Dickson Moses v The State ( S.C.308/2002) [2006] NGSC 86 (20 April 2006)
Dickson Moses v The State ( S.C.308/2002) [2006] NGSC 86 (20 April 2006)
In The Supreme Court of Nigeria
On Friday, the 21st day of April 2006
S.C.308/2002
Between
Dickson Moses ....... Appellant
And
The State ....... Respondent
Judgement of the Court
Delivered by
Walter Samuel Nkanu Onnoghen, J.S.C
This is an appeal against the judgment of the Ibadan Division of the Court of Appeal in appeal NO. CA/l/29/99 delivered on 17th day of January, 2002 in which the court affirmed the judgment of the Ogun State High Court holden at Ijebu-Ode delivered in charge NO. HCJ/9C/91 in which the trial court convicted and sentenced the appellant for the offence of causing death by dangerous driving a.k.a. manslaughter.
Appellant was charged before the trial court with the following offences:
"Statement of offence - 1st Count
Causing death by dangerous driving contrary to and punishable under section 4 of the Federal Highway Act, 1971 (No. 4 of 1971).
Particulars of Offence
Dickson Moses "M" on or about the 23rd day of January, 1990 at Oke - Owa along Old Ondo/Benin road, Ijebu - Ode Judicial Division caused the death of one Olufemi Adetola "M" by driving a motor vehicle registration No. OY 1758 LE on the said Federal Highway in a manner which was dangerous to the public having regard to all the circumstances of the case.
Statement of Offence - 2nd Count
Dangerous driving contrary to and punishable under section 5 (1) of the Federal Highway Act 1971 No. 4 of 1971.
Particulars of Offence
Dickson Moses "M" on or about the 23rd day of January, 1990 at Oke Owa along old Ondo/Benin Road, Ijebu - Ode a Federal Highway in the Ijebu - Ode Judicial Division drove a motor vehicle Registration No. OY 1758 LE on the said Federal Highway in a manner that was dangerous to the public having regard to all the circumstances of the case."
The respondent called a total of six witnesses while the appellant testified on his behalf and called no other witness.
The facts of the case include the following. On the 23rd day of January, 1990 the deceased, one Olufemi Adetola, male was driving a Volkswagen Bettle Car with registration No. OGLG 48 J along old Ondo/Benin Road, Ijebu - Ode, a Federal Highway and when he got to Oke - Owa town, the deceased had a head-on collision with another vehicle, a petrol tanker with registration No. OY 1758 LE driven by the appellant. At the time of the accident, the deceased had two passengers in the vehicle he was driving including PW5 and a lady referred to as Titilayo who allegedly sat in front with the deceased while PW5 sat at the back of the said vehicle. It is the case of the prosecution that the accident occurred as a result of the dangerous manner appellant drove his vehicle along that road that particular day in that appellant allegedly left his rightful lane by pulling out of it as a result of a long queue of vehicles and drove on the lane of the on coming vehicle then being used by the deceased and collided with the vehicle of the deceased thereby killing him on the spot.
On the other hand, appellant denies leaving his lane and colliding with the deceased in the deceased's lane. His case is that there was a broken down water tanker on the road which had spilled water on the road thus rendering the road slippery and that the deceased was overtaking the said broken down water tanker when he (the deceased) drove into the appellant's vehicle and caused the accident. Appellant further said that he tried to avoid the accident by applying his brakes only for the vehicle to swerve and collide with the vehicle of the deceased.
The prosecution called the Vehicle Inspection Officer who tested and examined the vehicles involved in the accident and he told the court that in his opinion, the accident was not caused by any mechanical defect in any of the vehicles. In addition to that testimony and the reports, the prosecution also called the Investigating Police Officer who drew up a sketch map of the scene of accident which he tendered. At the end the trial court considered the case of the parties and came to the conclusion that the prosecution had proved its case beyond reasonable doubt and convicted and sentenced appellant on the 1st count of the charge while he suspended further proceedings in respect of count 2.
Appellant was dissatisfied with that judgment and consequently appealed to the Court of Appeal which affirmed the judgment of the trial court and in addition convicted and sentenced appellant to a term of 2 years in respect of count 2. Finally appellant has appealed to this court against the concurrent findings of facts by the trial and lower courts.
In the appellant's brief of argument filed by learned counsel, Joseph Nwobike Esq on the 16th day of July, 2003 and adopted in argument of the appeal on 26th January, 2006, learned counsel formulated three issues for the determination of the appeal. The issues are as follows:
"(1) Whether the prosecution discharged the burden of proof placed on it by law and thereby proved its case against the appellant......
(2) Whether PW5 was a tainted witness under the law
(3) Whether the sentencing of appellant on count No. 2 by the court below was not an improper exercise of judicial powers in the circumstance."
Before proceeding further to consider the arguments on the above issues, I intend to reproduce the amended grounds of appeal and the issues formulated before the Court of Appeal, for reasons that will become obvious later in the judgment. The amended grounds of appeal and the issues are as follows:-
"Amended Grounds of Appeal
1. The learned trial judge erred in law by relying on the rough sketch of the accident which sketch was highly defective, considering all the circumstances of the case and thereby came to a wrong conclusion which has occasioned a miscarriage of justice.
2. The learned trial judge misinterpreted the sketch drawing exhibit "3" and thereby wrongly applied the misinterpretation to the facts of the case and thereby came to a wrong conclusion which had occasioned a gross miscarriage of justice.
3. The learned trial judge erred in law by failing or omitting to consider the defence of skidding caused by water which defence appears in the evidence of the accused person and thereby occasioned a failure of justice.
4. The learned trial judge erred in law by failing to make a specific finding of fact as to whether "oke - owa" along old ondo/benin road, ijebu - ode" was indeed a Federal Highway as alleged in the information before sustaining the information against the accused person.
5. The learned trial judge erred in law by failing or omitting to make specific finding of fact of who was actually overtaking on the road, between the deceased (driver) and the accused person and thereby failed to determine the person really at fault in the accident, before proceeding to convict the accused person and thereby occasioned a miscarriage of justice.
6. The learned trial judge ought to have invoked the provisions of section 382 of the Criminal Procedure Code to give the appellant an option of fine as appellant had no previous criminal records.
7. The judgment of the lower court is unreasonable, unwaranted and cannot be supported having regard to the evidence adduced."
The issues formulated by learned counsel for the appellant arising from the above amended grounds of appeal are stated as follows:
"Issues for determination.
(1) Whether the reliance placed by the learned trial judge on the rough sketch drawing was fit and proper in view of the inadequacies in the sketch drawing as compared with the evidence of PW5 and the accused appellant.
(2) Whether the lower court gave proper consideration to the defence of the appellant before proceeding to convict him.
(3) Whether all things considered the prosecution's case was proved beyond all reasonable doubt as required by law."
From the reproduction of the grounds of appeal and the issues formulated therefrom, it is very clear that appellant never complained before the Court of Appeal that PW5 was a tainted witness. The grounds and issues clearly speak for themselves. From the record, no further additional grounds of appeal were filed neither was any other issue formulated to include any complaint against PW5 as a tainted witness. Also from the record, no leave of court was sought and obtained before formulating and arguing any issue regarding PW5 as a tainted witness.
Turning to the issues for determination in this appeal, learned counsel for the appellant, Joseph Nwobike Esq. submitted in the appellant's brief filed on 16/7/03 on issue No. 1 that the prosecution failed to discharge the burden of proof placed on it by law; that the prosecution owes the duty to prove the charge against the appellant beyond reasonable doubt as provided under section 138 (2) of the Evidence Act, 1990. Learned counsel further submitted that the failure of the prosecution to prove the charge beyond reasonable doubt emanates from the material contradictions and insufficiency of evidence. Referring to exhibit "3", the rough sketch of the scene of accident, learned counsel stated that the said exhibit is intended to show graphically the effect of the accident and not an account of how the accident occurred but that exhibit 3 failed in its assigned role as the distance between the point of impact and the resultant position was not indicated. Strangely and without referring to the alleged material contradictions in the evidence of the prosecution, learned
counsel proceeded to submit at page 5 of the brief as follows:
"It is submitted that these contradictions are material and ought to have been a basis for the resolution of the doubt in favour of the appellant and the discharge and the acquittal of the appellant by the court below. An appellate court is entitled to examine the evidence and make its own assessment of it. See Onuchukwu vs The State (1998) 4 S.C 49 at 54.
Learned counsel finally submitted that the finding of the trial court and its confirmation by the Court of Appeal to the effect that "there can be no doubt from the sketch as to whose lane the accident occurred and in whose lane both vehicles fell" is perverse and urged the court to interfere with the said finding and resolve the issue in favour of the appellant, relying on Oguonzee vs The State (1998) 4 S.C 110 at 124.
On his part, learned counsel for the respondent, Adesola Shobayo (Mrs) then as Administrator-General and Public Trustee, Ministry of Justice, Abeokuta, Ogun State, now Director of Public Prosecutions of the said State, in the respondent's brief of argument filed on 15/12/04 submitted that in a charge of causing death by dangerous driving and dangerous driving under sections 4 and 5 (1) of the Federal Highway Decree, 1971 the prosecution must prove the following:
(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.
(c) that the accident occurred on a Federal Highway, relying on The State vs Usifor (1974) I NMLR 72.
Learned counsel submitted further that the prosecution duly discharged the burden of proof placed on it by law by calling witnesses and tendering documents at the trial; that there is evidence on record that appellant left his lane of the road by overtaking a convoy of vehicles and had a head-on collision with the Volkswagen vehicle driven by the deceased in the deceased's lane; that the driver of the Volkswagen vehicle died on the spot; that an eye witness account of the accident was given by PW5 who was a passenger in the Volkswagen vehicle. Learned counsel further submitted that in addition to the eye-witness account, exhibit 3, the sketch map of the scene of accident also corroborated the evidence of the prosecution witnesses that the accident happened on the deceased's lane and that the said exhibit 3 revealed the skid marks of the appellant's tanker trailer on the lane of the deceased before the accident. Learned counsel then submitted that to leave ones lane for another and collide with another vehicle on its lane is a piece of dangerous driving as held in Abdullahi vs The State (1985) 1 NWLR (Pt. 3) 523.
Counsel further submitted that the trial court believed the evidence of PW1, PW5 and PW6 as to how the accident occurred which finding was confirmed rightly, in the opinion of learned counsel, by the Court of Appeal; that this court should not interfere with the concurrent findings of facts by the trial and lower courts particularly as those findings are not perverse nor are they erroneous, relying on Ahmed vs The State (1998) 9 NWLR (Pt. 566) 389 at 401; Bakare vs The State (1987) 1 NWLR (Pt. 52) 579 at 593 - 594.
Finally learned counsel submitted that the prosecution adduced evidence to prove that the accident occurred on a Federal Highway as confirmed by the judgments of the trial and lower courts and urged the court to resolve the issue against the appellant.
It is settled law that for the prosecution to discharge the burden of proof placed on it by law in a charge of causing death by dangerous driving under the provisions of sections 4 and 5 (1) of the Federal Highway Decree No. 4 of 1971, it must establish by evidence, the following ingredients of the offences:
(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 State vs Usifor (1974) 1 NMLR 72.
It is also settled law that the standard of proof required of the prosecution in every criminal case is that of proof beyond reasonable doubt - see section 138 of the Evidence Act, 1990.
Section 4 of the Federal Highway Decree No. 4 of 1971 under which the appellant was charged with the offence of causing death by dangerous driving provides as follows:-
"4. Any person who causes the death of another person by the driving of a motor vehicle on a Federal Highway recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the Federal Highway, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the Federal Highway, shall be guilty of an offence and liable on conviction to imprisonment for a term of seven years."
On the other hand, section 5 (1) which grounded the second count on which the appellant also stood trial provides as follows:-
"5 (1). Any person who drives a motor vehicle on a Federal Highway recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case including the state, condition and use of that Highway, and to the amount of traffic which at the time is or might reasonably be expected to be on that Highway shall be guilty of an offence and liable on conviction to a fine of two hundred pounds or to imprisonment for two years or to both such fine and imprisonment."
I hold the view that by looking at the two sections reproduced supra, it is very clear that the same facts are necessary to prove the two counts involved in this case though in respect of count 1 the prosecution must prove that the piece of dangerous driving resulted in the death of the deceased. In other words for the prosecution to succeed in a charge under sections 4 and 5 (1), it must prove dangerous driving and the fact that the accident occurred on a Federal Highway. So the common denominator in sections 4 and 5 (1) are (a) dangerous driving and (b) Federal Highway while the only ingredient peculiar to section 4 is "causing death" as a result of the dangerous driving on a Federal Highway. In the instant case, there is no doubt, in fact both parties agree that, one Olufemi Adetola (M) who drove Volkswagen vehicle No. OGL 648 J died on the spot following the accident involving vehicle No. OY 1758 LE driven by the appellant at Oke - Owa along old Ondo/Benin Road, Ijebu-Ode on the 23rd day of January, 1990. The relevant issue that needs to be proved is whether the death was caused by the dangerous driving of the appellant, apart from the secondary issue of whether the said accident occurred along a Federal Highway.
While the prosecution maintained that it was the dangerous driving of the appellant that caused the accident resulting in the death of the deceased, the appellant contends that it was rather the dangerous manner of driving of the deceased that caused the accident.
There is only one eye witness account of the accident as testified to by PW5, Wole Afuye, apart from the appellant. He told the court that he is an accountant working with the firm of Odunlami, Erinle and Co; that on 23/1/90 he was inside the vehicle driven by the deceased while on official duty and that when they got to the steep hill at Oke - Owa along old Benin/Ore Road, just before reaching Our Lady of Apostles Girls School and while the deceased maintained his proper lane, he observed a queue of motor vehicles on the other side of the road or lane. PW. 5 further stated that he saw a big fuel tanker coming from the opposite direction and he (PW5) had expected the driver of that tanker to stay on the queue on that side of the road instead of moving out of his own lane into the side of the road in which PW5 and the deceased were travelling and had a head on collision with their vehicle. PW5 said he passed out immediately after the head-on collision and later found himself in a hospital. Under cross examination PW5 said a lady by name Titi was sitting by the side of the deceased driver on the day of the accident and that he was not engaged in conversation with her. PW5 further said that he sat at the back of the vehicle which was at the time ascending the steep hill while the petrol tanker was descending.
On the other hand, the appellant told the court that he is a motor mechanic and that on 23/1/90 he drove a mercedez lorry 911 with registration No. OY 1758 LE along Makalewo from Olisa Street to Lagos - Benin Express Road. At Makelewo along Okeowa while driving on the right side of the road, he saw a tanker which had broken down on the left hand side of the road and an on coming Volkswagen car approaching also from that side; that the car overtook the broken down water tanker and he applied the break of his lorry resulting in the lorry swerving and colliding with the Volkswagen car. He later made a statement to the police after which the police prepared a sketch of the scene of the accident which appellant said he signed. He did not have the opportunity to look at the registration number of the broken down water tanker because he had to run away to avoid being mobbed. He maintained that he did not drive dangerously on that day and that the road was slippery from the water which had poured on it from the broken down water tanker.
Under cross examination appellant agreed that he signed exhibit 3 but denied accompanying the police to the scene where exhibit 3 was drawn since he was in detention; that it was when the two vehicles collided that the vehicle driven by him fell to the other side of the road, it being a bigger vehicle; that the resultant position of his vehicle was at the other side of the road while the Volkswagen vehicle was on his own side of the road.
PW.1 who visited the scene soon after the accident said he did not observe any broken down water tanker on the road. He also said that he found both the tanker driven by the appellant and Volkswagen vehicle driven by the deceased side by side on the same side of the road to Oke - Owa.
PW 2 is the vehicle Inspection Officer who tested the two vehicles and came to the conclusion that the accident was not caused by any mechanical defect. The trial court believed the testimony of the prosecution witnesses and disbelieved that of the appellant.
The quarrel of learned counsel for the appellant in issue No. 1 appears to be centred on exhibit 3. After talking of contradictions in the evidence of the prosecution without pointing to any such evidence, learned counsel stated thus:
"Exhibit 3 is the rough sketch drawn by the police at the scene of the accident. The rough sketch is intended to show, graphically, the effect of the accident and not an actual account of how the accident occurred. Evidence of PW 6 was admitted to show that exhibit 3 was made to show the position of the vehicles after the accident occurred. The learned trial judge, in relying on exhibit 3, said that:-
"it clearly shows B-C being the width of the road as 6 metres; A-B the grass verge on that side of the road on which the vehicle lies as 6 metres; G-H, the distance from the edge of the road to the resultant position of OGLG 48 J as 1.6 metres; and the skid mark of OY 1758 LE to the point of impact X as 40.9 metres. I am of the view that these are details sufficient to make one have a clear view of the position of things at the scene of the accident at the time of the accident not withstanding the fact that the distance between X and X1 to the point of impact and the resultant position was not indicated.... ."
From the foregoing, it is obvious that exhibit 3 was inadequate to perform the evidential role which it set out to perform. As the trial judge rightly agreed, the distance between the point of impact and the resultant position was not indicated. It is therefore, surprising how he found that -
"There can be no doubt from the sketch as to whose lane the accident occurred and in whose lane both vehicles fell."
It is submitted that these contradictions are material and ought to have been a basis for the resolution of the doubt in favour of the appellant and the discharge and the acquittal of the appellant by the court below..."
From the passages quoted by learned counsel from the judgment of the learned trial judge, it is very clear that there are no contradictions let alone material contradictions therein. That apart, learned counsel for the appellant appears to have quoted the passages out of context. What the judge said at pages 119 - 121 is, inter alia, as follows:-
"On the sketch exhibit 3 learned counsel complains that there is no measurement from the point of impact to either side of the road to show on which lane or at which point the accident happened. In this connection, learned counsel would seem to have overlooked the fact that exhibit 3 contains a rough broken line between the words "par amount inn" to the left of the exhibit and the words "Oke Owa" to the right. I have no doubt that this is meant to indicate the middle of the road. If this is so, then there is no doubt as to which lane the point of impact occurred ........
Learned counsel seems to be mistaken also when he complains that exhibit 3 does not show the distance between the point of impact and the various resultant positions. It clearly shows B - C being the width of the road as 6 metres, A - B etc, etc, etc."
It is very clear that learned counsel, for reasons best known to him, carefully avoided quoting the judge from the beginning of his evaluation of exhibit 3 which would have made the conclusion meaningful and understandable in the context in which it was reached, but adopted the style which but resulted in confusion. In any event, the most important point is not the distance between the point of impact and the resultant position of the vehicles but in whose lane the point of impact occurred and the learned trial judge was emphatic in his findings in that respect when he stated that-
"there can be no doubt from the sketch as to whose lane the accident occurred and in whose lane both vehicles fell...... I have had a close look at the rough sketch of the scene of the accident - exhibit 3. As indicated earlier in this judgment, the broken line is intended to show the middle of the road. In that event, the point of impact is clearly within the lane of the Volkswagen vehicle and confirms the evidence of PW5 as to whose lane the accident occurred on. Besides, if it was true that the Volkswagen bettle car was overtaking a broken down water tanker, there is no doubt that the Volkswagen bettle car would have got on to the lane of the accused person and that any head - on -collision thus resulting could only be on the lane of the accused. This is not confirmed by exhibit 3." Emphasis supplied by me.
The above finding was confirmed by the Court of Appeal making same concurrent finding. Unfortunately learned counsel for the appellant has not advanced any reasons why this court should interfere with the said findings particularly as the same is in no way perverse. There is equally no contradictions, let alone material contradictions in the evidence of the prosecution in the instant case and I therefore resolve the issue against the appellant.
On issue No. 2 which is whether PW5 was a tainted witness, learned counsel for the appellant referred to the case of Akpan vs The State (1992) 6NWLR (pt. 248) 439 at 461 - 462; Mailayi vs The State (1968) 1 All NLR 116 at 123; Ishola vs The State (1978) 9 - 10 S.C 81 at 100; Mbenu vs The State (1988) 7 S.C (pt. 111) 71 on the definition of the term tainted witness and proceeded to submit strongly as follows:-
"PW.5 was in the vehicle when the accident occurred. He sustained serious injuries as a result of the accident. His evidence was intended specifically to establish the guilt of the appellant and not to state how the accident occurred. The interest he was serving in giving the evidence was a way of seeking vengeance against the appellant. The witness was out to punish the appellant. To this end, the PW5 ought to have been found to be a tainted witness by the count below. It is submitted that if the lower court had treated PW5 as a tainted witness whose evidence must be corroborated, the court would have found the prosecution's case against the appellant not proved beyond reasonable doubt in view of the absence of any form of eye witness corroboration. See Jimoh Ishola vs The State (1978) 9&10 S.C 81 at 100.
In view of the foregoing, this court is urged to resolve the 2nd issue in favour of the appellant and allow the appeal on that ground."
The above submission of learned counsel is full of wonders and very strange proposition of law that is why I decided to lift it in extenso.
On the other hand, learned counsel for the respondent stated that since PW5 was neither an accomplice nor have any personal purpose to serve, he cannot be termed a tainted witness, relying on R vs. Enahoro (1964) NMLR 65; Ifejirika vs The State (1999) 3 NWLR (pt. 593) 59; Olalekan vs The State (2001) 18 NWLR (pt. 746) 793 at 815.
Learned counsel submitted that PW.5 was an eye witness of the accident in which he was a victim and that the facts and circumstances of this case do not make him a tainted witness. Learned counsel then urged the court to resolve the issue in favour of the respondent.
I had earlier in this judgment taken the trouble to reproduce the amended grounds of appeal and the issues formulated therefrom before the Court of Appeal and observed that the point of PW5 being a tainted witness never formed part of the complaints of the appellant before that court. It is also clear from the record that it also did not form part of the complaints before the trial court, the only complaint, if at all, being as summarised and dealt with by the trial judge at pages 127 and 128 of the record as follows:-
"Learned counsel for the accused person has suggested that PW5 could not have been at a vantage point to see what was going on as he sat at the back of the Volkswagen vehicl