➥ CASE SUMMARY OF:
Dickson Moses v The State [2006] – SC
by “PipAr” B.C. Chima
➥ COURT:
Supreme Court – S.C.308/2002
➥ JUDGEMENT DELIVERED ON:
Friday, the 21st day of April 2006
➥ AREA(S) OF LAW
Dangerous driving.
➥ NOTABLE DICTA
⦿ INGREDIENTS NECESSARY TO PROVE DANGEROUS DRIVING
It is settled law that for the prosecution to discharge the burden of proof placed on it by law in a charge of causing death by dangerous driving under the provisions of sections 4 and 5 (1) of the Federal Highway Decree No. 4 of 1971, it must establish by evidence, the following ingredients of the offences: (a) that the accused person’s manner of driving was reckless or dangerous. (b) that the dangerous driving was the substantial cause of the death of the deceased; and (c) that the accident occurred on a Federal Highway -see State vs Usifor (1974) 1 NMLR 72. — W.S.N. Onnoghen, JSC.
⦿ WHO IS A TAINTED WITNESS?
However, and for whatever it is worth, the law is settled that a tainted witness is a person who is either an accomplice or who on the evidence may be regarded as having some purpose of his/her own to serve – see R vs Enahoro (1964) NMLR 65; Ifejirika vs The State (1999) 3 NWLR (pt. 593) 59; Ogunlana vs The State (1995) 5 NWLR (Pt. 395) 266. — W.S.N. Onnoghen, JSC.
⦿ COUNSEL ALLEGING CONTRADICTION IN COURT’S JUDGEMENT MUST POINT TO THE SAID CONTRADICTIONS
Now, in the first place, it is significant and most remarkable, that the learned counsel for the Appellant, in their Brief, did not point out or identify, one single evidence of any contradiction either in the evidence of the prosecution witnesses or in any documentary evidence tendered before the trial court. I suppose, and with respect, this is commonsensical, that it is not enough or sufficient to complain or allege contradictions, without indicating the areas of any such material contradiction or contradictions either in the evidence of the prosecution witnesses or in the totality of the admissible evidence before a trial court. — Ogbuagu, JSC.
⦿ SOME PRINCIPLES GUIDING CONVICTION FOR DANGEROUS DRIVING
1. It is now settled that carelessness on the part of a driver no matter how slight, has been held to amount to dangerous driving. See R v. Evans (1963) 47 CAR 62 @ 64;
2. It has been held that momentary inattention, has been accepted to amount as a fault sufficient to constitute dangerous driving. See The State v. Felix Ibeneme (1965) 3 ENLR. 26.
3. In the case of Simpson Peat (1952) 2 QB 24. it was held that a driver might be convicted of dangerous driving, even though such driving were due to something which could be described as an error of judgment. See also The Attorney-General of Western Nigeria v. Salami Aiibola (1966) NMLR 204.
4. In the case of The State v. Stephen Eienabe (1976) (1) NMLR 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. Avo Richards v. Inspector General of Police (1959) LL.R 88 and TAie State v. Felix Ibeneme (supra).
5. In R. v. Graham Ball (1966) 50 CAR 266 0). 270. Parker, L.C.J., held that the phrase “driving in a manner dangerous to the public”, means the manner of the driving.
6. In Hill v. Bexter (1958) 43 CAR 42 @ 58, Lord Goddard, L.C.J, described dangerous driving (which resulted to manslaughter), as an offence of absolute prohibition into which no mens rea enters and that it is no answer to say, “I don’t mean to drive dangerously”.
7. To leave one’s lane for another when another vehicle is approaching from the opposite direction (as in the instant case leading to his appeal) and thereby causing one’s vehicle to hit that other in the process, has been held as dangerous driving. This is why, if a trial Judge, accepts the prosecution’s case that the accused person left his own side of the road, crossed over to the other side and collided with the vehicle of the other driver on his own side of the road, it is not necessary to make a finding on the exact point of impact. See Abdullahi v. The State (1985) 3 nwlr (Pt. 3) 523 @ 528 S.C. – the facts are similar to that in the present case/appeal.
8. The proof required to establish a case under Section 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. See Abdullahi v. The State (supra) page 527.
9. A court, by virtue of Section 73 or now 74(1) of the Evidence Act, can take Judicial Notice of a Public Highway such as the Oke-Owa along Old Ondo-Benin Road in Ijebu-Ode. See Friday Onvekwere v. The State (1973) 5 S.C. 1 (8). 14. The State v. Usifoh (1974) (1) NMLR 72 (5> 77 and Adebodun Aiani v. The State (1978) 6 FCA 60.
— Ogbuagu, JSC.
⦿ APPELLATE COURT WILL NOT INTERFERE IN FINDING OF FACT
In concluding this Issue, it is now firmly established, that where the question involved are purely those of fact, an Appellate Court, will not interfere, unless the decision of the trial Judge, is shown to be perverse and not the result of a proper exercise of judicial discretion (to believe or disbelieve witnesses) or that there is no evidence at all to support a particular crucial finding or that the trial court made wrong deductions or drew wrong inferences from admitted or established facts. See Ubani & 2 ore, v. The State (2003) 12 SCNJ 111 @ 727-728. — Ogbuagu, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Walter Samuel Onnoghen, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT
Joseph Nwobike Esq.
⦿ FOR THE RESPONDENT
Adesola Shobayo (Mrs) then as Administrator-General and Public Trustee, Ministry of Justice, Abeokuta, Ogun State, now Director of Public Prosecutions of the said State.
➥ CASE HISTORY
The facts of the case include the following. On the 23rd day of January, 1990 the deceased, one Olufemi Adetola, male was driving a Volkswagen Bettle Car with registration No. OGLG 48 J along old Ondo/Benin Road, Ijebu – Ode, a Federal Highway and when he got to Oke – Owa town, the deceased had a head-on collision with another vehicle, a petrol tanker with registration No. OY 1758 LE driven by the appellant. At the time of the accident, the deceased had two passengers in the vehicle he was driving including PW5 and a lady referred to as Titilayo who allegedly sat in front with the deceased while PW5 sat at the back of the said vehicle. It is the case of the prosecution that the accident occurred as a result of the dangerous manner appellant drove his vehicle along that road that particular day in that appellant allegedly left his rightful lane by pulling out of it as a result of a long queue of vehicles and drove on the lane of the on coming vehicle then being used by the deceased and collided with the vehicle of the deceased thereby killing him on the spot.
On the other hand, appellant denies leaving his lane and colliding with the deceased in the deceased’s lane. His case is that there was a broken down water tanker on the road which had spilled water on the road thus rendering the road slippery and that the deceased was overtaking the said broken down water tanker when he (the deceased) drove into the appellant’s vehicle and caused the accident. Appellant further said that he tried to avoid the accident by applying his brakes only for the vehicle to swerve and collide with the vehicle of the deceased.
This is an appeal against the judgment of the Ibadan Division of the Court of Appeal in appeal NO. CA/l/29/99 delivered on 17th day of January, 2002 in which the court affirmed the judgment of the Ogun State High Court holden at Ijebu-Ode delivered in charge NO. HCJ/9C/91 in which the trial court convicted and sentenced the appellant for the offence of causing death by dangerous driving a.k.a. manslaughter.
The prosecution called the Vehicle Inspection Officer who tested and examined the vehicles involved in the accident and he told the court that in his opinion, the accident was not caused by any mechanical defect in any of the vehicles. In addition to that testimony and the reports, the prosecution also called the Investigating Police Officer who drew up a sketch map of the scene of accident which he tendered. At the end the trial court considered the case of the parties and came to the conclusion that the prosecution had proved its case beyond reasonable doubt and convicted and sentenced appellant on the 1st count of the charge while he suspended further proceedings in respect of count 2.
➥ ISSUE(S) & RESOLUTION
[APPEAL DISMISSED]
I. Whether the reliance placed by the learned trial judge on the rough sketch drawing was fit and proper in view of the inadequacies in the sketch drawing as compared with the evidence of PW5 and the accused appellant.
RULING: IN RESPONDENT’S FAVOUR.
A. “Learned trial judge was emphatic in his findings in that respect when he stated that – ‘there can be no doubt from the sketch as to whose lane the accident occurred and in whose lane both vehicles fell…… I have had a close look at the rough sketch of the scene of the accident – exhibit 3. As indicated earlier in this judgment, the broken line is intended to show the middle of the road. In that event, the point of impact is clearly within the lane of the Volkswagen vehicle and confirms the evidence of PW5 as to whose lane the accident occurred on. Besides, if it was true that the Volkswagen bettle car was overtaking a broken down water tanker, there is no doubt that the Volkswagen bettle car would have got on to the lane of the accused person and that any head – on -collision thus resulting could only be on the lane of the accused. This is not confirmed by exhibit 3.’ The above finding was confirmed by the Court of Appeal making same concurrent finding. Unfortunately learned counsel for the appellant has not advanced any reasons why this court should interfere with the said findings particularly as the same is in no way perverse. There is equally no contradictions, let alone material contradictions in the evidence of the prosecution in the instant case and I therefore resolve the issue against the appellant.”
.
.
II. Whether PW5 was a tainted witness under the law?
RULING: IN RESPONDENT’S FAVOUR.
A. “From the facts of this case, it is clear that PW5 does not fit into the definition of a tainted witness not being an accomplice nor has it been shown that he had any purpose of his own to serve by testifying the way he did. To hold that PW5 is a tainted witness will be stretching the definition of that term too far and contrary to common sense particularly as every eye witness who testifies against an accused stands the risk of being branded “tainted witness” to the detriment of our criminal justice(s) administration. Granted, for the purpose of argument only that PW5 is a tainted witness his testimony is substantially corroborated by exhibit 3 – the sketch map of the scene of accident which was prepared not by PW5 but PW6, the Investigating Police Officer in the absence of PW5 as revealed by the evidence. So in whatever way or angle one looks at it, the issue must fail and is accordingly resolved against the appellant.”
.
.
III. Whether the sentencing of appellant on count No. 2 by the court below was not an improper exercise of judicial powers in the circumstance?
RULING: IN APPELLANT’S FAVOUR.
A. Having regards to the position of the law, I hold the view that the powers of the Court of Appeal under section 16 of the Court of Appeal Act relied upon by the lower court in this matter does not empower that court to raise issues and decide them contrary to what the trial court had decided and in respect of which neither party had appealed to the Court of Appeal. In the present case, the appeal emanates from a criminal trial, not civil.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Sections 4, 5(1), of the Federal Highway Decree No. 4 of 1971.
Section 16 Court of Appeal Act.
➥ REFERENCED (CASE)
⦿ FINDING NOT APPEALED MUST NOT BE DISTURBED BY APPELLATE COURT
In the case of Oshodi vs Eyifunmi (2000) FWLR (pt. 8) 1271 at 1305 per Iguh, JSC, this court held as follows: “In this regard, it is to be emphasised that the appellate jurisdiction of the Court of Appeal is to hear and determine appeals from the High Courts. If a finding or decision of a trial court, whether on an issue of fact or law is not challenged in an appeal to the Court of Appeal, such finding or decision, rightly or wrongly, must not be disturbed for the purposes of the appeal in question – see Nwabueze vs Okoye (1988) 4NWLR(pt. 91)664. …… Perhaps I should also add that when an issue is not placed before an appellate court, it has no business whatsoever to deal with it – see Florence Olusanya vs Olufemi Olusanya (1983) 3 S.C 41 at 56 – 57.”
⦿ LORD DENNING’S COMMENT ON REASONABLE DOUBT – FANCIFUL POSSIBILITIES
Denning J. (as he then was) in Miller v. Minister of Pensions (1947) 2 ALL E.R. 372 at 373 when he said thus: – “The law would fail to protect the community if it admitted if fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but in the least probable”, the case is proved beyond reasonable doubt but nothing short of that will suffice.”
➥ REFERENCED (OTHERS)
