REPUBLIC VRS HENYO (CC: 14/02/2022) [2022] GHADC 413 (3 October 2022)

1 IN THE DISTRICT MAGISTRATE COURT HELD AT ADIDOME ON MONDAY THE 3RD DAY OF OCTOBER, 2022 BEFORE HER WORSHIP MOLLY PORTIA ANAFO-SALIA (MRS) (DISTRICT MAGISTRATE) CC: 14/02/2022 THE REPUBLIC VRS. SOLOMON HENYO ACCUSED PERSON PRESENT. CHIEF INSPECTOR EMMANUEL DZAKU FOR THE REPUBLIC PRESENT. J U D G M E N T The Accused Person was arraigned in this Court and charged with the offence of Careless and Inconsiderate Driving Contrary to Section 3 of the Road Traffic Act, 2008 (Act 761). The Accused Person pleaded NOT GUILTY and was admitted to bail thereafter. The brief facts as recounted by Prosecution are as follows, the Accused Person is a driver and a resident of Akatsi. On the 21st of September, 2009 at about 7: 00am, he was in charge of his Toyota Hiace mini bus with Registration No. GR 9815-09 loaded with eleven (11) passengers from Akatsi to Mafi-Kumase market. On reaching a section of the road near Mafi-Kumase new market, a motor tricycle which was in front of him and was also ridden by Wonder Hodotor was branching to the new market. However, accused person failed to observe the road carefully before overtaking the said motor tricycle with Registration No. M-20-GR 4509. In the process, accused person crushed his vehicle into the rear portion of the said motor tricycle which resulted in an accident. As a result, one Mawunyefia Aheto who was on board the motor tricycle fell off the motor tricycle and sustained serious injuries and was rushed to Adidome District Hospital for treatment. He was later referred to St. Anthony Hospital at Dzodze for further treatment. Due to the seriousness of the injuries sustained by the victim Mawunyefia Aheto, his right little or pinky finger was amputated. Victim stayed on admission for four months before he was discharged from the hospital. Accused person reported at the Police station and he was re-arrested and cautioned to that effect. After investigation, accused person was charged with the offence and arraigned in court. The plea of NOT GUILTY presumes an Accused Person innocent until his guilt has been proven or has pleaded guilty as enshrined in Article 19 (2) (c) of the 1992 Constitution of the Republic of Ghana. The same presumption of innocence was held by the Supreme Court in the case Okeke v. The Republic [2012] 41 MLRG 53 at 61-62: “That a person charged with a criminal offence shall be innocent until he is proven or has pleaded guilty.” See also The Republic v. Francis Ike Uyanwume [2013]58 GMJ 162 at 177. The general rule therefore is that throughout a criminal trial, the burden of proving the guilt of the Accused Person remains on the Prosecution. See: Anane v. The Republic [2017] 109 GMJ SC. The standard of proof required in criminal cases is proof beyond a reasonable doubt and the Evidence Act, 1975 (NRCD 323) formulates this proposition in Sections 11 (2) and 13 (1). “Section 11 (2): “In 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 a reasonable doubt”. “Section 13 (1): In any civil or criminal action the burden of persuasion as to the commission of a party of a crime which is directly in issue requires proof beyond a reasonable doubt”. Generally, an accused person is not required by law to prove anything. He is only to raise a reasonable doubt in the mind of the court as to the commission of the offence to secure acquittal. See: Woolmington v. D. P. P. [1935] AC 462, COP v. Antwi [1961] GLR 408 and Bruce Konua v. The Republic [1962] GLR 611. The Prosecution assumed the burden to prove the guilt of the accused person to secure his conviction, filed three (3) witness statements in accordance with the Practice Procedure in Criminal Prosecution. They equally tendered in evidence some Exhibits. This included the caution and charge statements of the accused person, the sketch of scene of accident, medical report form and report for the victim, Driver and Vehicle Licensing Authority (DVLA) report on vehicle No. GE 9815- 09 and motor tricycle No. M-20-GR 4509, Driver’s License of accused person, Road Worthy Certificate for accused person’s vehicle no. GE 9815-09 and Insurance Certificate, Medical Receipts from St. Anthony Hospital for Mawunyefia Aheto and other receipts, they were admitted and marked as Exhibit A, B, C, D, E, F, G, H, J, K, KI – K10 respectively. The accused person opened his defence and filed three (3) witness statements and a sketch of the scene as Exhibit ‘I’. The accused person was charged with the Offence of Careless and Inconsiderate Driving, Contrary to Section 3 of the Road Traffic Act, 2004 (Act 683) as amended by Road Traffic Act, 2008 (Act 761). The Accused Person alleged that on the 21st of October, 2020 that on reaching Mafi- Mediage junction a tricycle just came from Mafi-Mediage and entered the main road all of a sudden. That he slowed down and swerved to the left side of the road with the horn on to caution those on board the tricycle. That upon reaching the new market junction at Mafi-Kumase, this same tricycle suddenly crossed his vehicle again without any sign, he had no option than to run into the tricycle resulting in the accident. The issue to determine is whether or not Accused person carelessly and inconsiderately drove his vehicle so as to cause the accident between him and PW1. The offence known Careless and Inconsiderate Driving is occasioned when the driver in charge of a motor vehicle drivers in such a way that he or she fails to exercise due care and attention for the safety of other road users. Indeed, when a driver causes inconvenience to other road users owing to his to exercise due care and attention or to exercise reasonable consideration for other road users or motorists. This offence has been stipulated in Act 683: Section 3: Careless and Inconsiderate Driving. “A person who drives a motor vehicle on a road without due care and attention, without reasonable consideration for other persons using the road commits an offence and is liable to a fine not exceeding two hundred penalty units or term of imprisonment not exceeding forty months or both.” In criminal Law, the basic principle is that for an act to be deemed an offence, it must be clearly stipulated as prohibited. Article 19 (5) of the 1992 Constitution states this principle: “(5) A person shall not be charged with or held to be guilty of a criminal offence which is founded on an act of omission that did not at the time it took place constitute an offence.” The act which has been committed must be accompanied by a culpable state of mind. In this sense, the intent of the Accused is very much importance to establishing that a crime has indeed been committed. Although the Accused has been said or stated to have run into the motor tricycle and drove inconsiderately and carelessly so as to endanger the lives of other motorists, in the event that an accident has occurred, the question remains that what was his intent at the time of his actions? The Accused admitted that he intended to go to the new market at Mafi-Kumase as a commercial area with passengers on board his mini bus. At Mafi-Mediage, the motor tricycle entered the main road and he had to swerve to the left to avoid any accident. Unfortunately, at the new market of Mafi-Kumase, this same tricycle crossed him and he run into him as he had no option. So was it Accused person’s intention to commit such a crime? Section 11 (1) of the Criminal Offences Act, 1960 (Act 29) states as follows: “(1) where a person does an act for the purpose of causing or contributing to cause an event, that person intends to cause that event, within the meaning of this Act, although in fact or in the belief of that person or both in fact and also in that belief, the act is unlikely to cause or to contribute to cause the event”. Thus, accused person’s intention was to drive safely to the market with his passengers and their wares on board his commercial vehicle which would take him to his desired destination, he ignored road etiquette or useful signs indicated that one limits speed when driving in town. As stated in the Contemporary Criminal Law in Ghana at page 606 by Dennis Dominic Adjei: “A person in control of a motor vehicle is to conform to speed limits provided for under regulation 161 except in a situation where the Road Authority provides otherwise. The maximum permissible speed at which a motor vehicle may be driven on a road within a school, a playground, a health facility, a church, a mosque, a market, a shopping centre or where there is procession or where human activity is predominant is thirty kilometers per hour. See Regulation 161 (a). PW1, Wonder Hodotor who was in charge of the motor tricycle was heading towards the market at Mafi-Kumase with four bags of charcoal loaded in the tricycle with PW2 and PW3 Mawunyefia Aheto and Keteku Light on board. That as he got to the junction of the main Mafi-Kumase road at Bakpa, he stopped and watched both sides of the main road with no vehicle coming before he joined the main road towards the market. That he rode for some long distance before branching to the market where 7 a vehicle on top speed all of a sudden came and hit the back of his motor tricycle which resulted in the accident. This evidence was corroborated by PW2 who had hired the motor tricycle to convey the bags of charcoal and was on board. That they sustained serious injuries as a result of the accident. PW2 eventually had his little right finger amputated having been hospitalized at Adidome Government Hospital and St. Anthony’s Hospital, Dzodze. This is evident in Exhibit ‘K’, ‘KI’ - ‘K10’. The court agrees that accidents do happen. Sometimes it is genuinely a mishap on either both of the parties involved. However, where the Law is concerned, there must be thorough investigations into the cause of the accident and whether there were any Laws breached. It is unacceptable that accidents occur to endanger the lives of other citizens as a result of one party ignoring the Laws put in place to avoid such accidents in the first place. The accused person in his caution statement to the Police on the 21st of September, 2020 thus Exhibit ‘A’ stated that, he was in charge a Toyota Hiace with Registration No. GE 9815-09 and on reaching a fuel filling station at Mafi-Kumase new market, he was behind a tricycle, he showed his trifigator and wanted to overtake the motor tricycle. Suddenly the tricycle rider also crossed to the other lane and he couldn’t do anything to safe the situation and he run into the tricycle resulting in the accident. From this narration, the accused person was behind the motor tricycle meaning they were both in the same lane before he showed the trifigator indicating his desire to overtake the tricycle but the tricycle suddenly crossed to the other side and the accident occurred because he had to run into him for obvious reasons. Meanwhile, in his evidence on oath in court, nowhere did he state that he was driving behind the tricycle. Rather, it was during cross examination that he tried very hard to convince the court how a single lane became a double lane where both of them were plying. In all the three instances, thus Exhibit ‘A’, his caution statement, witness statement and under cross examination there were inconsistencies, and no matter how hard he tried to explain he breached the laws further. One thing that was obvious was his admission that he run into the tricycle. His witnesses, DW1, DW2, and DW3 evidence were the same as they were passengers on board accused person’s vehicle and viewed the incident the same. Hunorkpa Mathias, Akos Awusavi and Ami Serwaah all stated in their statements that, they were from Aflao to Mafi-Kumase on that fateful day. And on reaching Mafi- Mediage junction a tricycle just came from Mafi-Mediage and joined the main road at once. Their driver slowed down and swerved to the left lane. Now, that upon reaching the new market junction at Mafi-Kumase, the same tricycle suddenly crossed their vehicle, again without indicating any sign and their driver had no option than to run into the tricycle leading to the accident. This evidence was a corroboration of that of accused person’s evidence in court. The common thread that run through is the fact that, the accused person run into the tricycle resulting in the accident. The Accused person made frantic effort to avoid the accident but the unexpected happened as stated in the evidence. The evidence clearly indicate that the accused person has been plying that route as he drives a commercial vehicle with passengers from Aflao to Mafi-Kumase on market days. He should also be aware of speed limits within that jurisdiction. A reasonable and prudent speed conditions to be observed by a driver of a motor vehicle include taking into consideration environmental conditions regardless of the speed limits provided under regulations 163 and 164, driving safe when approaching and crossing an intersection and other special hazards. The Exhibits tendered as Exhibit ‘E’ and ‘F’ thus the report of Technical Engineer, Ibrahim Ibn Musah from the DVLA depicts the extent of damage caused due to the accident. That windscreen smashed, front panel buckled and radiator grill wrecked, nearside head lamp and indicator lights broken, front bumper wrecked that is accused person’s vehicle. Exhibit ‘F’ the motor tricycle also had its bucket, buckled though both the motor vehicle and tricycle were in good condition prior to the accident. From the Exhibits, the accused person’s vehicle was badly damaged and its shows the impact. Clearly, the vehicle was speeding and not within the speed limits prescribed by regulation 161 to have resulted in such damage. The Prosecution in proving their case tendered in evidence Exhibit ‘C’ which is the sketch map of the scene of the accident. It gives the direction of the parties’ vehicle and tricycle, where the accident occurred and the point of impact of the accident with its dimensions. Granted without admitting that, the motor tricycle indeed crossed the accused person’s vehicle, but with the required speed limits and considering the environment with a further reduction of speed, the resultant effect of damage would have been less or nothing at all and with no injury or injuries as occurred with PW2 losing his right little finger. Clearly, the fact that the motor tricycle crossed accused person’s vehicle resulting in the accident as he could not prevent the accident but to run in him, cannot be a good defence and cannot absolve him from liability. He drove without due care and attention or without reasonable consideration for other road users including PW1 and PW2 thereby committing the offence charged thus Careless and Inconsiderate Driving. Accused person sighting the motor tricycle the second time should have exercised caution as he did in the first instance when the motor tricycle as he alleged entered or joined the main road at Mafi-Mediage without observing traffic rules. Rather, he failed and run into him. Section 11 (3) of Act 29 posits as follows: “(3) A person who does an act of a kind or in a manner, that, if reasonable caution and observation had been used, it would appear to that person (a) that the act would probably cause or contribute to cause an event, or (b) that, there would be great risk of the act causing or contributing to cause an event, intends, for the purposes of this section to cause that event until it is shown that that person believed that the act would probably not cause or contribute to cause the event, or that there was not an intention to cause or contribute to it. The foregoing section states that when a person commits an act and fails to attend such an action with reasonable caution and observation, then the outcome of that action is intended by that person unless the person has something to show that he did not intend to cause the event. In the instant case, the accused person failed to drive within prescribed speed limits of 30 kilometers per hour in market places as stated in regulation 161 especially when he sighted the motor tricycle with PW1 and PW2 on board did not exercise due care and attention for other road users and run into them, then the attendant consequences were intended, such as an accident of the nature that occurred. The accused person in his failure to exercise reasonable caution and observation endangered the lives of others. The law is settled that in all criminal cases, the prosecution must prove the guilt of the Accused person beyond reasonable doubt. This is a distinctive feature of criminal cases and it is different from civil cases as stated in Oteng v. The Republic [1966] GLR 323 at 345. The new thinking has been for the Courts in the Country to look at doing substantial justice and especially in criminal cases such as this which the outcome may be consequential to the Accused person but the injured PW2, Mawunyefia Aheto and as the victim since September, 2020 equally awaits justice. Accused person’s action has been linked to the offence of careless and inconsiderate driving contrary to Section 3 of the Road Traffic Act, 2008, (Act 761). Accordingly, accused person is found GUILTY and he is hereby CONVICTED. MITIGATION Accused person pleaded for leniency. SENTENCE The court considered Accused person’s plea in mitigation, age and as a first offender, the accused person is sentenced to a fine of hundred 100 penalty units in default six (6) months imprisonment. Accused person in addition shall settle the hospital bills of the victim, Mawunyefia Aheto with an amount of Three Thousand Eight Hundred and Four Ghana Cedis, forty pesewas (GH₵3,804.40) as receipts tendered. H/W MOLLY PORTIA ANAFO-SALIA (MRS) DISTRICT MAGISTRATE