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:-
“Sgt. Mudashiru and I went to the scene of the accident at Ogosa Area along Idiroko and Owode Road. There we drew a rough sketch of the scene and took photographs—-”
With the above, I do 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. It is 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. I have no hesitation in affirming the position taken by the two courts below. They were right in placing premium on the stated Exhibit ‘C’.
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.
Learned counsel asserted that it was surprising that the court below followed the trial court to wrongly find that based on Exhibit ‘C’, it was the appellant who left his lane for the deceased driver’s lane to cause the accident.
I do not see why the two courts below should agree with the reasoning process of the appellant’s counsel. It was a matter of map reading. I have taken a close look at the said Exhibit ‘C’. Clearly, the point of impact is on the deceased’s lane. The two courts below were right in finding that it was the appellant who left his own lane to collide with the deceased’s own vehicle on his lane. It would have been preposterous to have found otherwise.
Another point tacitly raised by the appellant’s counsel was that the respondent did not deem it necessary to take the statement of any of the passengers in respect of what happened. He felt that the court below should not have affirmed the judgment of the trial court.
Let me say it 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.
It is of moment to now state the ingredients of the offences of causing death by dangerous driving and 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; Aruwa v. The State (1990) 6 NWLR (Pt.155) 125 at 135 are of moment and quite apt.
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 where it was held that circumstantial evidence can only ground a conviction if and only if:-
(1) it irresistibly and unequivocally leads to the guilt of the appellant;
(2) no other reasonable inference can be drawn from it; and
(3) there are no co-existing circumstances which could weaken the inference. See: also Omogodo v. The State (1981) 4 S.C. 16.
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.
Let me say it right away that the trial court upon a correct reading of Exhibit ‘C’ wherein appellant’s mode of driving is 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. 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. 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 (supra).
The proof of the second ingredient that the dangerous driving caused the death of the deceased Jelili Adekoba is not far fetched. 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 act of the appellant resulted in the death of the deceased. The court below, in affirming the stance of the trial court, so found. They were right.
The 3rd 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 in support. He submitted that the affirmation accorded same by the court below was rightly done.
It is 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 –
“(a) all laws or enactments and any subsidiary legislation made thereunder having the force of law now and heretofore in any part of Nigeria.”
By the Federal Highways (Declaration) Order No.101 of 1971, a Subsidiary Legislation made under Section 24 of the Federal Highways Act, the said road is grouped under the number of highways as A.1 at page 5818 of Cap.135 of vol. VIII of the Laws of the Federation of Nigeria (LFN) 1990 Edition. See: Moses v. The State (2006) 4 SCNJ 190 at 222.
I support and accordingly affirm the position taken by the court below as pragmatically expressed by it. The said road was rightly found to be a Federal Highway; to say the least.
The two courts below made concurrent findings on various points canvassed in this appeal. It is not in the character of this court to interfere with same when they are not shown to be perverse. As well, no compelling reasons have been shown by the appellant to justify any form of interference. I shall not interfere. See: Shorumo v. The State (2010) 12 SC (Pt.1) 73 at 96; Igwe v. The State (1982) 9 SC 174, Victor v. The State (2013) 12 NWLR (Pt.1369) 465 at 485.
Perhaps, I should also say it briefly 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. In this matter wherein all the ingredients of the offences charged have been clearly established, the case is proved beyond reasonable doubt. See: Alabi v. The State (1993) 7 NWLR (Pt.307) 511 at 523; Abogede v. The State (1996) 5 NWLR (Pt.448) 270 at 276.
I come to the inevitable conclusion that the appeal, no doubt, lacks merit. It is accordingly hereby dismissed. The judgment of the court below which affirmed that of the trial court wherein the appellant was convicted and rightly sentenced, is hereby confirmed by me.
SC.259/2011