[PDF copy of this judgment can be sent to your email for N300 only. Just order through email@example.com and firstname.lastname@example.org or text 07067102097]
COURT OF APPEAL, [IBADAN DIVISION]
9TH MAY 2001
2 NWLR (PT 750)73
BEFORE THEIR LORDSHIPS
MORONKEJI OMOTAYO ONALAJA, JCA (Presided)
FRANCIS FEDODE TABAI, JCA
OLUFUNLOLA OYELOLA ADEKEYE, JCA (Delivered the leading judgment)
HIGH COURT OF JUSTICE OGUN STATE, SAGAMU [
CHILDREN AND WOMEN LAW:- Children/Women and Justice Administration– Dangerous Driving on highway occasioning the death of woman pedestrian on grass verge – How treated
CRIMINAL LAW AND PROCEDURE:- Proof of dangerous driving – Sketch exhibit showing where accident occurred – Relevance
CRIMINAL LAW AND PROCEDURE:– Dangerous driving on a Federal highway – Causing death by dangerous driving on a Federal highway – How proved – Section 4 and 5 of the Federal Highways Decree No 4 of 1971 – Relevant considerations
CRIMINAL LAW AND PROCEDURE:- Dangerous driving and Death occasioned thereby – Proof – Leaving one’s lane to swerve to the grass-verge and hit a pedestrian on the verge – Whether is an obvious act of dangerous driving simpliciter
CRIMINAL LAW AND PROCEDURE:- Charge of murder – Proof that the deceased died and that it was in respect of his body that an autopsy was performed – Whether a legal requirement – Where identification of the body is in issue – Whether absence of direct or circumstantial evidence of the identification of the corpse examined is fatal where medical evidence of cause of death is vital
CRIMINAL LAW AND PROCEDURE – PROOF OF CRIME:- Proof beyond reasonable doubt – Meaning – Whether “proof beyond reasonable doubt” does not mean proof beyond all shadow of doubts
CRIMINAL LAW AND PROCEDURE:- Standard of proof for dangerous driving occasioning death – Whether the standard of proof required in the case of causing death by dangerous driving is not as high as that required in manslaughter
CRIMINAL LAW AND PROCEDURE – IDENTIFICATION OF CORPSE:- Justification – Where the act of an accused has to be established as, or linked with causing the death of a victim – Need for a proper identification that the corpse collected from the scene is same as that identified to the doctor who performed the autopsy to determine the cause of death –
CRIMINAL LAW AND PROCEDURE – IDENTIFICATION OF COURSE:- Who may identify body – Desirability to call as a witness the person who identified the victim’s dead body to the doctor who performed the autopsy – Whether necessary only in circumstances where the identity of the body examined by the doctor is shrouded in doubt – Whether where the identity can be inferred such direct evidence is not essential
TRANSPORT AND LOGISTICS LAW:- Dangerous driving on a Federal highway – Causing death by dangerous driving on a Federal highway – Meaning – How proved – In the prevailing circumstance of a straight road, wide road, rainfall, impaired visibility caused by power failure – Whether adopting a type of driving which caused accused to veer off the main road to the grass verge abutting the road in a built-up area within township amounted to dangerous driving where vehicle did not have any brake failure or any other form of mechanical defect
HEALTHCARE AND LAW:- Identification of deceased victim of accident – Whether needs to be done by a credentialed pathologist – How proved – Whether proof of competence of pathologist carrying out autopsy is a material factor – Implication for justice administration
PRACTICE AND PROCEDURE – COURT:- Judicial Notice – Whether all legislations in respect of the Federal highways passed in this country can be judicially noticed by the court – whether such do not require any further proof by adducing additional evidence – Whether can be referred to by Court without production physically – sections 73 AND 74 (1) (a) (b) of the Evidence Act, 1990 – Effect – Effect
PRACTICE AND PROCEDURE – APPEAL:– Raising fresh issue on appeal – Issue requiring fresh evidence – Need to obtain leave of court.
PRACTICE AND PROCEDURE – APPEAL:– Findings of fact by trial court – Attitude of appellate court to invitation to interfere therewith
PRACTICE AND PROCEDURE – EVIDENCE:- Circumstantial evidence – Whether may ground conviction where it is unequivocal, positive and point irresistibly to the guilt of the accused – Where direct evidence is not available – Nature of circumstantial evidence which is admissible to prove the charge against an accused person
PRACTICE AND PROCEDURE – EVIDENCE:– “Proof beyond reasonable doubt” – Section 138 (1) of Evidence Act – Meaning of and implication
PRACTICE AND PROCEDURE – EVIDENCE:– Inconsistent statements – where statements of a witness given before the trial and at the trial are inconsistent – How treated.
INTERPRETATION OF STATUTE:- Section 73 of the Evidence Act Cap 112 Laws of the Federal Republic of Nigeria – Purport and effect – Section 4 and 5 of Federal Highways Decree No 4 of 1971
WORDS AND PHRASES:- “Beyond reasonable doubt” – “Proof beyond reasonable doubt” – Meaning and origin
CASES REFERRED TO IN THE JUDGMENT
Abina v. State (1989) 2 NWLR (Pt. 130) 238.
Adepetu v. State (1998) 9 NWLR (Pt. 565) 185.
Ajidahun v. State (1991) 9 NWLR (Pt. 213) 33.
Akinfe v. State (1988) 3 NWLR (Pt. 85) 729.
Anna v. State (1990) 6 NWLR (Pt. 155) 125.
Elot v. State (1993) 4 NWLR (Pt. 290) 644.
Enewoh v. State (1990) 4 NWLR (Pt. 145) 469.
Esai v. State (1976) 11 SC 39.
Idemudia v. State (1999) 7 NWLR (Pt. 610) 200.
Idowu v. State (1998) 11 NWLR (Pt. 574) 354.
Ilori v. State (1980) 8-11 SC 81.
Kasa v. State (1994) 5 NWLR (Pt. 344 ) 269.
Njoku v. State (1992) 8 NWLR (Pt. 262) 714.
Nwogu v. State (1986) 4 NWLR (Pt. 384) 358.
Ofondu v. Niweigha (1993)2 NWLR (Pt. 297) 253.
Ogunbanjo v. State (1996) 6 NWLR (Pt. 452) 78.
Okeke v. State (1999) 2 NWLR (Pt. 590) 246.
Okoro v. State (1988) 5 NWLR (Pt. 94) 255.
Okoro v. State (1993) 3 NWLR (Pt. 282) 425.
Omogodo v. State (1981) 5 SC 5.
Onugbogu v. State (1975) 9-11 SC 139.
Onuoha v. State (1995) 3 NWLR (Pt. 385) 591.
Peter v. State (1997) 3 NWLR (Pt. 496) 625.
Oladejo v. The State (1987) 3 NWLR (Pt. 61) 364.
State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548.
Ubochi v. State (1993) 8 NWLR (Pt. 314) 697.
Statutes referred to in the judgment
Federal Highway Decree No. 4 of 1971, sections 4 and 24.
Evidence Act Cap 112 of 1990, section 74(1).
ADEKEYE, JCA (Delivering the leading judgment):
In the charge preferred against the accused person Adeboye Amusa before the High Court of justice Ogun State in the Sagamu Judicial Division, the information filed without the particulars read as follows:-
Causing death by dangerous driving on a Federal highway contrary to and punishable under section 4 of the Federal Highways Decree No 4 of 1971.
Dangerous driving on a Federal highway contrary to and punishable under section 5(1) of the Federal Highways Decree No. 4 of 1971.
The facts of the case briefly put are that the accused, a commercial driver by profession drove a taxi cab- a Datsun 120Y registered as LA 2681, to Sagamu in the evening of 20/6/88 to discharge some passengers. At Ipara along the old Ibadan – Lagos road around 8.30 pm – his vehicle swerved off the main road and knocked down a pedestrian on the grass verge. The victim died on the spot. Her corpse was conveyed to the Ogun State Teaching Hospital Sagamu, where it was deposited. The corpse was identified to the doctor who performed post-mortem examination on her on the 21st of June 1988 as that of Mrs Adeoti Adegunle by her relation. The accident was reported to the police whereupon a road traffic superintendent was invited to give an opinion on the mechanical condition of the vehicle at the time of the accident. The accused was consequently arrested and charged to court. At the conclusion of trial the learned trial Judge found him guilty of both offences on the information, was convicted and sentenced to three years on the first count and 6 months on the second count. Sentences were concurrent. Being aggrieved by this conviction the accused lodged an appeal dated the 24th day of July 1990 – the accused now to be referred to as the appellant filed three grounds of appeal. The appellant and respondent settled records – briefs were exchanged in accordance with the practice and procedure of this court as embodied in the Court of Appeal Rules. In the appellant’s brief of argument filed on the 17th of October 2000 – three issues were identified for determination as follows:-
(1) Given our adversary system of criminal justice was the trial court right in convicting and sentencing the appellant for dangerous driving on a Federal highway in the absence of any proof that the road is indeed a Federal highway or that the accused drove dangerously.
(2) Whether it was right and proper in law for the trial court to hold that the body of the deceased Mrs. Adeoti Adegunle was properly identified, when in fact and in law there was no positive identification of the body of the deceased by any qualified pathologist nor was there definite evidence establishing a nexus between the body and the accident involving the appellant’s taxi cab.
(3) Whether the learned trial court dispassionately evaluated the evidence before it so as to arrive at the right conclusion in this case.
The respondent filed the brief of argument on 28/11/2000, in which it adopted the issues formulated by the appellant, with modifications as appropriate in this appeal.
Issue No 1.
The appellant referred to the burden of proof on the prosecution, to establish the case against an accused person beyond reasonable doubt. It was necessary for the respondent to prove all the elements of the offences before the court. The ingredients of the offence before the court are:-
(2) Causing death by dangerous driving
(3) Federal highway
The prosecution failed to establish the foregoing before the trial court. It was necessary to prove by evidence that the accident occurred on a Federal highway-the trial court was in serious error of law to have taken judicial notice of it. Section 24 of the Federal Highways Decree 1971, provides that the declaration of any road as a Federal highway shall be published in the Federal Gazette. Such a declaration may also be cancelled or amended. Declaration of roads as Federal highways is not one of the matters listed in section 74(1) of the Evidence Act Cap 112 of 1990. No Federal gazette was tendered before the trial court. There was no evidence of the manner of driving of the accused, dangerous or otherwise and of his speed – which are requirements to prove dangerous driving. The court ruled on weak and tenuous circumstantial evidence. The accused should in the circumstance have been discharged and acquitted. For the foregoing propositions, the appellant relied on the cases of Anna v. The State (1990) 6 NWLR (Pt. 155) 125 at 135-137; Idowu v. The State (1998) 11 NWLR (Pt. 574) pg. 354 at 366-367; Adepetu v. The State (1998) 9 NWLR (Pt. 565 pg 185; Ogunbanjo v. State (1996) 6 NWLR (Pt. 452) pg. 78; Ajidahun v. The State (1991) 9 NWLR (Pt. 213) pg 33 at 46-47.
The respondent relied on the burden of proof of the prosecution as regards the essential requirement of the offences before the court – and that the respondent failed in this duty. It was the contention that the accident occurred along Lagos/Ibadan road, and this road was declared a Federal highway under the Federal Highways (Declaration) No. 3 order pursuant to section 24 of the Federal Highways Act 1971. Furthermore – that by the sketch of the scene exhibit A – both parties agreed about the scene – and reference was made to section 73 of the Evidence Act Cap 112 of the Laws of the Federation 1991 that no fact of which the court must take judicial notice need be proved. It was part of the matter which the court must take judicial notice of as listed in section 74(1)(a) (b) – include all laws, or enactments and any subsidiary legislations having the force of law in Nigeria, all public Acts and subsidiary legislations passed by parliament. The Federal Highway Declaration No 3 made pursuant to section 24 of the Federal Highways law 1971 – falls within the foregoing. That Lagos/Ibadan road – the scene of the accident – was declared a Federal highway pursuant to section 24 of the Federal Highways Act 1971– the trial court was bound to take judicial notice of this fact. On the mode of driving of the appellant the respondent drew attention to the relevant area of the finding of the learned trial Judge as follows:
(1) That the appellant left his lane and swerved to the right-hand grass verge where his taxi-cab hit and knocked down the deceased who died instantly. Fact confirmed by PW4 and the appellant vide page 9 lines 28-34 and page 10 lines 18-20, page 7 lines 26-27 of the record, and page 19 lines 1-11 for the finding of the learned trial Judge.
(2) At the time this vehicle swerved on the grass verge, the taxi-cab driven by the appellant had no mechanical defect in the brakes – This was based on the evidence of 3rd PW – page 19 lines 13-15 of the record.
(3) That exhibit A – the sketch of the scene – contradicted the evidence of the appellant on oath that the accident occurred at a bend. Exhibit A – revealed that the skid marks and point of impact were on a straight portion of the road – while the bend was still far off.
(4) The evidence of PW1 contradicted that of the appellant that a trailer was on the road, while the presence of the trailer was not part of his statement exhibit A.
Leaving one’s lane to swerve to the grass-verge and hit a pedestrian on the verge – is an obvious act of dangerous driving. The standard of proof required in the case of causing death by dangerous driving is not as high as that required in manslaughter.
I uphold all the submission of the respondent in support of issue No. 1. For the avoidance of repetition and verbosity I shall just refer to the relevant Act and cases where necessary.
Section 73 of the Evidence Act Cap 112 Laws of the Federal Republic of Nigeria states that:- “No fact of which the court must take judicial notice need be proved”.
Section 74(1)(a) and (b) states that-
The court shall take judicial notice of the following facts-
74(1)(a)”All laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria”;
74(1)(b)”All public Acts passed or hereafter to be passed by Parliament and all subsidiary legislation made thereunder and all local and personal Act directed by Parliament to be judicially noticed”
I confirm the submission of the respondent that all legislations in respect of the Federal highways passed in this country can be judicially noticed by the court – and such do not require any further proof by adducing – any additional evidence – without production physically – as I can always refer to them.
The sketch exhibit A – becomes an authentic document – having been admitted in evidence with the consent of both parties.
The sketch exhibit A shows that the accident occurred at a point on the highway where the width of the road is 30 feet. The appellant left the 30 feet wide road to end up on a 6 feet wide grass verge. The 1st PW was attracted out of the house – by the accident, he did not refer to the trailer mentioned by the appellant in his evidence on oath. The portion of the road was straight. The skid marks to the point of impact was 74 feet. It was then 8.30 pm, while it was raining. The appellant’s vehicle in a rainfall skidded for a distance of 74 feet and threw off a pedestrian to a distance of 20 feet from the point of impact. The houses depicted to abut the road – show that it was a built-up area within the township – coupled with the evidence of P.W. 4 via page 7 lines 22-23. All the foregoing pieces of evidence point glaringly to the fact that the mode of driving adopted by the appellant was dangerous, and that death of a pedestrian resulted from this.
Issue No 2
The appellant contended quoting him – that
“It is a cardinal principle of law that failure to properly identify the body of the deceased by a medical doctor so as to establish a clear nexus between the death of the deceased and the act of the accused person is fatal to the case of the prosecution”.
Ubochi v. State (1993) 8 NWLR (Pt. 314) pg 697 at 714.
The identification of the victim of this accident must be positive, certain, specific and functional so as to show that the body being identified is that of the victim killed. The identification was not done by a pathologist – as there was no evidence to confirm that the 5th PW was a pathologist.
The appellant cited the case of Elot v. State (1993) 4 NWLR (Pt. 290) page 644 at 657. No weight in the event of improper identification should be attached to the evidence of PW5. The respondent made reference to the findings of the learned trial Judge in respect of the identification of the corpse of Adeoti Adegunle the victim of the accident to the medical officer who performed the post-mortem examination on her body. The trial court relied on the evidence of PW1, PW2 and PW3 to arrive at the conclusion that the body of the deceased was properly identified to the medical doctor who performed the autopsy.
The identification of the corpse to the doctor PW5 after deposit of same at the hospital was done by PW2 who picked up the dead body from the scene on 21/6/88 and deposited her at the hospital. He identified the corpse before autopsy was performed on her page 3 lines 31-32 page 4 lines 1-5 of the record. PW1 confirmed that Mrs. Adeoti Adegunle was the accident victim – page 3 lines 13-15 of the record. PW5 confirmed that he performed autopsy on the corpse of Mrs Adeoti Adegunle in his evidence on oath. PW5 gave evidence of his qualification and competence – as his duties include performing autopsy page 8 lines 20-24.
It is trite that in a case where the act of an accused has to be established as, or linked with causing the death of a victim – there must be proper identification that the corpse collected from the scene is same as that identified to the doctor who performed the autopsy to determine the cause of death. I agree and lift all the submissions made by the respondent that the evidence of the 5th PW cannot be taken in isolation or the chain of causation in the events after the victim died and her corpse deposited in the hospital broken while determining the issue of her identity. The evidence of the PW1, about her death, the 2nd PW about collecting her corpse from the scene and disclosing her identity, the 4th PW who called at the hospital, and 5th PW who performed the post-mortem examination vide page 3 lines 14-15, page 4 lines 1-5, 8-9, page 8 lines 5-8 and lines 24-32, page 9 line 1 respectively. On identification, the position of the law in decided cases is clear and unambiguous. The court made pronouncement in a plethora of cases about the purpose for which identification is required in law. In the case of Idemudia v. State (1999) 7 NWLR (Pt. 610) pg 200 at pg 223 it was stated that:-
“On a charge of murder, proof that the deceased died and that it was in respect of his body that an autopsy was performed is a legal requirement where identification of the body is in issue, absence of direct or circumstantial evidence of the identification of the corpse examined is fatal where medical evidence of cause of death is vital”.
The desirability to call as a witness the person who identified the victim’s dead body to the doctor who performed the autopsy is necessary only in circumstances where the identity of the body examined by the doctor is shrouded in doubt. Where the identity can be inferred such direct evidence is not essential. Enewoh v. State (1990) 4 NWLR (Pt. 145) pg 469; Okoro v. State (1988) 5 NWLR (Pt 94) pg 255. It was further stated in the case of Njoku v. The State (1992) 8 NWLR (Pt. 262) pg 714 at pg 723 paragraphs B-C that-
“Where the totality of evidence adduced by the prosecution showed unmistakably that the body on which a doctor performed a post-mortem examination was that of the deceased, a separate witness to testify as to the identity of the corpse, though desirable is not a necessity”.
The identification must be done by persons who know the deceased very well before her death Okoro v. State (supra) It could also be that from the nature of the available evidence there is reliable nexus of some sort between the injuries received by the deceased as given by those who saw them when or after she received them and those described by the doctor on performing the autopsy. The 1st PW saw the deceased with head injuries which was confirmed by the 5th PW in his evidence. The issue that the 5th PW was not a pathologist was not canvassed before the trial court. This issue of his incompetence to carry out autopsy if it is considered should have been made an issue before the trial court. If it is now to be raised leave of court would be required to adduce fresh evidence. Not having gone through this channel the appellant is estopped from raising the issue of the competence of the 5th PW to perform an autopsy on the corpse of the victim of the accident not being a proclaimed pathologist. There was no categorical evidence before the trial court in respect of his full qualifications. That issue is resolved in favour of the respondent.
Issue No 3
This issue queried the evaluation of evidence of the learned trial Judge and that the judgment delivered by the court is highly perverse and cannot be supported by the evidence adduced. The appellant held that the court was in error to admit the testimony of the 5th PW a medical officer when there was no evidence of his area of specialization. The court did not consider the pieces of evidence about the condition of the road on that night which hampered unimpaired visibility and proper control of the vehicle. It was in evidence that it rained that night which would make the road slippery, and there was electric blackout coupled with the fact that the said deceased was covering her head with a tray in view of the rain. Failure to consider the foregoing would have resulted in a miscarriage of justice warranting the necessity of the interference by this court.
The respondent replied that the learned trial Judge considered the foregoing pieces of evidence before arriving at the guilt of the appellant and particularly that the appellant left the main road to hit a pedestrian on the grass verge was a demonstration of dangerous driving. It was the contention that he was convicted on circumstantial evidence which was doubtful, tenuous and weak as there was no eyewitness account on which the trial court could rely. It is settled law that where the circumstantial evidence is overwhelming and leads to no other conclusion than the guilt of the accused, the accused can be found guilty and be convicted. Okoro v. State (1993) 3 NWLR (Pt. 282) pg 425 at 431, Kasa v. State (1994) 2 NWLR (Pt 325) pg. 143. I wish to add that the pieces of evidence which the appellant referred to above are facts which really buttress the conclusion of the learned trial Judge that the driving of the appellant was dangerous at the time of the accident. In the prevailing circumstance of a straight road, wide road, rainfall, impaired visibility caused by power failure – the appellant adopted a type of driving which caused him to veer off the main road to the grass verge abutting the road. This was in a built-up area within township. This vehicle did not have any brake failure or any other form of mechanical defect. The learned trial Judge rightly rejected his evidence as being unreliable. His account to the police contradicted his evidence on oath. The position of the law is that:
“Where a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not be merely directed that the evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statement sworn or unsworn do not constitute evidence upon which they can act”.
From the overwhelming evidence before the court, the guilt of the appellant was proved beyond reasonable doubt and the learned trial Judge was right in convicting and sentencing the appellant for dangerous driving in a built-up area of a Federal highway and thereby causing the death of a passerby – who was then walking down a grass verge. It is trite that an appellate court would interfere with or disturb the findings of fact of a trial court only where evidence is perverse, or miscarriage of justice or violation of any principle of law had been occasioned. The court has not got any such reason to interfere with the conviction and sentence of the learned trial Judge in the trial court. Nwogu v. The State (1986) 4 NWLR (Pt. 384) pg. 358; Akinfe v. The State (1988) 3 NWLR (pt 85) 729. This appeal is dismissed, the conviction and sentence of the lower court are affirmed.
MORONKEJI OMOTAYO ONALAJA J.C.A:
I was privileged to have a preview in draft of the lead judgment just delivered by my Lord Justice Adekeye, J.C.A. which appeal touched the carnage on our roads due to careless, reckless and negligent driving of motor professional drivers. After a careful perusal of the lead judgment notwithstanding the valiant defence and argument put up by learned counsel for appellant, the learned trial Judge made in my assessment proper findings of fact that led to the conviction of the appellant by causing death by dangerous driving on Federal highway contrary to and punishable under section 4 of Decree/Act Federal Highway Decree/Act No 4 of 1971 which the lead judgment rightly held the findings of facts were not perverse, Being an appellate court as the findings of facts were not perverse the lead judgment rightly decided not to disturb the findings of facts as there was no legal basis or justification as an appellate court to disturb the findings of fact. I also agree that the appeal lacks substance and was rightly dismissed.
The learned counsel for the appellant was cautious not to have appealed against the sentence imposed by the lower court as I think with the carnage on our roads due to reckless and negligent driving the lower court was lenient on the sentence but for the fact that there was no appeal against the sentence I would have enhanced the sentence.
FRANCIS FEDODE TABAI, JCA:
I had the privilege of reading, in draft, the leading judgment prepared by my learned brother Adekeye, JCA and I agree entirely with the reasoning and conclusions therein. The learned trial Judge evaluated the evidence and made some findings of facts, the substance of which are:
(i) that the appellant left his lane and swerved to the right-hand grass verge where his vehicle knocked down the deceased who died on the spot;
(ii) that at the time of the accident the vehicle driven by the appellant had no mechanical defect;
(iii) that the accident occurred at a straight portion of the road and not at a bend, and;
(iv) that there was no trailer on the road in the area at the time of accident.
Each of these findings was amply supported by evidence some of which even came from the appellant himself. Therefore any assertion by the appellant about the findings being perverse is without substance. There is no basis for this court to interfere with the findings of facts. On the principles guiding an appellate court towards findings of fact of a trial court, see Ofondu v. Niweigha (1993)2 NWLR (Pt. 297) 253 and Oyedeji v. Adenle (1993) 9 NWLR (Pt 297) 91. I agree that the evidence is essentially circumstantial, there being no direct evidence of the accident. Where circumstantial evidence adduced by the prosecution is cogent, positive, unequivocal and points irresistibly to no other conclusion than the guilt of the accused person, the court can properly convict upon it. See Esai v. State (1976) 11 SC 39; Omogodo v. State (1981) 5 SC 5 and Abina v. State (1989) 2 NWLR (Pt. 130) 238. In the instant case, the circumstantial evidence is of such a quality that points conclusively to the guilt of the appellant and I hold therefore that upon the evidence before the trial court the appellant was rightly convicted. For the foregoing and the fuller reasons contained in the leading judgment, I also dismiss the appeal for lack of merit.