HIGH COURT, KOFORIDUA
10 FEBRUARY 1975
QUASHIE-SAM J
NATURE OF PROCEEDINGS
APPEAL against conviction and sentence for the offences of (a) leaving a vehicle in a dangerous position under the Road Traffic Ordinance, 1952, and (b) negligently causing harm under section 72 of the Criminal Code, 1960 (Act 29). The facts are sufficiently stated in the judgment.
COUNSEL
Oppong Adjei for the appellant.
Awuku Yeboah, State Attorney, for the respondent.
JUDGMENT OF QUASHIE-SAM J.
This is an appeal from the judgment of the Circuit Court, Koforidua, in which the appellant was convicted of the offence of leaving a vehicle in a dangerous position brought under sections 52 and 120 of Road Traffic Ordinance, 1952 (No. 55 of 1952), and also of two offences of negligently causing harm contrary to section 72 of the Criminal Code, 1960 (Act 29). He was sentenced to a fine of 200.00 or twelve months’ imprisonment with hard labour concurrent. The grounds and additional grounds of appeal filed on his behalf are that the sentence is hash and excessive having regard to the nature of the offence; that the court erred in convicting the appellant on charges of negligently causing harm since at the time of the accident the appellant was not driving his vehicle; and that the evidence adduced by the prosecution was not sufficient to support the charge of leaving a vehicle in a dangerous position.
The case of the prosecution was that the appellant, who was driving a truck on the Suhum—Accra trunk road at about 6 p.m., had a breakdown. He left his two mates at the spot to take care of the truck. The prosecution alleged that from the position in which the truck was parked it so occupied the road with no warning lights that a car in which the complainants were travelling ran into it, thereby causing them injuries.
At the hearing of this appeal learned counsel for the appellant raised a serious point of law, namely, that the first charge of leaving a vehicle in a dangerous position brought under sections 52 and 120 of the Road Traffic Ordinance, 1952, was misconceived as there were no such sections in that Ordinance which contains only 38 sections. Again, learn counsel for appellant referred to section 35 of the Ordinance under which were enacted the Road Traffic Regulations, 1970 (L.I. 675), which contains one hundred regulations and submitted that regulation 52 of those regulations
[p.266] of [1975] 1 GLR 264
creates no offence. His conclusion was that the first charge was ill-conceived under these sections which disclose no offence resulting in the trial, as far as that charge was concerned, being a nullity.
Learned counsel for the respondent rightly conceded to these submissions and this court upheld the submission. The trial of the appellant on the first charge is a nullity. His appeal in this respect succeeds. His conviction on the first charge is quashed and sentence thereon set aside. He is acquitted and discharged on that charge.
On the second and third charges of negligently causing harm, learned counsel for the appellant submitted that they are also misconceived because at the time of the accident or impact the appellant was not in control of the truck (which was in any case not in motion) to have caused the impact, he having parked the truck and left the scene in search of a fitter. On this issue learned counsel submitted that on the evidence it was the third prosecution witness who was negligent and so was responsible for the accident by driving negligently into the stationary truck. He further submitted that since there was no triable offence under the first charge, the second and third charges could not stand.
I am of the view that even if the first charge was improperly laid, as I have so found, there was evidence before the court on which a charge under section 72 of the Criminal Code, 1960 (Act 29), could be brought for negligently causing harm. I therefore disagree with learned counsel’s proposition that with the discharge of the first charge, the second and third charges must automatically fall. I take this view which I think is supported by section 13 (1) of Act 29 which reads:
“If a person intentionally or negligently causes any involuntary agent to cause an event, that person shall be deemed to have caused the event. ‘Involuntary agent’ means any animal or other thing, and also any person who is exempted from liability to punishment for causing the event, by reason of infancy, or insanity, or otherwise, under the provisions of this Code.”
In other words if there is evidence that the appellant so dangerously parked his truck that the accident was the direct result of that dangerous parking then the appellant would be culpable. I therefore do not support the submission of learned counsel that the third prosecution witness, the driver of the moving vehicle, and not the appellant should have faced the charges on the ground that the appellant was not in control and not even at the scene when the impact took place. In a case like this I do not think it is open to the appellant to plead contributory negligence as a defence, if there is evidence of dangerous parking. The whole case then rested on that issue of dangerous parking which I think the learned trial circuit judge dealt with adequately before coming to her conclusion.
As regards the sentence, the submissions of learned counsel for the appellant do not apply because the second and third charges were preferred under the Criminal Code and not under the Road Traffic Ordinance or the Road Traffic Regulations.
[p.267] of [1975] 1 GLR 264
In the result the appeal must fail and it is dismissed accordingly.
DECISION
Appeal dismissed.
S.Y.B.-B
