Dickson Moses V. The State (2002)
LawGlobal-Hub Lead Judgment Report
Adekeye, J.C.A.
In a criminal charge preferred against Dickson Moses, then the accused person – now appellant, before this court, the information filed at the High Court of Justice Ogun State, Ijebu-Ode Judicial Division reads without the particulars as follows: –
“Statement of Offence 1st Count –
Causing death by dangerous driving contrary to and punishable under section 4 of the Federal Highway Act (NO 4 of 1971).
Statement of Offence 2nd Count –
Dangerous Driving contrary to and punishable under section 5(1) of the Federal Highway Act 1971 (NO 4 of 1971)”.
The background to this case is that on the 23/1/90 the appellant drove the vehicle – a Mercedes Benz Petrol Tanker with registration number OY 1758 LE at Oke-Owa along old Ondo-Benin-Ijebu-Ode and had a head-on collision with another vehicle, a Volkswagen Beetle with registration number OGLG 48 J then driven by one Olufemi Adetola who died instantly. The appellant was charged before the High Court Ijebu-Ode with causing the death of the deceased by his dangerous mode of driving at the time of the accident. During trial of the case the prosecution called six witnesses and tendered four exhibits. The appellant pleaded not guilty before the trial court, gave evidence in his own defence and did not call any witness.
The learned trial judge in a considered judgment delivered on the 29th of October 1992 found the appellant guilty and convicted him on Count one – that is causing death by dangerous driving – while staying further proceedings on count two – the charge of dangerous driving. The appellant was sentenced to three years imprisonment.
Being aggrieved by the decision of the learned trial judge the appellant filed notice of appeal in this court. The appellant originally filed four grounds of appeal. He was granted leave to amend his grounds of appeal by order of this court made on the 1st of July 1999. He filed seven grounds of appeal by his amended notice. Parties settled records and exchanged briefs. In the appellant’s brief of argument filed on 22/2/2000 three issues;
were settled for determination as follows .-
- Whether the reliance placed by the learned trial judge on the rough sketch drawing was fit and proper in view of the inadequacies in the sketch drawing as compared with the evidence of PW5and the accused/appellant.
- Whether the lower court gave proper consideration to the defence of the appellant before proceeding to convict him.
- Whether all things considered the prosecution’s case was proved beyond reasonable doubt as required by law.
The respondent, on considering the amended grounds of appeal submitted two issues for determination as follows:-
- Whether the learned trial judge was not right to have relied on Exhibit 3 when the said Exhibit was supported by other facts proved by the prosecution in the case.
- Whether or not the prosecution proved its case against the appellant beyond reasonable doubt at the trial.
I shall adopt the three issues settled by the appellant for the purpose of this appeal.
Issue No One.
The appellant attacked the rough sketch of the scene which was tendered and accepted by consent of both parties as “Exhibit 3”, the sketch which revealed the resultant position of the vehicles after the collision. The sketch and the evidence of PW5 did not help the case of the prosecution – as they only created confusion Vide page 17 lines 19-25. The appellant saw the sketch as a bundle of confusion – as the broken lines cannot depict the middle of the road. The skid marks to the point of impact of each vehicle was not clearly indicated. The inadequacies of the sketch include –
1) Direction each vehicle was travelling not clearly shown.
2) A cartoon depicting nothing specific
3) Width of each vehicle not known.
4) The position of the vehicles that formed a queue on the road according to the evidence of 5 PW was not shown.
5) Position of the broken down water tanker not shown.
The learned trial judge should have determined who of the drivers was overtaking. The sketch failed to show the distance between the point of impact and the edge of the road. The conclusion of the learned trial judge was a misunderstanding of the facts and a misinterpretation of the sketch Exhibit 3. If the distance between the point of impact X to the edge of the road is not measured, the person who was overtaking and consequently caused the accident would not be known. Cases of MILLER v THE STATE. (1985) 3 NWLR Pt 11 pg 190 at 204, ONAFOWOKAN v STATE (1987) 3 NWLR Pt 538 pg 538 were cited in view of the foregoing submission.
The respondent replied that the importance of a rought sketch map in a fatal motor accident cannot be over-emphasised, however it cannot represent how an accident occured, hence cannot take the place of an eyewitness account. The learned trial judge made use of the details required by him to let him have a clear understanding of the events at the scene of accident is relevant to the case. The totality of the evidence of the only eyewitness of the accident appeared to be corroborated by Exhibit 3 – the sketch. The evidence of the 6th PW- the IPO threw light on the sketch as he made the sketch. He depicted the important features at the scene. It is of common ground that there was a head-on collision and the point of impact was not the appellant’s lane, while the resultant position of the vehicles corroborated the testimony of the 5th PW. Vide page 17 lines 19-25 of the Record of Appeal.
Page 18 lines 9-10 of the additional record.
In a fatal accident case the sketch of the scene is indispensable as it celicits on features like point of impact, the width of the road, skid marks resultant position of vehicles and corpse at the scene. It does not depict how an accident occured. The sketch Exhibit 3 had these features which are what the learned trial judge required as corroboration for the evidence of witnesses. The point of impact of the vehicle according to the sketch did not support the defence of the appellant, that the driver of the Volkswagen Beetle overtook a broken down water tanker. The learned trial judge disbelieved the evidence of the appellant page 18 lines 9-10 of the additional Record .. The learned trial judge pointed out the mistake of the appellant – when he complained that Exhibit 3 does not show the distance between the point of impact and the resultant position of the vehicle Vide page 10 lines 1-5 of the Supplementary Record. Furthermore after a review and appraisal of the evidence, in his findings the learned trial judge at page 11 lines 1-12 of the supplementary record held that –
“It clearly shows B-C being the width of the road 6 metres, A- B, the grass verge on that side of the road on which the vehicles lie as 1.6 metres, G-H the distance from the edge of the road to the resultant position of OGLG 48 J as 3 metres and the skid mark of OY 1758 LE to the point of impact X as 40.9 metres. I am of the view that these are details sufficient to make one have a clear view of the position of things at the scene of the accident at the time notwithstanding the fact that the distance between X and X the point of impact and the resultant position of the vehicle OY 1758 LE was not indicated.
There can be no doubt from the sketch as to whose lane the accident occured and in whose lane both vehicles fell. For these reasons I consider the complaint of the learned counsel on Exhibit 3 as unjustified”.
It is apparent that the learned trial judge had enough information from Exhibit 3 to enable him to determine who was at fault and enough corroboration of the evidence of the 5th prosecution witness. I share the impression that the complaints on Exhibit 3 were unjustified. I resolve this issue in favour of the respondent – and hold that the complaints of the appellant about Exhibit 3 are full of confusion, and not enough to lead to an acquittal of the appellant.
Issue No Two
The appellant contended that the lower court did not give proper consideration to the defence of the appellant before proceeding to convict him, whereas it is cardinal principle of law and practice that all defences – those formally raised and those available in the evidence though not specifically raised must be considered, so as to give an accused person a fair hearing. At page 46 of the record and page 23 lines 11-15 of the Additional Record the appellant had mentioned about the presence of a broken down water tanker on the left handside of the road, and that a Volkswagen vehicle coming from the opposite direction overtook the water tanker. It was not possible for him to record the number of this water tanker as he had to run away from an angry mob at the scene. At page 24 lines 3-5 of the additional record the appellant added that the road was slippery on that day as water from the broken down water tanker had dropped on the road. When he had to apply his brake suddenly the vehicle swerved and collided with the volkswagen beetle OGLG 48 J.
The appellant held that the collision was by accident as he lost control of his vehicle due to slippery surface. He invoked section 24 of the Criminal Code Cap 29 Vol. 11 Laws of Ogun State 1978 as defence – as the collision was the result of an unwilled act. The learned trial judge failed to consider the defence – which was a serious error of law amounting to a miscarriage of justice, and breach of the rules of fair hearing. For the foregoing points appellant cited the cases of R v NWUZOKE v STATE 1988 1 NWLR Pt 72 pg 1529, OGBODU v THE STATE 1987 2 NWLR Pt 54 pg 20, EZE v THE STATE 1985 3 NWLR Pt 13 pg 429, IJEOMA v THE STATE 1990 6 NWLR Pt 158 pg 586, BAYO ADELUMOLA v THE STATE 1988 1 NWLR Pt 73 pg 683, KINGSLEY OGBOR v STATE 1990 3 NWLR Pt 139 pg 484, S. AIGBE v THE STATE 1976 9 SC 71, GABRIEL v THE STATE 1989 5 NWLR Pt 122 at 457.
The respondent replied that the defence put forward was absurd and untenable. He blamed the accident on the volkswagen beetle which overtook a broken down water tanker. The overtaking of the tanker was very sudden and he had to match his brake suddenly – and he went further to indicate that there was unexpected water from the broken down water tanker on the road. The appellant did not mention in his defence about slippery road in his statement Exhibit 4 made a day after the accident – but revealed same in the witness box 29 months after the accident. The 1st PW who came to the scene shortly after the accident, did not see the broken down water tanker according to his evidence, PW5 who was a passenger in the volkswagen beetle did not notice the broken down vehicle, and the I. P.O who drew the sketch of the scene – PW6, was not shown the broken down water tanker or the water which spilled on the road – Page 11 lines 19-20 and page 18 line 11 of the additional record. The evidence of PW5, and PW6 cured the inadequacies in the sketch. The appellant cannot turn round to raise any complaints in the sketch, as according to the evidence of PW6 which the learned trial judge believed, the appellant was present at the scene when the sketch was drawn it was explained to him before he affixed his signature. The sketch was signed by witnesses. The appellant did not raise any objection to tendering the sketch as Exhibit 3. Consequently to leave one’s lane for another, when there were vehicles approaching on that lane, and thereby run into another vehicle perfectly on its side in the process was a dangerous piece of driving.
The respondent referred to the case of ABDULLAHI V THE STATE 1985 1 NWLR Pt 523.
Generally speaking in the process of doing substantial justice the court is bound to consider the case of each of the parties dispassionately before reaching any decision F. B. N PLC v EJIKEME 1996 7 NWLR Pt 462 pg 597 JALLCO LTD v OWORUBOYATECHNICAL SERVICE LTD 1995 4 NWLR Pt 391 pg 534.
The court is obliged to give due consideration to a defence either raised by the accused person or arising casually or by the tenor of the evidence placed before the court once that evidence raises a reasonable doubt in the prosecution’s case. Where the prosecution fails to investigate a defence or the court fails to examine or consider a defence either raised by the accused or arising casually or by tenor of the evidence placed before it and it is demonstrable that the failure would lead to a miscarriage of justice – then any order of conviction arising in the circumstance would on appeal be quashed and substituted with an order of discharge and acquittal. EBRE v THE STATE 2001 12 NWLR Pt 728 pg 617 se.
The crux of the matter is that the defence of an accused however weak, far fetched, foolish, and conflicting it may appear must be considered so as to ensure that an accused had gone through a fair hearing.
NWUZOKE v STATE 1988 1 NWLR Pt 72 pg 529, OGBODO v STATE 1987 2 NWLR Pt 54 pg 20, OKOSI v THE STATE 1989 1 NWLR Pt 100 pg 642.
This brings me to examine the judgment of the learned trial judge commencing from page 84 of the record, and at pages 1-22 of the additional record.
In the performance of its primary function of evaluating evidence and ascribing probative value to it, considered the case of the parties extensively.
On pages 6-11 of the additional record of appeal the learned trial judge considered the evidence of the appellant and his defences – particularly that the accident did not occur through his willed or voluntary act. That at the material time the accident occured and the vehicle of the deceased Olufemi Adetola appeared suddenly from the opposite direction – the circumstance prevailing on the road were –
1) A broken down water tanker which was on his left handside – while he drove on the right
2) Water spilled on the road from the water tanker
3) When he had to apply his brake suddenly on the appearance of the vehicle OGLG 48 J driven by the deceased the vehicle skidded due to the water on the road and he in the process collided with the other vehicle.
The complaint of the appellant was that the learned trial judge did not specifically consider his defence of accident neither did he make any findings on same in his judgment. I hold that the learned trial judge considered the foregoing defence at page 11 of the additional records commencing from line 13 – and held as follows:-
“That the question of the road being slippery on account of water from the water tanker – which had broken down on the road was introduced for the first time in his evidence in court, though he mentioned about a broken down water tanker in his statement Exhibit 4. The question of the water tanker was not put to PW5 and PW6, while PW7to whom it was put answered categorically that he did not see it”.
On the other hand the evidence of PW5 Wole Afuye an eyewitness, said that the accused decided to come out of the long queue of vehicles on his side of the road, swerved to the side of the volkswagen vehicle in which he was travelling and caused a head on collision with it. Vide page 12 lines 5-12 of the Additional Records. The foregoing is corroborated by the resultant position of the vehicles and the skid marks of the Petrol tanker driven by the appellant on Exhibit 3 – the sketch of the scene of accident. The resultant positions of the vehicles were on the side in which the Volkswagen was Travelling prior to the accident. The learned trial judge undoubtedly considered the defence put forward by the appellant.
The appellant attacked the evidence of PW5 and PW6, and also the sketch, of the scene – but the learned trial judge was satisfied with the evidence – and considered the complaints on the sketch as unjustified. Vide page 11 line 11 of the Additional Record.
In criminal trials the duty of the prosecution is to prove guilt of the accused beyond reasonable doubt. In cases where the accused proffers reasons where some evidence pertinent to the prosecution’s case should not be admitted due to some irregularities known to him – then that is within his knowledge, and it is then the burden shifts to him to prove those facts Evidence Act. OKERE v THE STATE 2001 2 NWLR Pt 697 pg 397. In the instant appeal all the complaints of the appellant were found to be unjustified and without backbone, and they must crash – with his defence. The second issue is herewith resolved in favour of the respondent.
Issue No Three
Whether all things considered the prosecution’s case was proved beyond all reasonable doubt as required by law. The appellant submitted that it is a cardinal principle of law and procedure that the prosecution must prove its case beyond all reasonable doubt before an accused person could be found guilty of a criminal charge, where there is any doubt in the case of the prosecution it is usually resolved in favour of the accused person. In proving the case against the appellant the lower court relied on the evidence of PW5 a tainted witness. The prosecution failed to invite all other witnesses whereas the accident occured along a highway – and there was supposed to be a long queue of vehicles on the road at the relevant time. The other passengers in the two vehicles involved in the accident were not invited to give evidence. The sketch Exhibit 3 bore the signature of witnesses.
Failure to call these witnesses or any of them should be considered fatal to the case of the prosecution.
Secondly the prosecution ought to prove that Oke-Owa along Ondo/Benin road is a Federal Highway – by tendering the Statute or Gazette making the road a Federal Highway – if the offences are to be proved against the appellant.
Failure to prove this essential element of the offence is fatal to the case of the prosecution. The appeal should be allowed as the trial of the appellant fall short of what is required to comply with the rules of fair hearing in a criminal trial. The court did not avail itself of the opportunity of making necessary findings so as to back up the conclusion reached. The appeal should be allowed on this issue. On page 44 lines 5 and 6 of the record the accused person was found guilty and convicted on count 1, and no finding was made by the court on count 2. The two counts are interwoven – if there was no dangerous driving, the accused could not have been convicted of causing death by dangerous driving. The court however did not make any finding on count 2. The guilt of the accused on dangerous driving had not been judicially determined – hence appellant could not have been convicted on Count 1 – which is causing death by dangerous driving. The appeal should be allowed as the case against the appellant was not proved beyond reasonable doubt, the sentence should be set aside, and appellant should be discharged and acquitted. The appellant referred to the cases of KALU v THE STATE 1988 4 NWLR Pt 90 pg 503, IJEOMA v THE STATE 1990 6 NWLR Pt 158 pg 567, OGBOR v THE STATE 1990 3 NWLR Pt 139 pg 484; R v KURIE 7 WACA175, OGBODU v STATE 1987 2 NWLR Pt 54 pg 20 ONAH v THE STATE 1985 3 NWLR Pt 236 KENNETHCLARK v THE STATE 1986 4 NWLR Pt 35 pg 381 at 386, ADEOSUN v STATE 1975 11 SC 1 at pg 8, AJIBADE V THE STATE 1987 1 NWLR Pt 48 pg 205.
The respondent replied that PW5 did not qualify as a tainted witness and his evidence is sufficiently probative of the offences with which the appellant has been charged. There is no rule which imposes an obligation on the prosecution to call a host of witnesses, all the prosecution needs to do is to call enough material witnesses to prove its case and in so doing it has discretion. It is also established that a court can convict upon the evidence of one witness. The defence of accident did not arise and will not avail the appellant who overtook a convoy of vehicles in his lane and collided with the deceased vehicle in another lane. PW2 the Vehicle Inspection Officer found that the petrol tanker driven by him had no mechanical defect hence the accident could not have been caused by any mechanical defect or failure. The learned trial judge made a specific finding and convicted the appellant on Count One only – whereas the court had sufficient evidence to convict the appellant also on Count two. The court is urged to find him guilty on dangerous driving because of the overwhelming evidence available.
The learned trial judge took judicial notice of the fact that Oke-Owa which is a point along Ijebu-Ode – Ore – Benin City road described as A 121 in the schedule of Federal Highways (Declaration) Order 1971 is a Federal Highway. That Olufemi Adetola on 23/1/90 died as a result of an accident involving the two vehicles in question on a Federal Highway. The finding of the learned trial judge is to be upheld while the appeal is to be dismissed.
The essence of the third issue is to determine whether or not the prosecution proved its case against the appellant beyond reasonable doubt. As regards proof beyond reasonable doubt – section 138(1) of the Evidence Act provides that whenever the commission of a crime by a party or person is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all iota or shadows of doubts. Thus if the evidence is strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable” the case is said to be proved beyond reasonable doubt.
HASSAN v STATE 2001 6 NWLR Pt 709 pg 286, ILORI v STATE 1980 8-11 SC 81, OTAKI v A.G. BENDEL STATE 1986 2 NWLR Pt 24 pg 648, EGBE v KING 1950 13 WACA5, AKINFE v STATE 1988 3 NWLR Pt 85 pg 729, MBENU v STATE 1988 3 NWLR Pt 84 pg 615, STATE v AIBANGBEE 1988 3 NWLR Pt 84 pg 548.
In discharging the burden of proof cast on it under the law, the prosecution is required to produce credible evidence which may be direct or circumstantial but must be of such quality or cogency that a court could safely rely on it in coming to its decision in the case.The appellant was charged with offences contrary to and punishable under section 4 of the Federal Highways Act 1971 (No 4 of 1971) for causing death of one Olufemi Adetola by dangerous driving, and driving in a manner which was dangerous to the public on a Federal Highway contrary to section 5(1) of the Federal Highways Act 1971 (No 4 of 1971).
It follows that the prosecution to succeed under section 4 – would have to establish beyond reasonable doubt that:
a) The appellant drove the motor vehicle registration No OY 1758 LE in a dangerous manner having regard to all the circumstances enumerated in the section as are applicable.
b) He caused the death of Olufemi Adetola by such dangerous driving and
c) The road in which the accident occured is a Federal Highway.
Under section 5(1) of the Federal Highway Act 1971 – the prosecution must I prove –
1) That the appellant drove the motor vehicle registered as OY 1758 LE in a manner which was dangerous to the public having regard to all the circumstance of the case – particularly to the amount of traffic which at the time is or might be reasonably expected to be on that highway.
2) The road on which the appellant drove in a dangerous manner must be a Federal Highway.
There are three ways of proving commission of crime as follows:-
a) Confessional statement
b) Circumstantial evidence
c) Evidence of eyewitness.
EMEKA v STATE 2001 4 NWLR Pt 734 pg 666.
The prosecution relied on an eyewitness account of the accident as produced by the PW5- Wole Afuye – a passenger in the Volkswagen Beetle driven; by Olufemi Adetola – the deceased at the time of the accident. He was then sitting at the back of the car and claimed to see clearly what transpired on the road at the time of the accident. An eyewitness account of the commission of any act be it crime or otherwise is the best evidence. IMO v STATE 2001 1 NWLR Pt. 694 pg 314. In addition to the eyewitness account the learned trial judge relied on the evidence of PW1- who came to the scene shortly after the accident, PW2- the Vehicle Inspection Officer who testified that both vehicles were in good Mechanical condition at the time of the accident – and issued Exhibits 1 and 2 to this effect, and PW6 the Investigating Police Officer – who was at the scene and produced the rough sketch Exhibit 3 and obtained the statement of the appellant Exhibit 4.
The appellant complained that the prosecution did not produce enough independent witnesses of the accident – which occured on a busy road. It is however trite that in establishing a crime the prosecution is not bound to call a host of witnesses. Once the prosecution calls necessary witnesses to give evidence of relevant facts that sustain the charge against an accused person, its duty has been discharged. This is because the credibility of evidence does not ordinarily depend on the number of witnesses who testify on a particular point. The cruxial question is whether the evidence of one credible witness on a particular point is believed and accepted. If the answer is in the affirmative then it is sufficient to justify conviction.
In the instant case the learned trial judge believed and accepted the eye-witness account of the accident which taken together with all the other available evidence is more cogent and credible. It has been emphasized that an accused person may be convicted on the evidence of a single witness who is not an accomplice. IGBO v STATE 1975 1 All NLR Pt 2 pg 70, ALONGE v IGP 1956 SCNLR 516, AKPAN v STATE 1992 6 NWLR Pt248 pg 439, ADETOLA v STATE 1992 4 NWLR Pt 235 pg 267, HASSAN v STATE 2001 6 NWLR Pt 709 pg 286, EMOGA v STATE 1997 9 NWLR Pt 519 pg 25.
The appellant also attacked the 5PW Wole Afuye and labelled him as a tainted witness. A tainted witness is a witness who has an interest to defend or a purpose to serve in. a case in which he is called upon to give evidence as a witness. His evidence should be treated with great caution and examined with a tooth comb. The 5th PW Wole Afuye cannot be treated as a tainted witness just for the simple reason that he was a mere passenger conveyed in the volkswagen vehicle in the course of an official assignment.
He was not an employee of the Local Government to whom the vehicle belongs – and he had no form of relationship with the deceased.
THE STATE v OKOLO & ORS 1974 2 SC 73, ISHOLA v THE STATE 1992 4 NWLR Pt 235 pg 267 at 273, MBENU v THE STATE 1988 3 NWLR (pt 84) 615.
As regards the sketch Exhibit 3 the learned trial judge concluded that the complaints about the sketch Exhibit 3 were unjustified. He was able to figure out on the sketch the point of impact, and in whose lane the accident occured and where both vehicles fell. Vide page 11 lines 9-12 of the Additional Record. These are in the circumstance the material evidence required to determine who was at fault amongst the parties involved in the accident.
The learned trial judge found that the road is a Federal Highway in that the Federal Highways (Declaration) Order 1971 LN 107 of 1971 made under section 24 of the Act declared the roads specified in its schedule to be Federal Highways particularly under Spurs And Links – Route A 121 which is the road starting from Trunk Road A1 North of Shagamu and continuing thence to Ijebu-Ode – Ore – Benin City. The accident occured at Oker-Owa a point along Ijebu-Ode – Ore – Benin Road covered by Route A 121 in the Schedule to Federal Highways Declaration Order 1971.
Section 73 of the Evidence Act Cap 112 Laws of the Federal Republic of Nigeria states that:-
“No fact of which the court must take judicial notice needs to be proved.
Section 74(1)(a), (b) states that:-
“The court shall take judicial notice of the following facts –
74(1) (a) All laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force or hereafter to be in force, in any part of Nigeria”
74(1)(b) “All public Acts passed or hereinafter to be passed by parliament all subsidiary Legislations made thereunder all local and personal Act directed by parliament to be judicially noticed”.
The Federal Highways Act can be judicially noticed by the court and as such does not require any further proof by tendering the Act itself or any related gazette. At pages 16-18 of the additional record, the learned trial judge resolved the issue as to whether the prosecution has proved beyond reasonable doubt that the death of Olufemi Adetola was the consequence of dangerous driving by the appellant, thereupon he reviewed the evidence of PW5 Wole Afuye, the sketch of the scene Exhibit 3, salient points in the evidence of the appellant during trial and his statement Exhibit 4, the mechanical ‘condition of the vehicle of the appellant – particularly the brake – which he found to be efficient, and on considering the totality of the evidence concluded as follows –
1) That the way and manner the appellant manouvred his commercial vehicle registered as OY 1758 LE by deflecting from his lane to that in which the vehicle of Olufemi Adetola – a volkswagen registered as OGLG 48 J was travelling on 23/1/1990 was dangerous to the public. It resulted in a head on collision between the two vehicles.
(2) That the accident was caused by the reckless mode of driving of the appellant.
(3) The appellant caused the death of Olufemi Adetola by the reckless driving.
The learned trial judge also said that –
“In the circumstance, I find that the prosecution has proved beyond reasonable doubt that having regard to all circumstances of this case, including the nature, condition and use of the Federal Highway, in question and the amount of traffic which was actually at the time on the Federal Highway, the accused person on 23rd January 1990 by driving a motor vehicle Registration No OY 1758 LE on the said Federal Highway in a manner which was dangerous to the public, caused the death of one Olufemi Adetola (M)”. Vide page 19 line 11 and page 20 lines 1-5.
Regardless of the foregoing findings of fact the learned trial judge for obscure reasons, pronounced as to the guilt of the accused on the 1st count only – and stayed trial in respect of count II.
I regard the conclusion of the learned trial judge in respect of count as unimpeachable, and it is not in doubt from the overwhelming evidence that the prosecution had established the guilt of the appellant in his appeal beyond reasonable doubt on count I. It is not every error or mistake on the part of a lower court that will vitiate a judgment but only where such error or mistake is so fundamental as to occasion a miscarriage of justice THE STATE v. OGBABUNJO 2001 2 NWLR Pt 698 pg 576.In respect of count II on the charge an appellate court ought not to interfere I, with the findings of fact of trial court which had the unique opportunity of seeing and hearing the witnesses give evidence and observing their demeanout in the witness box. There are, however, a number of exceptions to this rule, a major exception being that where such findings are in fact inferences from findings properly made, the Court of Appeal is in a good position as the trial court to come to decision. Having made findings that the appellant drove in a dangerous manner on the highway – the Stay placed on further trial is hereby revoked. WOLUCHEM v GUDI 1981 SC 291, OKUOGA v ISHOLA 1982 7 SC 1, IFEANYICHUKWU OSONDU CO LTD v AKHIGBE 1999 11 NWLR Pt 625 pg 1, EBBA v OGODO 1984 4 SC 84, FABUNMI v AGBE 1985 1 NWLR Pt 2 pg 2000, FATOYINBO v WILLIAMS 1955 1 FSC 87, UKATTA v NDINNERE 1997 4 NWLR Pt 499 pg 257.
I shall invoke the power of this Court under section 16 of the Court of Appeal Act 1990, Cap 75 Vol V Laws of the Federation, whereupon the appellant is found guilty of dangerous driving on the Federal Highway under section 5(1) of the Federal Highways Act (No 4 of 1971) – and shall proceed to convict him accordingly.
Sentence of this Court on count II shall be 2 years I. H. L. Sentences to run concurrently.
The appeal is dismissed – conviction and sentence of the lower court is affirmed. No order as to costs.
Other Citations: (2002)LCN/1069(CA)
