THE STATE (COMPLAINANT)

v.

GODWIN EJIOFOR (ACCUSED)

(1971) All N.L.R. 580

Division: High Court of Lagos

Date of Judgment: 27th October, 1971

Case Number:

Before: Adefarasin, J.

Criminal Trial.

HELD:

(1)     For the offence of manslaughter to be established a very high degree of negligence must be established. The degree of negligence must be so gross as to amount to recklessness. A simple lack of care is not enough to sustain a charge of manslaughter.

(2)     The burden of proof in a charge of manslaughter lies on the prosecution to prove that the accident which caused the death of the deceased was due to gross negligence on the part of the accused person. It is not enough merely to prove that there was an accident and a death. The prosecution must prove that the accused person, in the manner in which he drove the vehicle showed a reckless disregard for the lives of others.

(3)     In this case, the evidence adduced by the prosecution did not show recklessness on the part of the accused or a reckless disregard for the lives of others. Neither of the prosecution witnesses saw the car driven by the accused until after it had hit, injured and killed the deceased. They were therefore not in a position to say in what manner the vehicle had been travelling. Consequently the accused must be acquitted and discharged on the charge of manslaughter laid in the first count.

(4)     There was, however, sufficient evidence before the court which showed irresistibly that the accused person had been driving in a manner which was dangerous to the public. Therefore the accused was found guilty on the second count of the charge.

Conviction on second count.

Cases referred to:

Andrews v. Director of Public Prosecutions, (1937) A.C. 576.

R. v. Tatimu, (1952) 20 N.L.R. 60.

Acts referred to:

Criminal Code s. 325.

Road Traffic Act s. 18(1).

CRIMINAL TRAIL.

CHARGE NO. LA/21C/1971.

Nicols for the accused.

Eso for the Complainant.

Adefarasin, J.:-The accused person is charged in two counts with the offence of manslaughter contrary to section 325 of the Criminal Code and also with the offence of dangerous driving contrary to section 18(1) of the Road Traffic Act. The particulars of offence which were laid are that he on or about the 19th May, 1968 in Lagos unlawfully killed Latifu Amusa and that he at the same time and place drove car No. FNCD 132 in a manner which was dangerous to the public having regard to all the circumstances of the case.

Put very briefly, the case of the prosecution is that the deceased, Latifu Amusa, a child of about the age of twelve years, died as a result of the injuries which he suffered when the private vehicle No. FNCD 132, driven by the accused person collided with him in the afternoon of Sunday the 19th May, 1968 and knocked him down along Lewis Street, Lagos at a spot which was close to No. 10, Lewis Street where he lived. Only two eye witnesses testified for the prosecution. Three other witnesses testified in regard to the state of the vehicle No. FNCD 132 upon inspection after the accident; the post mortem examination performed on the body of the deceased; and the sketch and measurements taken by the police officer who investigated the charge against the accused person.

I shall deal first with the charge of manslaughter subject matter of the first count of the indictment. There can be no doubt that the deceased died as a result of the injuries which he sustained when the car No. FNCD 132 which was driven by the accused person collided with him on Sunday the 19th May, 1968. I am satisfied that the accused person suffered a compound fracture of the tibia and fibula of both legs at the mid point. He also had multiple abrasions at the left side of the body and also on the scalp. I accept the evidence of Dr Nosirudeen Olaseni Akinlade to the effect that the cause of the death of the deceased was due to intra-cronical haemorrhage and fracture of the tibia and fibula. I have no doubt that Latifu Amusa died as a result of the injuries inflicted upon him when the vehicle driven by the accused person knocked him down and dragged him on the street over a distance. For the offence of manslaughter to be established a very high degree of negligence must be established. That degree of negligence must be so gross as to amount to recklessness (see Andrews v. Director of Public Prosecutions, 1937 A.C. 576). It is well established principle of our law that a simple lack of care is not enough to sustain a charge of manslaughter.

As I had said before only two eye witnesses of the incident testified at the trial. It seems to me from their evidence that neither of them saw the car No. FNCD 132 (which killed the deceased) immediately before it hit the deceased. It seemed clear also that apart from knowing that the deceased was playing in a part of the street neither of the two eye witnesses saw exactly what happened before the deceased was hit. The 2nd and 3rd prosecution witnesses stated that the deceased together with other little children in the house No. 10, Lewis Street were playing on the sandy part of the street. At the inspection of the scene this part was seen. The part of Lewis Street that runs in front of No. 10, Lewis Street is a narrow street with a tarred portion. Between the tarred portion of the road and the front door of No. 10, Lewis Street was a strip of untarred ground about six feet wide. There is also a drain about two feet wide right in front of the house. The space at which the deceased and other children were alleged to have been playing was so close to the tarmac that it was dangerous in the extreme for any children to have been allowed to play at such a place. Lewis Street (as indeed Bamgbose Street of which it is a continuation) is a very busy street. As I stated before neither of the two eye witnesses actually saw what happened before the deceased was killed. The following extracts from the oral evidence of the 2nd prosecution witness, Ashabi Sonaike, will show the position clearly. She said:-

"... They were playing on the sandy part of the road which is used by pedestrians walking along Lewis Street. As we sat there I suddenly heard the loud sound, of an accident and then I saw the vehicle ... I did not see the vehicle before the collision. If I had seen it I would have driven away the children from that part. I first saw the vehicle after the impact ... When I heard the bang I began to ask for the children. Then I walked some yards forward and saw that the deceased Latifu Amusa had been injured on the head and on the side ... At first I did not know that it was Latifu that was hit by the car. That was why I got up to find out what had happened."

The following extract in the oral evidence of Fehintola Greene, 3rd prosecution witness, will also show that this witness did not know what had happened until after the incident. She had said:-

"... As we sat there Latifu Amusa was on the sand in front of us. The deceased was not on the tarred part of the road. He was on the sand which was between the house and the tarred portion of the road. As we sat on the pavement I just heard a sound. It was a continuous sound. Then it subsided. Then I heard some people shout and say that Latifu was under the vehicle ... I saw the car as it was coming. It was a white car ... It was when the car had collided with the child that I saw the car. It was a white car ... I knew I saw a white car but now that Counsel was suggesting that it was a black car I say that I am an old person."

At the scene of the incident both the 2nd prosecution witness and the 3rd prosecution witness were asked to show to the court where the children were playing. The 2nd prosecution witness showed a position to the left of No. 10, Lewis Street while the 3rd prosecution witness showed a position to the right of the house. The two positions were quite far from one another. It seems to me from the oral evidence of these two witnesses that neither of them saw what had happened. Neither of them in my opinion saw the car driven by the accused until after it had hit, injured and killed the deceased. They were therefore not in a position to say in what manner the vehicle had been travelling. Besides, the road was curved in front of No. 10, Lewis Street in such a way that no one sitting where these witnesses said they had been sitting could have seen more than about ten feet in the direction of the Bamgbose end of Lewis Street.

The burden of proof in a charge of manslaughter lies on the prosecution to prove that the accident which caused the death of the deceased was due to gross negligence on the part of the accused person. It is not enough merely to prove that there was an accident and a death. (See R. v. Tatimu 1952 20 N.L.R. 60.) There is no rule that if an accident occurs and death results the driver must be guilty of manslaughter unless he explains the accident to the satisfaction of the court. The duty of the prosecution in a case of manslaughter is to prove that the accused person, in the manner in which he drove the vehicle showed a reckless disregard for the lives of others. The evidence adduced by the prosecution in this case does not show recklessness on the part of the accused or a reckless disregard for the lives of others. In fact no one who saw the manner in which he had been driving testified before the court. Five children were said to have been playing with the deceased and the deceased was the only one who had been injured or killed. None of the others was called to say what had happened. In his own defence the accused person stated that two children suddenly crossed the road from the right side of Lewis Street (which was the side at which the house No. 10, Lewis Street stood) to the left and he swerved towards the right in order to avoid a collision with them. He then said one of the boys, the deceased, ran back and that his car hit and injured him. The explanation given by the accused may reasonably be true. Even if I am not convinced that it is true, the accused person is entitled to be acquitted on the charge of manslaughter in that the prosecution has failed to discharge the burden cast upon it of satisfying the court beyond reasonable doubt of the guilt of the accused person. In the circumstances I have no alternative but to acquit and discharge the accused person on the charge of Manslaughter laid in the first count.

I now turn to the second count of the charge which charges the accused person with the offence of dangerous driving contrary to section 18(1) of the Road Traffic Act. As I have said earlier Lewis Street is a narrow, crowded and busy street and it seems to me that any motorist driving along that street has a duty to drive with care and caution. While it is true to say that no eye witness who had seen the manner in which the accused person was driving had testified before the court nevertheless there is sufficient evidence before the court which shows irresistibly that the accused person had been driving in a manner which was dangerous to the public. The evidence shows that having regard to the nature of the road at the material time the accused person must have been travelling at a speed and in a manner which was dangerous to the public. Because of this he was not able, when confronted with the deceased, to stop. After the accused person had knocked down the deceased at the point shown by him to the 4th prosecution witness (the point "X" on the sketch Exhibit "2") his car dragged the deceased some twenty-two feet four inches forward and he finally stopped on the crown of the road at the junction of Beecroft Street and Lewis Street. I find the accused person guilty on the second count of the charge.