 14.
He finally urged the Court to allow the appeal and reverse the conviction and sentences of the Appellant by the trial Court.
Learned Counsel for the Respondent in reply submitted that by virtue of the provisions of Section 74 of the Evidence Act, and given the description of the road on which the accident occurred as stated by PW1 – PW3 and exhibit C, the Court rightly took judicial notice of the fact that the said Igbogila/Ibara-Orile/Sokoto Expressway on which the accident occurred is a Federal Highway, It was on the basis of this provision that the Supreme court in AMUSA VS. THE STATE (2003) 13 N.S.C.Q.R page 173 at 181-183 affirmed the decision of the trial court and the Court of Appeal and held that the courts were right in taking judicial notice that the old Lagos/Ibadan road on which the accident occurred was a Federal Highway. He submitted that the learned trial Judge was right in taking judicial notice of the status of the road on which the accident occurred as a Federal Highway, The Igbogila/Ibara Orile road is the old Ilaro-Abeokuta road described as Highway F.200 which later became the Sokoto/Badagry Expressway. Finally he urged the Court to dismiss the appeal as lacking in merit.
Under Section 28 of the Federal Highways Act 1990, it is not in doubt that Federal Highways include Federal Trunk Roads. It is also not in doubt that by virtue of Section 25 of the Federal Highways Act 1990, a Federal Trunk road needs not to be declared as a Federal Highway.
The Legal Notice no. 60 of 1977 at page 5821 particularly page 5825 of Vol. III of the Laws of the Federation of Nigeria 1990 described as Highway F.200 indicate clearly that the Igbogila/Ibara-Orile/Sokoto Expressway on which the accident occurred is a Federal Highway. In actual fact, the Respondent submitted that the Igbogila/Ibara-Orile road is the old Ilaro/Abeokuta road described as Highway F.200 and which later became the Sokoto/Badagry Expressway.
By virtue of the legal notice no. 60 of 1977 the trial court was right in taking judicial notice of the road i.e Igbogila/Ibara-Orile/Sokoto expressway on which the accident occurred as a Federal Highway under Section 74 of the Evidence Act. See the case of AMUSA VS. THE STATE supra.
I therefore hold that the offences were committed on a Federal Highway and issue two is also resolved against the Appellant.
In the final analysis, the appeal lacks merit and it is hereby dismissed. The convictions and sentences of the trial court are hereby affirmed.
Other Citations: (2009)LCN/3341(CA)
