IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 22ND DAY OF MAY 1970
VINCENT ISIBOR ....................................................... APPELLANT
THE STATE .............................................................. RESPONDENT
BEFORE: Lewis, Madarikan, Fatai-Williams, JJ.S.C
Criminal Law-Evidence-Judge refusing to allow deposition to be put in on request of Counsel from the Bar without calling witness to formally tender it-Whether proper-Evidence Act sections 198, 208.
Criminal Law-Dangerous driving-Motor vehicle-Collision-Appellant driving out of a minor road into a major road despite the sign-No evidence of speed-Whether trial Judge right in convicting appellant of dangerous driving-Road Traffic Act section 18(1).
Appeal from the High Court of Lagos.
(1) Once by virtue of section 198 or 208 of the Evidence Act it is sought to put in a deposition of the witness who is being cross-examined as to his previous statement then it can be done by producing the original or a certified true copy which would then come within the provisions of section 96(1)(e) and 96(2)(c) of the Evidence Act when read in conjunction with section 113 of the Act.
In this case the trial Judge was wrong to refuse to admit the deposition of the witness which was duly signed by him and otherwise compiled with the requirements of the Evidence Act without being tendered through a witness.
(2) If the trial Judge had evidence on which he could rely, and these was such evidence, that the collision took place at the junction of the two roads and that the appellant, whether driving fast or not, drove continuously out from the minor road into the major road despite the sign, then he was entitled to come to the conclusion that he did that the he did that the appellant was guilty of dangerous driving.
Cases referred to:
Crown v. Majekodunmi 14 W.A.C.A. 64.
R. v. Shofoluwe (1951) W.A.C.A. 264.
R. v. Insinguzoh (1959) 4 F.S.C. 4.
R. v. Thomas (1945) 11 W.A.C.A.
R. c. Ikpe (1960) 5 F.S.C. 180.
Mozie v. Mbebie and anor (1966) N.M.L.R. 167.
Hearts of Oak Assurance Co. v. James Flower and Sons (1936) Ch. 76.
Hart v. The Queen (1958) 42 Cr. App. E. 47.
Burnell v. British Transport Commission (1956) 1 QB 187.
Penn-Texas Corporation v. Murat Anstalt (1964) 1 QB 40.
Regina v. Governor of Brixton Prisons (1969) 2 W.L.R. 618.
Ball v. The Queen (1966) 50. Cr. App. R. 266.
Acts referred to:
Road Traffic Acts 18 (1).
Evidence Act sections 34, 114, 198, 208.
Supreme Court Act section 26(1).
Appeal from the High Court of Lagos.
Chief Williams for the appellant.
Adeogun (Principal State Counsel, Lagos State) for the respondent.
Lewis, J.S.C. (delivering the judgment of the court):-On the 21st of July, 1969, in the Lagos High Court in Charge No. LA/13C/69, Adefarasin, J. found the accused not guilty of manslaughter but guilty of dangerous driving contrary to section 18(1) of the Road Traffic Act and sentenced him to a fine of £100 or six months imprisonment with hard labour, and against that conviction the accused has appealed to this Court.
Chief Williams for the appellant first argued his third ground of appeal which reads:-
"The learned trial Judge erred in law in not admitting in evidence the deposition of Mr Leigh and thereby came to a wrong conclusion on the facts of this case."
When the PW7, one Mr Oladeinde Leigh, who was the only eye-witness to the accident, was being cross-examined the record shows what took place in this regard as it reads-
"I did not see Madam Adekunbi King until after she had been knocked down. (Akesode: I ask for leave to produce the deposition of the witness at the preliminary investigation to show what he had said at the lower court.
Alao: I do not agree.
Court: The deposition of the witness should be made available and given to Mr Akesode. I agree and I rule that where a witness made a statement at the preliminary investigation and at the trial denies it, it is proper for the defence to put in the statement for purpose of credibility. But I cannot see how the defence will put it in through this witness.
Chief Williams.-I refer to sections 104 and 114. I will say that we will not tender this document through the witness who says he cannot read it. We want to tender it from the Bar.
Alao.-I object to this document being produced from the Bar. I refer to sections 34 and 114 of the Evidence Act. I refer to Crown v. Majekodunmi 14 W.A.C.A. p. 64."
The learned trial Judge then gave his ruling where after referring to sections 34 and 114 of the Evidence Act he went on to refuse the admission of the deposition saying-
"It is not enough to produce the deposition from the Bar having obtained it from the clerk of the court. Before such deposition can be admitted the circumstances upon which its admission is based must be shown to exist and this can only be done by evidence on oath unless there is statutory provision to the contrary. (See R. v. Shofoluwe 1951) W.A.C.A. 264; R. v. Isinguzoh (1959) 4 F.S.C. 4; R. v. Thomas (1945) 11 W.A.C.A.; see also Brett and McClean paragraph 853; see also R. v. Ikpe (1960) 5 F.S.C. 180; see Brett and McClean paragraph 944).
The point really is that some evidence, may be that of the registrar, is required providing the basis for the admission of this document for what it appears to be on the surface of it.
Since such evidence has not been forthcoming I will not at this stage admit it. I am, of course, prepared to receive the necessary evidence and then admit the document. At this stage it may be marked "tendered but rejected."
As no further evidence was in fact adduced the deposition was never put in.
Now it is Chief Williams' contention that the learned trial Judge was in error in refusing to allow the deposition to be put in on the request of Counsel from the Bar without calling a witness to formally tender it. He relied on the provisions of section 198 of the Evidence Act which reads-
"198.A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
He read that section in conjunction with section 113 of the Evidence Act which reads-
"113. (1) The court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any other officer in Nigeria who is duly authorised thereto to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
(2) The court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.",
and with that of sections 96(1) (e) and 96(2)(c) of that Act which read-
"96. (1) Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-
(e) when the original is a public document within the meaning of section 108;
96. (2) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of subsection (1) is as follows:-
(c) in paragraph (e) or (f) a certified copy of the document, but no other kind of secondary evidence, is admissible;"
He then pointed out that the deposition was a public document within section 108(a) of that Act which reads-"108. The following documents are public documents:-
(a) documents forming the acts of records of the acts:-
(i) of the sovereign authority;
(ii) of official bodies and tribunals; and
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere;"
Finally he referred us to Mozie v. Mbebie and anor. (1966) N.M.L.R. 167, but that was a High Court decision showing that the evidence given by a witness earlier before a coroner when put to him in cross-examination was admissible, and did not in our view establish how it was to be admitted. In support however of his proposition that a witness need not be called he referred us to Hearts of Oak Assurance Co. v. James Flower and Sons  Ch. 76 as showing that in appropriate circumstances the minutes of a directors' meeting could be put in without doing so through a witness by virtue of the provisions of section 120 of the Companies Act, 1929 (section 73 of the Companies Act (Cap. 37 of the Laws of the Federation of Nigeria and Lagos, 1958) is the equivalent section in Nigeria).
Mr Ajose-Adeogun or the respondent submitted that we should also have regard to section 208 of the Evidence Act which reads:-
"208.A witness may be cross-examined as to previous statements made by him in writing relative to the subject-matter of the trial without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always that it shall be competent for the court at any time during the trial, to require the production of the writing for its inspection, and the court may thereupon make use of it for the purposes of the trial, as it shall think fit."
When this Court however referred him to the case of Majekodunmi v. The Queen (1952) 14 W.A.CA. 64, he agreed that if the copy of a deposition was a certified true copy and came from court custody then it could be put in.
Now in our view in Majekodunmi's case (supra) the West African Court of Appeal did determine that a deposition of a witness who was otherwise proved to be unavailable within the terms of section 34 of the Evidence Act could be put in without doing so through a witness as Foster-Sutton, P. at page 66 said-
"Counsel for appellant then submitted that the deposition of Eric Parr, surveyor, Posts and Telegraphs Department, had been wrongly admitted in evidence at the trial because it was not properly proved, Counsel for the Crown having merely applied for the deposition to be read after producing a notice in the Official Gazette that the witness was out of the country on leave.",
and after referring to sections 34 and 114 of the Evidence Ordinance (as it then was) and to Part XXXVI of the Criminal Procedure Ordinance said at Page 67-
"In our opinion, providing the requirements of the sections of the Ordinances, to which I have referred, have been met, the deposition of a witness taken at a Preliminary Enquiry, and produced from the custody of the Registrar of the court before which the trial is held, may properly be admitted in evidence without further proof. That being so it follows that, in our view, the trial Judge rightly admitted in evidence the deposition in question in this case."
Here the deposition sought to be put in was not to be admitted by virtue of section 34 of the Evidence Act but we think that the principle there enunciated is applicable and once by virtue of section 198 or 208 of the Evidence Act it is sought to put in a deposition of the witness who is being cross-examined as to his previous statement then it can be done by producing the original or a certified true copy which would then come within the provisions of section 96(1)(e) and 96(2)(c) of the Evidence Act when read in conjunction with section 113 of that Act. We think that Mr Ajose-Adeogun was correct in his submission that section 208 of the Evidence Act could be applicable to a deposition. See Hart v. The Queen (1958) 42 Cr. App. R. 47 and Phipson on Evidence eleventh edition paragraph 1550. Finally we think support for the principle that the evidence could be admitted automatically by virtue of the statutory provision and without calling a witness to tender the deposition is to be found in-
(i) Burnell v. British Transport Commission  1 Q.B. 187 where at page. 190 Denning, L.J., as he then was, said:-
"I would like to add that, since the Evidence Act, 1938, the document, once it was legitimately in the presence of the court, would be admissible as evidence under that Act also. I think, therefore, that we should look at the document, just as the judge did."; and
(ii) Penn-Texas Corporation v. Murat Anstalt  1 Q.B. 40 where at page 68 Harman, L.J. said:-
"There are, of course, certain documents which prove themselves if coming from the proper custody and in that case can be put before a court under a subpoena duces tecum without the swearing of any oath by a witness."
It follows that in our view the learned trial Judge was wrong to refuse to admit the deposition of the witness which was duly signed by him and otherwise complied with the requirements of the Evidence Act to which we have referred without being tendered through a witness.
Mr Ajose-Adeogun however submits that notwithstanding the wrongful exclusion of the deposition this is a case where there has been no miscarriage of justice and he asks us to apply the proviso to section 26(1) of the Supreme Court Act, 1960. Chief Williams submitted that we should not apply the proviso as there was material upon which the appellant could have relied in showing that the PW7 said he saw the woman who was knocked down and killed by the accident between the appellant's vehicle and another one, whilst in his evidence at the trial the PW7 said he did not see her "until after she had been knocked down." We cannot ourselves see that this was very essential evidence or that the decision would have been otherwise had it been so admitted, as it should, especially as we note that further under cross-examination by the 1st accused in that deposition the witness said-
"Both vehicles collided with each other when both drivers were speeding at the junction of the two roads,"
as that was very much against the case that Chief Williams sought to make in his other grounds of appeal to which it is convenient now to turn.
Chief Williams argued together two other grounds of appeal which read:-
"1. The learned trial Judge erred in law in failing to observe that upon his rejection of the evidence of the witness Mr Leigh as to speed, there is absolutely no evidence left of the manner in which the appellant drove on the date of the accident.
2. The learned trial Judge erred in law in convicting the appellant of dangerous driving when the findings of fact made by him do not and cannot support such conviction."
Now, as we have said earlier, only one eye-witness to the accident was called and he said he was sitting outside his house about 8 p.m. on the 28th November, 1966 and he went on to say-
"I sat in front of our house. Our house faced Griffith Street. The house was a corner piece, one side was on Griffith and the other on Jebba. I saw a car No. LJ9849 was coming along Jebba Street and another one LM2961 was travelling along Griffith Street, both vehicles were speeding. Where I sat I saw both Jebba Street and Griffith Street. The two vehicles were travelling at top speed. The two vehicles collided at the centre of the junction of both roads. Then I heard a shout "Kunbi is there".",
but the learned trial Judge said as to his evidence-
"The court inspected the scene of the incident. The witness Leigh showed the court where he had been sitting on the day in question. He pointed out a shed under which he was sitting. This shed was about 20 yards to the junction of Griffith Street and Jebba Street. From the position which the witness Leigh said he was sitting he was facing Griffith Street. Sitting in this position (as I did at the inspection) it was possible to have a full view of Griffith Street but only a limited view of the Denton Street end of Jebba Street, from which end the accused had been coming. One could only see an area of that end of Jebba Street about 12 to 15 yards from the road junction. Sitting in this position it is my view that the witness Leigh could not have seen much of the Volkswagen car No. LJ9849 driven by the accused, before the actual collision. Quite apart from this was the fact that as the accused was coming from the Denton Street end of Jebba Street he would either have started his journey at a point between Jebba Street and the junction or would have turned into Jebba Street. Now the junction of Jebba and Griffith Streets could only be between 80 yards and 100 yards to Denton Street. In either case the accused could not have sufficient time, (having just turned into the street or having just begun his journey which ever was the case) to accelerate his car to top speed. As I have said, the witness Leigh could not really have an opportunity of seeing the speed at which the vehicle of the accused was travelling judging from where he said he was sitting... I have decided that the evidence of speed that there was not reliable."
He then went on to find that, as the appellant was driving on a minor road and he did not believe him when he said that he slowed down and looked right and left before crossing at the junction where there was a "Slow, major road ahead" sign on his minor road, he was guilty in the circumstances of dangerous driving.
Chief Williams submitted that having rejected the evidence of the PW7 the learned trial Judge was wrong to reject the appellant's story of slowing down and looking right and left and that even if he did so that did not prove the converse, i.e. that he was affirmatively shown to have crossed the junction without stopping and he relied on Regina v. Governor of Brixton Prison  2 W.L.R. 618 in particular at page 622.
We would certainly agree with the principle enunciated in that case that lies do not prove the converse, but Chief Williams' submission turns on accepting that the learned trial Judge totally rejected the evidence of the PW7 and we do not think in fact he did. As a result of visiting the scene of the accident the learned trial Judge was satisfied that the PW7 did not have a view of the appellant's car for more than 12 to 15 yards of Jebba Street, and that he could not accordingly have had time to assess the speed at which the appellant's car was being driven. Be that as it may and accepting the learned trial Judge's finding of fact the witness at the scene showed the learned trial Judge the point of impact, and we are of the view the learned trial Judge was entitled to find from his evidence that he saw two vehicles collide at the junction of a minor road and that impliedly they did not stop though their speed was not determined. It is thus not necessary to infer the converse from his disbelieving the appellant's story that he did slow down and look both ways and the learned trial Judge did not in fact so put it. If the learned trial Judge had evidence on which he could rely, and we think there was such evidence, and the collision took place at the junction of the two roads and that the appellant, whether driving fast or not, drove continuously out from the minor road into the major road despite the sign, then we think he was entitled to come to the decision that he did that the appellant was guilty of dangerous driving. Compare Ball v. The Queen (1966) 50 Cr. App. R. 266 where at page 270 Parker, L.C.J. said-
"It is, in the opinion of this Court, perfectly clear that what is meant by 'driving in a manner dangerous' is the manner of the actual driving, which in this case was the coming out of a minor road across a major road. It has been held time and time again that an offence under this section is an absolute offence, not a question of the driver being vicariously liable for somebody else's action, but it is a liability on the driver which he cannot get rid of, and if the result of his driving produced what the jury considered to be a dangerous situation, a dangerous manoeuvre, then even though he had been completely blameless, he can be held liable."
The appeal against conviction of dangerous driving is accordingly dismissed.