Michael Adeyemo V. The State (2015)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ibadan Division (the Court below) delivered on 28th March, 2011. Therein, the appellant’s conviction for causing death by dangerous driving and dangerous driving by the trial High Court of Ogun State, Ilaro Judicial Division was affirmed.

On 27th April, 2006, the appellant was arraigned before the trial court upon a two count charge of causing death by dangerous driving and dangerous driving contrary to Sections 5 and 6(1) respectively of the Federal Highways Act, Cap. F.13 LFN, 2004. He pleaded not guilty to both counts.

Before the trial court, the prosecution called three witnesses and tendered certain exhibits to prop their case. The appellant testified for himself but called no witness. The learned trial Judge, Dipeolu, J. garnered evidence from both sides of the divide and was duly addressed by counsel to the parties. In his considered judgment handed out on 24th April, 2007, the appellant was convicted on both counts and sentenced to three years imprisonment with an option of N50,000 fine.

The appellant felt unhappy with the stance of the trial court and appealed to the court below which heard the appeal on 27th January, 2011. In its own judgment, which was delivered on 28th March, 2011, the appeal was dismissed. The court below affirmed the conviction and sentence as pronounced by the trial court.

The appellant felt dissatisfied with the judgment of the court below and has further decided to appeal to this court. On 26th February, 2015 when the appeal was heard, learned counsel for the parties respectively adopted and relied on briefs of argument filed on behalf of their clients. As usual, the appellant’s counsel urged the court to allow the appeal while the respondent’s counsel urged that the appeal should be dismissed.

The sole issue couched for determination of the appeal on behalf of the appellant reads 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 and dangerous driving”

On behalf of the respondent, a similar issue was decoded for determination in different words as follows:-

“Whether from the totality of evidence adduced at the trial, the Court of Appeal rightly affirmed the conviction of the appellant for the offences charged.”

The learned counsel for the appellant contended that the learned Justices of the Court below 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.

Learned counsel maintained that despite the fact that Sgt. Mudashiru was not called, the court below wrongly affirmed the trial court’s finding that based on the said Exhibit C, the appellant left his own lane and crossed over to the deceased’s lane where he hit the deceased’s vehicle.

Learned counsel felt, that if the court below had not made the error of wrongly holding that P.W3 participated in making Exhibit C, it would not have placed any probative value on same and would, therefore not have affirmed the decision of the trial court.

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. He referred to page 23 lines 22-24 of the record where the witness stated as follows:-