Christopher Arehia & Anor V. The State (1982)

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L. UWAIS, J.S.C.

In a joint trial before the Bendel State High Court sitting at Ubiaja the appellant was charged with three counts, (1) manslaughter contrary to Section 325 of the Criminal Code, Cap 48 (Laws of the Bendel State of Nigeria, 1976) (2) grievous harm contrary to Section 335 of the Criminal Code, Cap. 48 and (3) driving without licence contrary to Section 13(1) of the Road Traffic Law, Cap. 148 (Laws of Bendel State of Nigeria, 1976). He was discharged and acquitted on all the counts.

The prosecution appealed from that judgment to the Federal Court of Appeal. The appeal was allowed and the appellant was convicted of manslaughter for which he was sentenced to three years’ imprisonment. Consequently, the appellant appealed before us. After having heard argument on 4th February, 1982, from Mr. Okotie, learned counsel for the appellant we decided not to hear Mr. Edokpoyi, Deputy Solicitor-General, in reply.

We dismissed the appeal and confirmed the conviction and sentence passed on the appellant while reserving till today our reasons for doing so. I now give my reasons.

This is a tragic case, its facts as found by the learned trial Judge may be briefly stated as follows. On the 12th May, 1978, the 90 pupils of class 3 of the Uendova Primary School, Ekpoma were out on their football ground in the premises of the school cutting grass when of a sudden a car driven by the appellant broke through the bamboo fence of the school meandering in the direction of the pupils. The deceased, Fidelis Ehiemuan, who was one of the pupils in the field, was knocked down and killed on the spot, while another pupil (PW5), who was also knocked down, suffered a fracture of the foot. Eventually the car came to a halt and it was observed that Christopher Ighalo, (PW8) was together with the appellant in the car as a passenger. The teacher in-charge of the pupils and the headmaster of the school rushed to the scene of the accident. While the victims were being given first aid, PW8 took the ignition key from the appellant and drove the car off by crashing through the fence. He did that on the advice of a teacher who said that if the parents of the affected pupils should turn up at the school they would lynch the driver and set the car ablaze. The appellant also took to his heels. The victims were conveyed to the General Hospital at Uromi where a postmortem examination was performed on the deceased by a doctor (PW1). The examination indicated that the deceased suffered a fracture of the neck and a larceration of the left knee. It also showed that he bled from the mouth, nose and face. In the opinion of the doctor the deceased, who was about 8 years old, died as a result of the injury to his neck and the loss of blood.

Apart from PW8 there were numerous eye-witnesses to the incident who testified for the prosecution. PW2 who was the teacher under whose care the pupils were cutting grass was one of them, so also Festus Odia, (PW5) who was the other victim who sustained fracture of the foot. There was also Lucy Iyama, (PW9) who said:

“As I stood by the roadside waiting to buy wood to make fire, I saw a vehicle coming on the road and driven in a zigzag manner and so I started to shout ‘we! we!’ I saw that the car in its struggling manner bounced through the school fence into the school compound. Then I heard the shouts of the school children.”

The vehicle was examined by a Vehicle Inspection Officer, PW11 who testified that he found it mechanically sound and road worthy.

The appellant, who was a member of the National Youth Service Corps serving with Shell Co. Limited as an engineer, gave evidence in his defence and said that he drove the car normally through the school gate when he observed some pupils playing and running about by the gate and in the school premises. He said that it was in his attempt to avoid colliding with any of the pupils that he swerved into the football field and knocked down one of the pupils and after that he ran into the school fence. Although this piece of evidence was rejected by the learned trial Judge it found support in the testimony of PW8 who said exactly the same thing. It was because the evidence of PW8 contradicted, in that respect, the evidence of all the eye-witnesses called by the prosecution that the learned trial Judge acquitted the appellant on the count of manslaughter on the authority of Christopher Onubogu & Anor. v. The State, (1974) 1 All NLR (Part II) 5 at p. 18

It is to be pointed out that when PW8 gave that evidence-in-chief and was cross-examined by appellant’s counsel the learned trial Judge decided on his own motion to examine the witness before he was re-examined by the prosecution. The nature of the examination by the trial court is as follows:

“By Court: I made a statement to the police after this incident. It is true that all I told the police on that day was that all of a sudden all that I observed was finding ourselves in the school premises. I did not tell them that we drove smoothly through the gate.”

At the end of that examination the prosecution decided not to re-examine the witness. The trial Judge then made the following remarks:

“Court: This witness has given evidence most inconsistent with his earlier statement and is fancifully telling lies to court. The witness is to be remanded in custody till Thursday the 31st of January, 1980, when I will take a final decision as to what to do with him.”

On the adjourned date a plea was made to the learned trial Judge by a counsel on behalf of PW8 and the following order was made by the court: