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Moses v. State

DICKSON MOSES

V

THE STATE

COURT OF APPEAL

( IBADAN DIVISION )

DALHATU ADAMU, JCA ( Presided )

FRANCIS FEDODE TABAI, JCA

OLUFUNLOLA OYELOLA ADEKEYE, JCA ( Read the Lead Judgment )

CA/I/29/99

THURSDAY, 17TH JANUARY, 2002

COURT - Appellate court - When will interfere with findings of trial court

COURT - Court of Appeal - Power of to make conviction order and pass sentence - Section 16, Court of Appeal Act

COURT - Duty on to consider every defence emanating in criminal cases

COURT - Duty on to hear all parties before reaching its decision

COURT - Duty on to take judicial notice of all enactments and subsidiary legislations

CRIMINAL LAW AND PROCEDURE - Accused person - Guilt of - Evidence required to prove same by prosecution - Need for to be credible

CRIMINAL LAW AND PROCEDURE - Accused person - Where asserts non-admittance of prosecution’s evidence - Duty on to prove those facts

CRIMINAL LAW AND PROCEDURE - Accused person charged under section 5(1) of Federal Highway Act, 1971 - Guilt of - Evidence required to prove same

CRIMINAL LAW AND PROCEDURE - Crime - Commission of - Three ways of proving same

CRIMINAL LAW AND PROCEDURE - Defence - Non consideration of in criminal cases - Whether amounts to denial of fair hearing

CRIMINAL LAW AND PROCEDURE - Defence emanating in criminal cases - Duty on court to consider same

CRIMINAL LAW AND PROCEDURE - Defence- Prosecution’s failure to investigate same - Court’s failure to examine or consider same Effect on conviction where such failure would lead to miscarriage of justice

CRIMINAL LAW AND PROCEDURE - Proof - Proof beyond reasonable doubt in criminal cases - Whether means proof beyond all shadows of doubt - Section 138(1) Evidence Act

CRIMINAL LAW AND PROCEDURE- Proof beyond reasonable doubt in criminal cases - Whether means proof beyond all shadows of doubt -  Section 138(1) Evidence Act

EVIDENCE  - Judicial notice - Facts to take judicial notice of - Whether need to be proved - Need for court to take judicial notice of all enactments and subsidiary legislations

EVIDENCE - Accused person - Guilt of - Evidence required to prove same by prosecution - Need for to be credible

EVIDENCE - Accused person charged under section 5(1) of Federal Highway Act, 1971 - Guilt of - Evidence required to prove same

EVIDENCE - Commission of crime - Proof of - Three ways of proving

EVIDENCE - Credibility of evidence - Whether based on number of witnesses called to testify on a point

EVIDENCE - Proof - Facts to be taken judicial notice of - Whether need to be proved

EVIDENCE - Proof - Proof of commission of crime - Standard required of prosecution - Whether needed to be beyond all shadows of doubt EVIDENCE - Proof - Standard required in criminal cases - When burden of proof shifts to accused person - He who asserts must prove Section 138, Evidence Act

EVIDENCE - Proof of guilt of accused person - Need for evidence to be credible and qualitative upon which a court can safely convict Nature of evidence required to prove the guilt of person charged under section 4 of Federal Highways Act, 1971

EVIDENCE - Tainted witness - Meaning of - Need for court to treat evidence of with caution

EVIDENCE - Witness - Eyewitness - Evidence of - Importance thereof

EVIDENCE - Witnesses - Evidence of a single witness - Whether conviction can be based thereon

EVIDENCE - Witnesses - Tainted witness - Evidence of - Need to treat same with caution

FAIR HEARING - Need for court to consider the case of every party before reaching a decision - Effect of not so doing - Duty of court to do substantial justice

FAIR HEARING - Non consideration of defence in criminal cases - Whether amounts to denial of fair hearing

JUDGMENT AND ORDERS - Court’s decision - Whether every error or mistake therein will vitiate same

JUDGMENT AND ORDERS - Decision of court - Whether vitiated by every error therein

STATUTE - Enactments and subsidiary legislations - Judicial notice of Duty on court to take

STATUTE - Federal Highway Act, 1971, section 5(1) - Accused person charged thereunder - Guilt of - Evidence required to prove same WORDS AND PHRASES - ‘Tainted witness’ - Meaning of

Issues:

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’s.

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 reasonable doubt.

Facts:

This appeal emanated from the decision of Ogun State High Court ( Criminal Division). An information was filed at the court in which the appellant was accused of causing the death by dangerous driving of one Olufemi Adetola on 23/1/90 at Oke Owa along old Ondo-Benin-Ijebu Ode Road, an act contrary to and punishable under section 4 of the Federal Highway Act (No. 4 of 1971).

At the trial, the prosecution called six witnesses and tendered four exhibits. The appellant pleaded not guilty before the trial court, gave evidence in his own defence and did not call any witness.

The trial Judge in a considered judgment delivered on the 29th of October 1992 found the appellant guilty and convicted him on count one, that is causing death by dangerous driving while staying further proceedings on count two - the charge of dangerous driving. The appellant was sentenced to three years imprisonment.

Being dissatisfied with the decision, the appellant has now appealed to the Court of Appeal.