KLUTSE v. THE REPUBLIC [1968] GLR 761

DIVISION: HIGH COURT, ACCRA

DATE: 29 AUGUST 1968

BEFORE: EDUSEI J.

NATURE OF PROCEEDINGS

APPEAL from the decision of a district court convicting the appellant of the offence of careless driving contrary to the Road Traffic Ordinance, 1952 (No.55 of 1952). The facts are fully set out in the judgment.

COUNSEL

Sekyi Hughes for the appellant.

S.G. Baddoo, Assistant State Attorney, for the Republic.

JUDGMENT OF EDUSEI J.

The appellant in this case was charged with, and convicted of, driving a motor vehicle without due care and attention, contrary to section 18 (1) of the Road Traffic Ordinance, 1952 (No.55 of 1952). Against this conviction the appellant has appealed to this court.

On 23 April 1968, the first prosecution witness who was in charge of a Bedford commercial truck No. WR 9337 was travelling from Takoradi towards the Cape Coast direction. The appellant was also driving in the same direction and following the first prosecution witness.

According to the first prosecution witness, he indicated by his trafficator and by hand that he was intending to turn to the right where there was a petrol filling station and that he gave this indication when he was about 63 yards away. No sooner had the first prosecution witness attempted to negotiate the bend to the filling station when he heard a bang at the rear of his vehicle. He got out of his vehicle and realised that it was the accused who had done this. This evidence was materially supported by the second prosecution witness, a mate apprentice of the first prosecution witness. This witness added that at the time the first prosecution witness was turning to the right he “heard the shouts of Lord! Lord! from a woman on my right side.” [p.763] of [1968] GLR 761

The appellant’s version of the story was that the first prosecution witness never at any time gave a signal of his intention to turn to the right either by his trafficator or by his hand. He continued to say that a taxi driver overtook him and the first prosecution witness. He also attempted to overtake the leading vehicle and as he was doing so the first prosecution witness suddenly turned to the right without indicating that he was so turning and damage was caused to the off-side front door of the first prosecution witness’s vehicle. It is interesting to observe that while the first prosecution witness testified that damage was done to the rear portion of his vehicle the appellant said the damage was to the off-side front door of the first prosecution witness’s vehicle. The impression the appellant thus created by this evidence was that he had almost passed the first prosecution witness when he, the first prosecution witness, suddenly turned to the right and that if any one was careless it was the first prosecution witness who did not observe the rules of the road by his failure to signal that he was turning to the right. It is unfortunate that there was no testing and examining officer’s report on damage done to the two vehicles and in the absence of such evidence this court like the court below could not say with certainty whether the first prosecution witness’s story about damage to his vehicle was true. This piece of evidence would have been of some assistance to the court. The district magistrate grade II having recounted the evidence for the prosecution and the defence concluded his judgment in this fashion:

“From the evidence of the first prosecution witness and the second prosecution witness there are all the ingredients acceptable in the course of the accident to make a clear case, and these are supported by the facts of the third prosecution witness’s submission. The accused tried to overtake at a T-junction, failed to sound his horn to warn the complainant. His failure to observe these regulations worsened his answer to the strong case the prosecution had established against him.” He then found him guilty and convicted him accordingly.

The third prosecution witness, a police investigating officer, attempted to support the first and second prosecution witnesses by saying that the appellant’s vehicle hit the rear of the first prosecution witness’s vehicle. How could he say this when he was not at the scene of the incident when it occurred. There was evidence that after the impact the first prosecution witness’s vehicle overturned and if there was damage to the rear of the first prosecution witness’s vehicle the question is when was it caused—at the time of the incident or [p.764] of [1968] GLR 761 after? This question is incapable of answer with any degree of certainty.

I now revert to that portion of the district magistrate’s judgment already quoted above. It would appear that the trial magistrate based his decision on the ground that (a) the appellant tried to overtake at a T-junction (the branch road to the filling station) and (b) he failed to sound his horn to warn the first prosecution witness, the complainant.

There is no rule of law that a driver cannot overtake at a T-junction especially where the main road is a straight one as in this case. It is conceded that greater care must be shown when a driver is overtaking at such a junction. If there were such a rule of law a greater inconvenience would be caused to the driver following a leading vehicle that is travelling at a snail’s pace, for after all users of the road must give due consideration to one another. Any good driver will appreciate that sounding of horns should be kept to a minimum. And it is not in every situation that a horn should be sounded. Here was a straight road and the first prosecution witness was travelling on his proper side of the road and if the appellant who could see several yards ahead was overtaking the first prosecution witness I do not see the absolute necessity for the appellant to sound his horn. I am of the view that unnecessary sounding of horn would tend to frighten some drivers out of their wits and rather make them cause accidents. I am of the view that the important matter for consideration of the trial court was whether or not the driver of the leading vehicle signalled his intention to turn to the right. There is no doubt that turning to the right side of a road is fraught with greater danger than turning to the left side and it is therefore my considered opinion that the driver of the leading vehicle must indicate in sufficient time his intention to turn to the right and intention to do so must be in clear terms. I shall go further to say that in view of the dangers involved in such a turning he must satisfy himself that the driver of the following vehicle has observed his signal and appreciated the fact that he, the leading driver, will be turning to the right. The first prosecution witness himself admitted in cross-examination that having applied his trafficator he saw through his driving mirror the appellant coming towards his vehicle. The question is did he take steps to ascertain if the appellant had observed his signal since turning to the right is fraught with greater dangers? There is no evidence that he did. I am prepared to follow the decision in Sorrie v. Robertson Ct.Jus [1944] S.C. (J.) 95 reported in Bingham’s Motor Claims Cases (4th ed.), p. 186, where it was held that a driver intending to turn across the road to his right had a duty to observe whether his own signal had been observed. [p.765] of [1968] GLR 761

I think there is much common sense in this rule for the reason I have already given—that turning to the right is fraught with greater dangers than turning to the left: see also Mussey v. Ghana Food Marketing Board, High Court, Sekondi, 8 February 1966, unreported; digested in (1966) C.C. 70.

In view of what I have stated I decline to accept the view expressed in State v. Yalley Essien, High Court, Sekondi, 11 January 1965, unreported; digested in (1965) C.C. 51. It is a rule of the road that a driver apart from indicating by means of his trafficator or his hand that he is turning to the right, should on a wide road such as the Inchaban Road, move to the middle of the road. This change of direction to the middle of the road serves as an indication to the driver following that the leading driver intends to turn to the right. There is no evidence that this rule of the road was observed by the first prosecution witness. Again since the appellant denied that the first prosecution witness signalled to turn to the right it became the duty of the trial magistrate, to resolve this fact. It is a matter of regret that the magistrate did not make any specific finding of fact as to whether the first prosecution witness indicated his intention to turn to the right.

The learned state attorney has invited me to read into that portion of the magistrate’s judgment (already quoted) that by what he said therein it meant that he had so found. I am afraid I cannot so read into the judgment. The fact of his (the first prosecution witness) having given a signal to turn to the right was in issue and a specific finding of fact ought to have been made by the trial magistrate on that issue of fact. My refusal to accept the learned state attorney’s submission on this matter is fortified by the fact that the trial magistrate himself impliedly did not consider this as of any importance because he based his decision on some other grounds. I have already adverted to the grounds of his decision in this judgment. My attention was drawn to the case of Kofi Essel v. The State [1962] G.L.R. 397, S.C. and the learned state attorney submitted that a following vehicle should not overtake at a T-junction. I do not suppose the ratio decidendi in that case stated the principle in this way. That case decided that special care must be exercised by the vehicle following if it wishes to overtake at a T-junction and not that it should not overtake at a T-junction. There is no doubt that the decision in Essel’s case was warranted by the evidence. I have to point out to all those who undertake prosecutions in the courts to observe the wording of the section of the statute under which an accused is charged with an offence, for in certain cases failure to observe this may result in an acquittal of an accused person

[p.766] of [1968] GLR 761 because it may be argued that he has been charged under a non-existent law. Section 18 (1) of the Road Traffic Ordinance, 1952 (No. 55 of 1952), under which the appellant was purported to have been charged is in the following words: “Any person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road shall be liable on conviction to. . .” This subsection clearly creates two types of careless driving offence: (a) driving without due care and attention and (b) driving without reasonable consideration for other persons using the road. I do not suppose that the two offences can be joined in a count. The drafting of the present charge is in the following words: “Christian Klutse, driver, for that you on 23 April 1968 at Inchaban Petrol Filling Station, in the Western Magisterial District and within the jurisdiction of this court, then being a driver in charge of a certain motor vehicle to wit: Albion petrol tanker No. AE 6270 did carelessly drive the said vehicle without due care and attention to other users of the road.”

(The emphasis is mine.) There was no need to import the word “carelessly” into the charge. Careless driving is either driving without due care and attention on a road or without reasonable consideration for other users of the road. That part of the charge in my opinion should have read either: (1) did drive the said vehicle without due care and attention or (2) did drive the said vehicle without reasonable consideration for other persons using the road. However, having regard to all the circumstances of this case I have come to the conclusion that the appeal must succeed; it is therefore allowed, and the conviction and sentence are quashed. The appellant is acquitted and discharged.

The fine, if paid, should be refunded to the appellant.

DECISION

Appeal allowed.

S. K. T.