REPUBLIC VRS GIBRILLA (D18/03/2022) [2023] GHACC 1056 (10 November 2023)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON FRIDAY, 10TH OF NOVEMBER 2023, BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS) CIRCUIT COURT JUDGE D18/03/2022 THE REPUBLIC VRS MOHAMMED GIBRILLA ACCUSED PERSON JUDGMENT The accused person was been arraigned before this court on six namely; i. Dangerous driving contrary to Section 1(c) of the Road Traffic Act 2004 (Act 683) as amended by Act 761/08 ii. Driving a motor vehicle without driving licence contrary to s. 53 of Act 683 as amended by Act 761/08. iii. Negligently causing harm contrary to section 72 of Criminal Offences Act, 1960 (Act 29/60) iv. Negligently causing harm contrary to section 72 of Criminal Offences Act, 1960 (Act 29/60) v. failing to stop after an accident contrary to S. 124(2)(a) of Act 683/04 as amended by Act 761/08 vi. Failing to attend to an injured person after an accident contrary to section 124(2)(a)(b) of Act 683/04 as amended by Act 761/08. Accused person pleaded not guilty to all counts On the 14th day of April, 2017 at about 6:10pm, Accused deriver Mohammed Gibrilla age 40 years, an employee of Key Bans Company Limited, was in charge of the company's Man Diesel Truck with registration No. GT 7519-11, loaded with gravels from Tema direction towards Spintex, through the Nungua Tema Beach road. On reaching a section of the road, near Buena Vista Homes, he was swerving a large pothole on his lane, as a result veered into the opposite lane and crushed into a Yamaha Motorbike with registration No. M-16-GT 1833, then being ridden by Isaac Agabo age 27 years, now deceased, with one Nador Mensah age 27 years as a Pillion Rider, from Nungua towards Tema. After the accident, the accused bolted with his truck leaving both victims to their fate. Rider Isaac Agabo died on the spot, while injured Nador Mensah died at 37 Military hospital same day shortly on admission. During investigations, the accused was found to be unlicensed at the time of the accident. After investigations a duplicate case docket was sent to the Attorney General’s Department for study and advice. Subsequently, the Attorney Generals adviced was received and acting on the advice accused was charge with the offenses on the charge sheet and arraigned before this honorable court. In our criminal jurisprudence, the onus at all times is on the prosecution to prove the guilt of the Accused person beyond reasonable doubt unless otherwise stated by an enactment. Article 19 (2) (c) of the 1992 Constitution of the Republic of Ghana presumes everyone innocent until the contrary is proved or he/she pleads guilty. Section 11(2) of the Evidence Act, 1975, NRCD 323 (hereinafter referred to as NRCD 323) with specific reference to criminal cases reads “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 could find the existence of the fact beyond reasonable doubt.” Section 13(1) of the Evidence Act 1975 NRCD 323 provides the extent of proof or the burden on the prosecution in a criminal action thus: (1) In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. Section 22 of the NRCD 323 further emphasis this principle of law and provides that as follows: ‘in a criminal action, a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt...’ TAMAKLOE VS THE REPUBLIC (2011) SCGLR 29 at 46 provides that, where a statute creates an offence, it is the duty of the prosecution to prove each and every element of the offence which is sine qua non to securing conviction, unless the same statute places a particular burden on the accused.. In other words, whenever an accused person is arraigned before any court in any criminal trial it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. The burden of proof is therefore on the Prosecution and it is only after a prima facie case has been established by the Prosecution that the accused person is called upon to give his side of the story.” See the case of Gligah & Anr. v The Republic [2010] SCGLR 870. Prosecution called two witnesses in support of the charges. The investigator of the case Inspector Gbene Iddrisu testified as PW1. According to him, this docket was assigned to him after the initial investigator of the matter Sgt. Mary Odoom was transferred. He tendered in evidence the following exhibits; Pw1 stated that he shared an office with the said Sgt before her transfer and was aware of this accident and knew accused person to be the driver-in- charge of the Man Diesel truck with registration Number GT-7519-11 at the time of the accident before the docket was handed over to him. According to him on 14/4/2017, information was received from the police headquarters information room to the effect that an accident had occurred close to Buena Vista Estate on the Sakumono –Nungua Road. According to him he observed investigation caution statement being taken from accused. The Man Diesel truck and the motor bike involved in the accident were all tested and a sketch of the accident prepared from the scene of the accident. Post mortem –examination was conducted on both deceased persons bodies. PW1 stated that the investigations conducted by the police into this accident revealed that accused person in his attempt to overtake another car veered off his lane and collided head-on with a motorbike with a pillion rider. Investigations further revealed that accused failed to stop after the accident and bolted until another rider who witnessed the incident chased him. Further investigations revealed accused did not have a valid driver’s licence at the time of the accident. PW1 tendered in evidence the following; i. Investigation Charge Statement of accused dated 15/04/2017 marked exhibition A. ii. Charge Sheet of accused dated 18/04/2017 marked exhibition B iii. DVLA report on Man Diesel Vehicle with Registered No. GT 7519-11 and Royal Motor bike marked exhibition C,C1. iv. Coroner’s form dated 18/04/17 marked exhibition D, D1. v. Hand sketch of the scene of accident marked exhibition E. One George Edem Tamakloe, an eye-witness of the incident testified as PW2. After the close of prosecution’s case, the court called upon accused to open his defence to the charges as a prima facie case had been established against him. According to him, on Friday 14/4/2017, at about 18:15hrs, he together with his friends Isaac Agabo, Edem Eric Dzandu and Manfred Mensah Nador were heading toward the Titanic beach on the Nungua –Tema road for relaxation with Isaac and Mensah now deceased on one motorbike and he a pillion rider on a another motorbike riding by Dzandu. He stated that upon getting to a section of the road close to Buena Vista Estate, he saw a tipper truck vehicle approaching from the Tema heading towards Nungua direction veer off his lane into the other lane in an attempt to overtake a car ahead of him and crashing into the motorbike riding by the deceased persons. He stated that he saw Isaac’s head crush and divided into two parts whilst Mensah suffered multiple injuries and later passed on at 37 Military Hospital. According to PW2, accused failed to stop and it took Dzandu to chase him on a motorbike whilst he made arrangements to take the deceased persons to the hospital. At the close of prosecution’s case, a prima facie case had been established necessitating the accused to speak to his defence. Accused in his defence testified that on the said date of the incident he had loaded gravels from Kubekrom No. 2 to Spintex. According to him, he was following about 3 salon cars and being the 4th car heading from beach road towards Spintex. It was Easter Friday. The road was very busy because of that the 3 cars ahead of him branched towards the Sakumono village and he continued straight towards Nungua junction. Accused contended that there were several potholes on the road, it had rained that day and it was drizzling making it impossible to speed. In addition to that, with the load in his vehicle he could not drive at a faster pace. He stated that there was a big pothole in the middle of the road before reaching the train rails so coming from Tema towards Nungua junction, one had to drive on the pedestrian walk way to avoid the pot holes which was stagnated with water. The same was applicable when coming from the Nungua junction towards Tema. After diverting and driving back into the road, he heard a sound and his lights went off. According to him, he drove a little further and heard a guy saying he had knocked down two guys on a motorbike. He disputed this statement and went to the scene with the guy. He stated that before they got to where the potholes were, he saw two bodies lying beside the road. One of his friends came to the scene and took one of the victims to the hospital together with the guy who notified him. Accused continued that, his friend told him to report to the Nungua Police Station whilst he takes care of things there but when he went to the Nungua Police station, he was told the place of incident is not within their jurisdiction and was directed to the police station at Vivian Farms. He then called the owner of the vehicle and told him about the incident. The vehicle owner also told him to go to the police station and that he would meet him over there. Accused contended that his bag containing his driving license was in left in the car but it was stolen along with his truck/vehicle keys. He stated further that the Police had to use spare keys to drive the vehicle to the station. Count One - Dangerous driving Section (1) (c) of Act 683/04 as amended by Act 761/08 provides that “A person who drives a motor vehicle dangerously on a road commits an offence and is liable on summary conviction where death occurs to imprisonment for a term of not less than 3 years and not more than 7 years. Section 2 of Act 683 as amended defines dangerous driving as follows; “ 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. (2) In determining what is expected of, or obvious to, a competent and careful driver in any particular case, regard shall be had to (a) the circumstances of which the accused could be expected to be aware, (b) any circumstances shown to have been within the knowledge of the accused, and (c) the conditions of the road at the relevant time. (3) in determining for the purpose of subsection (1) the state of a motor vehicle, regard may be had to anything attached to or carried on or in it and the manner in which it is attached or carried. PW1 and PW2 in their evidence on oath testified that accused person herein on the 14/04/2017 whilst driving from Tema towards Nungua junction upon getting to the place of incident near Buena Vista Homes in an attempt to overtake a vehicle ahead of him veered off his lane into the opposite lane and crashed into the motorbike riding by deceased persons. Accused disputes this allegation contending that the road was full of portholes at that time and the accident occurred after he was driving back into his lane from the right side of the road after dodging the pothole in his lane. The act of dodging a pothole cannot be considered as dangerous driving from the definition of dangerous driving supra. However the act of overtaking another vehicle at the wrong time and place can be considered dangerous driving. The court is faced with the version of prosecution and that of accused. Although PW1 and PW2’ testimony is consistent, they contradict the facts of the case as attached to the charge sheet and presented before the court for the conduct of the case. Per the charge sheet, on the 14/04/2017, accused person whilst swerving a large pothole on his lane veered into the opposite lane and crushed into a Yamaha motorbike with registration numbers M-16-GT-1833 being riding by the deceased persons. Accused in his investigation caution statement and evidence in chief contends that he was dodging a big pothole when the accident happened. Exhibit E disclose a pothole directly beside the point of collusion. PW1 admits under cross- examination that the road was formerly full of potholes. In the case of Mahama v. The State [1964] GLR 569 at page 571, the court held that “That definition shows that the mere occurrence of an accident in the course of driving a motor vehicle does not of itself constitute the offence of careless driving. To establish that offence, the essential particulars set out in the section must be proved; that is, evidence must be led from which it will appear that the driver drove the vehicle in a manner “without due care and attention or without reasonable consideration for other persons using the road.”(emphasis mine) In this present case, it appear that prosecution had the burden of proving that accused person drove in a manner that falls below what is expected of a competent and careful driver, or drove in a manner that is obvious to a competent and careful driver that it would be dangerous driving the vehicle in that manner or state. The evidence of the prosecution is filled with inconsistencies on this issue. It is trite learning that when the evidence of the prosecution is so inconsistent as to establish a fact in issue, such inconsistency may result in disproving allegations of fact or impeaching the credibility of witnesses. See the Gyabaah v the Republic [1989-90] 2GLR 461. Reasonable doubt therefore has been created in the mind of the court as to whether indeed accused person drove his truck dangerously on the 14/04/2017 therefore resulting in the unfortunate death of the deceased persons. Counts two and three Accused is charged with negligently causing harm that lead to the death of rider Isaac Agabo and pillion rider Nador Mensah contrary to Section 172 of the Criminal Offences Act, 1960 (Act 29). The section provides that a person who negligently and unlawfully causes harm to any other person commits a misdemeanour. According to P. K. Twumasi in his book Criminal Law in Ghana, at page 604 he states: “In the normal course of driving motor vehicles, unless the driver is negligent, one vehicle is never expected to run into another which is stationary. Also, any proof of a breach of the road traffic regulations resulting in an accident can be prima facie proof of negligence. Thus, such a driver may under certain circumstances be bound to explain why his vehicle behaved in such a manner especially when the accident report shows that the car was in good working condition. Prosecution’s evidence is that accused person whilst driving his truck form Tema towards Nungua junction upon getting near Buena Vista home veered off into the opposite lane and crashed into the motorbike which had the deceased persons on board. The occurrence of the accident alone creates a rebuttable the doctrine of ‘res ipsa loquitur” of negligence on the part of accused. In the case of ATSYOR v. DONKOR AND ANOTHER [1980] GLR 273 was held at holding 1 that “The doctrine of res ipsa loquitur meant that an accident, might in its nature, be more consistent with its having been caused by negligence for which the defendant was responsible than by other causes. In such a case, the mere fact of the accident was prima facie evidence of such negligence and there therefore a burden of proof on the defendant to explain and show that it occurred without fault on his part. In the instant case, the facts proved constituted an accident of a kind which would not normally happen with proper driving. In the absence of explanation by the driver the defendants would be held liable. Cole v. De Trafford [1918] 2 K. B. 523. C. A. cited. Accused in his defence contends that he veered off his lane unto the pedestrian walkway on his right hand-side and did not veer into the other lane. He denies driving at high speed and or overtaking a vehicle when the incident occurred. this piece of evidence per exhibit E cannot be true. Although accused in cross-examining PW1 challenged the details in exhibit E, the evidence of Pw1 and PW2 on the said exhibit E establishes that the sketch was indeed done in the presence of accused and PW2. Same therefore shall be given the necessary weight it deserves. Accused does not deny that it was his truck that hit the motorbike ridding by the deceased persons, which resulted in their unfortunate death. Exhibit E, the road sketch of the locus of the accident discloses a pothole on lane of accused next to the point of collision of the truck driving by accused and the motorbike of the deceased persons. It is further disclosed that the accident occurred in lane of the deceased persons. Exhibit E confirms the evidence of PW2 to the effect that accused person veered off his lane into the lane of on coming vehicle to avoid a pothole and in the processes crushed into the motorbike being ridding by the deceased persons. Avoiding of a pothole in itself does not amount to negligence. However doing so without due care and attention to other road users and in the process causing an accident amounts to negligence. In the case of Ewudziwa v. Attorney General [1982-83] GLR 625 at 626, the court held that: “excessive speed alone was not a mark of negligence. No speed limit was imposed on driving on the highway except on certain types of vehicles…However, a prudent driver would drive at a speed, which enabled him in his particular circumstances to have effective control over the movement of his vehicle. Since the jeep was driven into a stationary vehicle properly parked and lighted, the presumption was that the driver of the jeep was negligent, for in the ordinary course of things a driver would not run into obstacles in his way if he had a proper look-out and good control of the vehicle, and that would call for an explanation. The onus was on the defendant to disprove negligence by explaining why the driver had to run into the rear of the stationary vehicle. There was however, no evidence to explain the accident. Negligence was therefore established against the driver” In this instance case, the deceased persons were riding their motorbike in their lane when Accused person drive his truck into their lane, crushed into them resulting in their death. Defendant’s explanation of avoiding the pothole by driving on the pedestrian walkway on his right side cannot be true as the exhibit E and the evidence of PW1 and PW2 establishes that the accident happened in the lane of the deceased persons. Exhibit E discloses a pothole by the side of the point of collusion. There being potholes on the road requires a driver to drive with extra care and caution. In avoiding a pothole, accused was expected to do so with due care and attention to avoid crushing into any on coming vehicle. Accused herein failed to do resulting in the unfortunate death of the two deceased persons Isaac Agabo and Manfred Mensah Nador. This amounts to negligence and the defence of accused therefore is not in the least reasonable probable. The court finds therefore that accused person in driving the truck drive same negligently thereby causing the death of the two deceased persons. Accordingly, accused person is found guilty on counts two and three forthwith. Count four. Prosecution’s evidence is that, upon the arrest of accused person, he failed to produce his driving licence when the police demanded it of him. PW1 contends that accused did not have a driving licence as at the time of the incident but only produced a licence procured after the occurrence of the accident. Accused in his defence stated that he had a valid driving licence but lost same together with his other belongings on the day of the accident. He therefore went to DVLA to procure a new licence. Section 53(1) of Act 683/04 Except as otherwise provided in this Act, a person shall not drive a motor vehicle of any description or class on a road unless that person is a holder of a driving licence authorizing the person to drive a motor vehicle of that description or class. (2) A person who contravenes a provision of this section commits an offence and is liable on summary conviction to a fine not exceeding 250 penalty units or to a term of imprisonment not exceeding 12 months or to both. Accused being the holder of the licence and being the required to produce the said licence, assumed the burden of proving that indeed he had a valid driving licence to drive the truck on the day of the incident. The defence of accused that his bag was stolen on the day of the incident is not corroborated and same was challenged. Accused failed to lead any cogent evidence that he had a valid licence and that it was subsequently reissued to him. In the absence of the accused producing a driving licence that was valid as at the time of the accident or a note from DVLA that confirms that he indeed had a valid driving licence as at the time of the incident, the court finds that accused person did not have a driving licence as at the time of the incident. he is convicted on count four forthwith. Count Five and SIX Section 124(2) Where an accident occurs as under subsection (1), the driver of the motor vehicle shall (a) stop and, if required to do so by any person who has reasonable grounds for so requiring, give the driver's name and address and also the name and address of the owner of the motor vehicle and the identification marks of the motor vehicle. (b) where a person to whom injury has been caused so requests, or if the person is unconscious or if the injury caused to that person appears to endanger life, attend to the injured person, to procure for the person's medical attention and to procure, where necessary, the person's removal to a hospital, (c) in every case report the accident to a police station as soon as reasonably practicable, and in any case where the accident occurred in a municipal area so report within twenty-four hours of the occurrence of the accident, or in any other case so report within twenty-four to forty-eight hours of the accident. (3) Where the driver fails to give the driver's name and address under subsection (2) the driver of the motor vehicle shall report the accident to the nearest police station. (4) A person who fails to comply with subsection (2) or (3) commits an offence and is liable on summary conviction to a fine not exceeding 250 penalty units or to a term of imprisonment not exceeding 12 months or to both. (5) A person who fails to comply with a duty under this section commits an offence, but shall not be convicted by reason only of a failure to produce a certificate or other evidence if, within seven days of the occurrence of the accident, the certificate or other evidence is produced at a police station that was specified by the person at the time when the accident was reported. The evidence on record reveals that Accused person herein after the accident occurred failed stop. According to PW2, one Dzandu had to chased accused person on a motorbike and caused him to halt. Accused person in his defence testified that he felt something crash into his vehicle but he failed to stop until a guy on a motorbike told him he had knocked someone down. According to accused, he immediately got down and went to the scene of the accident with the said guy. The evidence of PW2 is corroborated by accused. per this evidence it stands established that accused person after the accident failed to stop as required under section 124(2) and he is found guilty of count 5 forthwith. In respect of count 6, prosecution’s evidence failed to touch on how the matter got reported at the police station. Accused in his defence testified that after visiting the scene with the gentleman who stopped him, he was advised by a friend who came around to report himself at Nungua police station. He stated upon getting to the Nungua Police station, he was told the place of incident was not within their jurisdiction and was directed to the police station at Vivian Farms. He then called the owner of the vehicle and told him about the incident. The vehicle owner also told him to go to the police station and that he would meet him over there and he did so. This evidence of accused was not challenged and same therefore is deemed admitted. Prosecution failed to prove beyond reasonable doubt that accused person failed to report the accident to a police station as he’s charged under count 6. Accused is accordingly found not guilty of count 6 forthwith. Conclusion At the close of the entire case the court finds and holds as follows; i. Accused is found not guilty of count one Dangerous driving contrary to Section 1(c) of the Road Traffic Act 2004 (Act 683) as amended by Act 761/08 ii. Accused found guilty of Driving a motor vehicle without driving licence contrary to s. 53 of Act 683 as amended by Act 761/08. Guilty iii. Accused is found guilty of count three - Negligently causing harm contrary to section 72 of Criminal Offences Act, 1960 (Act 29/60) iv. Accused is found guilty of count four - Negligently causing harm contrary to section 72 of Criminal Offences Act, 1960 (Act 29/60) v. Accused is found guilty of count 5 failing to stop after an accident contrary to S. 124(2)(a) of Act 683/04 as amended by Act 761/08 person who fails to comply with subsection (2) or (3) commits an offence and is liable on summary conviction to a fine not exceeding 250 penalty units or to a term of imprisonment not exceeding 12 months or to both. vi. Accused is found not guilty of count one Failing to attend to an injured person after an accident contrary to section 124(2)(a)(b) of Act 683/04 as amended by Act 761/08. Sentencing The court considers the fatality of the accident leading to the death of two young men, little or no remorse shown by accused person, accused being a family man with 8 children and a wife his dependants, his plea for leniency and No remorse shown. Accused is hereby convicted on all three counts and sentence as follows; Count two - a fine of 10 penalty units or in default 2 months imprisonment. Count three- 12 months imprisonment. Count four- 12 months imprisonment. Count five- 6 months imprisonment. Counts 3,4 and 5 to run concurrently. Sentence of count two however to run consecutively with concurrent counts 3, 4 and 5. ACCUSED PRESENT D. S. P KESSE FOR PROSECUTION PRESENT H/H AFIA OWUSUAA APPIAH (MRS) (CIRCUIT COURT 1 JUDGE) 16