Muyideen Salako V. The State (2007)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

The Appellant was convicted and sentenced to a term of three years imprisonment by an Abeokuta High Court of Ogun State for the offence of causing death by dangerous driving. The two-count charge against him read- “CAUSING DEATH BY DANGEROUS DRIVING contrary to and punishable under Section 5 of the Federal Highways Act (Cap. 135) Laws of the Federation of Nigeria (LFN) 1990.

PARTICULARSOF OFFENCE

MUYIDEEN SALAKO on or about the 14th of September 1999 at about 9.00p.m at a point at Molegede Village along Abeokuta/Igboore Road, a Federal Highway in the Abeokuta Judicial Division caused the death of one Madam Isimotu Rabiu by driving a vehicle with Reg. No. XB 279 MB in a manner, which was dangerous to the public having regard to all the circumstances of the case. (Italics mine)

2ND COUNT- STATEMENT OF OFFENCE

Dangerous Driving contrary to and punishable under Section 6 (1) of the Federal Highways Act (Cap. 135) LFN 1990.

PARTICULARSOF OFFENCE

MUYIDEEN SALAKO (m) on or about the 14th of September 1999 at about 9.00p.m at a point at Molegede Village along Abeokuta/Igboore Raod, a Federal Highway in the Abeokuta Judicial Division, drove a vehicle with Reg. No. XB 279 MB in a manner, which was dangerous to the public having regard to all the circumstances of the case”.

The Appellant pleaded not guilty to the charge and at the trial that ensued, the Prosecution called five witnesses and tendered four exhibits, while the Appellant testified for himself and called one witness in his defence.

The case for the Prosecution is that on the night in question, the Appellant who was driving an Austin Lorry with Reg. No. XB 279 AAB left his lane of the road and hit a Pick-up No. XB 720 AAB driven by PW3, Shakiru Akinsanya, who was forced to lose control of the Pick-up, which ended up in the bush, and thus caused the death of 6 passengers including Madam Isimotu Rabiu. The Appellant however denied the charge, and claimed that it was raining that night when he observed the Pick-up coming from the opposite direction “holding a torchlight’ and that it was in the process of trying to avoid it that the Pick-up came to hit his own left rear tyre. In finding the Appellant guilty as charged, the learned trial Judge, Popoola, J., reasoned as follows –

“As shown in Exhibit B (i.e. sketch map) the vehicle XB 279 AAB driven by the accused had consumed 18 feet to the lane of PW3 who was coming from the opposite direction – leaving him with only 6 feet to manouvre from this point of impact, the accused vehicle XB 279 AAB pushed the vehicle of PW3 XB 720 AAB to a distance of 252 feet into the bush. The accused had therefore found himself on the wrong side i.e. on the lane of the vehicle coming in the opposite direction and has failed to explain how and why he found himself there – except for his recklessness, or excessive speed or driving in a manner dangerous to the public, especially at that time of the day 8.30p.m.” (Italics mine)

Aggrieved by the decision of the lower Court, the Appellant has appealed to this Court with a Notice of Appeal containing two Grounds of Appeal. Briefs of Argument were duly filed and served and in the Appellant’s brief filed by Dr. H. O. Kusamotu, 2 Issues for Determination were formulated as follows –

1. Whether the learned trial Judge had regard for all the circumstances of the case according to Section 5 of the Federal Highway ACT…when he convicted the Appellant herein without due regard to his defence, to wit; that PW3’s vehicle had no head lamp at the time of the accident and that it approached the Appellant’s vehicle with a torch – light.
2. Whether the learned trial Judge was right in convicting the Appellant herein upon the evidence of PW3 Shakiru Akinsanya who is a tainted witness at the trial.

The Respondent however submitted in its brief prepared by B. A. Adebayo, Esq., that the Issues for Determination in this appeal are –

1. Whether from the totality of the evidence adduced at the trial, the Prosecution had proved the charge of causing death by dangerous driving and dangerous driving against the Appellant beyond reasonable doubt in accordance with Section 138 of the Evidence Act (cap.112) Laws of the Federation of Nigeria 1990.
2. Whether Shakiru Akinsanya PW3 is a tainted witness.

In my view, there is not much difference in the Issues as formulated, except, of course, that the Respondent’s Issue 1 is couched in general terms, while that of the Appellant is more specific and zeroes in on his complaint that the lower Court did not consider his defence before convicting him as charged.