Rex V. Johnson Nwokocha (1949)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Manslaughter by negligence—Degree of negligence necessary—Lack of medical evidence as to cause of death—Necessity for medical or otherevidence to show death of deceased due to negligence of accused.

On the facts of this case there was not sufficient evidence of the high degree of negligence which the law requires before an accused person can be convicted of manslaughter by negligence.

While medical evidence to prove the cause of death is desirable, it is not essential. But to make the accused criminally liable in a case of this kind there must be clear evidence that the death of the deceased was the direct result of the negligence of the accused to the exclusion of all other reasonably possible causes.

Case referred to:

(1) Andrews v. Director of Public Prosecutions, 26 Cr. App. R. 34; (1937), A.C. 576; (1937), 2 A.E.R. 552; 106 L.J.K.B. 370; 101 J.P. 386; 53 T.L.R. 663; 81 Sol. Jo. 497; 156 L.J. 464; 30 Cox C.C. 576.

Appeal from the Supreme Court of Nigeria.

Manyo-Plange, Senior Crown Counsel, for Crown.

The following judgment was delivered:

Abbott, J. At the conclusion of the hearing of this appeal on 1st April, 1949, the Court allowed the appeal and set aside conviction and sentence intimating that it would give its reasons in writing later.

The appellant was charged before Bairamian, Ag. J., at the Assizes held at Port Harcourt, with the offence of manslaughter contrary to section 325 of the Criminal Code. He was convicted of that offence and sentenced to three years’ imprisonment with hard labour and appealed against both the conviction and sentence.

On the 2nd of August, 1948 (which day was a public holiday), the appellant was navigating a passenger launch, of which he was .quartermaster, from Abonnema in the direction of Port Harcourt.

It appears that the launch was licensed to carry twenty-four passengers, but there was evidence to show that some sixty passengers were being carried at the material time. Among the passengers was the deceased, a man named Don Pedro. The evidence for the prosecution shows that at about five minutes past ten o’clock at night, when the launch was near a place called Tombia, the appellant pulled her into the bank and moored her alongside. He did this, in spite of the fact that one of the passengers, a bank clerk named Manuel, tried to persuade him to go on. The appellant’s view, as then expressed to Manuel, was that the current was too strong for crossing the rocky passage ahead.

An hour later the appellant decided to continue the trip and so informed Manuel. On this occasion, however, Manuel endeavoured to dissuade him from proceeding, since the level of the tide water, which Manuel showed to the appellant with the aid of an electric torch was, in his opinion, now too low for safe navigation over the rocks. To this the appellant replied ” There is no current now, the water is quiet and we can cross “. The appellant then cast off and about ten minutes later the launch went aground upon a submerged rock and listed. The impact caused some passengers to be thrown into the water, while

others got out and stood, knee-deep, in water, upon the rock until nearby villagers came in canoes to their rescue. It is material, here, to mention that there was evidence to show that some of the villagers took the opportunity of the condition of these distressed people upon the rock to loot their property. The deceased was observed to be sitting in the launch after it had left the bank near Tombia, but there was no evidence as to his subsequent movements or what happened to him at the moment of impact. Some two days later his dead body was found floating in the water and the witness who found it stated that he saw ” bruising ” upon both arms and upon the forehead. There was no expert post-mortem examination of the corpse and consequently no medical evidence of the cause of death or of the cause of the ” bruises “—whether they were due to external injury or to post-mortem changes.

The appellant put forward two main grounds of appeal, namely, that there was insufficient evidence to establish that amount of negligence which, in law, is requisite to constitute the offence of manslaughter, and that there was insufficient evidence to establish, beyond doubt, that the death of the deceased was directly due to the negligence of the appellant.

As regards the first ground of appeal, the guiding principle to be followed in cases of this kind is to be found in Andrews v. Director of Public Prosecutions (1). In giving the judgment of the House of Lords in that case Lord Atkin used the following words:-

” For the purpose of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied ‘ reckless ‘ most nearly covers the case. . . . But it is probably not all-embracing, for ‘ reckless ‘ suggests an indifference to risk, whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction.”

In the present case the learned trial Judge based his finding of negligence upon the allegations that the appellant had permitted the launch to be overcrowded and that he disregarded the advice given to him by Manuel. This Court is of the opinion that these allegations, whether taken separately or together, are not sufficient to establish the degree of negligence which-the law requires. There was no evidence before the lower Court that the appellant voluntarily and recklessly permitted the launch to be over-crowded; and bearing in mind that these events took place on the evening of a Bank Holiday, it well may be that the appellant was unable to prevent an on-rush of passengers in excess of the prescribed number. Nor can it be said that the words which the appellant used to Manuel when, after having moored the launch for an hour in the interests of safety, he rejected the advice of the latter not to go on, were the words of a man about to perform a reckless act. The evidence in this case established no more than an error of judgment on the part of the appellant, and that is insufficient to render him criminally liable.

As regards the second ground of appeal, a submission was made on behalf of the appellant in the lower Court that there was no medical evidence to establish, beyond doubt, the cause of death. The learned trial Judge, referring in his judgment to that submission, said

” The . . . submission means that without medical evidence no finding can be made on the cause of death. This is not correct. There have been cases where for one reason or another, the doctors could not say what the cause of death had been and yet the accused persons were convicted of murder. The jury can decide on the evidence, which may be circumstantial. In the case in hand, in my judgment the deceased died of drowning after

the launch went on to the rock . . . he fell over and knocked himself on the

arms and• on the forehead with great violence and was drowned.”

As to this finding we would say that, while it is possible that the deceased met his death in this way, that is mere conjecture, for there was no evidence that anyone even saw him fall and his death might have come about from a cause other than that mentioned by the learned Judge. For instance, he may, having got safely on the rock, have met his death later as a result of having been pushed into the water by one of the looters.

As regards the proof of the cause of death we agree that medical evidence, though desirable, is not essential. But to make the accused criminally liable in cases of this kind, there must be clear evidence that the death of the deceased was the direct result of the negligence of the accused to the exclusion of all other reasonably possible causes.

We hold that in this case the cause of death was not proved beyond reasonable doubt and that in any event the degree of negligence proved against the appellant was not sufficient to justify a conviction for manslaughter.

For these reasons the appeal against conviction was allowed and the appeal against sentence did not, therefore, arise. So it is not within our province to express any view regarding the severity of the sentence imposed.

Appeal allowed.