AKOLGOBONO. VRS REPUBLIC. (UE /BG /HC1 /D15 /09/2024) [2024] GHAHC 378 (16 September 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, BOLGATANGA UPPER EAST REGION HELD ON 16TH SEPTEMBER, 2024 BEFORE HIS LORDSHIP CHARLES GYAMFI DANQUAH, JA SITTING AS ADDITIONAL HIGH COURT JUDGE. UE /BG /HC1 /D15 /09/2024 AKOLBILA AKOLGOBONO. APPELLANT VS THE REPUBLIC. RESPONDENT JUDGMENT INTRODUCTION The Appellant Akolbila Akolgobono was arraigned before the Circuit Court, Bolgatanga presided over by His Honour Sumaila Mbache Ahmadu charged with three Counts of Road Traffic Offences. The charges were: 1. Dangerous Driving, contrary to the Section 1(C) of the Road Traffic Act, 2004. 2. Driving without a valid Road Worthy Certificate, contrary to Section 94 (1) and (2) of the Road Traffic Act, 2004 (Act 683) as amended by Act 761 of 2008. 3. Driving without a valid insurance certificate, contrary to Section 1 of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42.) The Appellant pleaded not guilty to all the three Counts of Offences which required the Prosecution to prove the guilt of the Appellant beyond reasonable doubt. After a full trial, the Appellant was found guilty of all the three Counts, convicted and sentenced in respect of all the three Counts of Offences on 6th May, 2024. He was sentenced to 3 years imprisonment on Count 1, 25 penalty units on Count 2 or in default 2 months imprisonment, 150 penalty units on Count 3 or in default 1 year imprisonment. All the sentences were to run concurrently and the Appellant was also to compensate the estate of the deceased with Ghc 10,000.00. The Appellant, dissatisfied with his conviction and sentence filed Notice of Appeal to this Court on 23rd May, 2024. GROUND OF APPEAL The sole ground of appeal is that the conviction and subsequent sentence is against the weight of evidence on record. The Appellant therefore prayed the Court to set aside the conviction and sentence of the Circuit Court, Bolgatanga dated 6th May, 2024, acquit and discharge the Appellant. It must be pointed out here and now that in criminal appeals the omnibus ground of appeal is not that the conviction and subsequent sentence is against the weight of the evidence as stated by learned Counsel for the Appellant in this case but that the judgment is unreasonable or cannot be supported having regard to the evidence. In the case of ASANTE (No. 1) vs THE REPUBLIC (No. 1)(2017-2020) SCGLR 132 at pp 142- 143 SC His Lordship Pwamang JSC emphasized the difference between formulating the omnibus ground of appeal in civil cases and criminal cases as follows: “ Before delving into the merits of the appeal, we wish to draw the attention of counsel to the requirements of the Rules of the Court pertaining to the drafting of grounds of appeal in criminal appeals, particularly the general ground which is commonly referred to as the omnibus ground. They are contained in R. 33 of (C. I. 16) which is as follows: “ 33. (1) The notice of criminal appeal or notice of an application for leave to appeal shall set out concisely and under distinct heads numbered seriatim the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative. (2) No ground of appeal which is vague or general in terms or discloses no reasonable ground of appeal shall be permitted except the general ground that the judgment is unreasonable or cannot be supported, having regard to the evidence. It is Regulation 33 (2) of C. I. 16 that should guide the drafting of the general ground of appeal in criminal matters and not Regulation 6 (5) of C. I. 16 which relates to civil appeals and talks of “the judgment is against the weight of evidence.” In criminal appeals that ground is drafted as “ the judgment is unreasonable or cannot be supported having regard to the evidence.” The distinction is legally significant in that it determines how the appellate court proceeds in assessing the evidence. See NYAME vs THE REPUBLIC (1971) 2 GLR 140. Nevertheless, in order to do substantial justice in the case we shall amend ground (i) to read; the judgment cannot be supported having regard to the evidence.” That is exactly what this Court would do by amending the Appellant’s sole ground of appeal to read that the judgment cannot be supported having regard to the evidence. APPEAL IS BY WAY OF RE-HEARING In the case of KINGSLEY AMANKWAH(alias spider) vs THE REPUBLIC ( Criminal Appeal No. J3/04/2019)(2021) Unreported SC (21 July, 2021) Dotse JSC stated as follows; “ One of the clearly settled principles of law which admits of no controversy is that an appeal is by rehearing. What does this mean? In essence, what this means is that, as an appellate court, whenever an appeal comes up for hearing, the appellate court must consider its task as re-hearing of the case. The appellate Court must put itself in place of the trial court and as in this instance, also that of the intermediate Court of Appeal and consider in detail whether the trial of the appellant to settled principles governing the proof of criminal cases by the prosecution and this must be based on settled time tested principles of proof beyond reasonable doubt.” See also the case of TUAKWA vs BOSOM (2001-2002) SCGLR 61 where Her Ladyship Sophia Akuffo JSC (as she then was) explained that an appeal is by was of rehearing as….. it is incumbent upon the appellate court, in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that, on a balance of probabilities, the conclusion of the trial judge are reasonable and amply supported by the evidence. In yet another criminal case of RICHARD KWABENA ASIAMAH vs THE REPUBLIC (2020) 153 GMJ 154 CA it was stated thus: It should be noted that a ground of appeal which alleges that an appellant’s conviction is unreasonable or cannot be supported by the totality of the evidence adduced at the trial is an invitation to the appellate court to rehear the appeal by critically analyzing the evidence on record to determine whether the evidence supports the conviction or whether errors were committed by the Trial Judge which have occasioned substantial miscarriage of justice against the appellant.” FACTS OF THE CASE AS PRESENTED AT THE TRIAL COURT. The brief facts of the case as given by the learned trial Judge was that on the 5th March, 2021 at 16: 30 Hours, the Accused person then 26 years of age was driving 207 Benz Bus with registration number AW 234 Y from Bolgatanga towards Bawku. On reaching a section of the Road at Zuarungu SHS Junction, he knocked down Awuni Mba of 45 years of age who was riding a Haojin Motorcycle from the same direction. That he was pronounced dead at the Bolgatanga Regional Hospital having sustained severe injuries. That the case was investigated and established that, the Accused driver had no valid Road use certificate and insurance certificate covering his vehicle as stipulated in the Road Traffic Act. It was based on these facts that the Appellant was charged with the three Counts of Offences, tried, convicted and sentenced by the Trial Circuit Court. THE JUDGMENT OF THE TRIAL CIRCUIT COURT The prosecution called one witness to prove the case against the Appellant. That was the investigator General Sargent Gesy Kofi Antwi, with number 41924. His evidence was that the Appellant then in charge of the Benz Bus sighted the rider at the point of impact which is 19 meters. PW1 continued that the conduct of the Appellant fell below what is expected of a driver as he drove his vehicle above 50 km/ pH instead of 30 km/ pH at a built-up area. The Appellant therefore knocked down Awuni Mba, then aged 45 years. The motorcycle rider sustained severe injuries and died shortly on arrival at the Bolgatanga Regional Hospital. The postmortem examination revealed that the deceased died of severe head injury. The scene of the accident was visited and measurements taken. The vehicle as well as the motorcycle were all tested. According to PW1 the Appellant gave a cautioned statement and upon receipt of the Advice from the Attorney-General’s office, a charge statement was also taken from the Appellant. Further, PW1 stated that the Appellant who was the driver produced his Serene Insurance Certificate issued on 15th March, 2021 to expire on 14th March, 2022. The Appellant again produced a Road Worthy Certificate issued on 19th August, 2021 to expire on 29th December, 2021. The dates on the these certificates imply that at the time of the accident the Appellant’s vehicle had no valid insurance policy as well as a valid Road Use Certificate. Finally, PW1 tendered the following documents ; 1. Exhibit A – Investigation Caution Statement. 2. Exhibit B – Charge Caution Statement. 3. Exhibit C – Sketch of the Accident. 4. Exhibit. D- DVLA Vehicle Examination Certificate. 5. Exhibit E- Postmortem Report. 6. Exhibit F – Testing Officer’s Report. RESOLUTION OF THE GROUND OF APPEAL As already stated an appeal is by way of rehearing but the Court would not re- try the case in which the evidence adduced supported the conviction of the Appellant. The appellate court’s duty is to review the evidence and to ascertain whether the evidence adduced supported the conviction. The sole ground of appeal in this case is that the judgment is unreasonable or cannot be supported having regard to the evidence. This means that this Court is to take a second look at the evidence on record to determine whether it supports the charge or whether errors were committed by the Trial Court which occasioned a miscarriage of justice to the Appellant. The first charge against the Appellant was Dangerous Driving,; contrary to Section 1 (C) of the Road Traffic Act, 2004 (Act 683). Section 2 (1) of the said Act 683 define Dangerous Driving as, “ For the purposes of Section 1, a person drives dangerously if; (a) the way that person drives falls below what is expected of a competent and careful driver, or (b) it is obvious to a competent and careful driver that it would be dangerous Driving the vehicle (i) in that manner, or (ii) in its current state.” It is the act of driving a motor vehicle in a manner that falls far below that expected of a competent and careful driver and hence puts the life of the driver and the lives of other road users at risk. This includes situations where a driver knowing very well that the vehicle is not to be on the road but risked and put the vehicle on the road. This is where the Act states that it would be dangerous driving because the vehicle in its current state is not to be on the road. So where a driver put on the road a rickety vehicle knowing very well that the state of the vehicle is such that it should not be on the road, such a driver can be classified as engaging in dangerous driving where an accident occurred. This is the definition of dangerous driving from the Collins Dictionary.com as stated by learned Counsel for the Appellant in his submissions filed on 24th July, 2024. In the said submissions learned Counsel for the Appellant is of the opinion that the conclusion drawn by the learned trial Judge was erroneous because the PW1, who was the only witness for the prosecution and at the same time the investigator in the case admitted in cross examination that he was not an eye witness to the accident and again admitted that it was the Deceased who crossed the Appellant leading to the accident and the resultant death of the deceased, the rider of the motorcycle. This was elicited from the PW1 during cross examination as follows: Q. Were you present at the time the accident occurred. A. I was not present. Q. So you cannot say as a fact that what occurred on that day you were not an eye witness. A. I was not there when it happened. The cross examination continued: Q. You also know that it was the deceased who rather crossed the Accused driver, is that not so. A. That is correct, the rider crossed the Accused driver. Q. You are aware, the Accused told you that when the deceased suddenly crossed, he tried to swerve but still hit him. A. Yes, according to the accused. Based on these answers from the investigator, learned Counsel for the Appellant submitted that the facts do not support the case of the prosecution that the Appellant’s driving fell below what is expected of a competent and careful driver to warrant a conviction. This was because the prosecution under the law was to prove the case against the Appellant beyond reasonable doubt. The prosecution witness admitted that the deceased crossed the Appellant. We are also told that the Appellant tried to save the situation but could not do so. This information according to the PW1 was given by the Appellant. The point is that the deceased was riding ahead of the Appellant and wanted to turn to the offside of the road. According to the sketch of the accident the Appellant sighted the deceased from a distance of 19 meters. This means that were the Appellant driving at a reasonable speed of 30 km/pH he could have saved the situation and avoided the accident. The sketch which was signed by both the Appellant and the Investigator showed that the point of impact from where the Appellant saw the deceased was 19 meters. We need no expert to inform us that the Zuarungu Senior High School Junction is a built-up area and more especially when the time was the rush hour around 4.30pm. The examination of the Appellant’s vehicle found out that the vehicle was a defective one. This was because the following defects were found on the vehicle ; 1. No rear breaks. 2. Windscreen broken. These are defects that could cause accidents. The Appellant’s vehicle which was carrying 22 passengers was without rear breaks, something which could help reduce or avoid a collision. The rear brake is designed to provide stability, or else they would lock up any time you hit the brake pedal. If you have bad rear brakes, the rear of your vehicle might jump during hard braking because there is no stabilising braking force. The question is how come a whole bus with 22 passengers be traveling from Bolgatanga to Bawku without a braking system at the back of the vehicle. This is a vehicle that is not supposed to carry passengers at all. It was a defective vehicle and should not have been on the road. Learned Counsel for the Appellant concentrated his attention on the fact that the Appellant tried to save the situation and therefore the Appellant did not drive dangerously. The Road Traffic Act does further state that a person drives dangerously if it is obvious to a competent and careful driver that it would be dangerous driving the vehicle in its current state. This was one of the findings of the learned trial Judge based on which he found the Appellant guilty of dangerous Driving, convicted the Appellant and sentenced him. That the findings clearly showed the vehicle in its current state should not have been on the road. In the case of DEXTER JOHNSON vs THE REPUBLIC (2011) SCGLR 601 the apex Court of this Country explained re-hearing in this context to mean that the principle empowers the appellate Court to consider in its entirety the appeal record before it and substitute itself as the trial Court. In this circumstances, the Court had the power to maintain the conviction, set it aside or acquit and discharge the Appellant or enhance the punishment. The Appellant’s driving of the vehicle fell below what was expected of a competent and careful driver. A competent driver would not put a vehicle with broken windscreen and no rear brakes on the road. In conclusion, the Court would affirm the judgment of the Trial Circuit Judge as far as the Count of Dangerous Driving is concerned and maintain the three years imprisonment imposed on the Appellant. The appeal in respect of the offence of dangerous driving is dismissed. RESOLUTION OF THE ISSUES OF DRIVING WITHOUT A ROAD USE CERTIFICATE. On this issue both Counsel for the Appellant and the Respondent are ad idem that the Appellant had the said certificate at the time of the accident. This is because the Exhibit D which is the Road Use Certificate showed that the said certificate was valid at the time of the accident. The accident occurred on 5th March, 2021 and Exhibit D showed that the Appellant’s vehicle was inspected on 15th December, 2020 and due for the next inspection on 29th May, 2021. This means that the learned Circuit Judge did not take particular note of Exhibit D which was on record. The conviction and sentence in respect of Count 2 which was Driving without a valid Road Worthy Certificate contrary to Section 94 (1) and (2) of the Road Traffic Act 2004 (Act 683) as amended by Act 761 of 2008 are hereby set aside. RESOLUTION OF THE ISSUE OF COUNT 3, THAT IS DRIVING WITHOUT A VALID INSURANCE CERTIFICATE. In his judgment, the analysis made by the learned Circuit Judge as far as this issue is concerned was that the Appellant did not challenge the evidence of the prosecution that at the time of the accident the vehicle had no valid insurance certificate. He continued that once the Appellant allowed the evidence to stand unchallenged, he was of the opinion that the prosecution had proved its case beyond reasonable doubt. The position of the law is that, to hold so is to put the burden of proof on the Appellant. The Appellant was presumed to be innocent and it was the prosecution that was to prove the guilt of the Appellant. In the case of COMMISSIONER OF POLICE vs ANTWI (1961) GLR 408 cited by learned Counsel for the Appellant, His Lordship Korsah CJ stated the law as follows; “ The law is well settled that there is no burden on the accused. If there is any burden at all on the accused, it is not to prove anything but to raise a reasonable doubt. If the accused can raise a reasonable doubt he must be acquitted”. In cross examination of the Appellant by the prosecution at the trial Court on the insurance certificate, the following transpired : Q. I put it to you that on the day of the accident, you had no insurance certificate. A. It is not correct. I had it. In his evidence in chief as contained in his witness statement the PW1 stated that the Appellant produced his Serene Insurance Certificate issued on 15th March, 2021 to expire on 14th March, 2022 and since the accident happened on 5th March, 2021 it meant that at the time of the accident, the vehicle was without an insurance policy. As far as this issue is concerned the position of learned Counsel for Respondent was that the investigator in his witness statement indicated that the Appellant produced a Serene Insurance Certificate issued on 15th March, 2021 to expire on 14th March, 2022. The certificate was issued 10 days after the accident. However, there was no documentary evidence which was tendered at the trial to substantiate this claim. Learned Counsel for the Respondent continued that the prosecution is enjoined by law under Section 11 (2) of the Evidence Act, 1975 (NRCD 323) to produce sufficient 6 evidence to prove its case beyond reasonable doubt. As already stated the learned trial Judge was of the view that once the evidence on the insurance certificate was not challenged and allowed in evidence, then the conclusion is that the Appellant had no insurance cover on the vehicle. This was not the case because Appellant in cross examination insisted that he had the insurance certificate. The prosecution failed to establish that the Appellant had none with the requisite documentary evidence. Having failed to do so, the conviction was a nullity and same is set aside together with the sentence. Under the circumstances, the evidence on record did not establish that the Appellant had no insurance certificate. The evidence led by the prosecution witness did not support the conviction. COMPENSATION OF GHC 10,000.00 ORDERED TO BE PAID TO THE ESTATE OF THE DECEASED. The Appellant again was not satisfied with the order of the Court to pay compensation of Ghc 10,000.00 to the estate of the deceased. However, the Appellant failed to provide any bases for his complaint. The Respondent also failed to address the payment of the compensation. The Criminal and Other Offences (Procedure) Act, 1960 (Act 30) at Section 294 prescribe the different kinds of punishment that may be inflicted for offences. They are; (a) (b) (c) Death; Imprisonment; Detention; (d) Fine; (e) (f) Payment of compensation; Liability to police supervision. This means that the trial Court was within its jurisdiction when it ordered compensation to be paid to the estate of the deceased. However, in the common law jurisdictions, the personal representatives are at liberty to pursue a civil claim for compensation. The compensation that is allowed under our law is for the injured to take care of his expenses. In the civil law jurisdictions, the compensation could have been awarded straight away. However, under the laws of Ghana, l think that the better approach is to leave the issue of payment of compensation to the personal representatives to pursue a civil suit. For this reasons the award of compensation of Ghc 10,000.00 in favour of the estate of the deceased is set aside. CONCLUSION This Court after the review of the evidence on record is of the position that the trial Court rightly convicted and sentenced the Appellant as far as Count 1 which was dangerous driving is concerned and same is accordingly affirmed. The conviction and sentence of the Appellant as far as Counts 2 and 3 which were on driving without a valid Road Use Certificate and a valid insurance certificate are hereby set aside. The Appellant’s appeal against conviction and sentence for Counts 2 and 3 are hereby set aside. HIS LORDSHIP CHARLES GYAMFI DANQUAH, JA (SITTING AS ADDITIONAL HIGH COURT JUDGE) COUNSEL: 1. MOHAMMED TIAMIYU, ESQ FOR THE APPELLANT 2 LILIAN ADAMWABA BUNTUNGU, ESQ FOR THE RESPONDENT.