Pius Jizurumba V. The State (1976)

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IDIGBE, J.S.C. 

The appellant was on the 30th day of June, 1975, in the High Court of East Central State holden at Mbano convicted of various offences set down in five counts of the Information laid before that court.

On each of the first and third counts he was charged with manslaughter contrary to section 325 of the Criminal Code in that he, on the 12th day of July, 1974, along the Okigwe-Owerri Road, unlawfully killed Donatus Aturucha Ezeala and Martins Osuoha respectively; on each of the second and fourth counts he was charged with causing death by dangerous  driving contrary to section 17(2) of the Road Traffic Law, Cap 116, Vol 6 Laws of Eastern Nigeria in that he caused the death of Donatus Aturucha Ezeala and Martins Osuoha respectively at the same time and place, by driving a motor vehicle (a peugeot 404 pick-up No. ECU 2797) along a highway in a zig-zag manner which was dangerous to the public, and on the fifth count he was charged with dangerous driving contrary to section 17(1) ofthe Road Traffic Law aforesaid in that he, at the same time and place, drove a motor vehicle (the Peugeot pick-up aforesaid) along a highway in a zig-zag manner which was dangerous to the public having regard to all the circumstances of the case and thereby collided with another motor vehicle No. LX 5547 which was being driven on the same highway. This appeal is from the conviction aforesaid.

Briefly the case for the prosecution is as follows: On 12th July, 1975, a tanker vehicle No. LX 5547 loaded with kerosene was being driven by Michael Osinga (P.W.4) up a hill along the Okigwe-Owerri Road, a public highway always very busy with motor vehicles, cyclists and pedestrians; it had rained very heavily on that day and as the vehicle was approaching Okigwe township it was still drizzling. Seating with the driver (P.W.4) was Edmund Ugwu (P.W.5) At a point about a mile from the Okigwe township and as the tanker was still ascending a hill both P.W.4 and P.W.5 observed a Peugeot pick-up (later identified as vehicle No. ECU. 2797 driven by the appellant) coming very fast in the opposite direction down the slope and in “a zig-zag manner”. P.W.4 was, therefore, obliged to clear further to his own right side of the road and parked on to the sand verge.

The Peugeot 404 pick-up, (hereinafter called, “the pick-up”) apparently difficult to control, left its own proper side of the road and came straight on to the tanker vehicle (hereinafter called “the tanker”) and hit it on the front but by its “near-side” (i.e. the left of the tanker); and, there-after, still out of control, the pick-up careered “backwards” facing the direction from whence it came while still being driven by the appellant  and came to a final halt on the right hand side ofthe road (facing Okigwe). The pick-up sustained both damage and dent on its own “off-side” (i.e. the right side of the pickup). The resulting impact from the collision caused the left front tyre of the tanker to burst.

As a result of the collision some passengers in the pick-up were thrown out of the vehicle and both P.W.4 and P.W.5 came out of the tanker to try and render assistance to the passengers who remained “trapped” in the front part of the pick-up which was badly damaged. While the “rescue-work” was on, P.W.4 observed that the tanker was “rolling back” down-hill as the left front tyre had become deflated; and before he could reach the tanker to prevent if from further movement down-hill the tanker had finally rolled on to a gutter which wedged its rear. A number of passengers in the pick-up (and the appellant as well), being injured, were removed in another vehicle to the Okigwe General Hospital, where two ofthem (the deceased persons named in counts (1) and (3) of the Information) later died.

The defence of the appellant was, in the main, a denial of the allegations against him. He denied that he was driving fast and in a zigzag manner; on the contrary, as he alleged, it was the tanker that was coming up the hill on high speed “occupying the whole road”. His evidence then continued thus:

“I applied my brakes and my vehicle swerved a little to the centre of the road. At this juncture the tanker hit my vehicle on its right side and the two front seat passengers fell on me……..I accompanied P.W.2 (the investigating Police Officer) to the scene of the accident and I showed him the point of impact which was different from the one P.W.4 showed him.

When P.W.2 gave evidence he said he found broken glasses at the point of impact indicated by the P.W.4 (i.e. the sand verge on the right side of the road as one faced (Okigwe) but that at the point of impact indicated by the appellant there were no broken glasses. He said the width of the road on the tarred portion was 17 feet with sand verge of 7 feet on one side and 6 feet on the other; and that the road, along the scene, was straight for about 100 yards from the direction of Okigwe.

The learned trial judge in the court below accepted the case for the prosecution and rightly, in our view, rejected the evidence of the appellant.

Two grounds of appeal filed and argued in this court read:

“(1) The learned trial judge erred in law in failing to abstain from recording verdicts on counts 1 and 3 when they are alternative to counts 2 and 4.

(2) The learned trial judge erred in law (sic) for not rejecting the evidence of the 4th and 5th prosecution witnesses as unreliable when their written statements (Exhibits 3 and 4) were inconsistent with their oral evidence in court. ”

We pause to refer shortly to the events in the lower court which form the background to the second ground of appeal set out above. In his evidence in chief P.W .4 testified thus: