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SIR ADETOKUNBO ADEMOLA, F.C.J. (Presided and Read the Judgment of the Court)
MYLES JOHN ABBOTT, F.J.
LOUIS NWACHUKWU MBANEFO, F.J.
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]
CRIMINAL LAW AND PROCEDURE -Alternative Counts – Conviction on all counts – Propriety of
CRIMINAL LAW AND PROCEDURE – Manslaughter arising from driving of vehicle – Degree of negligence.
MOTOR VEHICLE/TRANSPORTATION LAW: Driving Licence – Driving with an invalid learner’s permit – collision resulting in death of a road user – consequence thereof
B.O. Kazeem -for the Respondent.
ADEMOLA, F.C.J. (Delivering the Judgment of the Court):
The appellant in this case was charged in the High Court of Lagos on an Information containing three counts as follows:
(1) Manslaughter contrary to section 325 of the Criminal Code.
(2) Driving in a manner dangerous to the public, contrary to section 18(1) of the Road Traffic Ordinance, 1947.
(3) Negligent driving, contrary to section 18(1) of the Road Traffic Ordinance, 1947.
After a trial lasting four days he was convicted on the three counts and sentenced to a term of imprisonment of 12 months with hard labour on the 1st count, and 3 months with hard labour on each of the other two counts, sentences to run concurrently. From the convictions and sentences he has now appealed.
The appellant, it would appear, had obtained a learner’s permit to drive a motor vehicle subject to his presenting himself for a test. At the required time he presented himself for a test, he failed to pass the test and his learner’s permit was cancelled. He was to apply for a fresh learner’s permit before handling a motor vehicle. About five days after his learner’s permit had been made invalid, and before he obtained a new permit, that is on the night of the 20th July, 1957, the appellant drove a motor vehicle on the Lagos-Agege road. He collided with two cyclists who were riding their bicycles towards him. In other words the appellant was driving towards Agege direction whilst the cyclists were riding towards Lagos. The collision resulted in the death of one of the cyclists and it formed the subject matter of this case.
As the only argument in this appeal dealt with the case on the first count, the only point we need consider is the question of negligence; whether the degree of negligence of the appellant was so gross as to support a finding of manslaughter.
Before the learned trial Judge, the evidence of how the appellant manipulated his car on that night came from two witnesses, namely, the first witness for the Crown who was with the other cyclist knocked down by the appellant. He was riding his bicycle behind the deceased. They were both travelling together. The other was the third witness, one Sole Alabi Williams, who was standing outside a house by the roadside. The first of these two witnesses saw nothing wrong in the driving of the car except that it came towards him and the deceased, facing them and knocked them down. The other witness, the 3rd witness for the Crown, stated that he saw the car zig-zagging before it knocked down the deceased and the 1st witness for the Crown.
The learned trial Judge in his summing up put the evidence of these two witnesses (which is the only evidence connected with the offences charged) concisely as follows:
“The evidence here, as I have set forth, is that the accused drove on the wrong side of the road, at 30-35 miles per hour, and that the car was seen to be zig-zagging on the road before the accident, and then collided with the deceased who was riding a bicycle properly on his own side of the road. On this evidence, coupled with the fact that apparently the accused did not possess the requisite skill to be driving a car, I was satisfied that the prosecution had established a’prima facie’ case of dangerous driving and negligent driving, and had established that high degree of negligence, as is referred to in Andrew’s case sufficient to call upon the accused in his defence on each count of the indictment.”
There is sufficient evidence on the record that at that hour, between 10 and 10.40 p.m. there were only a few people using the road. The only evidence therefore on which the convictions are based was that of the 3rd witness for the Crown who stated that the appellant’s car left its own side of the road and was zig-zagging before the accident.
The learned Crown Counsel in his submission, said that the fact that the appellant was not competent to drive, having failed his driving test imports a higher degree of negligence.
We cannot accept this proposition; and unhappily, it appears to us from the summing up that the learned trial Judge misdirected himself here. We approve of the decision in R. v. Tatimu 20 N.L.R. 60 that in such circumstances as this, the fact that the driver of a vehicle had not a driving licence does not by itself prove recklessness on his part.
This error on the part of the Judge may be due to the fact that the other two counts of negligent driving and dangerous driving were considered together with the count of manslaughter. In our view the issues are distinct and different and it is desirable, for the sake of clarity, that they be considered separately.
We do not think on the whole that the learned Judge has sufficiently considered the degree of negligence required in a case of manslaughter arising out of driving a vehicle as distinct from dangerous or negligent driving and the facts relied upon in this case do not, in our view, establish such a degree of negligence as to amount to manslaughter.
The appeal on the 1st count will be allowed. The conviction and sentence passed on that count are quashed. Appeals on counts 2 and 3 are, however, dismissed. We do not think this is a matter in which we should interfere with the sentences passed on these two counts.
We may add that counts 2 and 3 are plainly alternative both “inter se” and to count 1. Once the appellant had been found guilty of manslaughter (count 1), it was unnecessary to find a verdict on the other two counts.
ABBOTT, F.J.: I concur.
MBANEFO, F.J. I concur.
Appeal Allowed in part.