MICHEAL ADEYEMO V. THE STATE (2011)

MICHEAL ADEYEMO V. THE STATE

(2011)LCN/4417(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of March, 2011

CA/I/182/2007

RATIO

DANGEROUS DRIVING: INGREDIENTS THAT MUST BE PROVED IN A CHARGE OF DANGEROUS DRIVING

It is trite law that in a charge of dangerous driving and causing death by dangerous driving under Section 5 and 6 (i) of the Federal Highways Act Cap F.13, Laws of the Federation of Nigeria, 2004 the prosecution must prove the following ingredients beyond reasonable doubt against the accused person namely: (i) That the accused’s manner of driving was reckless or dangerous (ii) That the dangerous driving substantially caused the death of the deceased and (iii) That the accident occurred on a Federal Highway. See the cases of THE STATE V. FIDELIS USIFOR (1974) 1 N.W.L.R at page 72 and AMUSA V. STATE (2003) 13 N.S.C.Q.R page 173 at 179 and ARUWA V. THE STATE (1990) 6 N.W.L.R Part 155 page 125 at 135-137. PER MODUPE FASANMI, J.C.A.

DANGEROUS DRIVING: WHEN DOES DANGEROUS DRIVING OCCUR

Dangerous driving is proved by the slightest negligence on the part of the driver so charged. Driving from one side of the road to the other amounts to driving to the danger of the public see the State V. Stephen Ejenabe (1976) 1 N.M.L.R. page 135.To leave one’s lane for another when another vehicle is approaching him from the opposite direction as in the instant case leading to this appeal and thereby causing one’s vehicle to hit that other in the process is dangerous driving. See the cases of Abdullahi v. The State (1985) 3 N.W.L.R. Part 3 page 523 at 528 and Moses v. The State (2006) 4 S.N.C.J. page 190 at 222 lines 23-30.

DANGEROUS DRIVING: WHAT AMOUNT TO PRIMA FACIE EVIDENCE OF DANGEROUS DRIVING

In Road Traffic Offences, the slightest negligence on the part of the Appellant is required to sustain at conviction. See STATE V. EJENABE (1976) 1 N.W.L.R page 135 at 137. The finding of the learned trial Judge is sacrosanct and unassailable. I therefore hold that for the Appellant to leave his lane for the deceased’s lane without any proof of any emergency or sudden uncontrollable mechanical defect in the vehicle is prima facie evidence of dangerous driving. See the case of ISIBOR V. THE STATE (1970) ALL N.L.R. page 248 at 256. PER MODUPE FASANMI, J.C.A.

JUDICIAL NOTICE: WHETHER PROOF OF A MATTER WHICH JUDICIAL NOTICE CAN BE TAKEN OF IS NECESSARY

It is settled law that proof of a matter which judicial notice can be taken is not necessary. See ONYEKWE V. STATE (1973) 5 S. C page 1 at 14 and section 74 (1) of the Evidence Act. PER MODUPE FASANMI, J.C.A.

PROOF OF CRIME: WAYS BY WHICH THE PROSECUTION CAN PROVE ITS CASE AGAINST AN ACCUSED

The prosecution can prove its case against an accused in three ways. They are: (i) by direct evidence (ii) by confession (iii) by circumstantial evidence which must be direct, cogent and point only to the fact that it was the accused and nobody else who caused the said accident and the death of the deceased driver of the second vehicle as enunciated in the cases of UDEBIA V. STATE (1976) 11 S.C. at 133, ADIO V. STATE (1980) 12 S.C at 116, OMOGODO V. STATE (1981) 5 S.C. at page 5, GODWIN IGABELE V. STATE (2006) 26 part 1 N.S.C.Q.R Part 1138 page 431 at 447 PARAS E-F. PER MODUPE FASANMI, J.C.A.

FINDINGS OF FACTS: WHETHER FINDINGS OF FACTS ARE SQUARELY WITHIN THE EXCLUSIVE COMPETENCE OF THE TRIAL COURT

It is trite law that findings of facts are squarely within the exclusive competence of the trial court who saw, heard and believed the witnesses who testified and ascribed probative value to such evidence. See the cases of BASHAYA V. STATE (1998) 5 N.W.L.R, Part 550 T 351, AGBAYI V. STATE (1995) N.W.L.R. Part 369 at 22 and MOSES V. THE STATE (2006) 4 S.C.N.J. page 190 at 223. PER MODUPE FASANMI, J.C.A.

FINDINGS OF FACTS: THE BURDEN PLACED ON THE APPELLANT TO DISPLACE THE PRESUMPTION THAT THE FINDINGS OF FACTS OF A COURT OF TRIAL ARE CORRECT

JUSTICES:

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

MICHEAL ADEYEMO – Appellant(s)

AND

THE STATE – Respondent(s)

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of an Ogun State High Court of Justice, Ilaro Judicial Division delivered by the Hon. Justice M. O. Dipeolu on the 24th of April, 2007. Appellant was charged and tried on a two count charge of causing death by dangerous driving and dangerous driving contrary to Sections 5 and 6 of the Federal Highways Act Cap F.13 Laws of the Federation of Nigeria 2004.
During the trial, the prosecution called three witnesses and tendered four exhibits. Appellant testified for himself and called no witness.
The case for the prosecution was that on 12/4/2004 at about 1.40 p.m. at Ogosa area along Owode/Idiroko road, there was a fatal motor accident involving a Nissan C.20 Bus with registration no. XB 603 APP driven by Jelili Adekola (deceased) and Iveco Truck with registration no, XG 688 LSD belonging to 7 Up Bottling Company driven by the Appellant. Appellant left his lane and collided with the driver of the Nissan C. 20 Bus. The driver of the Nissan C. 20 Bus sustained serious injuries and was rushed to the hospital where he later died.
Appellant in his defence stated that he suddenly saw the Nissan C.20 bus being driven by the deceased on his lane. He tried to avoid it but his vehicle collided with the said vehicle. At the end of the trial, after a thorough appraisal of the facts and evaluation of the evidence led at the trial, the learned trial Judge found the Appellant guilty as charged in respect of the two counts and sentenced him to three years imprisonment with an option of fifty thousand naira (N50,000.00) fine. Appellant being dissatisfied with, the judgment of the trial Court appealed to this Honourable Court.
Appellant’s notice of appeal is dated 25th April, 2007 but filed on 26th April, 2007. Appellant’s notice of appeal contained two grounds which state:
Ground 1
That the decision of the trial Court as founded on circumstantial evidence is unreasonable, unfounded, perverse, and bad in law and thus occasioned a great miscarriage of justice, in that the evidence relied upon by the said Court in convicting the accused was neither conclusive, direct or positive
Ground 2
That the decision of the said trial Court is unreasonable and cannot be supported having regard to the weight of evidence.
In compliance with the rules of this Court parties duly filed and exchanged briefs of argument. Appellant’s brief of argument was filed on 24/6/09 but deemed properly filed on 13/7/09. The Respondent’s brief of argument was filed on 25/11/09 but deemed properly filed on 27/1/10.
Counsel to both parties adopted and relied on their briefs filed and the arguments contained therein. Learned Counsel for the Appellant distilled a sole issue for determination from the two grounds of appeal.
The sole issue states:
Whether from the totality of the evidence adduced and in this case, the trial Court was right in convicting the Appellant of the offences charged.
The Respondent also adopts the only issue formulated by the Appellant as arising for determination in this appeal.
Learned Counsel for the Appellant in his argument in support of the sole issue submitted that there was no direct evidence adduced by the prosecution to show the manner in which the Appellant drove his truck on the material day. The trial Court merely relied on circumstantial evidence of the positions of the two vehicles at the point of impact in convicting the Appellant. He referred to the case of IDOWO V. STATE (1998) 11 N.W.L.R Part 574 page 354 at 370 where the Supreme Court stated that circumstantial evidence can only ground a conviction if and only if:
(i) It irresistibly and unequivocally leads to the guilt of the Appellant
(ii) No other reasonable inference can be drawn from it and
(iii) There are no co-existing circumstances which could weaken the inference. See also OMOGODO V. STATE (1981) 5 S.C. at page 4.
He submitted further that the learned trial Judge relied heavily on exhibit c i.e. the rough sketch of the accident in coming to the erroneous conclusion that the Appellant was guilty of dangerous driving. Exhibit C without more cannot prove that the Appellant drove dangerously.
Appellant had testified in his evidence that it rained heavily on the day of the accident and that he could not move at a great speed. He further stated that the Nissan bus left its lane and came on to his (Appellant’s) lane and overtook a motorcycle. The Appellant tried to control his truck but could not because the road was slippery as a result of the heavy rain.
He contended that the trial Court suo-moto went on a voyage of interpretation of the sketch (Exhibit C) and came to the erroneous conclusion that it was the Appellant who left his lane for the deceased driver’s lane based on the sketch without receiving any further evidence on this point from the prosecution. One of the ingredients of the offence of causing death by dangerous driving and dangerous driving is that the Appellant’s manner of driving was reckless or dangerous. There was no evidence whatsoever proffered by the prosecution as to how the accident occurred. He urged the Court to hold that the only credible evidence as to the manner in which the Appellant drove the truck was the extra judicial statement of the Appellant (Exhibit D) and his testimony in Court which was neither challenged nor contradicted.
Learned Counsel for the Appellant contended further that the Court will not accord any probative value to a document where its maker is not called upon to tender the document and give evidence at the trial. See AWUSE V. ODILI (2005) 16 N.W.L.R. Part 952 page 416 at 509
Exhibit C was made by Sergeant Mudasiru. Sergeant Mudasiru was not called as a witness and he was not cross examined as to the veracity of the sketch he made. In line with the decided authority referred to above, the Court should not have placed any value on exhibit C. Without placing undue reliance on Exhibit C, the Court would have arrived at a different conclusion.
He urged the court to hold that the prosecution failed to discharge the burden placed on them to prove the case against the Appellant beyond reasonable doubt. The trial Court was wrong in placing undue reliance on Exhibit C. The trial court was wrong to have convicted the Appellant in the circumstances. He concluded his submission by urging this Court to set aside the decision of the lower Court, discharge and acquit the Appellant. Learned Counsel for the Respondent submitted that there is overwhelming evidence to prove that the Appellant drove dangerously and that his manner of driving was dangerous to the public having regard to all the circumstances of the case. There is evidence before the trial Court that the Appellant left his lane of the road to the lane of the oncoming vehicle where he collided with the vehicle of the deceased. Exhibit C confirmed this piece of evidence. The Respondent in proving the ingredients of the offences charged against the Appellant adduced evidence through witnesses and also tendered four exhibits i.e. Exhibit ‘A’, ‘B’, ‘C’ and ‘D’. The pieces of evidence adduced by the Respondent at the trial of this case proved the manner of driving of the Appellant to be dangerous as was held by the Supreme Court in the case of SANUSI ABDULAHI V. THE STATE (1985) 1 N.W.L.R Part 3 page 523 where it opined as follows:
“To leave ones lane for another when another vehicle is approaching from the opposite direction and thereby causing one’s vehicle to hit that other in the process is a piece of dangerous driving.”
The Respondent adduced evidence before the trial Court that the Appellant by his dangerous driving caused the death of the deceased Jelili Adekoba. She referred to exhibit B the medical report which connected the act of the Appellant to the death of the deceased. The accident occurred on a Federal Highway. The Respondent relied on Section 74 (1) (k) of the Evidence Act. Thus the trial Court took judicial notice of the road. Having regard to the evidence adduced by the Respondent and the charge against the Appellant, the trial Court properly evaluated the evidence and arrived at the right conclusion. He submitted that an appellate court must in the absence of compelling evidence indicating erroneous appraisal of facts and conclusion show the utmost restraint, resist and reject any temptation to interfere with the well considered findings made by a trial judge who had the singular opportunity of not only hearing the evidence, but watching the demeanor of the witnesses. She referred to the case of AGBANYI V. THE STATE (1995) N.W.L.R Part 359 at page 22.
Learned Counsel for the Respondent urged this Court not to disturb these findings of fact. The decision of the trial Court should be affirmed and the appeal be dismissed. She urged the Court to resolve the sole issue in favour of the Respondent.

It is trite law that in a charge of dangerous driving and causing death by dangerous driving under Section 5 and 6 (i) of the Federal Highways Act Cap F.13, Laws of the Federation of Nigeria, 2004 the prosecution must prove the following ingredients beyond reasonable doubt against the accused person namely:
(i) That the accused’s manner of driving was reckless or dangerous
(ii) That the dangerous driving substantially caused the death of the deceased and
(iii) That the accident occurred on a Federal Highway. See the cases of THE STATE V. FIDELIS USIFOR (1974) 1 N.W.L.R at page 72 and AMUSA V. STATE (2003) 13 N.S.C.Q.R page 173 at 179 and ARUWA V. THE STATE (1990) 6 N.W.L.R Part 155 page 125 at 135-137.

Dangerous driving is proved by the slightest negligence on the part of the driver so charged. Driving from one side of the road to the other amounts to driving to the danger of the public see the State V. Stephen Ejenabe (1976) 1 N.M.L.R. page 135.
To leave one’s lane for another when another vehicle is approaching him from the opposite direction as in the instant case leading to this appeal and thereby causing one’s vehicle to hit that other in the process is dangerous driving. See the cases of Abdullahi v. The State (1985) 3 N.W.L.R. Part 3 page 523 at 528 and Moses v. The State (2006) 4 S.N.C.J. page 190 at 222 lines 23-30.

In proving the dangerous driving of the Appellant, Respondent relied on the statement of the Appellant at page 9 of the record and his evidence in Court at page 26 of the record of appeal. Appellant was coming from Idiroko going towards Sango Ota while the C. 20 bus was coming in the opposite direction. Exhibit C the rough sketch showed that the Iveco truck driven by the Appellant left his lane for the deceased’s. The point of impact was on the deceased’s lane and the resultant position of the two vehicles was on the Appellant’s lane. Appellant under cross-examination admitted the resultant position of the two vehicles after the accident as stated on the rough sketch.
Appellant’s Counsel made a heavy weather of the fact that the maker of exhibit C was not called as a witness i.e. Sergeant Mudasiru. It is however interesting to note at page 23 of the record that P.W3 Sarah Oladipo Police Corporal attached to Motor Traffic Division Idiroko had this to say:
“Sgt Mudasiru and I went to the scene of the accident at Ogosa Area along Idiroko/Owode Road. There we draw a rough sketch of the scene and took Photographs”
It is clear from this piece of evidence that it was a joint act and anyone of them can tender the rough sketch i.e. exhibit C and give evidence on their activities. The learned trial Judge at page 39 of the record in evaluating exhibit C had this to say:
“It seems clear to me from the rough sketch that the accused left his lane of the road to the deceased’s lane where he hit the deceased’s vehicle and the two vehicles ended up on the verge side of the accused’s lane. It is therefore my considered view that the rough sketch proved the manner of driving of the accused to be dangerous. It is trite that to leave one’s lane for another when another vehicle is approaching from the opposite direction and thereby causing one’s vehicle to hit that other in the process is a dangerous piece of driving.”

In Road Traffic Offences, the slightest negligence on the part of the Appellant is required to sustain at conviction. See STATE V. EJENABE (1976) 1 N.W.L.R page 135 at 137.
The finding of the learned trial Judge is sacrosanct and unassailable. I therefore hold that for the Appellant to leave his lane for the deceased’s lane without any proof of any emergency or sudden uncontrollable mechanical defect in the vehicle is prima facie evidence of dangerous driving. See the case of ISIBOR V. THE STATE (1970) ALL N.L.R. page 248 at 256.

On the second ingredient, Respondent adduced evidence before the trial Court that the Appellant by his dangerous driving caused the death of the deceased Jelili Adekoba through the overwhelming evidence of P.W2, P.W3 and the medical report exhibit B revealed that the injuries found on the body of the deceased were consistent with road accident.
The evidence of P.W2 and P.W3 was that the deceased was taken to a private hospital from the scene of incident that He died at the private hospital and was identified by P.W2 who deposited his corpse at the General Hospital Mortuary. P.W2 also identified the corpse for post mortem examination. The medical report was tendered as exhibit B. Exhibit B stated the cause of death as severe head injury and internal hemorrhage. The cause of the instantaneous death could be inferred to be due to the accident. See NUMO-MALLAM ALLI V. THE STATE (1988) 1 N.W.L.R. Part 68 at page 1. These pieces of evidence have provided a clear nexus between the act of the Appellant and the death of the deceased and I so hold.
On the third ingredient, the accident occurred on the Federal Highway. The trial court took judicial notice of the fact that the Sango/Idiroko road on which the accident occurred is a Federal Highway.
It is settled law that proof of a matter which judicial notice can be taken is not necessary. See ONYEKWE V. STATE (1973) 5 S. C page 1 at 14 and section 74 (1) of the Evidence Act.

The prosecution can prove its case against an accused in three ways.
They are:
(i) by direct evidence
(ii) by confession
(iii) by circumstantial evidence which must be direct, cogent and point only to the fact that it was the accused and nobody else who caused the said accident and the death of the deceased driver of the second vehicle as enunciated in the cases of UDEBIA V. STATE (1976) 11 S.C. at 133, ADIO V. STATE (1980) 12 S.C at 116, OMOGODO V. STATE (1981) 5 S.C. at page 5, GODWIN IGABELE V. STATE (2006) 26 part 1 N.S.C.Q.R Part 1138 page 431 at 447 PARAS E-F.
The circumstantial evidence enumerated above points irresistibly to no other conclusion than the guilt of the Appellant. The trial court properly evaluated the evidence and arrived at the right conclusion.

It is also a well settled presumption that the findings of facts of a court of trial are correct and the burden is on the person challenging the findings of facts on appeal to displace this presumption. See BAKARE V. THE STATE (1987) 1 N.W.L.R. Part 52 page 579 at 593. Appellant failed to displace this presumption in this appeal.
The learned trial Judge found as a fact that the Appellant committed the offences of causing death by dangerous driving and dangerous driving, a finding that was based on the evidence laid before the court. This court cannot disturb these findings of fact which are unimpeachable. It is not in doubt from the overwhelming evidence that the Respondent had established the guilt of the Appellant in this appeal beyond reasonable doubt as required under section 138 of the Evidence Act.
In sum, the appeal lacks merit and it is accordingly dismissed. The judgment of the lower court delivered in charge no. HCL/8c/2005 on the 24th of April, 2007 is hereby affirmed.

SIDI DAUDA BAGE, J.C.A.: I had a preview of the judgment just delivered by my learned brother, M. FASANMI J.C.A. His Lordship has dealt with the issues raised exhaustively and there is nothing more to add.
I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed. I dismiss same and abide by the consequential orders made in the lead judgment.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the advantage of reading in advance the well prepared judgment of my learned brother, Fasanmi, J.C.A., in which I express my concurrence.

Traffic offences such as causing death by dangerous driving belong to the group of strict liability offences for which the action of the offender alone is sufficient to ground his conviction, with no need to prove mens rea or the mental composition of the culprit.

The appellant admitted leaving his lane of the road to hit the deceased’s motor-vehicle with his motor vehicle in the lane of the deceased. Appellant did not proffer any reasonable explanation, on the balance of probabilities, for driving his motor-vehicle in such a dangerous manner, inconsistent with the normal rule of the road insisting on road – users to keep to their own lane of the road. The court below was, in my view, right to find as a fact that the said manner of driving was dangerous – see Moses v. The State (2006) 4 SCNJ 190 at 222 thus:
“4. In the case of The State v. Stephen Ejenabe (1976) 1 N.M.L.R. 135 – Uwaifo, J. (as he then was), held that dangerous driving is proved, by the slightest negligence on the part of the driver so charged. That driving from one side of the road, to the other, amounts to driving to the danger of the public. See also Lewis v. Raglan Building Co. Ltd (1941) 3 All E.R. 332. Ayo Richards v. Inspector General of Police (1959) L.L.R 88 and The State v. Felix Ibeneme (supra).”
The credible uncontradicted evidence in the record that the impact caused by the appellant’s vehicle hitting the deceased’s vehicle in the latter’s lane of the road resulted in the movement of the two vehicles into appellant’s lane of the road, indicated the gravity of the impact.
Exhibit B, the medical report, certified deceased’s death to have been caused by severe head injury and internal bleeding which, from the unchallenged evidence in the record, arose from the motor-vehicle accident in issue, attributing deceased’s cause of death to the dangerous manner appellant drove his vehicle on the day in question.
The established fact in the record that the deceased died from the said injuries adequately proved his death. Even without the medical evidence in Exhibit B, the fact of death of the deceased would have sufficed to link his cause of his death to the motor-vehicle accident. See Bakuri v. The State (1965) NMLR 163 and Adamu v. Kano Native Authority (1956) 1 F.S.C. 25.
The incident or accident occurred-along Sango/Idiroko road which was taken judicial notice of by the court below as a public highway. By section 74(1) (a) of the Evidence Act, the court is entitled to take judicial notice of:
“(a) all laws or enactments and any subsidiary legislation made there under 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, 1990 edition.See also our decision in Adewale Joseph v. The State (2010) All FWLR (Pt.539) 1106 at 1118 – 1119, Per Fasanmi, J.C.A., and Moses v. The State (supra) at 223..
The appeal is unmeritorious. I dismiss it and affirm the conviction and sentence of the appellant by the court below.

Appearances

Ikenna Okoli with N. Ilumuanya For Appellant

AND

Absent For Respondent