STATE v BAKARE BALOGUN (U/3.C/64) [1964] NGHC 44 (28 December 1964)

**THE** **S****TATE** **(COMPLAINTS)** **_v_.** **BAKARE** **BA****LOGUN** **(AC****CUSED)** **(1964)** **All** **N.L.R.** **602** **Div****i****si****o****n:** High Court, (Mid-West) **D****at****e** **o****f** **Judgment:** 28th December, 1964 **C****as****e** **Num****b****er:** U/3.C/64 **Before:** Ekeruche, C.J. The accused person, a motor mechanic, was charged on one count of manslaughter contrary to section 263 of the W.N. Criminal Code Law and another of dangerous driving contrary to section 18 of the W.N. Road Traffic Law; he was discharged on the count of manslaughter at the close of the case for the prosecution. The evidence show that the accused whilst testing a motor cycle along the highway early in the morning, collided with a school girl on the road; the girl died on the spot; the accused person deposed that he was riding at 35 m.p.h. when the deceased suddenly jumped into his way and hit her head on the headlight of the motor cycle; The prosecution witnesses, some of whom did not actually witness the accident, said nothing about the speed at which the accused was riding, but merely stated that he rode "very fast" and "at fast speed"; the evidence of the witness who performed the post mortem examination showed that the injuries found on the deceased was more than could have resulted from the deceased merely hitting her head against the headlamp of the motorcycle. **_HELD_**** _:_** (1) The accused person ought to be acquitted as there is no evidence as to the probable speed at which the accused was riding when he hit the deceased and the court is not in a position to determine that speed from the result of the accident. (2) The offence of dangerous driving can only be proved by evidence showing the dangerous manner the accused was managing the vehicle and not whether he is involved in an accident or the result of any such accident. _A_ _c_ _q_ _ui_ _t_ _te_ _d_ _a_ _n_ _d_ _D_ _i_ _sc_ _h_ _ar_ _g_ _ed_ _._ _La_ _w_ _s_ _r_ _e_ _f_ _er_ _r_ _e_ _d_ _t_ _o_ _:__-_ _W.N_ _._ _Cr_ _i_ _mina_ _l_ _C_ _o_ _d_ _e_ _Law_ _,_ _C_ _a_ _p_ _._ _28_ _,_ _s_ _e_ _ctio_ _n_ _2_ _6_ _3_ _W.__N_ _._ _R_ _o_ _a_ _d_ _T_ _r_ _a_ _f_ _f_ _i_ _c_ _L_ _a_ _w_ _,_ _C_ _a_ _p_ _._ _1_ _1_ _3_ _,_ _s_ _e_ _c_ _t_ _i_ _o_ _n_ _1_ _8_ _A_ _mis_ _s_ _a_ _h_ , for the State. _Ihua-Madenyi_ , for the Accused. Ekeruche, J.:-The accused person originally stood charged with manslaughter contrary to section 263 of the Criminal Code Law of Western Nigeria and dangerous driving contrary to section 18 of the Road Traffic Law of Western Nigeria. At the close of the prosecution case he was discharged on the manslaughter count; only the dangerous driving count now subsists against him. The prosecution case is as follows:- The accused a motor mechanic put a motor cycle on the Benin-Ekpoma Road in the morning of 2.8.62 and drove it along the said road. The time of the morning then was about 7:00-8:00 am and school children were on their way to school. The prosecution evidence is that there were about twenty pedestrians on the road then. 1st prosecution witness Sunday Obu and 2nd prosecution witness Gaius Ighalo who were amongst school children that were going to School that day said accused rode past them from their rear. 1st prosecution witness said he was very fast. They said after accused had ridden past them for about a hundred yards they heard the noise of a bang and getting there they saw a school girl Bridget Ehinose on the ground on the left side of the road. The 3rd prosecution witness James Elemihele said that on the said day and time accused rode past him on a motor cycle and knocked down an object about 100 yards after passing him. The object knocked down as he later observed was the girl Bridget Ehinose. This witness said that there were about twenty boys and girls going to School at the time and that at the time accused rode past him he was left of the centre of the road which I must take to mean that accused was within his half of the road although near the centre. Bridget Ehinose according to the prosecution evidence died on the spot and she was later conveyed to the General Hospital at Uromi where a post mortem examination was performed on the corpse. PW7 Dr Denloye who performed the post mortem examination testified as to various injuries he saw on the deceased. The 6th prosecution witness Emmanuel Johnbull gave evidence as to what he saw of the scene of accident and tendered a statement accused agreed in this Court he volunteered to the witness and a sketch of the scene which he the witness said he made and which accused agreed was correct. The accused gave evidence in defence. He said he had taken out the motor cycle in question to test it after repairing it. He rode for about half a mile along Benin-Ekpoma road and whilst riding he saw many school children on the road. He said he was then riding at 35 m.p.h. and as he rode along, a school girl suddenly jumped into his way and hit her head against the headlight of his motor cycle and fell down. As the case stands, the 1st and 2nd prosecution witnesses who gave evidence of the speed at which accused was riding his motor cycle did not witness the accident; they merely said accused rode "very fast" and "at fast speed." 3rd prosecution witness who said he saw accused knock down the deceased said nothing about the speed at which accused was riding. Although the evidence of PW7 as to the injuries he found on the deceased and indeed as the said witness said, showed that the injuries was more than could have resulted from the deceased merely hitting her head against a head lamp of the motor cycle of the accused, there is no evidence as to the probable speed at which accused must have been riding when he hit the deceased and this Court is not in a position to determine that speed from the result of the accident. The words "fast" and "great speed" used by 1st and 2nd prosecution witnesses who are 14 and eight years old respectively in describing accused's speed are clearly no safe indication that he was driving at such speed that was in fact very fast and that can be said to be great. Accused said he was riding at 35 m.p.h. before the accident and the prosecution evidence has clearly established that he had passed the school children including 1st and 2nd prosecution witnesses before the accident happened. I must say that in view of the above I entertain real doubt as to whether in fact the accused was riding or driving his motor cycle in a dangerous manner and the benefit of the doubt must enure to the benefit of the accused. I would like to add that it makes no difference that the girl hit by the accused died. The offence relates to the manner an accused is driving not whether he is involved in an accident or the result of any such accident. The accused is acquitted and discharged.