Sanusi Abdullahi V. The State (1985)
LawGlobal-Hub Lead Judgment Report
KAWU, J.S.C.
At the High Court of Oyo State, holden at Oyo, the appellant was charged with the offences of (1) causing death on the highway by dangerous driving contrary to S.4 of the Federal Highway Act, No.4 of 1971; (2) dangerous driving contrary to S.5(1) of the same Act.
He pleaded not guilty to both counts.
The facts of the case are fairly simple and straight forward. The prosecution’s case was that in the evening of 5th December, 1979, Nuru Wangara (1PW) was driving a trailer, Registration No. 6323K from Lagos to Kano. When he got to a point between Oyo and Ogbomoso and was ascending a hill, another trailer, Registration No. LAD 3323A, driven by the appellant, suddenly emerged from the opposite direction. 1 PW was on his own side of the road when the appellant’s vehicle left its side, and brushed the left side of 1 PW’s vehicle and ended up in the gutter. A passenger in the appellant’s vehicle, who, incidentally, happened to be the appellant’s master, got killed in the accident.
The appellant’s case was that as he was descending the hill, he saw two vehicles coming from the opposite direction. According to him, both vehicles were moving side by side, and on seeing this, he applied his brakes, but that notwithstanding, 1 PW’s vehicle collided with his own which eventually somersaulted into a ditch.
At the end of the trial, the learned trial judge carefully evaluated all the evidence adduced by both parties and came to the conclusion that the case against the appellant had been proved. He accordingly found the appellant guilty on both counts and sentenced him to 3 years imprisonment on the first count, and six months on the second count. Both sentences were to run concurrently. In addition, he disqualified the appellant from driving for a period of 3 years after the expiration of the terms of imprisonment.
The appellant, being dissatisfied with his conviction and the sentences imposed, appealed to the Court of Appeal which dismissed his appeal and affirmed the decision of the trial court. The Court of Appeal, however, set aside the order disqualifying him from driving for 3 years.
The appellant, still dissatisfied with the decision of the Court of Appeal has appealed to the Supreme Court on several grounds of appeal.
The complaint in the first ground of appeal is that the Court of Appeal made two contradictory statements on the degree of negligence which the prosecution must prove in order to establish a charge under SA of the Federal Highway Act. It was contended in the appellant’s brief of argument that the Court of Appeal, having accepted the principles of law enunciated in R. v. Tatimu, 20 N.L.R. 20 and in Andrews v. D.P.P. (1937) A.C. 576 at 583 that Court was wrong to have held that the degree of negligence required in this case is not as high as that required to prove manslaughter as laid down in Andrews’ case (Supra).
I cannot see any contradictions at all. The learned justices of the Court of Appeal were right in their statement that the proof required to establish a case under S.4 of the Federal Highway Act, 1971 is not as high as the one required to establish a case of manslaughter under the Criminal Code. In Brett and MacClean’s Criminal Law and Procedure of the Six Southern States of Nigeria, 2nd Ed. paragraph 1870 at 717 (1974) it is stated as follows:
(In) causing death by dangerous or reckless driving the degree of negligence falls short of that required for a conviction for manslaughter.
It is however, pertinent to note that in his judgment, the learned trial judge did not indulge in the exercise of comparing the relevant degree of negligence that must be established in order to sustain a charge of causing death by dangerous driving and one of manslaughter under the Criminal Code. He was mainly concerned with the proof required to establish the charge before him.
As to the appellant’s manner of driving that night, the learned trial judge accepted the evidence of the prosecution witnesses that the appellant left his own side of the road to hit 1P.W’s vehicle at the rear. He rejected the appellant’s version of the story. It was from those primary facts deposed to by the 1st and 2nd prosecution witnesses that the learned trial judge drew his conclusion as follows:
To leave one’s lane for another when another vehicle is approaching from the opposite direction and thereby causes one’s vehicle to hit that other in the process is to my mind a dangerous piece of driving.
I am of the view that this is a conclusion that could reasonably be drawn from the facts proved, and that the learned trial judge was right in concluding that the appellant did engage in a dangerous piece of driving on the day of the incident. I therefore do not see any merit in this ground of appeal.
The complaint in the second ground of appeal is that after the Court of Appeal had held that exhibit (the sketch of the scene) and exhibits (appellant statement to the Police) were inadmissible, that court should have set aside the conviction of the appellant. There is no substance in this complaint.
In its judgment, the Court of Appeal made the point that the learned trial judge did not in fact, make use of the two documents in his judgment, and that even without the documents, the decision of the trial court would have been the same. I think the Court of Appeal was right. The learned trial judge, after reviewing the totality of the evidence before him, made some specific findings of fact which findings were based almost entirely on the testimony of the 1st and 2nd prosecution witnesses. The relevant passage of the judgment is as follows:
I have carefully considered the evidence in this case and I have also watched the demeanour of all the witnesses. Both the 1st P.W. and 2nd P.W. impress me as witnesses of truth. I accept their testimony that at the material time the accused left his own side of the read to hit the 1st P.W.’s vehicle at the rear. I do not believe the accused that at the time of the accident 1st P.W. vehicle was overtaking another vehicle and was therefore coming side by side with the vehicle it was overtaking.
The complaints made in grounds 3 and 4 about the alleged use of exhibits and by the trial court, have in my view, been adequately covered by what has been said in respect of the second ground.
With regard to the complaint in the 5th ground of appeal, once the learned trial judge had accepted the prosecutions case that the appellant left his own side of the road, crossed over to the other side and collided with 1 P.W.’s side of the road, in my view, the argument about the exact point of impact was no longer relevant, and that was probably why no finding on the point was made by the trial court in its judgment.
The complaint in the 6th ground of appeal is in connection with some alleged discrepancies in the testimony of 2 P. W. He was alleged to have said at the beginning of his crossexamination that he was sitting at the hack of the vehicle at a place specially made for him at the time of the accident, and that later the same witness said that he was in fact standing on the right hand side of the vehicle at the time of the accident. It was learned counsel’s submission that since the discrepancies in 2 P.W.’s evidence had not been explained, his testimony should have been regarded by the trial court as unreliable, citing Otuaha Akpapuna and Ors. v. Obi Nzeka II & Ors. (1978) 7 S.C.1 at 63 in support.
The short answer to this is that it is not correct, as learned counsel has stated in his brief, that the witness said he was sitting at the back of the vehicle when the appellant’s vehicle side-brushed the vehicle driven by 1 P.W.The italicized words were not contained in the evidence of 2 P. W. whose answers to the questions asked in his cross-examination are as follows:
I was sitting at the back of the vehicle. I saw everything that happened on this day. Our vehicle was loaded with Nido milk and maggie. I was not sitting on top of the load. I was sitting at a place inside the vehicle specially created for that purpose. I was the only one sitting at the back. One person was sitting in front with 1st P.W. on the day in question. At the time of the accident I was standing inside the vehicle. I was standing on the right side of the vehicle.
The last two sentences of the 2 P.W.s testimony reproduced above show clearly that there were no discrepancies whatsoever in his testimony with regard to where he was in the vehicle at the time of the accident.
The complaints in grounds 7 and 8 of the appellant’s grounds of appeal are really an attack on the findings of fact of the learned trial judge which findings were upheld by the Court of Appeal. It has been established by several authorities that a Court of Appeal must approach the findings of fact of a trial court with extreme caution. This is because a Court of Appeal has not had the advantage which the trial judge has enjoyed of seeing the witnesses and watching their demeanour.
A Court of Appeal would only disturb the findings of fact of a trial court where it is satisfied that the trial court has made no use of such an advantage. If the trial judge has evaluated the evidence before him, it is not for the Court of Appeal to re-evaluate the same evidence and come to its own decision. See State v. Nafiu Rabiu (1980) 7-11 S.C. 130 and Nasamu v. The State (1979) 6-9 S.C. 153, 161; and A. M. Akinloye v. Bello Eyiyola and Ors. (1968) N.M.L.R. 92 at p. 95.
In the case in hand where there have been two concurrent findings of fact of the lower courts on the issue of facts raised in grounds 7 and 8 of the appellant’s grounds of appeal, this Court will decline to review the evidence a third time unless there is proof of miscarriage of justice or a violation of some principle of law or procedure. See Mora & Ors. v. Nwalusi & Ors. (1962) 1 All N.L.R. (Part 4) 681. In this case i am satisfied the decision of the trial court with regard to the matters raised in the 7th and 8th grounds of appeal, which decision was affirmed by the Court of Appeal, was amply supported by the evidence before the trial court. I therefore do not see any merit in the two grounds of appeal.
Finally all the grounds of appeal fail and the appeal is dismissed in its entirety. The conviction of the appellant and the sentences imposed on him are hereby affirmed.
A. G. IRIKEFE, J.S.C. (Presiding): I agree with the judgment of my learned brother, KAWU, J.S.C. just read. I had earlier seen it in draft. I also would dismiss the appeal and affirm the conviction and sentence imposed on the appellant.
M. L. UWAIS, J.S.C.: I have had the privilege of reading in draft the judgment read by my learned brother Kawu, J.S.C. I entirely agree with the judgment and have nothing to add.
Accordingly, the appeal is hereby dismissed and the decision of the Court of Appeal is affirmed.
D. O. COKER, J.S.C.: I agree with the judgment just delivered by Kawu, J.S.C. that this appeal should be dismissed.
I wish to add however that this is a border line case and that the arguments all centre around the findings of fact of the learned trial judge; it is therefore not safe to reverse those findings which were based on the evidence before him. The trial judge accepted the evidence of 1st and 2nd P.W.’s to the effect that the appellant left his side of the road and hit the left rear side of the vehicle driven by P.W.1 on the opposite side of the road. As there was evidence to support this finding of the trial judge, I am of the view that the Court of Appeal was right in dismissing the appeal.
I will therefore dismiss the appeal and affirm the conviction and sentence.
A. G. KARIBI-WHYTE, J.S.C.: I have had the privilege of a preview of the judgment just read by my brother Kawu, J.S.C., in this appeal. I agree with the reasoning and his conclusion that all the grounds of appeal argued lack merit and should be dismissed. I also will dismiss the appeal, and affirm the conviction and sentence imposed on the appellant.
Appeal Dismissed.
Conviction and Sentences affirmed.
SC.111/1984
Leave a Reply