|
JUDGMENT
R.C. OWUSU, JA:
This is an appeal
against the Judgment of His Lordship Nana Barfour Adjei
(Chairman) sitting with Messrs Eric Wood and George
Amissah, Miss Cobbah-Yalley and Florence Dadzie as panel
members delivered on 15/11/2001 at the Regional Tribunal
Cape Coast.
The appellant herein
had been charge on two counts of careless driving
contrary to Sec. 18(1) of R.T.O. 55/52 as amended by
section 4 of Act 553 of 1998 and Negligently causing
Harm contrary to section 72 of the Criminal Code of 1960
(Act 29).
He was arraigned before
the Community Tribunal, Elmina in the Central Region,
tried and found guilty on both Counts. He was convicted
on both counts and sentenced to a fine of ¢200,000.00 or
4 months I.H.L in default. He paid the fine.
Dissatisfied with the
conviction and sentence however, he appealed to the
Regional Tribunal, Cape Coast on the grounds that:
i. “The Judgment is not
supported by the evidence on record.
ii. The trial Court
Erred in holding that the point of impact was in the
lane of traffic of PW1.
iii. The trial court
failed to appreciate the defence of the Accused.
iv. The trial court
failed to adequately evaluate the evidence on record.
v. The trial court
failed to consider the fact that the 3rd party by
driving into the lane of the Accused at a short distance
placed the Accused in extreme peril and that which the
Accused did or omitted to do in the agony of the moment
cannot fairly be treated as negligence.
vi. The reasons adduced
by the trial court for the rejection of the evidence of
Dw1 are untenable in law.
vii. The trial court
erred palpably in holding that the duty of avoidance of
collision was on the Accused and not the third party
vehicle which was doing the overtaking.
viii. The court failed
to appreciate the burden of proof placed on the
prosecution and thereby erroneously shifted that burden
onto the accused to prove his innocence.
ix. The trial court
failed to consider the issues raised in the address
submitted by counsel on behalf of the accused.
x. Additional grounds
of appeal will be filed upon receipt of the record of
appeal.
His appeal was
disallowed by the Regional Tribunal. It is against the
decision of the Regional Tribunal that he has appealed
to this court on the grounds that:—
1. “ The tribunal
failed to critically evaluate the evidence.
2. The tribunal Erred
in dismissing the Appeal.
3. The tribunal Erred
in holding that the appellant was negligent.
4. The finding by the
tribunal that the Appellant was confused and panicky and
this caused the accident is not borne out by the
evidence on record.
5. The Judgment was
erroneous and not the result of proper resolution of the
facts in issue since the tribunal failed to consider the
several facts which were in favour of the appellant and
which were sufficient to exonerate him from the charge.
The facts of the case
as alleged by the prosecution are that on 18/1/2001 at
about 7.15 p.m, the appellant herein, Joseph Donkor of
Union Transport Africa Ltd, Takoradi drove Scania Cement
Articulated Tanker No. GT 7086 A loaded with cement from
Takoradi to Acheampong near Tarkwa. Between Bronyibima
and Yesumkwa along Cape Coast-Takoradi Road, accused
drove into the lane of an on coming Mercedes Benz Car
No. GW 2686 Q then being driven by one Michael
Hackenberg, General Manager Construction pioneers (CP)
and hit the Benz car which caught fire and burnt
completely.
One Doctor Spark who
was with the driver on the Mercedes Benz sustained
injuries. According to PW1, who was driving the Mercedes
Benz Car, the Appellant tried to avoid hitting him in
his lane so he swerved into his (Appellant’s) lane again
but the Trailer of his truck fell down and hit his car
in his lane.
The fact that the
Articulated Truck was driven into the lane of the
Mercedes Benz was denied by the defence which contended
that it was rather the driver of the Mercedes Benz who
drove into the lane of the Truck.
Counsel for the
Appellant at the hearing of the appeal, abandoned ground
2 of the appeal.
Grounds 1, 3 and 5 were
argued together. Counsel submitted that the findings
made by the court cannot be supported by the evidence.
The Appellate tribunal
dismissed the Appellant’s appeal because, as the
Judgment of the Tribunal reads “We cannot agree more
with the lower court in its observation above. We
therefore hold that the trial court was right in its
Judgment and we have no just cause to disturb it, the
findings made by the trial court were supported by the
evidence.”
The trial court had
found the appellant “negligent and careless”. That “he
refused to keep a proper look out and in his own words,
he never saw PW1’s Benz Car”.
Counsel had seriously
argued before this court that the appellant was not
careless and that what he did when confronted with
imminent danger was reasonably necessary in the
circumstances and cannot amount to negligence.
He referred the Court
to the case of ASIBI (HAUSA) VRS FRANCIS EFFAH, Court of
Appeal, Civil Appeal NO. 33/69 of 26th February 1970
(unreported) referred to by P. K. Twumasi in his
Criminal Law in Ghana p. 606.
Counsel submitted that
the appellant was faced with imminent danger of running
into the Toyota Land Cruiser which had overtaken another
vehicle and had found itself in his lane. He applied his
brakes to avoid fatalities.
According to the
appellant himself this was when he got out of a curve.
The legal position is that where a person is confronted
with an emergency he cannot be expected to conduct
himself in a way a reasonable and prudent man would do
in ordinary Circumstances. His blameworthiness must be
Judged by the peculiar and unusual situation.
See the case of LONDON
PASSENGER TRANSPORT BOARD VRS. UPSON [1949] A.C. 155,
referred to in Twumasi’s Criminal Law in Ghana p.606.
Attached to this
principle is a rider that where, however, the emergency
was created by an earlier act of negligence by the
person concerned he cannot escape liability for the
consequences of the situation he created by his own
negligent act. So in this case, was the situation in
which the appellant found himself brought about by an
earlier act of carelessness on his part?
According to the
appellant himself, he had finished negotiating a curve
on the road. The accident had happened late in the
evening, about 7.15 p.m. and visibility was poor. PW2
told the trial court that he could not take measurements
that night because of visibility.
From the sketch of the
scene of accident, Exh “A”, the distance between where
the appellant sighted vehicle No 2686Q to the point of
impact measured 205”. The appellant did sign the sketch
by way of approval in the presence of an independent
witness. At the trial, even though he did not object to
the tendering of the sketch in evidence, he denied that
the point of impact as indicated on the sketch was the
actual point of impact. He told the Court the point of
impact was in his lane of traffic but not in the lane of
traffic of PW1 as indicated on the sketch.
His denial per se, did
not render the sketch inadmissible as contended by
Counsel in the trial court. The appellant did not raise
any objection to the tendering of the statement. Even if
he had raised an objection, its admissibility like a
confession statement would have been decided on evidence
only where the appellant had denied signing the sketch
or that he had signed under duress. Where the objection
is raised on the ground of inaccuracy, it must first be
admitted before it can be evaluated. The weight to be
attached to it is a question of fact. See the case of
ASARE alias FANTI VRS THE STATE [1964] GLR 70. The
appellant did not object to the distance between where
he sighted PW1’s vehicle and where the two vehicles
collided whether in his lane of traffic or that of the
other vehicle.
As to the lane of
traffic in which the vehicle collided, the appellant in
his own statement told the police it was in PW1’s lane.
This was the statement taken a day after the accident.
10 days later, on 29/3/2001 when given the opportunity
to make another statement, he relied on his former
statement made on 19/3/2001. Counsel urged it upon this
court not to attach any weight to the statement because
the appellant was remanded in custody and had been
denied medical care on the day of the accident and that
the statement was taken the next morning.
I find this submission
strange because one would have thought that having slept
over night, the Appellant rather would have reflected on
the events leading to the accident and would remember
correctly how and where the accident happened. If what
he had told the police in that statement was not
correct, he had another opportunity on which he could
have changed same.
Like the sketch, the
statement was tendered without objection and the
contents were not denied. The weight to be attached to
it was a question of fact for the trial court. I
therefore see no reason why this court should be called
upon not to attach any weight to it, a duty reserved for
the trial court which had evaluated the statement.
Under
Cross-examination, the Appellant was asked the following
questions:
Q. “What time after
the accident did you make your statement to the police”.
A. “After the Police
went to take measurement the next day."
Q. “so the statement
you gave the police and what you are saying now, which
one is correct?"
A. “what I am saying
now is correct.”
Q. “so what ever you
told the police is not correct, it is a lie, I mean
your statement?”
A. “I spoke the truth
to the police.”
He did not at the trial
say that he pointed at a different point of impact which
the investigating officer had ignored in the sketch.
The Appellant’s vehicle
was a Scania Cement Bulk Tanker which at the time of the
accident was loaded with cement. With the size of the
vehicle and the load, the Appellant was under a duty to
exercise a greater degree of care and attention a
prudent and reasonable driver would do especially while
negotiating a curve. If he had driven his vehicle with
due care and attention required of him, he could have
avoided the accident from the distance of 205 feet from
where he first sighted the Mercedes Benz Car.
At a speed of 97
k.m.p.h., under the High way Code, a driver should be
able to brake from a distance of 180", from where he
first sights an on coming vehicle ….
Even driving at that
speed would not be reasonable under the circumstances
having regard to the size of the vehicle with the load,
that portion of the road where the accident happened and
the time of the day. I am very mindful of the fact that
speed per se is not evidence of carelessness or
negligence but from the appellant’s own evidence, when
he applied his brake, he lost control of it and his
vehicle started swerving from one lane to the other.
According to the report
of the officer in charge of Vehicle Examination and
Licensing Department who tested the Appellant’s vehicle
after the accident, the brakes, steering and the
Electrical Systems were in good working order prior to
the accident.
The position in which
the appellant found himself was not the result of a
Mechanical fault. The evidence does not indicate that
the road was slippery at the time.
Counsel for the
Appellant urged it upon this court that the point of
impact is not a determining factor in deciding the issue
of carelessness.
Rather, the position of
the law is that the point of impact alone, was not a
proper yardstick for resolving issues of road traffic
negligence, see HAUSA VS. THE REPUBLIC [1981] GLR 840
Twumasi J. (as he then was) in his book Criminal Law in
Ghana p. 615 on police sketch of scene of accident,
mentions the point of impact as one of the important
positions for determining liability for negligent
driving.
The trial court held
that, it was a crucial factor in the determination of
the case before it and found that the point of impact
was in the lane of traffic of PW1.
The Appellant therefore
is to be blamed for driving into the lane of traffic of
PW1 as there is no clear evidence that PW1 who was in
his lane, had ample means and opportunity to prevent the
accident.
The case of OWUSU VRS.
COMMISSIONER OF POLICE [1963] 1 GLR p.113 is rather not
in favour of the Appellant.
Under
Cross-examination, he told the court that he did not
even see PW1’s Car ahead of him. In his statement he
said he saw a vehicle overtaking PW1’s Car ahead of him.
Where he cannot even be sure whether he saw PW1’s Car or
not, one can safely say that the Appellant did not drive
his vehicle with due care and attention.
The Appellate Tribunal
evaluated the evidence on record and came to the
conclusion that the findings made by the trial Tribunal
are supported by the evidence. This court cannot
therefore disturb that finding.
Indeed in this appeal
the Chief State Attorney submitted that the Judgment of
the Regional Tribunal is supported by the record and
called upon the Court to dismiss the appeal.
I will not agree with
counsel for the Appellant that the Judgment of the
Regional Tribunal is erroneous as same is not based on
proper evaluation and resolution of the facts in issues.
The finding that the
Appellant became confused and panicky, and that this
caused the accident, I must admit is not borne out by
the evidence.
In this appeal, counsel
for the Appellant said nothing about the second count of
Negligently causing Harm, which flows directly from the
first count. Its fate depends upon the success or
failure of the conviction against the first count as a
result of which the person named in the charge sheet in
the second count sustained the injury.
Having found that the
Appellant drove his vehicle without due care and
attention, he must be held liable for Negligently
causing Harm to the person named in the second count.
On the totality of the
evidence, the appeal against conviction fails and same
is hereby dismissed.
R. C. OWUSU (MS)
JUSTICE OF APPEAL
WOOD, JA:
I agree.
G. T. WOOD (MRS.)
JUSTICE OF APPEAL
GBADEGBE, JA:
I also agree.
N. S. GBADEGBE
JUSTICE OF APPEAL
COUNSEL
JOHN MERCER FOR THE
APPELLANT
AGBOLOSOO FOR THE
RESPONDENT
Vdm. |
