Republic Vrs Ndoye [2022] GHACC 150 (17 October 2022)

IN THE CIRCUIT COURT HELD AT CAPE COAST ON MONDAY THE 17TH DAY OF OCTOBER, 2022 BEFORE HER HONOUR VERONIQUE PRABA TETTEH (MRS.), CIRCUIT JUDGE 232/2021 THE REPUBLIC VRS UPOALKPAJOR JOSHUA LUTHER NDOYE JUDGMENT This case is about an accident that occurred on the 15th of January 2021. The victims were on a motor bike while the accused was driving a Mercedes Benz saloon car. The first victim who was the driver had his left leg amputated while the second victim made a full recovery and has use of all his limbs. There is no dispute that the victims were injured, there is also no dispute that the two types of vehicles already mentioned were involved in the accident. The issues in dispute are whether the accident occurred due to the careless and inconsiderate driving of the accused. This court is not called to determine if the injury caused was deliberate or intentional as that is another offence altogether. To begin with what is the offence of careless and inconsiderate driving and also negligently causing harm? Section 3 of the Road Traffic Act 2004 stipulates that 3. Careless and inconsiderate driving 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 thousand penalty units or to a term of imprisonment not exceeding five years or to both the fine and the imprisonment. Section 72 of Criminal Offences Act, 1960, Act 29 also stipulates that 72. Negligently causing harm A person who negligently and unlawfully causes harm to any other person commits a misdemeanour The issues arising from the facts of this case are: i. Whether the accused person drove without due care and attention on the 15th of January 2021 ii. Whether the accused person negligently caused harm to the victims Michael Eghan and Kwasi Aidoo In Mahama v The State [1964] 569 Ollenu JSC referencing the definition of careless driving under section 17 of the then 1952 Road Traffic Ordinance had this to say “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.” Prosecution as per their duty under the Evidence Act are required to lead evidence to establish that accused person did not exercise due care for other users of the road. The first witness of prosecution was the driver of the motorbike. He says that he was on his way to a funeral with his friend that day and when they got to the section of the road which was curved and bad he drove slowly. The Mercedes Benz driven by the accused on the other hand came from the opposite end with speed and crashed into his bike. According to this evidence he apportions the blame of the accident on the accused person. He narrates further how he was sent to the hospital to receive treatment but later had his leg naturally amputated. He was cross examined by counsel for the accused. Counsel’s cross examination was largely focused on the reasons which had led to the amputation of his leg. The witness also maintained that the accused was speeding at the point of the accident and caused the injury to him. The second witness of prosecution was the pillion rider on the motor bike and his evidence was relatively detailed than the first witness. He narrated as follows: “That the road has a lot of pot-holes, so we were moving slowly and on reaching a section of the road in between Assin Tabil and Assin Atia-La, around 8:30pm, we saw a section a Benz Mercedez private car No. GR3838-09 coming from the opposite with speed and a lot of dust behind it. That I advised Michael Eghan to allow space for the vehicle to pass and he parked at our nearside. That the said vehicle came and hit us together with our motor bike and we all fell down. That through the accident, I suffered fracture in my left thigh and my friend Michael Eghan also suffered multiple fractures in his left leg.” When he was cross- examined he also maintained that it was the accused who hit them with his car and caused the injury to both of them. He denied that their motor bike hit the side of accused’s car and in answering stated the following: “We had parked on the right side and he came from the left side to cut us.” Counsel in his cross examination addressed two significant issues that bear looking at. The first is that the point of impact occurred in the curve in the road. He attributes admission of this fact to the first witness and that the second witness’ denial of the fact means he was being untruthful. In my opinion, a reference to “where the accident took place” should not mean the same as the “point of impact”. Whereas point of impact is specific the former can basically refer the general area of the accident. I will therefore not attribute any deception to the witness’ inconsistency. The general focus of counsel for accused was on the amputation of the leg of the prosecution witness due to his refusal to receive help at the hospital. He in fact suggests that the first witness leg would not have been amputated if he had listened to expert medical advice. He puts it to the first witness whose leg was amputated as follows: “I am suggesting to you that by your own conduct you caused your leg to be amputated and it is not a cause of the accident.” A point to note however is that while it may be true that reference to herbal medicine did not help the witness, had the accident not occurred at all there would have been no need to seek medical attention. This line of questioning in my opinion does not do any favours to the accused person. The third witness of prosecution was Detective Sergeant Haruna Jaladeen. From his explanation he commenced initial investigation but later handed the docket to another officer. After conducting his investigations the witness submitted that the accident was caused by the carelessness of the accused when he veered off the road and crashed into the victims. About 3 months after the accident he went there with the parties and based on their explanations he drew a sketch, which was tendered as Exhibit H. the medical reports of the witnesses as well as photographs of the leg of PW1 was also tendered. Interesting points of this witness’ cross examination was the denial of the second victim being injured at all and that the Exhibit which is the alleged picture of the broken leg of the PW1 was not PW1 at all. Exhibit C is a medical report on the pillion rider, the report details that he suffered multiple abrasions and closed left femoral fracture. I believe this is sufficient evidence of the witness suffering injury to himself. On the picture of the broken leg, I am satisfied that it is the leg of PW1 the absence of the face of PW1 in that picture does not detract from its authenticity and does not mean it belongs to somebody else. Exhibit G shows the front of the accused’s car and reveals a broken light on the driver’s side of the car. The motor bike is shown but without much damage or not that one can see from the picture. The sketch does not help the court as it is a very cluttered piece of drawing and without detailed explanation does not provide much aid to the court. I will thus rely on the evidence of the witnesses to come to a decision. The final witness for prosecution was General Corporal Rexford Adjei. He took over the case from PW3 when he had almost completed investigation. He testified that he took a further caution statement from the accused before he was charged and arraigned before court. This witness did not offer any substantive evidence to the court beyond what is stated above. His cross examination revealed that fact since he was unable to provide answers to some of the basic facts of this case. I found counsel’s assessment of his lack of knowledge to be correct. At the close of prosecution’s case, accused was called to testify and he did so on the 3rd of August 2022. He relied on his witness statement and did not call any witnesses. In his evidence the accused admits that an accident occurred on that day but goes further to say that it could have happened to any driver on the road. He goes further to assert that the visit to the scene which culminated in Exhibit H took place three months after the accident and so no weight should be attached to same. He also makes the point that the amputation to the victim’s leg was because the victim defied medical advice and not due to any accident caused by him. From this witness statement is clear that the accused has no explanation to offer as to his version of the events that day. He makes a general denial of being the cause of the accident but offers none to dispute the victims’ evidence that it was he who crashed his vehicle into them. The accused person owing to the potholed nature of the road and the fact that it was curved needed to exercise due care not only for himself but to the other users of the road. Accused person has not offered any explanation on his part to show that he exercised that due care. His case has been to deny any responsibility and blame the victims particularly the first victim for the amputation of his leg. Where an explanation is offered by an accused person of his version of the events, the court is mandated to consider it in three steps set out in the case of Lutterodt v C. O. P [1963] GLR 429. In this case no contrary version has been offered beyond the general denial of responsibility and the attack on the prosecution’s case. Being satisfied with the version of the events narrated by the prosecution witnesses I find and I am satisfied that it was the accused who crashed the right side of his car into the accused persons thereby causing injuries to them. I find the accused guilty on all the counts and sentence him as follows: He is ordered to pay a fine of 500 penalty units on each count which is to run concurrently. Accused who also displayed a lack of remorse or sympathy throughout the trial for the injury caused to the victims is to pay their medical bills as well as a compensation of 5000 each. (SGD) H/H VERONIQUE PRABA TETTEH (MRS) (CIRCUIT JUDGE)