IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 12TH DAY OF MARCH 1976
PIUS JIZURUMBA ............................................... APPELLANT
THE STATE ...................................................... RESPONDENT
BEFORE: Fatayi-Williams and Idigbe, JJ.S.C, Obaseki Ag. J.S.C.
The defendant was convicted on 2 counts of manslaughter, 2 counts of causing death by dangerous driving and a count of dangerous driving, arising out of a collision between a pick-up being driven by him and a tanker driven by O., a prosecution witness, as a result of which 2 passengers in the pick-up were killed.
The questions, on appeal, were (1) whether the trial Judge erred in law in not rejecting in toto the evidence of O. and that of another prosecution witness who was in the tanker with him at the time of the accident; and (2) whether the judge erred in convicting on alternative counts.
The evidence of the two witnesses was inconsistent on one point with their statements to the police. O. explained that what he told the police was a slip of memory at a time when he had not recovered from the shock of the accident. The trial Judge regarded the explanation as satisfactory, found that the point was immaterial and believed the rest of their evidence.
(1) If an explanation satisfactory to the court is given by a witness for an inconsistency between his previous unsworn statement and his testimony in court, and the inconsistency is not substantial, the trial court, although it should be slow to do so, may however accept the other portions of his evidence, which the trial Judge rightly did in the circumstance of this case.
(2) The trial Judge erred in convicting the defendant on the 2 alternative counts of causing death by dangerous driving.
Onubogu and Anor. v. The State (1974) 9 S.C.1
The State v. Okolo and Ors. (1974) 2 S.C. 73
Joshua v. The Queen (1964) 1 ALL N.L.R. 1, 3
R v. Birch (1924) 93 L.J.K.B. 385
R v. Golder and Ors (1960) 3 ALL E.R. 475
Agwu and Ors v. The State (1965) N.M.L.R. 18, 20
R v. Williams (1913) 8 Cr. App. R. 133, 140
Azie v. The State (1973) 3 S.C. 149, 161
Gani Fawehinmi for the appellant.
M.A. Morah, Senior State Counsel, East Central State, for the respondent.
Idigbe, J.S.C. (delivering the judgment of the Court)-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) of the 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 of the road (facing Okigwe). The pick-up sustained both damage and dent on its own "off-side" (i.e. the right side of the pick-up). 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 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 of them (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 zig-zag 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:-
"....The impact burst the left front tyre of my vehicle. I switched off the vehicle and came out of the vehicle. Some passengers in the other vehicle were thrown out of the vehicle. I and my partner (meaning P.W.5) went to help the passengers in that vehicle. As we were doing this the tanker started to roll down and before I could run to stop it, it had rolled down and was wedged to the gutter ............"
P.W.4 was then cross examined by learned Counsel for the appellant and he gave the following answers:-"XXXmd by Oweni:-
".....I was no longer in my vehicle at the time it rolled down. In my statement to the police I did not state that I was inside the vehicle and could not control it when it was rolling backwards. I identify this document shown to me as my statement to the police (N.B. the statement is read and put in and admitted as Exhibit 3.) Now the statement is read I agree I said therein I was in the vehicle when it was rolling backwards. The correct version is that I had left the vehicle when it rolled down. When I made my statement to the police I had not completely recovered from the shock of the accident and I made a slip in the statement.... I disagree that it was the bursting of my tyre that made me roll backwards whereby my vehicle blocked the road consequently the accused's vehicle hit my vehicle...." (Italics supplied).
And in his evidence in chief P.W.5 testified as follows:-
".....I saw a vehicle (ECU 2797) coming from the opposite direction in a zig-zag manner. I shouted. The vehicle appeared as if it were flying-like an aircraft but was moving from side to side. .... The left front tyre of our tanker got burst with the impact and the tanker rolled back till it got to a gutter which wedged it..."
Under cross examination by learned Counsel for the appellant P.W.5 stated:
"....I was attending to the injured persons and so I did not observe what effort was made, if any, to stop the tanker when it was rolling backwards and whether or not the driver was inside it. I did not tell the police in my statement to them that the tanker had completed rolling down by the time myself and P.W.4 jumped out of it. I identify this as my statement to the police." (Admitted and marked Exh. 4).
The relevant portions of Exhs. 3 and 4 read:
"....The next thing was that the motor banged on the front of my motor (gbim). By that time, my motor begin roll back, because the front tyre on the left don burst and I cant control the motor again until the motor take back wedge gutter on the left. After that, I came down with my conductor (meaning P.W.5). I rushed to the pick-up to save the people inside it. We commit those people who wound and put them for another motor rush them to....Hospital....."
(Italics and brackets supplied).
"....My driver moved to the right and stopped until the pick-up came and jammed the front of our vehicle. The front right tyre of my vehicle bursted and the vehicle started to roll back until it reaches a gutter that stopped it. Myself and my driver came down and I rushed down to help a woman who was trapped down by the tyre of the pick-up." (Italics supplied).
Dealing with "conflict" arising from the evidence given in court by P.W.4 and P.W.5 and their several statements to the police (Exhs. 3 and 4) the learned trial Judge observed as follows:-
(A) "My understanding of the law is that if a witness had made a previous written statement to the police in any material particular which is now inconsistent with his evidence in court in that particular and no satisfactory explanation is offered for the inconsistency, the duty of the court is to reject both that statement to the police and the evidence of the witness in that material particular. In other words if there were material inconsistency, the court need not necessarily reject in toto the evidence of that witness, but shall disregard the evidence of that particular fact of which the witness has altered his stand. A witness can be believed in part and disbelieved in part."
The learned trial Judge then went on to say:
(B) "But let me examine what actually happened in this case. P.W.4 at first denied telling the police that he was in the tanker when it was rolling. He later admitted saying so but said it was a wrong statement caused by slip of memory. His evidence boils down to something like this-"I told the police I was in the tanker when it was rolling but as a matter of fact, and that is what I now maintain, I was not in the tanker when it was rolling backwards. I had already disembarked. My telling the police that I was in the tanker was a slip of memory because at that time I had not recovered from the shock of the accident.' Looking at it in this way it is clear that there is no inconsistency and no denial. Even if there was any inconsistency there is an explanation which I regard as satisfactory."
The learned trial Judge continued his observation:
(C) "There is still the question of materiality of the statement to be determined. And I will do so together with the denial of P.W.5. What is the materiality of the statement as to whether or not P.W.4 was inside the tanker at the time it was rolling down? It is common ground that there was the collision. It is common ground that the tyre of the tanker was punctured. It is common ground that the tanker rolled backwards and eventually stopped. It is not suggested that the accident took place when the tanker rolled back and eventually stopped. Does it then matter on way or the other whether the tanker rolled down with P.W.4.inside it or not? My view is that it is immaterial. For above reasons I hold that this point by itself is not sufficient to discredit P.W.4 and P.W.5 in toto". (Italics supplied).
Now, as can be seen from the above quotation which we deliberately set out in three segments, (viz: "A" "B" and "C") the learned trial Judge dealt with the law relating to previous inconsistent statements of a witness in segment A, his analysis of the inconsistency in segment B and finally his consideration of the question whether the alleged inconsistency was material to the issues before him.
The submissions of the learned Counsel for the appellant in the trial court and also in this Court is that because of the inconsistency between the evidence of P.W.4, P.W.5 and their respective statements to the police (i.e. exhibits 3 and 4 respectively) their evidence in the trial court should be rejected entirely; if rejected, then there is NOT enough evidence on which the conviction of the appellant can be sustained. We were then referred to the cases of Christopher Onubogu & Another v. The State (1974) 9 S.C.1, and The State v. Dominic Okolo & 3 Ors. (1974) 2 S.C. 73. In view of the observations of the learned trial Judge contained in the segment marked "A" in the above quotation, we think it is necessary to make a short statement on the law. On the very important issue of "witness's evidence inconsistent with his previous statement" the following statement appears in the latest edition of Archbold Criminal Pleading Evidence and Practice (See 38th Edition, page 271 at paragraph 521 a)-
"where permission is given by a judge to treat a witness for the prosecution as hostile but, on being confronted with unsworn statements made previously in the absence of the prisoner, the witness, although admitting having made the statements, swears that their contents are untrue, the contents of those statements do not become evidence, and although the jury may be directed as to their effect upon the credibility of the witness, they must not be directed that the sworn testimony may be disbelieved and the unsworn statement substituted for it... The effect of having made such a previous statement taken together with the sworn evidence is, generally, to render the evidence of the witness negligible...nor is the sworn deposition of a witness who is allowed to be treated as a hostile witness at the trial evidence per se, and it cannot be so considered by the jury...."
Again, dealing with the same subject this Court in Joshua v. The Queen (1964) 1 ALL NLR 1 at p 3 observed:
"In the case of a witness who had made previous statements inconsistent with the evidence given at the trial the court has been slow to act on the evidence of such a witness."
In the same way, the deposition (or statement made on oath) at a committal proceedings of a witness who subsequently gives evidence at a criminal trial may be used to discredit his testimony if the trial court allows such a witness to be treated as hostile, but they cannot be substituted for his evidence at the trial: R v. Birch (1924) 93 L.J.K.B. 385 also R v. Golder and others (1960) 3 ALL E.R. 475. However, in emphasizing the above principle of law, some expressions used in various court decisions suggest that the jury is bound to disregard the entirety of the testimony of such a witness (i.e. a witness so discredited by his previous inconsistent statements). This court has, however, in Agwu & Others v. The State expressed the view that:-
"If it appeared that a witness had formerly said or written the contrary of what he later swore in evidence (unless the reason of his having done so was satisfactorily accounted for) his evidence should not have much weight"-(See Agwu and others v. The State 1965 N.M.L.R. 18 at 20).
In other words, everything depends on the circumstances of the case, and if explanation satisfactory to the trial court is given for such inconsistency, and the inconsistency is not substantial, the trial court, although "it should be slow to do so", may, however, accept the other portions of the evidence given at the trial by such a witness, as, indeed, the court of Criminal Appeal in England did in R v. John Williams (1913) 8 Cr. App. R. 133. In that case Lord Alverstone C.J. observed at p.140 as follows:-
"I will say at once that the jury have to deal with the whole evidence at the trial, but if that evidence contradicts the whole of the evidence given at the police court, then the evidence given at the police court was not itself evidence against the appellant. No authority is wanted as to that. But the Court knows of no rule or authority that, because a witness denies his or her evidence as to one point, that makes the rest of the evidence inadmissible" (Italics supplied).
A witness may have a good explanation for the inconsistency between his previous unsworn statement and his evidence in court, or the inconsistency may, indeed, be minor and unsubstantial (as in the case in hand with regard to the evidence of P.W.4 and Exhibit 3) in which case the inconsistency may fail to discredit his entire testimony. In the instant case, we see no glaring inconsistency between the evidence of P.W.5 and Exhibit 4; unlike Exhibit 3, that exhibit (Exhibit 4)-read as a whole-does not say categorically that the witnesses P.W.5. and P.W.4 came down from the tanker "after" the tanker had rolled on to the gutter. In any event, although a feeble attempt was made by learned Counsel for the appellant to suggest during the cross-examination of P.W.4 that the tanker was already diagonally set across the highway when the appellant was obliged to drive against it, that suggestion was completely abandoned in the defence of the appellant which was, in our view, rightly disbelieved by the trial court. That defence was that the tanker as it drove up-hill occupied more than its proper side of the road (NOT diagonally across it) when the appellant was obliged, in the agony of the moment, to apply suddenly the brakes of the car which skidded and hit the tanker in the middle of the road. This defence is not supported by the following facts viz: (1) that it was the "offside" (i.e. right side) of the Peugeot pick-up and not the "near-side" which was dented and damaged and, (2) the investigating police constable P.W.2 found "broken glasses" not in the middle of the road but on the sand verge. As did the learned trial Judge in the court below, one therefore wonders what bearing the alleged inconsistency (i.e. on the issue whether or not P.W.4 and P.W.5 were in the tanker as it rolled down-hill) can possibly have on the overall facts of this case. We are satisfied that there is, in the circumstances of this case, none whatsoever. The learned trial Judge was satisfied with Marin Osinga's (P.W.4) explanation of the inconsistency between one aspect or point in his testimony and his previous unsworn statement (Exh. 3), and we are satisfied that his overall findings of fact were justified on the overall legally admissible evidence before him. There is, therefore, in our view, no substance in this ground of appeal which must fail.
We think, however, that there is merit in the first ground of appeal. Counts 2 and 4 of the Information are alternative. This court has on a number of occasions drawn the attention of trial courts to the law that in such circumstances they should refrain from recording verdicts and thus leave the way clear for the appellate court, in case it is felt that alternative convictions should be recorded, to do so. One of such cases in which this Court has made this observation is the recent case of Dr Gabriel Chidume Azie v. The State (1973) 3 S.C. 149 at 161. That ground of appeal, therefore succeeds.
Accordingly, the judgment of the learned trial Judge in the High Court of East-Central State dated the 30th day of June, 1975, in Charge No. HO/13C/75 is hereby affirmed in respect of Counts 1, 3 and 5 of the Information. The convictions and sentences passed in respect of Counts 2 and 4 of the Information are hereby set aside.