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.

The trial Court was bound to take judicial notice of this fact. On the mode of driving of the appellant, the respondent drew attention to the relevant area of the finding of the learned trial Judge as follows:-

“1. That the appellant left his lane and swerved to the right hand grass verge where his taxi-cab hit and knocked down the deceased who died instantly. Fact confirmed by P.W.4 and the appellant vide page 9 lines 28-34 and page 10 lines 18-19, page 7 lines 26-27 of the record, and page 19 lines 1-11 for the finding of the learned trial Judge.

2. At the time this vehicle swerved on the grass verge, the taxi-cab driven by the appellant had no mechanical defect in the brakes. This was based on the evidence of 3rd P.W, page 19 lines 13-15 of the record.
3. That Exhibit A, the sketch of the scene contradicted the evidence of the appellant on Oath that the accident occurred at a bend. Exhibit A revealed that the skid marks and point of impact were on a straight portion of the road while the bend was still far off.
4. The evidence of PW1 contradicted that of the appellant that a trailer was on the road, while the presence of the trailer was not part of his statement in Exhibit A.

Leaving one’s lane to swerve to the grass-verge and hit a pedestrian on the verge, is an obvious act of dangerous driving. The standard of proof required in the case of causing death by dangerous driving is not as high as that required in Manslaughter.

I uphold all the submission of the respondent in support of issue No.1. For the avoidance of repetition and verbosity, I shall just refer to the relevant Act and cases where necessary.

Section 73 of the Evidence Act, Cap. Laws of the Federal Republic of Nigeria states that:-

“No fact of which the court must take judicial notice need be proved.”

Section 74(1)(a) and (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 there under 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 hereafter to be passed by the National Assembly and all subsidiary legislation made there under and all local and personal Acts directed by the National Assembly to be judicially noticed.”

I confirm the submission of the respondent that all legislations in respect of the Federal Highways passed in this country can be judicially noticed by the court and such do not require any further proof by adducing any additional evidence without production physically as I can always refer to them.

The sketch Exhibit A, becomes an authentic document, having been admitted in evidence with the consent of both parties.

The sketch Exhibit A show that the accident occurred at a point on the highway where the width of the road is 30 feet. The appellant left the 30 feet wide road to end up on a 6 feet wide grass verge.

The 1st PW was attracted out of the house, by the accident, he did not refer to the trailer mentioned by the appellant in his evidence on oath. The portion of the road was straight. The skid marks to the point of impact was 74 feet. It was then 8.30 pm, while it was raining.

The appellant’s vehicle in a rainfall skidded for a distance of 74 feet and threw off a pedestrian to a distance of 20 feet from the point of impact. The houses depicted to abut the road, shows that it was a built up area within the township, coupled with evidence of PW4 vide page 7 lines 22-23.

All the foregoing pieces of evidence point glaringly to the fact that the mode of driving adopted by the appellant was dangerous, and that death of a pedestrian resulted from this.

Issue No.2:

”The appellant contended, quoting him:

“It is a cardinal principle of law that failure to properly identify the body of the deceased by a medical doctor so as to establish a clear nexus between the death of the deceased and the act of the accused person is fatal to the case of the prosecution”

Ubochi v. State (1993) 8 NWLR (Pt.3 14) 697 at 71. The identification of the victim of this accident must be positive, certain, specific and functional so as to show that the body being identified is that of the victim killed. The identification was not done by a pathologist – as there was no evidence to confirm that the 5th PW was a pathologist. The appellant cited the case of Ehot v. State (1993) 4 NWLR (Pt.290) 644 at 657. No weight in the event of improper identification should be attached to the evidence of PW5.

The respondent made reference to the findings of the learned trial Judge in respect of the identification of the corpse of Adeoti Adegunle, the victim of the accident by the medical officer who performed the post-mortem examination on her body. The trial Court relied on the evidence of PW1, PW2 and PW3 to arrive at the conclusion that the body of the deceased was properly identified to the medical doctor who performed the autopsy.

The identification of the corpse to the doctor PW5, after deposit of same at the hospital, was done by PW2 who picked up the dead body from the scene on 21/6/88 and deposited her at the hospital. He identified the corpse before autopsy was performed on her; page 3 lines 31-32 page 4 lines 1-5 of the record. PW1 confirmed that Mrs. Adeoti Adegunle was the accident victim page 3 lines 13-15 of the record.

PW5 confirmed that he performed autopsy on the corpse of Mrs. Adeoti Adegunle in his evidence on oath.- Page 8 lines 24-32, page 9 line 1. PW2 claimed to be a relation of the deceased. Page 4 line 1 of the record. P.W.5 gave evidence of his qualification and competence – as his duties include performing autopsy-page 8 lines 20-24.

It is trite that in a case where the act of an accused has to be established as, or linked with causing the death of a victim, there must be proper identification that the corpse collected from the scene is same as that identified to the doctor who performed the autopsy to determine the cause of death.

I agree and lift all the submissions made by the respondent that the evidence of the 5th P.W cannot be taken in isolation or the chain of causation in the events after the victim died and her corpse deposited in the hospital broken while determining the issue of her identity. The evidence of the P.W.1, about her death, the 2nd P.W about collecting her corpse from the scene and disclosing her identity, the 4th PW who called at the hospital, and 5th P.W who performed the post mortem examination vide page 3 lines 14-15,page 4 lines 1-5, 8-9, page 8 lines 5-8 and lines 24-32, page 9 line 1 respectively.

On identification, the position of the law and in decided cases are clear and unambiguous. The court made pronouncements in a plethora of cases about the purpose for which identifiction is required in law. In the case of Idemudia v. State (1999) 7 NWLR (Pt.610) 202 at 223 it was stated that:-

“On a charge of murder, proof that the deceased died and that it was in respect of his body that an autopsy was performed is a legal requirement. Where the identification of the body is in issue, absence of evidence direct or circumstantial of the identification of the corpse examined is fatal where medical evidence of cause of death is vital.”

The desirability to call as a witness the person who identified the victim’s dead body to the doctor who performed the autopsy is necessary only in circumstances where the identity of the body examined by the doctor is shrouded in doubt. Where the identity can be inferred, such direct evidence is not essential. Enewoh v. State (1990)4 NWLR (Pt.145) 469; Okoro v. State (1988) 5 NWLR (Pt. 94) 255. It was further stated in the case of Njoku v. State (1992) 8 NWLR (Pt.262) 714 at 723 para. B-C that:

“Where the totality of evidence adduced by the prosecution showed unmistakably that the body on which a doctor performed a post mortem examination was that of the deceased, a separate witness to testify as to the identity of the corpse, though desirable is not a necessity.”

The identification must be done by persons who knew the deceased very well before her death (Okoro v. State) (1988) 5 NWLR (Pt.94) 255.

It could also be that from the nature of the available evidence there is reliable nexus of some sort between the injuries received by the deceased as given by those who saw them when or after she received them and those described by the doctor on performing the autopsy. The 1st P.W saw the deceased with head injuries which was confirmed by the 5th P.W in his evidence.

The issue that the 5th PW was not a pathologist was not canvassed before the trial Court. This issue of his incompetence to carry out autopsy if it is considered should have been made an issue before the trial Court.If it is now to be raised leave of court would be required to adduce fresh evidence.Not having gone through this channel, the appellant is estopped from raising the issue of the competence of the 5th PW to perform an autopsy on the corpse of the victim of the accident not being a proclaimed pathologist. There was no categorical evidence before the trial court in respect of his full qualifications. That issue is resolved in favour of the respondent.

Issue No.3:

This issue queried the evaluation of evidence of the learned trial Judge and that the judgment delivered by the court is highly perverse and cannot be supported by the evidence adduced. The appellant held that the court was in error to admit the testimony of the 5th PW, a medical officer when there was no evidence about the condition of the road on that night which hampered unimpaired visibility and proper control of the vehicle. It was in evidence that it rained that night which would make the road slippery, and there was electric black out, coupled with the fact that the said deceased was covering her head with a tray in view of the rain. Failure to consider the foregoing would have resulted in a miscarriage of justice warranting the necessity of the interference by this court.

The respondent replied that the learned trial Judge considered the foregoing pieces of evidence before arriving at the guilt of the appellant and particularly that the appellant left the main road to hit a pedestrian on the grass verge was a demonstration of dangerous driving. It was the contention that he was convicted on circumstantial evidence which was doubtful, tenuous and weak as there was no eye witness account on which the trial court could rely.

It is settled law that where the circumstantial evidence is overwhelming and leads to no other conclusion than the guilt of the accused, the accused can be found guilty and be convicted. Okoro v. State (1993) 3 NWLR (Pt.282) 425 at 431; Kasa v. State (1994) 2 NWLR (Pt.325) 143.

I wish to add that, the pieces of evidence which the appellant referred to above are facts which really buttress the conclusion of the learned trial Judge that the driving of the appellant was dangerous at the time of the accident. In the prevailing circumstance of a straight and wide road and rainfall, impaired visibility, caused by power failure, the appellant adopted a type of driving which caused him to veer off the main road to the grass verge abutting the road. This was in a built up area within township. This vehicle did not have any brake failure or any other form of mechanical defect. The learned trial Judge rightly rejected his evidence as being unreliable. His account to the police contradicted his evidence on oath. The position of the law is that:-

“Where a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not be merely directed that the evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statements sworn or unsworn do not constitute evidence upon which they can act.” R. v. Golder (1960) 1 WLR pg. 1169 at 1960, Saka Oladejo v. State (1987) 3 NWLR (Pt.61) 419; R. v. White (1922) 17 C.AR. pg. 60

On the issue of circumstantial evidence, it is well established principle in common law that circumstantial evidence may ground conviction where it is unequivocal, positive and point irresistibly to the guilt of the accused. In other words, where direct evidence is not available, circumstantial evidence, cogent points directly and irresistibly unequivocal and compelling at the accused is admissible to prove the charge against an accused person. Onuoha v. State (1995) 3 NWLR (Pt.385) 591; Peter v. State (1997) 3 NWLR (Pt.496) 625; Okeke v. State (1999) 2 NWLR (Pt.590) 246.

On the issue of standard of proof in criminal cases, what is proof beyond reasonable doubt? The phrase which is of common law origin, and also re-enacted in section 138(1) of the Evidence Act or Law, which 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. Superior courts of record have been faced with the duty of interpreting it and they have held in a number of cases that the expression “proof beyond reasonable doubt” does not mean proof beyond all shadow of doubts. Thus, if the evidence is so 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. Lori v. State (1980) 8-11 SC 81; Akinfe v. State (1988) 3 NWLR (Pt.85) 729; State v. Aibangbee (1988) 3 NWLR (Pt.84) 548 at 590.

From the overwhelming evidence before the court the guilt of the appellant was proved beyond reasonable doubt and the learned trial Judge was right in convicting and sentencing the appellant for dangerous driving on a built up area of a Federal Highway and thereby causing the death of a passer-by who was then walking down a grass verge. It is trite that an appellate court would interfere with or disturb the findings of fact of a trial court only where evidence is perverse, or miscarriage of justice or violation of any principle of law had been occasioned. The court has not got any such reason to interfere with the conviction and sentence of the learned trial Judge in the trial Court. Nwambe v. State (1995) 3 NWLR (Pt. 384) 385; Akinfe v. State (1988) 3 NWLR (Pt.85) 729.

This appeal is dismissed, the conviction and sentence of the lower court are affirmed.

Other Citations: 2001)LCN/0983(CA)