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.

Now, Section 5 of the Federal Highways Act (Cap. 135) LFN 1990 provides-

“Any person who causes the death of another by the driving of a motor vehicle on a Federal Highway recklessly, or at a speed, or in a manner, which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the Federal Highway and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the Federal Highway, shall be guilty of an offence and liable on conviction to imprisonment for a term of seven (7) years”. (Italics mine)

In other words, to prove that an accused person caused the death of the deceased by dangerous driving and that he drove dangerously, as alleged against the Appellant in this case, the Prosecution had to prove the following ingredients of the offence beyond reasonable doubt against him, to wit –

(a) That his manner of driving was reckless or dangerous;

(b) That the dangerous driving substantially caused the death of Madam Isimotu Rabiu, the deceased in this case; and

(c) That the accident occurred on a Federal Highway.

It is the Appellant’s contention that the lower Court ought to have averted its mind to the phrase – “or at a speed, or in a manner which is dangerous to the public having regard to all the circumstances of the case”, similar to the English Road Traffic Act 1930, and defined in Stroud’s Judicial Dictionary as –

“Danger having regard to the amount of traffic which might reasonably be expected to be on the road; it is not necessary that there should have been actual danger to the public” – see Kingman V. Seager(1938) 1 KB 397, Bracegirdle V. Ley (1947) KB349, 357″

It was further submitted that the mere fact that Exhibit B indicated that the Appellant’s vehicle was found on the lane of the opposite vehicle is not conclusive evidence to imply or amount to sufficient fact from which the lower Court could infer that the Appellant drove dangerously; that the position of the law is that the Prosecution needs to go further by evidence to show that the Appellant drove at a speed dangerous to the public having regard to the circumstances of the accident; and that the lower Court failed to consider the circumstances(s) of the case before coming to the following conclusion –

“As shown in Exhibit B the vehicle XB279ABdriven 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 distance of 252 feet into the bush.” (Highlight his)

It was further argued that the above conclusion did not flow from the facts/evidence before the Court during trial, and that the lower Court failed to consider his defence, as deducible from his testimony and that of his conductor, Biodun Ayinla who gave evidence as DW2, to the effect that-

(1) The accident occurred at night.

(2) It was raining.

(3) The other vehicle with Reg. No. AB 720 AAb had no headlamp or the headlamp was not put on.

(4) A torch-light served as the headlamp.

It is his submissions that the above stated facts were not denied nor rebutted by the Prosecution; that the defence witnesses were not discredited under cross-examination; that the Prosecution also failed to call evidence to debunk or discredit the Appellant’s case or at least to show that the headlamp of the vehicle with Reg. No. AB 720 AAB was in good working condition and that it was on at the time the accident occurred; that the traffic officer, Olusoji Abidemi, who was PW2, examined the two vehicles with regard to their mechanical condition only and merely gave evidence to that effect, thus, the Prosecution failed to call evidence to show the electrical condition of the vehicle with Registration No AB 720 AAB; and that none of the Prosecution witnesses corroborated the evidence of PW3 who was the only eye – witness of the accident among the Prosecution witnesses, which is fatal to it’s case.

This Court was therefore urged to hold that the lower Court did not give regard to all the circumstances of the case before it convicted the Appellant.

The Respondent however contended that there is overwhelming evidence at the trial that the Appellant drove dangerously and that his manner of driving was dangerous to the public, and that the evidence confirmed by Exhibit B is that the Appellant left his lane of the road to the lane of the oncoming vehicle where he collided with the vehicle, which proved the manner of his driving to be dangerous, citing Sanusi Abdullahi V. The State (1985) 1 NWLR (Pt. 3) 523& Amusa Adeboye V. The State (2003) 13 NSCQR 173.

Furthermore, that the lower Court adequately considered the evidence and rightly held that the mode of driving adopted by the Appellant was dangerous and caused the death of the deceased; that the findings of facts of the trial Court should not be disturbed because they are neither erroneous nor perverse, citing Ahmed v. The State (1998) 9 NWLR (Pt. 566) 389; and that in Road Traffic Offences, the slightest negligence on the part of the Appellant is required to sustain a conviction, citing R. Evans (1962) 3 ALL R 1086, The State v. Stephen Ejeneba (1976) 1 NMLR 135. It was further submitted, citing Agbanyi v. The State (1995) NWLR (Pt. 369) 22 that findings of facts are within the exclusive competence of the trial Court who saw, heard and believed the witnesses and ascribed probative value to such evidence, thus this Court as an appellate Court will not interfere with these findings of facts except the decision is perverse and lead to miscarriage of justice; and 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 well considered findings made by a trial Judge who had the singular opportunity of not only hearing the evidence but watching the demeaneour of the witnesses”. I quite agree.

The duty on a trial Court to evaluate and ascribe probative value to the evidence adduced by witnesses is based on the fact that it is the trial Court that has the advantage of seeing and observing the witnesses’ demeanor, their integrity, manners and comportment, and assessing the background from which they testify while testifying and drawing necessary inferences.

These advantages are not available to an Appellate Court, and to attack the findings of fact by a trial Court, the Appellant must show that the views expressed is wrong or perverse, or that the trial Court failed to use or palpably misused its advantage of seeing the witnesses – see Awudu v. Daniel (2005) 2 NWLR (pt. 909) 199. In this case, the gist of the Appellant’s gripe against the Judgment of the lower Court is that in spite of the fact that there was no evidence before it to show the recklessness of the Appellant or that he drove at a high speed contrary to Section 5 of the Federal Highway Act, the lower Court still found him guilty and sentenced him accordingly.

In other words, the bone of contention in this appeal is whether the lower Court was right to hold that the Appellant’s manner of driving was dangerous.

How is dangerous driving proved? To answer this question effectively, I will have to look at some of the authorities on the subject. In R. v. Evans (supra) see also (1963) 1 QB 412, Evans, an experienced driver with a good record drove his Jaguar on a straight road about 20ft wide that could not take three vehicles abreast. He decided to overtake another vehicle, and drove on the wrong side of the road to overtake the vehicle when he collided with an oncoming motor cyclist because of the dip in the road. At his trial on a charge of dangerous driving, Salman, J., in his summing-up to the jury, said –

“There is no legal definition of driving to the danger of the public; and there cannot be any legal definition. It has sometimes been said that a very good test is for the jury to make up their minds on the evidence what actually happened, and in their mind’s eyes to put themselves down at the scene of the accident, and to ask themselves this question: ‘had we seen this, should we have said without any doubt, that was a dangerous piece of driving?’ If, the answer to the question is ‘Yes,’ then the man is guilty, and if the answer to the question is ‘Oh, no’ or ‘we cannot be sure about it’ then he is not guilty”.

On appeal, it was argued that the summing-up could mean that if a man, through the slightest fault on his part, had an accident in which someone was killed, he must on the summing-up be held guilty. The Court of Criminal Appeal said that did not follow and in dismissing the appeal, held as follows –

“If this passage in the summing-up is open to any criticism, it may well be that the direction is there too favourable to the Defendant. The Judge in his summing-up put the issue fairly and squarely to the jury in terms equivalent to this: ‘Look to see what in fact this driver did. You are the Judges, you set the standardi are you satisfied that he drove in fact in a manner dangerous to the public? If he did so, then it is of no answer to say, ‘Well, this was only a very slight degree of negligence”.

See also R. Gosney (1971) 2 QB 674, where the Court held as follows –

“In order to justify a conviction there must be, not only a situation, which viewed objectively, was dangerous, but there must also have been some fault on the part of the driver. Fault’ certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving.

Fault involves a failure, a falling below the care or skill of a competent and experienced driver, in relation to the manner of the driving, and to the relevant circumstances of the case. A fault in that sense, even though it be slight even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient. The fault need not be the sole cause of the dangerous situation”. (Italics mine)

This objective test enunciated in R. Evans (supra) and other English authorities has been applied by our Supreme Court in a number of cases, particularly the cases of Sanusi Abdullahi V. State (supra) & Amusa V. State (supra) (2003) 4 NWLR (pt. 811) 5955C, which are practically on all fours with this one under consideration. In the case of Sanusi Abdullahi v. State (supra), a trailer driver, Nuru Wangara was ascending a hill, when another trailer driven by the Appellant suddenly emerged from the opposite direction. Nuru was on his side of the road when the Appellant’s vehicle left its side and brushed the left side of Nuru’s vehicle and ended up in the gutter.

The Appellant’s master, who was also a passenger in the vehicle, got killed in the accident. In dismissing his appeal to the Supreme Court after his conviction and sentence by the High Court, the Supreme Court held –

“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 1 P.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’. (Italics mine)

In Amusa v. State (supra), the Appellant left his lane, swerved to the right side onto the grass verge where his taxi cab hit and knocked down the deceased, who died instantly. The High Court found him guilty and sentenced him to three years imprisonment for the offence of causing death by dangerous driving, and six months imprisonment for dangerous driving.

His appeal to this Court was dismissed and he further appealed to the Supreme Court, where he contended that there was no evidence to prove that he drove dangerously since no evidence of speed or manner of driving was adduced at the trial. In dismissing the appeal, the Supreme Court adopted its decision in Sanusi Abdullahi v. State (supra), and further held-

“In Road Traffic Offences – -the slightest negligence on the part of the Appellant is sufficient to sustain a conviction. See R v. Evans.”

“Negligence” is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation – see Black’s Law Dictionary, 7th Ed. In a few words, negligence is the failure to exercise that care, which the circumstances demand, and what amounts to negligence depends on the facts of each case. In this case, PW3 testified as follows – “When I got to Mologede near Igboora, an Austin Lorry left its lane and hit me on my side of the road. I lost control and the vehicle ran into the bush. Some of my passengers died in the accident. There were 6 passengers that died on the spot. I found myself at the State Hospital, Idi-Aba. The accused was the driver of the vehicle that hit me”.

PW4, is Police Sergeant Emmanuel Azika, and his evidence is as follows –

“At the scene I saw 6 dead bodies from the pick-up van, I also saw PW3 in a coma. I rushed PW3 and the deceased to State Hospital, Ijaiye. After all, I went back to the scene that night. I marked the points of impact and the resultant position of the two vehicles.

Following day, the accused reported himself at the Station, and we took him back to the scene. I observed that the accident occurred on the lane of the pick-up driver being coming from the opposite direction.

I took the rough sketch in the presence of the accused, which I explained to him and he signed as being corrected (sic)”. (Italics mine)

In Exhibit B, the key to the sketch map of the scene of the accident, reads –

“A – B: Width of the road = 24ft.

X – X1: Resultant position of vehicle No. XB 720 AAB = 252ft.

X – X2: Resultant position of vehicle No. XB 279 AAB = 223ft.

From the point of impact to the lane of Austin Lorry No. XB279AAB = 18ft.

Or from the lane of the Austin Lorry No. XB279AABto the pt of Impact= 18ft

From the lane of Pick-up No. XB720AAB to the point of impact = 6ft”.

In his evidence as DW1, the Appellant testified as follows –

” When I was about to reach Mologede around 8.30pm, it was raining, I observed a vehicle coming from Abeokuta holding a torch light on the vehicle and I was trying to avoid him when he eventually came to hit my own left rear tyre. I came down and observed it was a pick-up and loaded many passengers. I reported the matter to the Police at Lafenwa and was locked up. Police went to visit the scene and came back to inform me that about 5 people died in the pick-up. I made a statement to the Police before which I was taken to the scene, and saw both vehicles together with PW4. I signed the statement”.

DW2, Biodun Ayinla was in the Appellant’s vehicle and he testified as follows-

“Around 8.30 pm we saw a torch light not knowing it was a pick-up coming. All of a sudden the pick-up hit our vehicle at the rear tyre on the left. There were passengers in the pick-up”.

Under cross-examination, DW2 replied as follows –

“The accident happened on climbing Mologede hill. Accused person was keeping to his own lane. The moment the accused saw the pickup he swerved to his right, and the pick-up came and hit his vehicle in his own lane”.

Now, a trial Court Judge is the master of the facts of the evidence before him, and as I stated earlier, his inference, evaluation or assessment of the evidence should not ordinarily be faulted by an appeal Court, however, such inference, assessment or evaluation must be properly based on the available evidence given before him and not outside it – see Akinbisade v. State (2006) 17 NWLR (pt. 1007) 184SC, where the Supreme Court held that it is also necessary to ensure that there are no co-existing circumstances, which would weaken or destroy the inference, evaluation, or assessment. In this case, after reviewing the evidence and arguments of counsel, the learned trial Judge did not hesitate to say at page 34 – 35 of the record that he believed “the evidence of PW3 and PW4 and rejected that of DW1 and DW2”, and to “hold as a fact … that it was safe and could be deduced that the accident occurred on the lane of PW3 showing that the accused left his lane (for 18 feet off curve) to the lane of PW3”. He further stated as follows at page 36 –

“From what I watched of the tomfoolery of the accused in the witness box, I do not regard him as a witness of truth, when he said, he swerved to his right to avoid the accident … I find it not safe to believe the accused wherever he purposely contradicted or opposed the fact of the case from any of the Prosecution witnesses’ account on the same. It is even worse for the accused not to have offered any explanation as to why he deliberately found himself 18 feet out of the Federal Highway to the lane of approaching vehicle with such a vehicle and thus collided with PW3, however the facts and evidence herein, have shown him to have indulged in faulty, reckless or negligent driving immediately preceding the occurrence of this accident and consequent death of the deceased – MADAM ISIMOTU RABIU”.

In other words, the learned trial Judge accepted the Prosecution’s case that the Appellant left his lane and hit PW3’s vehicle that was coming from the opposite direction, and thereby caused PW3 to lose control of the vehicle, which ended up in the bush leaving 6 of PW3’s passengers dead at the scene.

The Appellant however contends that the learned trial Judge convicted him without considering his defence, to wit: that PW3’s vehicle had no headlamp at the time of the accident and approached his vehicle with a torch light.

What a defence? The Appellant was driving an Austin Lorry while PW3 was driving a Pick-up van; it beats my imagination how an oncoming vehicle from Abeokuta will be “holding a torch light on the vehicle” as the Appellant put it.

In any event, there are only two defences to a charge of dangerous driving –

(1) Where the driver had been deprived of the control of the vehicle by a sudden affliction, for example, an epileptic fit, a sting by a swarm of bees, or a stone hitting his head; or

(2) Where the driver had lost control through defective mechanism, which suddenly manifested itself through no blame on his part. See R. V. Ball (1966) 50 CR. APP. R. 266 R. V. Spurge (1961) 2 All E R. 688. In this case, the Appellant did not say that he suffered a sudden affliction while driving that night, or that there was a sudden defect in the mechanism of the Austin Lorry he was driving, which he could not have foreseen. In fact, he did not explain, and the learned trial Judge was right to query how he got onto PW3’s lane of the road while driving his vehicle up the Mologede hill in the rain and at 8.30pm in the night. The Appellant himself testified that it was raining when the accident occurred at about 8.30pm in the night; his witness, DW2 added that the accident happened “on climbing Mologede Hill”.

It is settled law that where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony – see Kimdey V. Mil. Gov. Gongola (1988) 2 NWLR (Pt. 77) 445.

In this case, PW3 merely stated that the Appellant’s Lorry left its lane and hit him on the side of the road; it is Exhibit B that clinched the case against him. Exhibit B, the sketch map of the scene of the accident shows the point of impact smack in the middle of PW3’s lane of the road. PW4 said he made the sketch map in the presence of the Appellant who signed it as being correct.

The Appellant’s signature is on Exhibit B; he did not query the drawing at the scene of the accident; in his evidence in Court he admitted that he went to the scene of the accident with PW4; and he did not deny signing Exhibit B.

The only conclusion that can be reached, and which the lower Court reached, is that the accident occurred on PW3’s lane of the road; it cannot be faulted.

As the learned trial Judge rightly said – “The offence of dangerous driving involves not only a situation, which viewed objectively, is dangerous, but also some fault on the part of the driver causing the situation”. Looking at the scenario with the mind’s eye of a reasonable man, would he say that driving a lorry on the opposite lane of a road while climbing a hill on a rainy night was a dangerous piece of driving? The answer would obviously be a – Yes, which raises a presumption that the Appellant was guilty of the offence charged.

The Appellant however argues in his Issue 2 that PW3 is a tainted witness, who should have been found culpable for contributory negligence because his failure to switch on his headlamps made it impossible for the Appellant to see. Olalekan V. State (2001) 12 SC (pt. 1) 38, Okosi V. State (1989) 2 SC (pt 1) 126, Alphonsus Ibeanu & Anor V. Peter A. Ogbeide & Anor (1989) 9 – 10 SC page 57, Harvey V. Road Haulage Executive (19S2) 1KB 120 & Hill -Venning V. Bezant (1950) 2 A E R 1151, cited. The Respondent countered that PW3 is not a tainted witness but the victim of an accident that culminated in the charges against the Appellant, which will not render his evidence unreliable, citing Ifejirika V. State (1999) 3 NWLR (pt. 593) 59; Ogunlana v. State (1995) 5 NWLR (Pt. 395) 266 Onafowokan V. State (1987) 3 NWLR (pt. 61) 538, & Oteki v. A. G. Bendel State (1986) 2 NWLR (pt. 24) 649. This issue clearly lacks merit. A tainted witness is one who is either an accomplice, or who by the evidence he gives, may be regarded as having some purpose of his own to serve – see Adetola v. State (1992) 4 NWLR (pt 235) 267 SC, Ogunlana v. State (1995) 5 NWLR (pt 395) 266 SC & Okoro v. State (1998) 14 NWLR (584) 181 SC It is also well settled that where a person is regarded as having some purpose of his to serve, the warning against uncorroborated evidence should be given – see Okolo & ors v. State (1974) NSCC (Vol. 9) 119 & Idahosa & ors V. R. (1965) NMLR 85.

I agree with the Respondent that PW3 is a victim and not a tainted witness.

Besides, PW3’s evidence was corroborated by Exhibit B, which confirmed beyond reasonable doubt that the accident occurred on PW3’s lane, and the Appellant had no business being on PW3’s lane, headlamp or no headlamp.

The lower Court was therefore right to conclude that the Appellant “failed to explain how and why he found himself there”, and find him guilty as charged.

This appeal therefore lacks merit and it is hereby dismissed.

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Other Citations: (2007)LCN/2288(CA)