Adeboye Amusa V. The State (2001)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

In the charge preferred against the accused person, Adeboye Amusa, before the High Court of Justice Ogun State in the Sagamu Division, the information filed without the particulars read as follows:

1st Count:

Causing death by dangerous driving on a Federal Highway contrary to and punishable under section 4 of the Federal Highways Decree No.4 of 1971.

2nd Count:

Dangerous driving on a Federal Highway contrary to and punishable under section 5(1) of the Federal 84 Nigerian Weekly Law Reports 28 Highways Decree No. 4. of 1971.

The facts of the case briefly put are that the accused, a professional commercial driver, drove a taxi cab – a Datsun 120Y registered as LA 2681, to Sagamu in the evening of 20/6/88 to discharge some passengers. At Ipana along the old Ibadan-Lagos Road, around 8.30 p.m. – his vehicle swerved off the main road and knocked down a pedestrian on the grass verge. The victim died on the spot and her corpse was conveyed to the Ogun State Teaching Hospital, Sagamu where it was deposited. The corpse was identified to the doctor who performed post-mortem examination on her on the 21st of June, 1988 as that of Mrs. Adeoti Adegunle by her relation. The accident was reported to the police whereupon a road traffic superintendent was invited to give an opinion on the mechanical condition of the vehicle at the time of the accident.

The accused was consequently arrested and charged to court. At the conclusion of trial, the learned trial Judge found him guilty of both offences on the information, was convicted and sentenced to three years on the first count and 6 months on the second count. Sentences were concurrent. Being aggrieved by this conviction, the accused lodged an appeal dated the 24th day of July, 1990 – the accused now to be referred to as the appellant filed three grounds of appeal. The appellant and respondent settled records – briefs were exchanged in accordance with the practice and procedure of this court as embodied in the Court of Appeal Rules. In the appellant’s brief of argument filed on the 17th of October, 2000 three issues were identified for determination as follows:-

1. Given our adversary system of criminal justice, was the trial Court right in convicting and sentencing the appellant for dangerous driving on a Federal Highway in the absence of any of proof that the road is indeed a Federal Highway or that the accused drove dangerously?.
2. Whether it was right and proper in law for the trial Court to hold that the body of the deceased Mrs. Adeoti Adegunle was properly identified, when in fact and in law there was no positive identification of the body of the deceased by any qualified pathologist nor was there definite evidence establishing a nexus between the body and the accident involving the appellant’s taxi cab?.
3. Whether the learned trial Court dispassionately evaluated the evidence before it, so as to arrive at the right conclusion in this case?.

The respondent filed the brief of argument on 28/11/2000, in which it adopted the issues formulated by the appellant, with modifications as appropriate in this appeal.

Issue No.1

The appellant referred to the burden of proof on the prosecution, to establish the case against an accused person beyond reasonable doubt. It was necessary for the respondent to prove all the elements of the offences before the court. The ingredients of the offence before the court are:-

1. Causing death by dangerous driving
2. Federal Highway.

The prosecution failed to establish the foregoing before the trial Court. It was necessary to prove by evidence that the accident occurred on a Federal Highway-the trial Court was in serious error of law to have taken judicial notice of it. Section 24 of the Federal Highways Decree 1971, provides that the declaration of any road as a Federal Highway shall be published in the Federal Gazette. Such a declaration may also be cancelled or amended. Declaration of roads as Federal Highways is not one of the matters listed in section 74(1) of the Evidence Act, Cap. 112 of 1990. No Federal Gazette was tendered before the trial Court. There was no evidence of the manner of driving of the accused, dangerous or otherwise and of his speed which are requirements to prove dangerous driving. The court ruled on weak and tenuous circumstantial evidence. The accused should in the circumstance have been discharged and acquitted. For the foregoing propositions the appellant relied on the cases of Aruna v.state (1990) 6 NWLR (Pt. 155) 125 at 135-137; Idowu v. State (1998) 11 NWLR (Pt.574) 354 at 366-367; Adepetu v. State (1998) 9 NWLR (Pt.565) 185; Ogbubunjo v. State (1996) 6 NWLR (pt.452) 78; Ajidahun v. State (1991) 9 NWLR (Pt.213) 33 at 46-47.

The respondent replied on the burden of proof on the prosecution as regards the essential requirement of the offences before the court – and that the respondent failed in this duty. It was the contention that the accident occurred along Lagos/Ibadan Road, and this road was declared a Federal Highway under the Federal Highways (Declaration) No.3 Order pursuant to section 24 of the Federal High ways Act, 1971.

Furthermore, that by the sketch of the scene Exhibit A – both parties agreed about the scene – and reference was made to section 73 of the Evidence Act, Cap. 112 of the Laws of the Federation 1991 that no fact of which the court must take judicial notice need be proved. It was part of the matter which the court must take judicial notice of as listed in section 74(1)(a)(b) include all laws, or enactments and any subsidiary legislations having the force of law in Nigeria, all public Acts and subsidiary legislations passed by parliament. The Federal Highway Declaration No.3 made pursuant to section 24 of the Federal Highways Law 1971 falls within the foregoing. That Lagos/Ibadan Road, the scene of the accident was declared a Federal Highway pursuant to section 24 of the Federal Highways Act 1971.