S v Agbleke (B14/02/23) [2023] GHADC 1327 (11 August 2023)

IN THE DISTRICT COURT, DZODZE HELD ON FRIDAY THE 11TH OF AUGUST, 2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU DISTRICT MAGISTRATE. Case No. B14/02/23 THE REPUBLIC VRS JAMES AGBLEKE JUDGMENT PARTIES COMPLAINANT PRESENT ACCUSED PERSONS PRESENT REPRESENTATION INSPECTOR MAXWELL ACOLATSE FOR PROSECUTION PRESENT BACKGROUND The accused person was arraigned before this Court on 16th March, 2023 on charges of careless and inconsiderate driving and negligently causing harm contrary to Sections 3 of the Road Traffic Act,2004 (Act 683) as amended by the Road Traffic (Amendment) Act,2008 (Act 761), and 72 of the Criminal Offences Act, 1960 (Act 29). BRIEF FACTS 1 | P a g e In the brief facts attached to the charge sheet, the prosecution stated that, the accused person John Agbleke is a driver and lives in Dzodze. The Prosecution stated that on the 9th of December, 2022 at about 6:40pm, the accused person was in charge of a Ford Transit mini bus with registration number GS 2487-21 with 14 passengers on board driving from Dzodze towards Akatsi. The Prosecution stated that upon reaching a section of the road few meters from Dzigbordi FM, the accused saw a DAF trailer vehicle 20 meters ahead of him heading towards the same direction. The Prosecution stated that whiles attempting to overtake the said trailer, the accused saw two vehicles coming from the opposite direction and sensing danger, he reverted to his lane and in the process crashed into the offside rear pillar of the trailer ahead of him. The Prosecution stated that victims Nyonyor Esther, David Torsu and twelve (12) others who were on board the Ford Transit mini bus sustained various degrees of injuries and were rushed to the St Anthony’s hospital in Dzodze where they were treated and discharged to be reporting for review. The prosecution stated that the accused person produced his Driver’s Licence, road worthiness insurance certificate covering the vehicle and same were inspected and found to be valid prior to the accident. The Prosecution stated that after investigations the accused person was arraigned before the court for prosecution. PLEA OF ACCUSED PERSON 2 | P a g e The accused person pleaded not guilty to the offences when the charges and particulars of the offences were read and interpreted to him and was admitted to bail. Witness statements of witnesses of prosecution together with charge statement and investigation cautioned statement of the accused person were filed by the prosecution and served on the accused for trial. THE CASE OF PROSECUTION The prosecution called three witnesses, William Boateng and David Torsu in addition to the police investigator General Sergeant Oduro Twumasi. In his evidence to the Court, the first witness for prosecution, William Boateng stated that he is a driver and a native of Afigyaase in the Ashanti Region. PW1 stated that on the 9th of December, 2022 at about 6:40pm, he was in charge of a DAF trailer long vehicle with registration number GC 7221 – 11 loaded with cooking oil with his mate on board driving from Akanu towards Dzodze. PW1 stated that on reaching a section of the road near Dzigbordi FM, he started climbing a hill and because of the volume of load he was carrying, the trailer was moving slowly. PW1 stated further that he noticed two vehicles were coming from the opposite side and suddenly heard a crash at the rear of the trailer which caused his engine to go off. PW1 stated that when he came down from the trailer, he observed that a Ford Transit mini bus with registration number GS 2487 -21 with passengers on board had crashed and stuck into the offside rear pillar of the trailer. 3 | P a g e PW1 stated that with the help of some commuters and neighbours nearby, they managed to rescue the victims and sent them to the St. Anthony Hospital at Dzodze for treatment. PW1 stated that the police arrived at the scene afterwards to clear the road for free flow of traffic and instructed him to park his vehicle at the Netsikorpe police barrier. PW1 stated that, he went to lodge a complaint at the Dzodze Police Station and was issued with police medical form to attend hospital which he returned to the police duly endorsed after being treated at the Ghana Mission clinic at Kave and a statement was obtained from him. PW1 stated that the police engaged officials from the Driver and Vehicle Licensing Authority (DVLA) from the Denu office who came to Netsikorpe police barrier and had his vehicle examined after which same was released to him. PW2 stated that on the 9th of December, 2022 at about 6:30pm, he was on board the Ford Transit with registration number GS 2487 – 21 as a passenger from Dzodze towards Accra. PW2 stated that he sat at the front of the bus with another lady and that upon reaching a section of the road few meters from Dzigbordi FM he saw a trailer ahead of them moving slowly with double indicators, side lights on and reflective materials duly embossed. PW2 stated that as their vehicle approached the trailer, he saw another vehicle coming from the opposite direction and before he realized the accused had turned his steering wheel to the nearside lane trying to overtake the trailer but upon seeing the oncoming vehicle turned the steering wheel back to his lane and in the process crashed into the offside rear of the trailer and they got stuck into it. 4 | P a g e PW2 stated that he sustained injuries together with other passengers and they were rushed to the St. Anthony Hospital for treatment, where he was diagnosed of fracture on his right leg and currently undergoing treatment. PW3 gave evidence as the investigator and stated that he was on duty on 9th December, 2022 at 7:05pm when a case of road accident was referred to him for investigation. PW3 stated that he proceeded to the scene of the accident together with the station officer Chief Inspector William Agbemafo, Inspector Maxwell Acolatse and the police patrol team and upon their arrival saw a DAF trailer long vehicle with registration number GS 7221-11 loaded with cooking oil, parked on the road with its lighting system on and reflective materials embossed. PW3 stated that he also saw a Ford Transit mini bus with registration number GS 2487- 21 stuck into the offside rear pillar of the trailer. PW3 stated that he took a photograph of the scene, marked down the vantage points for measurement to be taken later and cleared the road for the free flow of traffic. PW3 stated that he proceeded to the St. Anthony hospital at Dzodze where victims numbering about ten (10) were met at the emergency ward with various degrees of injuries receiving treatment and statements were obtained from all the victims who were issued with police medical forms for endorsement by the medical officer. PW3 stated that he obtained cautioned statements from the two drivers, Williams Boateng and James Agbleke who were both granted police enquiry bail and engaged officials from the Driver and Vehicle Licensing Authority’s office at Denu who had the 5 | P a g e vehicles examined at the police barrier at Netsikorpe and the scene after which the two vehicles were released to the drivers. PW3 stated that he also re-visited the scene of the accident together with the station officer, the trailer driver and the accused where measurements were taken in their presence and a rough sketch was drawn. PW3 stated that the accused admitted in his investigation cautioned statement that he saw the trailer ahead of him and also admitted on the rough sketch of the scene that he saw the trailer 20 meters ahead. He stated further that he observed that the place where the accident occurred was hilly and the markings on the road did not permit overtaking at that point. PW3 stated that his investigations revealed that, on the 9th of December, 2022 at about 6:40pm, the accused person was in charge of Ford transit mini bus with registration number GS 2487-21 with passengers on board driving from Dzodze towards Accra and upon reaching a section of the road near Dzigbordi FM attempted overtaking a DAF trailer loaded with cooking oil 20 meters ahead but saw two vehicles approaching from the opposite direction. PW3 stated that the accused person without taking into consideration the hilly nature of the road and the road markings was overtaking the trailer but when he saw two on coming vehicles from the opposite direction turned the steering wheel towards his lane and in the process used the nearside front of his vehicle to crash the offside rear pillar of the trailer and stuck into it. 6 | P a g e PW3 tendered in evidence the cautioned and charge statement of the accused together with the vehicle examination reports on the two vehicles numbered GC 7221-11 and GS 2487-21. Other documents also tendered in evidence included the rough sketch of the scene, photographs taken at the scene, medical reports of victims Williams Boateng, Nyonyo Esther, Gladys Demanya and Brefo Boateng John. DEFENCE OF THE ACCUSED The accused stated in his evidence-in-chief that, on the 9th of December,2022 at about 6:40 pm he was in charge of Ford Transit mini Bus with registration number GS 2487-21 with 14 passengers on board driving from Dzodze towards Akatsi direction. The accused stated that upon reaching a section of the road near Dzigbordi FM, he saw a DAF trailer vehicle with registration number GC 7221-11 parked on the road ahead of him. The accused stated that upon reaching the spot where the vehicle was parked, he decided to pass by it by moving through the opposite lane but upon seeing another vehicle coming from the opposite direction and very close to him decided to go back to his lane but in the process crashed into the offside rear of the trailer and got stuck into it because the trailer was parked and not in motion. The accused stated that at the time of the accident, the driver of the trailer was not on board but rather it was the driver’s assistant who came out from a mango plantation near where the accident occurred and when some of the people around wanted to beat him, he absconded. 7 | P a g e The accused stated that he did not see the driver of the trailer at the scene until the day of the measurement when he met him at the scene. He stated further that he visited the Ghana Mission clinic at Kave for treatment after he had helped to send the victims to the St. Anthony hospital. DW2 Gifty Avorgbedor gave evidence in support of the accused and stated that on the day of the accident she was on board the Ford Transit vehicle as a passenger from Dzodze towards Accra and was seated just behind the driver. DW2 stated that upon reaching a section of the road near Digbordi FM, she noticed that the accused tried to overtake a trailer parked in front of him. DW2 stated that when their vehicle was about passing the trailer, she saw another vehicle coming from the opposite side and due to the closeness of the oncoming vehicle, the accused had no other option but to revert to his lane and in the process crashed into the offside rear of the parked trailer and got stuck into it. In his evidence in further support, DW3 admitted that he is the owner of the Ford Transit vehicle numbered GS 2487-21. He stated that in the morning on the 10th of December, 2022 he was informed that the accused was involved in an accident and that when he visited the police station, he was requested to pay an amount of GH₵500.00 for the testing of the vehicle which he did. DW3 stated that he was not present when the testing was done on the vehicles and that he did not know what the finding was in the report. 8 | P a g e He stated that when he called the testing officer, he told him he was already at the scene doing his work but by the time he got there together with the accused on a motorcycle, the officer had already finished testing the mini bus. THE LAW Burden of Proof In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind will find the existence of the facts beyond reasonable doubt. In the case of Abdulai Fuseini v the Republic, reported in [2020] Crim LR, page 331, the Supreme Court reiterated the basic principle underpinning criminal prosecution in our courts as follows; “Proof beyond reasonable doubt is actually proof of the essential ingredients of the offence charged and not mathematical proof”. See also Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297. Section 11(2) of the Evidence Act, 1975 (NRCD 323) provides as follows; “In a criminal action, the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt required the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of a fact beyond reasonable doubt” Careless and Inconsiderate Driving Section 3 of the Road Traffic Act, 2004 (Act 683) amended by the Road Traffic (Amendment) Act, 2008, (Act 761) provides that; 9 | P a g e “A person who drives a motor vehicle on a road without due care and attention, or without reasonable consideration for other persons using the road commits an offence and is liable on summary conviction to a fine not exceeding two hundred penalty units or a term of imprisonment not exceeding forty months or both”. Negligently causing harm A person who negligently and unlawfully causes harm to any other person commits a misdemeanour. Section 72 of the Criminal Offences Act, 1960 (Act 29). Under section 12 of Act 29, a person is said to have caused an event negligently, where without intending to cause the event, that person causes it by a voluntary act, done without such skill and care as reasonably necessary under the circumstances. ANALYSIS AND EVALUATION OF EVIDENCE For the purposes of Count one in respect of the offence of careless and inconsiderate driving, the prosecution had a duty to adduce evidence to establish the fact that the accused did drive carelessly and inconsiderate. It is the case of prosecution that on the 9th of December, 2022 whiles driving a Ford Transit bus with passengers on board, the accused without due care and attention attempted overtaking a trailer in motion which was moving slowly because of the nature of the road and the load it was carrying. In his defence, the accused admitted that he attempted overtaking the trailer on the road near Dzigbordi FM on the 9th of December, 2022 at about 6:45pm but stated that the said trailer was parked on the section of the road and was not in motion. 10 | P a g e Having considered the facts as well as evidence led by both prosecution and the accused, the question to resolve is to ascertain whether it is the case that the accused was reckless in his decision to overtake the trailer and in the manner in which the overtaking was made. Overtaking another vehicle on the road is allowed by the Road Traffic Regulations. But the manner in which this should be done has been specified by the rules and regulations. Regulation 106 (6) of the Road Traffic Regulations, 2012 (L. I 2180) provides that, a person driving a motor vehicle on a road shall not overtake other motor vehicles in traffic proceeding in the same direction on the road when approaching; a. The summit of a hill, b. A curve or c. Any other place where the view of the person driving is so restricted that overtaking the motor vehicle in front may create a hazard in relation to other motor vehicles approaching from the opposite direction. In his book, ‘Safe Driving Simplified’, at page 75, Justice Morkporkpor Yao Amegashie, the former Executive Director of the National Road Safety Commission and also former Chief Executive of the Driver and Vehicle Licensing Authority, reiterated the procedures to observe when overtaking a vehicle ahead to include the following; a. Observing the mirror to find out whether traffic behind is about to overtake you. b. Looking ahead for traffic from the opposite direction and checking whether the distance between you and the oncoming vehicle is sufficient. c. Signaling to the left prior to positioning of your vehicle and d. Tapping your horn to announce your presence. 11 | P a g e The experienced instructor further states the places and circumstances underwhich overtaking is not allowed to include; a. Where one cannot see far ahead eg in a bend or on the crest of a hill, b. Where road signs and markings prohibit overtaking and c. On the brow of a hill or hump bridge. Under cross examination by prosecution on the 4th of July, 2023 the accused admitted that the nature of the road was hilly but that the accident occurred because he did not see the trailer which was parked on the road without warning lights early. Portions of the responses of the accused on 4th July, 2023 are reproduced below; Q. You stated that you saw the DAF trailer parked on the road and you wanted to overtake, what precautionary measures were you expected to undertake before overtaking such vehicle? A. Yes. You should see your way ahead to be clear and that there is no oncoming vehicle. That is what I know. Q. Did you see the trailer vehicle ahead of you? A. It was parked but I did not see it early because it had no warning lights. Q. Based on the precautionary measures you indicated have to be undertaking before you overtake, did you observe that your way was clear before initiating the overtaking? A. The trailer was parked on a hilly side of the road so I did not see the oncoming vehicle. 12 | P a g e Q. When approaching a hilly area and you cannot see your way clear or a curve where you cannot see ahead of you, what is expected of you? A. When you are approaching a hilly area you need not overtake any vehicle but in this case the trailer was stationery and the parking lights too were not on for me to see that there was a stationery vehicle ahead. Q. If you could not see ahead of you then why did you overtake? A. The trailer was not moving but parked and I did not see it early. In order to avoid hitting it I decided to avoid it but there was an oncoming vehicle on the other lane. In his defence, the accused appeared to be dueling more on the claim that the trailer was parked on the road and he did not see it early. But the accident in issue is not the case that he simply run into the trailer whiles driving. The case is that, he attempted overtaking the trailer and whiles he saw an oncoming vehicle decided to revert to his lane. This implies that he did see the trailer ahead of him and whether it was stationery or in motion, he formed the intention to drive pass it which is the decision every driver is expected to undertake should it be that the vehicle was actually parked on the road. However, at the point when one makes the decision to bypass a parked vehicle at night and at a hilly place as admitted by the accused the issue no longer is about the parked vehicle because at least that has been seen and a decision has been made to bypass it. 13 | P a g e The question now becomes more about what measures ought to have been undertaking in going pass the trailer parked or moving slowly whatever the situation was, at night and at a hilly place. If the trailer was actually in motion, then the accused considering that the place was hilly and the road markings as indicated by prosecution did not allow for overtaking will have no justification. However, if the trailer was not moving, then ideally, the accused would have been expected to slow down, observe traffic approaching from the opposite side and possibly tap his horn to alert the other road users of his presence. The facts and evidence adduced by prosecution did not give an indication on the speed at which the accused was moving but what is certain in the case of driving is that a person who drives at a lower speed has the benefit of reducing his stopping distance and is able to exercise proper control in reacting to unforeseen emergences to avoid or minimize injuries or damages. On the basis of the above reasoning the court did not find a sufficient justification in the case that he failed to see ahead and act on time because the trailer was parked without light. The wrongful parking of the trailer if that was the case would constitute a different offence which the police have the mandate to prosecute and does not absolve the accused of any wrong doing in failing to exercise proper discretion whiles overtaking. The claim that the vehicles were tested in his absence is equally overlooked by the court because the findings in the report did not border on the issues for determination considering the charges brought against the accused. 14 | P a g e In the circumstance, the accused person is convicted on count one. In respect of count two on negligently causing harm, the position of the law is summarized in the case of the State v. Tsiba [1962] 2 GLR 109 at page 111 by the Supreme Court as follows; “Negligence whether it be a ground for a claim in a civil court for compensation or an essential ingredient in the constitution of crime, is the omission to take care where there is a duty to take care, with the difference that whereas in a civil claim there are no degrees, such degrees exist in a criminal court”. With regard to this particular case, it is not in contention that the accused who was driving a public transport with passengers on board owe a duty to the passengers and other road users which omission will make him liable. Having already held under count one that the accused failed to exercise proper discretion in the decision and manner in which he attempted to go past the trailer, it is safe to equally hold that he was negligent and liable under count two as well. CONCLUSION Section 9 of the Criminal Offences Act, 1960 (Act 29) provides in respect of offences under more than one enactment that; “Subject to article 19 of the 1992 constitution of Ghana, where an act constitutes a criminal offence under two or more enactments, the offender is liable to be prosecuted and punished under either of the two, or any of those enactments, but the offender shall not be punished twice for the same offence, criminal or otherwise. 15 | P a g e However, in the case of Essien v. the State [1965] GLR 44 it was held that it is not bad in law to charge an accused on two separate counts where the same act constitutes separate offences under separate enactments especially where the sentences imposed may be made to run concurrently or non-cumulatively. See also page 67 of the book ‘Practice & Procedure in the trial courts and tribunals of Ghana, 2nd edition by S. A Brobbey. In sum, the court finds the action of the accused to be negligent and inconsiderate considering the duty placed on him at that material moment and in the circumstance convicts him on both counts. In consideration of the degree of negligence, the accused is sentenced to a fine of Sixty (60) penalty units each on both counts and in default to one (1) month imprisonment on each count. Sentences to run concurrently. NELSON DELASI AWUKU MAGISTRATE 16 | P a g e