Tag: rea

The Appellant was on  April 27, 2006, arraigned before the High Court Ogun State Ilaro Judicial Division upon a two count charge (which charge was consequently amended and re-read to the appellant who pleaded not guilty on  December 5, 2006) of causing death by dangerous driving and dangerous driving contrary to Section 5 of the Federal High Way Act, Cap. 135 LFN 1990 and Section 6(1) (Now Cap. F.13 LFN 2004) of same. The trial Court in a well considered judgment delivered on April 24,2007, convicted the appellant of the offences of causing death by dangerous driving and sentenced him to three years imprisonment with an option of fine. The appellant felt unhappy with the stance of the trial Court and appealed to the Court of Appeal who dismissed on  March 28, 2011 and the judgment of the trial Court was affirmed. The appellant who was dissatisfied again with the outcome at the Court of Appeal now appealed to the Supreme Court. From the notice of appeal and the four grounds filed, a lone issue was raised on behalf of the appellant in his brief of argument as follows:-

Whether the Court of Appeal was right in affirming the judgment of the trial Court that found the appellant guilty of causing death by dangerous driving ?

The learned counsel for the appellant contended that the learned Justices of the Court of Appeal were wrong in affirming the judgment of the trial Court which found the appellant guilty of the offences charged. He maintained that Exhibit ‘C’, the rough sketch of the scene of accident, was not the joint act of P.W.3, WPC Sarah Oladipo and one  Sgt. Mudashiru as found by the two Courts below. Learned counsel maintained that P.W.3 admitted that Sgt. Mudashiru drew Exhibit ‘C’. He asserted that it is trite that the Court will not accord any probative value to a document where its maker is not called upon to tender it and give evidence at the trial. In support, he cited the cases of Lambert v. Nigerian Navy (2006) 7 NWLR (Pt. 980) 514 at 547 and Awuse v. Odili (2005) 16 NWLR (Pt.952) 416 at 509; (2005) LPELR-11283(CA). Learned counsel maintained that despite the factthat Sgt. Mudashiru was not called, the Court belowwrongly affirmed the trial Court’s finding that basedon the said Exhibit C, the Appellant left his ownlane and crossed over to the deceased’s lane wherehe hit the deceased’s vehicle.Learned counsel felt, that if the Court below had notmade the error of wrongly holding that P.W3participated in making Exhibit C, it would not haveplaced any probative value on same and would,therefore not have affirmed the decision of the trialCourt.

On this crucial point, the learned counsel for the respondent maintained that having regard to the evidence of P.W.3 on record, the prosecution did not need to call Sgt. Mudashiru. Learned counsel submitted that he did not see how the appellant’s counsel could, with confidence, say that the drawing of Exhibit ‘C’ was not a joint act of P.W.3 and Sgt. Mudashiru. He stated that it was beside the point that the act was not a joint one. It does not tally with gumption that Sgt. Mudashiru would take measurement of the scene of accident all by himself alone. The two Courts below were right in finding that the drawing of the sketch – Exhibit ‘C’ was a joint act of P.W.3 and Sergeant Mudashiru. Learned counsel further contended that there was no basis whatsoever from the record for holding that the appellant left his lane for the deceased’s lane without any proof of any emergency or sudden uncontrollable mechanical defect and same was prima facie evidence of dangerous driving. He maintained that both in his oral evidence and his extra-judicial statement – Exhibit D, the appellant maintained that it was the deceased who left his own lane to cause the accident. He referred to the case of Aigbadion v. The State (2000) 7 NWLR (Pt.666) 686 at 702; (2000) LPELR-264(SC).

Considering the appeal, he stated that if the appellant wanted to call some of the surviving passengers, he was at liberty to call them to prop his case. He should not dictate to the prosecution how they should carry out their job. The appellant had the free volition to call any of the passengers who survived the accident to testify on his behalf. See: Ekpenyong v. The State

(1991) 6 NWLR (Pt.2000) 683. The Court went further to state the ingredients of the offences of causing death by dangerous driving which must be proved beyond reasonable doubt as follows:-

(a) That the accused’s manner of driving was reckless or dangerous;

(b) That the dangerous driving substantially caused the death of the deceased; and

(c) That the accident occurred on a Federal Highway.

For the above, the cases of Amusa v. The State (2003) 13 N.S.C.Q.R 173 at 179; (2003) LPELR-474(SC) and Aruwa v. The State (1990) 6 NWLR (Pt.155) 125 at 135 were cited.

It should be noted that the appellant’s main complaint in this appeal was that the first ingredient of the offence was not proved. Learned counsel for the appellant asserted that there was no evidence whatsoever on record as to how the accident occurred. He felt that there was no evidence that the manner in which the appellant drove his vehicle was reckless or dangerous. He felt that the trial Court merely relied on circumstantial evidence of the relative position of the two vehicles at the point of impact in establishing the guilt of the appellant which position was also affirmed by the Court below. Learned counsel cited the case of Idowu v. The State (1995) 11 NWLR (Pt.574) 354 at 370 for the grounds upon which circumstantial evidence would ground a conviction. See: also Omogodo v. The State (1981) 4 S.C. 16; (1981) LPELR-2644(SC). Learned counsel submitted that the Court below was wrong to hold that the circumstantial evidence in this case points irresistibly to no other conclusion but to the guilt of the appellant.

Learned counsel for the respondent submitted that dangerous driving is proved by the slightest negligence on the part of a driver so charged. He stressed the point that driving from one side of the road to the other, amounts to driving to the danger of the public. In support, he cited the case of The State v. Stephen Ejenabe (1976) 1 NMLR 135. Learned counsel for the respondent further submitted that to leave one’s lane to the other lane when another vehicle is approaching from the opposite direction, as in the instant matter, and thereby causing one’s vehicle to hit that other, in the process, is dangerous driving. In support, he cited the case of Moses v. The State (2006) All FWLR 1437 at 1472.

The Court stated that that the trial Court upon a correct reading of Exhibit ‘C’ wherein appellant’s mode of driving was evinced, found that the appellant left his own lane of the road to collide with the vehicle driven by the deceased on his own side of the road. That was a dangerous piece of driving. The Court held that such is a sufficient circumstantial evidence required to sustain a conviction. It was prima facie evidence of dangerous driving. See: Isibor v. The State (1970) All NLR 248 at 256. The Court held that same irresistibly and unequivocally leads to the guilt of the appellant. No other reasonable inference can be drawn from it. As well, there are no other co-existing circumstances which could weaken the inference drawn therefrom. See the case of Omogodo v. The State (1981) 4 S.C. 16; (1981) LPELR-2644(SC).

For the proof of the second ingredient that the dangerous driving caused the death of the deceased Jelili Adekoba is not far fetched. The Court noted that the evidence adduced by P.W.2 and P.W.3 as well as the medical report in Exhibit B clearly established that the injuries found on the body of the deceased were consistent with road accident. Exhibit B confirmed the cause of death to be as a result of severe head injury and internal haemorrhage. The cause of death could be inferred to be due to the accident. See Numo-Mallam Ali v. The State (1988) 1 NWLR (Pt.68) 1. The Court agreed with the two lower Courts that the act of the appellant resulted in the death of the deceased.

The third ingredient of the offences charged is that the accident occurred on a Federal Highway. Learned counsel for the Respondent submitted that the trial Court took judicial notice of the road as a Federal Highway. The Court below also affirmed same. He asserted that the law is settled that proof of a matter of which judicial notice is taken, it not necessary. He cited the case of Onyekwere v. The State (1973) 5 SC 14; (1973) LPELR-2734(SC) in support. He submitted that the affirmation accorded same by the Court below was rightly done. It was extant in the record that the accident occurred along Sango/Idiroko road which was taken judicial notice of by the trial Court and affirmed by the Court below as a Federal Highway. The Court below went a step further to refer to Section 74(1)(a) of the Evidence Act wherein the Court is empowered to take judicial notice of all laws or enactments and any subsidiary legislation made thereunder having the force of law now and heretofore in any part of Nigeria. The Court supported and accordingly affirmed the position taken by the Court below as pragmatically expressed by it. The Court held that the said road was rightly found to be a Federal Highway; to say the least.

In the final analysis, the Court held that the two count charge framed against the appellant have been clearly proved beyond reasonable doubt. After all, proof beyond reasonable doubt is not proof to the hilt. The Court held that in this matter wherein all the ingredients of the offences charged had been clearly established, the case was proved beyond reasonable doubt. See: Alabi v. The State (1993) 7 NWLR (Pt.307) 511 at 523; (1993) LPELR-397(SC), Abogede v. The State (1996) 5 NWLR (Pt.448) 270 at 276; (1996) LPELR-45(SC). The Court came to the inevitable conclusion that the appeal, no doubt, lacks merit. It was accordingly dismissed. The judgment of the Court below which affirmed that of the trial Court wherein the appellant was convicted and rightly sentenced, was confirmed by the Supreme Court.

LawPavilion Citation: (2015) LPELR-24688(SC)

Compiled by: LawPavilion