Adewale Joseph Vs The State (2011)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

The appellant was charged with the following four counts:

Count One:

Causing death by dangerous driving contrary to and punishable under section 5 of the Federal High way Act, Cap.135 Laws of the Federation of Nigeria 1990.

Count two:

Dangerous driving contrary to and punishable under section 6 (1) of the Federal Highways Act Cap. 13b Laws of the Federation of Nigeria 1990.

Count three:

Failure to stop after an accident contrary to section 12 (d) of the Federal Highways Act Cap. 135 Laws of the Federation of Nigeria, 1990.

Count four:

Failure to report an accident contrary to Section 13 (d) and punishable under Section 11 of the Federal Highway Act Cap., 135 Laws of the Federation of Nigeria 1990.

Lokulo Sodipe, J (as he then was) of the High Court of Ogun State, Abeokuta presided.

Six witnesses gave evidence for the prosecution, while two witnesses, who included the appellant, gave evidence for the defence. Seven documents were admitted in evidence as exhibits. The learned trial judge found the appellant guilty of causing death by dangerous driving, and failure to stop after an accident. He was sentenced as follows:

Count 1. 4 years imprisonment I.H.L.

Count 2. 2 years imprisonment I.H.L.

Count 3. 12 months imprisonment I.H.L.

Sentences to run concurrently.

Dissatisfied with the judgment the appellant lodged an appeal before the Court of Appeal, Ibadan Division. That court confirmed the convictions and sentences of the trial court. This appeal is against that Judgment. In accordance with Rules of this court briefs of argument were filed and exchanged by counsel. The appellant’s brief was deemed filed on 24/3/11. The respondents brief was filed on 10/12/10. Learned counsel for the appellant, Mr. A. Ogunsanya formulated two issues for determination. They read:

1. Whether the court of Appeal rightly held that by virtue of the Legal Notice No.60 of 1977, the trial court was right in taking judicial Notice of the road, i.e. Igbogila/Ibara-Orile/Sokoto expressway on which the accident occurred as a Federal High way under Section 74 of the Evidence Act.
2. Whether the court rightly affirmed the decision of the trial court in holding that the Respondent established beyond reasonable doubt that it was dangerous or reckless driving of the appellant on 12/5/2000 along the Igbogila/Igbo-Ora road that resulted in the accident.

And on the other side of the fence, learned counsel for the respondent Mr. M.J. Onigbanjo also formulated two issues. They read:

1. Whether the Court of Appeal was right to have affirmed the conviction of the appellant for the offences of causing death by dangerous driving, dangerous driving and failure to stop after an accident.
2. Whether by virtue of Legal Notice No.60 of 1977 the lower court was right in taking judicial Notice of the road i.e. Igbogila-Ibare/Orile-Sokoto expressway on which the accident occurred as a Federal Highway under Section 74 of the Evidence Act.

At the hearing of the appeal on the 24th of March, 2011 learned counsel for the appellant, adopted his brief, and observed that the Court of Appeal found on what does not exist, contending that this case can be distinguished from Amusa v. State 13 NSCQR p.173 He urged this court to allow the appeal.

Learned counsel for the respondent adopted his brief and observed that this case is on all fours with Amusa v. State (supra).

He further referred to Moses v. State 2006 11 NWLR pt.992 p.458 and urged this court to dismiss the appeal.

Issues formulated by both sides ask the same questions in different ways, and so I shall adopt the issues formulated by the appellant for the determination of this Appeal.

Without going into much details of the facts, the evidence which was accepted by the two courts below, in summary was that on the 12th of May 2000 in broad daylight, the appellant drove taxi cab with registration No. B 345 AKM along a straight stretch of Igbogila/Ibare-Orile/Sokoto expressway. From about 50 meters away, the appellant claimed to have seen the deceased, a vehicle Inspection officer standing in the middle of the road. He was signaled to stop by the deceased. He did not stop. He knocked down the deceased and drove off. The deceased was rushed to hospital by his colleagues who were nearby. He died the next day. Both courts below found that the death of the deceased was as a result of the dangerous or reckless manner the appellant drove his taxi cab on 12/5/2000.

ISSUE 1

Whether the court of Appeal rightly held that by virtue of the Legal Notice No. 60 of 1977 the trial court was right in taking judicial Notice of the road, i.e. Igbogila/Ibara-Orile/Sokoto expressway on which the accident occurred as a Federal Highway under Section 74 of the Evidence Act.

The learned trial judge took judicial Notice pursuant to Section 74 of the Evidence Act that the Igbogila/Ibara-Orile/Sokoto expressway is a Federal Highway or a Federal trunk Road. The Court of Appeal agreed. It held that:

“The Legal Notice No.60 of 1977 at page 5821 particularly page 5825 Vol. III of the Laws of the Federation of Nigeria 1990 described as Highway F.200 indicate clearly that the Igbogila/Ibara-Orile/Sokoto expressway on which the accident occurred is a federal Highway.

Learned counsel for the appellant observed that this reasoning is wrong, arguing that there is nothing in the Legal Notice No.60 of 1977 contained at page 5825 in volume III of the Laws of the Federation of Nigeria 1990 to suggest that Igbogila/Ibara-Orile/Sokoto expressway is one and the same thing with the Ilaro/Abeokuta road. He submitted that the decision of the court below is perverse and it ought not to be allowed to stand by this court.

Learned counsel for the respondent observed that by virtue Section 74 of the Evidence Act the court can take judicial Notice the Igbogila/Ibara-Orile/Sokoto expressway as a Federal Highway or a Trunk Road. He argued that the court can take judicial Notice of a road as a Federal Highway whether or not the road is listed in the Federal Highway (Declaration) Orders. Reliance was placed on State v. F. Usifor 1974 1 NWLR p. 72.

Contending that the trial court was right in taking judicial Notice of Igbogila/Ibara-Orile/Sokoto expressway as a Federal Trunk Road and accordingly a Federal Highway.

I have examined the Legal Notice referred to, i.e. Legal Notice No. 60 of 1977 page 5821 at 5825 Volume III of the Laws of the Federation of Nigeria 1990. It is only some federal Roads that are listed therein. The Igbogila/Ibara-Orile/Sokoto expressway is not listed, but that is not the end of the matter. Once the prosecution witnesses led evidence to show where the accident occurred or where the deceased was knocked down by the taxi cab driven by the appellant it is then the duty of the trial judge to take/or not take judicial notice that the road is a federal highway or trunk road. In the legislation under question the Northwest route referred to in F. 200 is described thus:

“The road starting from appoint near Marogbo, about 19 km east of Badagry on F.100 continuing thence to Ilaro-Abeokuta Iseyin-Aro and terminating at kishi on trunk road A7”

The above is broad in the sense that the starting point is near Marogbo, terminating at Kishi. It is thus clear that not all Federal Roads are listed in the legislation. To my mind, not withstanding that there was no direct testimony that Igbogila/Ibara-Orile/Sokoto where the accident occurred is a Federal Highway, by virtue of Section 74 of the Evidence Act the court was at liberty to take judicial notice of the fact that the accident in this case occurred on a Federal Highway. See State v. F. Usifor 1974 1 NMLR pt.72

Where the court takes judicial Notice of a fact, proof is no longer necessary. This is so because judicial Notice takes the place of proof, but it is not conclusive. A party who wishes to dispute the fact must provide evidence. If the said road is not a Federal Road, then it is a State Road. In the absence of any evidence, viz State Legislation to show that the Igbogila/Ibara-Orile/Sokoto expressway is a state road, both courts were correct. Relevant evidence could easily have been provided by way of fresh evidence on appeal. I hold that Orile/Sokoto expressway is a Federal Highway. Both courts below were correct in the circumstances.

ISSUE 2

Whether the court rightly affirmed the decision of the trial court in holding that the Respondent established beyond reasonable doubt that it was dangerous or reckless driving of the appellant on 12/5/2000 along the Igbogila/Ibara-Orile/Sokoto Road that resulted in the accident.

Section 138 (1) of the Evidence Act States that:

“If the commission of a crime by a party to any proceeding 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 doubt, or all shadow of doubt. It means the prosecution establishing the guilt of the accused person with compelling and conclusive evidence. It means a degree of compulsion which is consistent with a high degree of probability. Proof beyond reasonable doubt is not achieved by the prosecution calling several witnesses to testify. The court is only interested in the testimony of a quality witness, so long as the charge is not one that needs corroboration. See – Miller v. Minister of Pensions 1947 2 ALL E.R. p.372, Lori v. State 1980 8 – 11 SC p.81

Learned counsel for the appellant observed that the trial court failed to evaluate evidence properly, and the Court of Appeal failed to re-evaluate evidence. Relying on-

Ndidi v. State 2007 41 W.R.N. p.1

Adeosun v. State 1975 9 – 11 SC p.

He argued that the accident was caused by a tipper driver, contending that the piece of evidence was never challenged and or controverted by the prosecution (Respondent). He observed that serious doubt has been created and it ought to be resolved in favour of the appellant. Reference was made to Shade v. The State 2005 12 NWLR pt.939 p. 301.

Concluding he submitted that the prosecution failed woefully to prove the essential ingredients that the appellants manner of driving was reckless or dangerous and that the dangerous driving was the substantial cause of the death of the deceased.

Learned counsel for the respondent observed that the testimonies of PW1, PW2, and PW3 sufficiently proved beyond reasonable doubt that the appellant’s manner of driving was reckless and, dangerous and that his dangerous driving was the substantial cause of the death of the deceased. Concluding learned counsel observed that the Court of Appeal was correct when it held that the trial court evaluated evidence of the witnesses before it found the respondent’s witnesses erodible.

For the prosecution to succeed in proving that an accused person caused the death of the deceased by dangerous driving and that he drove dangerously on a Federal Highway, (counts 1 and 2) the prosecution must prove the following beyond reasonable doubt.

(a) that the accused person’s manner of driving was reckless or dangerous.

(b) that the dangerous driving was the substantial cause of the death of the deceased, and

(c) that the accident occurred on a Federal Highway.

See Amusa v. State 13 NSCQR p. 173

State v. F. Usifor 1974 1 NMLR p. 72

In motor vehicle accident cases proof of an accident and a death is not the end of the matter. The onus is on the prosecution to show that the accident which caused the death of the deceased was due to the negligent or reckless manner in which the appellant drove the vehicle, and the slightest negligence is sufficient to make the appellant guilty of dangerous driving. See

R. v. Tatimu 1952 20 NLR p. 60

Amusa v. State (Supra)

The complaint in this issue is that if the learned trial judge had evaluated evidence properly it would be clear that the appellant did not drive his taxi cab dangerously.

The trial court receives all relevant evidence. That is perception. Thereafter the trial judge should weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation of the trial judge who saw and heard the witnesses. A finding of fact involves both perception and evaluation. There is a clear distinction between finding of fact based on the credibility of witnesses and findings based on evaluation of evidence. In the later case the Court of Appeal is in as good a position as the trial court to evaluate the evidence, but an appeal court must respect the opinion of the trial judge who saw and heard the witnesses. He alone can comment on the demeanour of the witnesses. I will now examine the evidence.

PW1, PW2, and PW3 were at the scene of the accident. They saw how the accident occurred. The learned trial judge found that the appellant knocked down the deceased when he was signalled to stop by the deceased, the appellant claimed to have seen the deceased from 50 meters away standing in the middle of the road. Referring to exhibit B, the sketch of the accident the learned trial judge found that the skid mark shown in exhibit B as well as the distance between the point of impact and the resultant position of the deceased supports evidence of PW1 that the appellant was speeding and driving recklessly when the incident occurred.

The appellant was not present when the sketch was prepared. But when it was shown to him he signed it. His signature on the sketch is conclusive evidence that he agrees with everything in the document. In any case he never disputed the sketch.

The case of the appellant as stated by him runs as follows:

“When I was returning from Ibara/Orile and as I was about to get to Soyeye Village, I saw some vehicle Inspection officers on the road. There was a tipper approaching from opposite direction. One of the vehicle Inspection Officers was right in the middle of the road. This officer signaled to stop the tipper; he was backing me while he faced the tipper. The tipper driver manifested his resolve not to stop by putting on the full beam and driving in the middle of the road, when the officer in the middle saw this and as he could not escape from the path of the tipper to the left hand side of the road, he jumped from his position and landed on the bonnet of the vehicle while I was driving. I too, had to swerve to avoid the tipper.”

Evidence of PW1, PW2 and PW3 which the learned trial judge believed was that the deceased signaled the appellant to stop. He did not stop. He drove on and knocked down the deceased, and not that he jumped on the bonnet of the taxi cab in order to get out of the path of the tipper which the deceased was backing and which he never stopped.

The Record of Appeal is clear in that the evidence led by both sides was carefully weighed by the trial court. From the facts it accepted the case was proved beyond reasonable doubt. In motor accident cases, a sketch prepared by the traffic Police Officer is a very important document. It is prepared in the presence of all those involved in the accident and signed by all of them. A sketch shows the width of the road on which the accident occurred the point of impact and the resultant position of the vehicle after impact. It also shows skid marks. According to exhibit B, the sketch, the appellant knocked the deceased down at a point marked ‘X.’ There were skid marks covering 100ft from the point of impact. A distance of 100ft after the point of impact is clear evidence of speed. A prudent driver who sees a vehicle Inspection officer standing in the middle of the road from 50 meters away would reduce speed. It is clear appellant did not reduce his speed he drove on dangerously and recklessly and knocked down the deceased. That explains skid marks of 100ft after impact, a hopeless attempt to bring his vehicle to a stop after impact.

I am in the circumstances of the view, after examining the compelling evidence adduced by the respondent that on the 12th day of May, 2000 the appellant drove taxi cab registration No. XB 345 AKM on the Igbogila/Ibara-Orile/Sokoto expressway dangerously and killed Egbejimi Alabi, a vehicle Inspection officer. The appellant never denied knocking down the deceased.

A trial court must consider the evidence adduced by the prosecution, and the accused person, evaluate all evidence, before it can say the case was proved beyond reasonable doubt. Failure to consider the accused persons case is a denial of justice and fatal to the prosecution’s case. Evidence on both sides was considered and evaluated by the learned trial judge. Unassailable evidence of PW1, PW2, and PW3 supported by Exhibit B, the sketch shows that the deceased died as a result of the negligent manner the appellant drove his taxi on 12/5/2000. The case was proved beyond reasonable doubt and the Court of Appeal was right to dismiss the appeal.

Before this court upsets concurrent findings of the courts below the appellant must satisfy this court that the findings are perverse, that there has been an error in the substantive and, or procedural law, or that there has been miscarriage of justice. See

Bakare v. State 1987 1 NWLR pt.52 p. 579

Adio v. State 1986 2 NWLR pt. 24 p. 581

I have examined evidence led and accepted by the learned trial judge and I am satisfied that learned counsel for the appellant failed to show any error in substantive or procedural law. Evaluation of evidence by the learned trial judge was unassailable. Consequently the findings were not perverse. This is not a case of slight negligence by the appellant, rather the deceased died because the appellant’s driving on the fateful day was grossly negligent and reckless in the extreme.

For all that I have been saying this appeal is dismally devoid of merit and so I dismiss it.

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SC.48/2010