Alhaji Uba Mohammadu Vs Commissioner Of Police (1969)
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ADEMOLA, C.J.N.
The appellant was in the High Court of Kano convicted of an offence in that he on 25th July, 1968, caused the death of Alhaji Mamman by driving a motor vehicle in a highway at a speed or in a manner which was dangerous contrary to section 23 of the Road Traffic Law. He was sentenced to a term of three years imprisonment and disqualified from driving for ten years. Two grounds of appeal were argued. The first was that the conviction of the appellant is bad in that he was charged and tried for more than one offence in one count; accordingly the count aforesaid was bad for duplicity. The other ground was the omnibus ground-that the conviction cannot be supported having regard to the weight of evidence.
On the first ground, Chief Williams argued that section 23 of the Road Traffic Law, was introduced in 1953 and became enforceable in what is now known as Kano State. That the section which reads:-“23. A person who causes the death of another person by the driving of a motor vehicle on a highway at a speed or in a manner which is dangerous having regard to all the circumstances of the case, including the nature, condition and use of the highway, and the amount of traffic which is actually at the time or which might reasonably be expected to be on the highway shall be guilty of an offence and liable on conviction to imprisonment for five years or to a fine of five hundred pounds or to both such imprisonment and fine.” creates more than one offence.
The charge before the court stated that the appellant “caused the death of Alhaji Mamman by driving a motor vehicle identification mark No. KN 7997 along Dala Road that road being a highway, at a speed or in a manner which was dangerous contrary to section 23 of the Road Traffic Law …” Counsel argued that the word “or” between the words “at a speed” and “in a manner” makes the offence charged bad for duplicity. In other words, the argument is that the charge as laid contained two offences, namely that the appellant caused the death of the deceased:-
(i) by driving at a speed which was dangerous;
(ii) by driving in a manner which was dangerous, in each case having regard to the circumstances of the case.
Mr. Ibrahim, the Senior State Counsel (Kano) arguing for the respondent, conceded that the charge is bad for duplicity but that as the point was not raised at the trial where the appellant was defended by counsel and considering the circumstances of the case, it was too late to raise this as an objection as it has been cured by the verdict. It was pointed out that whilst on a charge under the Criminal Code, section 168 of the Criminal Procedure Act could be called in aid to negative an objection after a verdict, there is not such a section in the Criminal Procedure Code. Sections 206 and 222 of the Criminal Procedure Code were referred to and Chief Williams submitted that the provisions of these two sections are not of the same effect as section 168 of the Criminal Procedure Act.
Now, section 168 of the Criminal Procedure Act provides that:-
“No judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the accused or during the progress of the trial might have been amended by the court.”
We agree with Chief Williams that there is no section of the Criminal Procedure Code which reproduced section 168 of the Criminal Procedure Act (above), but section 222(l) of the Code is worthy of consideration. It reads:-
“222(1) If any appellate court is of opinion that any person convicted of an offence was misled in his defence by the abscence of a charge, or by an error in the charge, and it has occasioned a failure of justice, it may direct that the trial be recommenced upon a charge framed in whatever manner it thinks fit.”
The question of duplicity is clearly an error in the charge which could be cured at any time during the progress of the case. Section 206 of the Criminal Procedure Code does not regard such an error “as material, unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice.” It appears to us that under the Criminal Procedure Code, the duty of an appellate court in such circumstances, is to enquire from all the circum-stances of the case whether the appellant was damnified or misled in his defence on account of the error, and that it has occasioned a failure of justice. If he was not, the objection on the ground of error cannot be sustained and the judgment must stand.
If however, the court (appeal) is satisfied that the appellant was damnified and that he was misled in his defence and it has occasioned a failure of justice, section 222(1) of the Criminal Procedure Code enjoins the court not to discharge the appellant but to direct “that the trial be recommenced upon a charge framed in whatever manner it thinks fit.” In the present case although the charge stated that the appellant was driving at a speed which was dangerous as well as driving in a manner which was dangerous, no evidence was adduced that he was speeding: on the contrary the evidence was that he was driving slowly.
The main evidence was that he was driving in a manner which was dangerous-driving from one side of the road to another (zig-zagging). There can be no question of the appellant being misled in his defence by the error in the charge in this case, and there is no failure of justice.
This ground of appeal must therefore fail. There is very little in the omnibus ground argued.
Counsel sought to show that where the appellant was driving was not the highway as required by the section under which he was charged; that the road was not crowded and there was no other traffic on the road. But all these were negatived by the evidence of the accused himself and his witness in the court below.
There was clear evidence that the car was being driven in the highway by a market place and there were many people, donkeys and articles for sale like wood, etc. about. The witnesses for the prosecution were affirmative in their evidence that the car was being driven in a zig-zag manner and a few people ran inside their houses. The appellant clearly never drove a car in his life and chose such an area to drive a car he had just bought.
The two grounds of appeal therefore fail and the appeal is dismissed. We however consider that the sentence of three years passed on the appellant with the order for disqualification to hold a driving licence for ten years rather severe.
We therefore substitute a sentence of eighteen months imprisonment with an order of disqualification from holding or obtaining a driving licence for five years thereafter.
Other Citation: (1969) LCN/1623(SC)
