REPUBLIC VRS USSIF AYUBA (D14/11/21) [2021] GHACC 4 (26 June 2021)

CORAM: HER HONOUR BERTHA ANIAGYEI (MS) SITTING AT THE CIRCUIT COURT ‘B’ OF GHANA HELD AT TEMA ON MONDAY, 26TH JUNE, 2023 SUIT NO. D14/11/21 THE REPUBLIC VRS USSIF AYUBA --------------------------------------------------------------------------------------------------------------------- ------ JUDGMENT --------------------------------------------------------------------------------------------------------------------- ------ On the 1st of March, 2022, I determined that Prosecution had established a prima facie case against the Accused Person on Use of Motor Vehicle Without Insurance, contrary to section 125 of Act 683/2004 as amended by section 125 of Act 761/2008. He was called upon to open his defence. In the same ruling, I acquitted and discharged him on a charge of Careless and Inconsiderate Driving contrary to section 3 Act 683 as amended by section 3 of Act 761/2008 and Negligently Causing Harm contrary to section 72 of the Criminal Offences Act, 1960 Act 29. Denning J (as he then was) in the celebrated case of Miller v. Minister of Pensions [1947] 1 All ER 372 at 373 held that “The constitutional presumption of innocence of an accused person is that an accused is presumed to be innocent unless he pleads guilty or is convicted by a court. The presumption is rebutted when the prosecution establishes a prima facie case against the accused person and the accused shall be called upon to raise Page 1 of 8 a reasonable doubt as to his guilt.” See also the dictum of Dennis Adjei JA in the Court of Appeal case of Philip Assibit Akpeena v. The Republic (2020) 163 G. M. J 32. An accused person when called upon to open his defence does not have a duty to prove his innocence. His only duty if at all at this stage is to raise a reasonable doubt in the mind of the court concerning the prima facie case established against him by the prosecution. See the dictum of Korsah CJ in the case of Commissioner of Police v. Antwi (1961) GLR 408. If the accused person is able to raise a reasonable doubt in the mind of the court, he must be acquitted and discharged. See Bruce-Konuah v. The Republic [1967] GLR 611 and Section 11(2) and (3) of NRCD 323. In arriving at whether an accused has raised a reasonable doubt, the court may either believe or accept the explanation given by the accused or find that although it disbelieves the explanation, it is reasonably probable. In both instances, the court must acquit and discharge the accused. Thirdly, the court must consider the whole evidence on record and see if it raises any defence in favour of the accused. If quite apart from the defence's explanation, the court is satisfied on a consideration of the whole evidence that the accused is guilty, it must convict. See the case of Brempong II v. The Republic [1997-98] 1 GLR 467 and Tsatsu Tsikata v. The Republic [2003- 2004] SCGLR 1068 THE CASE OF ACCUSED PERSON According to Accused Person, the owner of the vehicle he was driving which was involved in the accident is one Isaac Dawud Lambo. That on the 14th day of January, 2020, the said Lambo told him to go and collect an insurance sticker from an agent to whom he had paid money. However, he informed the said Lambo that he would go for the sticker the next day after he has dropped off the workers. Page 2 of 8 That the vehicle was unfortunately involved in an accident on the same day that he was meant to go for the sticker. That the day of the accident was the same day the insurance was due for renewal. That after the accident, he went for the insurance sticker for the vehicle. THE CASE OF DW1 D. W.1 is Isaac Dawud Lambo. His evidence is that as the owner of the vehicle, he insured same with Star Assurance Company Ltd via its agency at the 37 DVLA office. D. W.1 says that the insurance was due to expire on the 15th day of January, 2020 and he gave money to the agent on the 14th day of January, 2020 to renew same. That he informed the Accused Person to go for the insurance sticker the same day but Accused Person decided to do so the next day. Accused person closed his case after this. CONSIDERATION BY COURT The defence of Accused Person appears to be this; his insurance certificate expired on the 14th day of January, 2020. The owner of the vehicle had paid for its renewal on the same date. He however decided to go for it the next day which is the 15th day of January, 2020. It was in the morning of the said 15th January, 2020 that the accident occurred. He then received the insurance certificate that very day. The Accused Person under cross-examination by Prosecution answered; Q: A: Now tell the court, after the accident when was the insurance renewed? The very day, we received the renewed insurance. Page 3 of 8 Q: A: Q: A: I put it to you that the insurance on the vehicle expired on the 14th January 2020 The very day that the insurance expired, my boss had paid for the renewal so we received it on the very day. So what date was the renewal? I cannot speak to the date. What I know is that my boss had told me earlier that he had paid and so I was just to go and take it from the agent. Q: I put it to you that the insurance was renewed on the 15th January 2020 and by that time the insurance had expired. A: My Lord, what I know is what I have told the court. Q: I also put it to you that the accident occurred on 15th January 2020 and the insurance was renewed on that same day at 10am. A: My Lord, I cannot speak to that. What I know is that my employer had already told me that he had paid for it. He had again answered; Q: In paragraph 5 of your evidence in chief – I put it to you that it is because your employer knew that the certificate was expired that is why he asked you to go for it on that very day. A: My Lord, that is true DW1, the owner of the vehicle, had also answered under cross-examination by Prosecution; Q: So can you tell this court the date on which the insurance policy covering the bus was renewed at the time of the accident A: My lady anytime the insurance is about to expire the insurance company sends me a message and I send money to an agent who works a DVLA at 37 to renew the insurance. On the 14th December, 2020 I sent money to the agent and I asked the driver to go for the Page 4 of 8 insurance document. I informed the driver on the 14th and he pleaded with me that he would be going in the morning of the 15th to go and pick up the document. The accident happened on the 15th and so I called the agent and informed her that the vehicle was involved in an accident and that I needed the insurance document. That is all I know Q: So tell the court, what date was the insurance policy renewed. A: My lady it was renewed on the 15th but they collected the money on the 14th. I paid on the 14th. Exhibit E is the insurance certificate which covers the vehicle the Accused Person was driving. On the face of the Exhibit, the insurance certificate was issued on the 15th day of January, 2020 at 10:01 am. It was due to expire on the 14th day of January, 2021. There is no dispute that the accident occurred around 6:30 am on the 15th day of January, 2020. Thus without any shred of doubt, as at the time of the accident, there was no insurance covering the vehicle. DW1’s insistence that he paid for the renewal a day before was not supported by any evidence; be it proof of the mode of payment or the evidence of the said agent to whom he had paid the money to. It is a legal known that simply repeating an averment on oath in the light of a challenge to that evidence, does not constitute proof. In the circumstances of this case, Accused Person’s own document which he had handed to the police and which is before this court as EXHIBIT E, is evidence against the Accused Person as to the fact that his vehicle had no insurance cover as at the time of the accident. Even if I am to believe the evidence of DW1, the time one pays for an insurance is not as relevant as the time of issuance. This is because the liability of an insured company commences from the date and time of issuance of the policy and not the time of payment; unless an argument can be made that Page 5 of 8 the non-issuance after payment was due to an error or mistake on the part of the issuing authority. As there is no evidence before this court of DW1’s payment to the agent in the first place and no evidence has been offered to this court proving that it was an error on the part of the agent that led to the late issuance, I find that accused person has failed to raise a reasonable doubt in my mind at the close of his defence. Motor traffic offences are of strict liability. From Accused Person’s own evidence, he knew that the vehicle he was driving in the early morning of the 15th day of January 2020 was not insured. It was a commercial vehicle that was carrying a number of passengers who are all workers of a company. He had an obligation to protect them by insuring the vehicle against any accident that may occur on the road. He failed to prioritize the insurance policy and so at the time of the accident, there was no insurance policy in force that the family of the deceased or any of the passengers on board could make a claim from. I find that at the close of the trial, Prosecution has proven the guilt of Accused Person beyond reasonable doubt. He is accordingly convicted of the offence of Use of a Motor Vehicle Without Insurance. PRE SENTENCING According to Prosecution, the convict is not known. In mitigation, counsel for convict says that the convict has been regular in court throughout the trial. Convict is a very young man who has a lot of years ahead of him. This is a motor accident to which though he was aware, the burden was on the owner. Page 6 of 8 Counsel prays that the court visit upon Accused Person the minimum fine if the court is minded to fine, and if there is a need to give a custodial sentence, it should be very lenient. SENTENCING The offence of use of Motor Vehicle without Insurance carries with it a punishment of not more than 250 penalty units or a term 0f imprisonment not exceeding twelve months or both the fine and the term of imprisonment. Prosecution had to go through a full trial to establish the guilt of the convict even though his own insurance document which he presented to the police was ample evidence against him on the charge. That was a waste of state resources and time and also serves as evidence of his lack of remorse for this offence. However, I find that the time period between the date of expiry and the time of renewal was less than one day. Although it is not a defence, it is so short that the court must take it into account in arriving at a just punishment for the offence. Again, the convict is a driver of more than 20 years and this is his first brush with the law. As much as possible, the punishment should lean towards reformation rather than deterrence. Accordingly, the convict is sentenced to a one-day term of imprisonment and to a fine of 250 penalty units to be paid by the 29th day of June, 2023. In default, he would serve a two-month term of imprisonment. Page 7 of 8 (SGD) H/H BERTHA ANIAGYEI (MS) (CIRCUIT COURT JUDGE) A. S. P STELLA ODAME FOR THE REPUBLIC PRINCE KWAKU HODO FOR THE CONVICT Page 8 of 8