OWUSU v. COMMISSIONER OF POLICE [1963] 1 GLR 113

DIVISION: IN THE SUPREME COURT

DATE: 15TH FEBRUARY, 1963

BEFORE: ADUMUA-BOSSMAN, MILLS-ODOI AND AKUFO-ADDO JJ.S.C.

CASES REFERRED TO

(1) Chaplin v. Hawes (1828) 3 C. & P. 554; 172 E.R. 543

(2) R. v. Bang Weyeku (1943) 9 W.A.C.A. 195

NATURE OF PROCEEDINGS

APPEAL against conviction by Judge Amarteifio in the Kumasi Circuit Court for dangerous driving and negligently causing harm. The facts are fully set out in the judgment of the Supreme Court.

COUNSEL

Dr. J. B. Danquah for the appellant.

D. F. Annan, Senior State Attorney, for the respondent (the State).

JUDGMENT OF MILLS-ODOI J.S.C.

Mills-Odoi J.S.C. delivered the judgment of the court. The appellant was on the 29th June, 1962, convicted by Judge Amarteifio at the Kumasi Circuit Court of dangerous driving and negligently causing harm to three persons.

[p.114] of [1963] 1 GLR 113

The facts briefly stated are as follows: About noon on the 3rd April 1962, P.W.2 was driving an omnibus No. AN 8337 from Obuasi in Ashanti towards Kumasi. He stopped his vehicle at a bus stop on the near side of the road about 28 miles to Kumasi. Shortly afterwards, a driver in charge of a jeep No. SG 4652 drove it to the bus stop and “crossed the bus” thereby making it difficult for P.W.2 to move his vehicle. The jeep driver alighted and made a complaint to P.W.2 that a passenger on his vehicle had thrown a bottle against his windscreen and had damaged it and so P.W.2 should find out who that passenger was. While the jeep driver was talking to P.W.2 about the damage to the windscreen the latter saw two vehicles approaching the omnibus from opposite directions. The appellant was in charge of the vehicle which was travelling from Obuasi direction (i.e. behind the omnibus); P.W.1 was the driver of the other vehicle. P.W.2 gave a signal to P.W.1 who had the right of way to drive on. P.W.1’s vehicle at that time was about 30 yards from the omnibus. P.W.2 then signaled the appellant whose vehicle was about 60 yards from the bus stop to pull up in order to allow P.W.1’s vehicle to pass; but the appellant’s vehicle did not stop. When P.W. 1’s vehicle had passed the jeep and had drawn abreast the stationary omnibus, the appellant drove his vehicle between P.W.1’s vehicle and the said omnibus. The appellant’s vehicle then hit the rear off-side of P.W.1’s vehicle which went off the road. As a result three passengers on P.W.1’s vehicle fell off the vehicle. Two of them died on the spot; the third died when she was being conveyed to hospital. The appellant was therefore charged with dangerous driving and negligently causing harm to the three deceased passengers. Learned counsel for the appellant in this court argued “that the verdict of the trial circuit judge cannot be supported having regard to the evidence.” In support of this contention he submitted that the stationary omnibus left only twelve feet two inches of the road for other vehicles to pass; therefore a dangerous situation had already been created before the appellant drove his vehicle towards the bus stop. He maintained that the situation became more dangerous by the jeep “crossing the road” thereby making it difficult for the omnibus to move. In our view the positions of the omnibus and the jeep rather called for greater care and attention to be exercised by the appellant who had not the right of way at the material time. The general principle of law governing road traffic is that it is the duty of all road users at all times to keep a look-out so as to avoid collision with other road users. Where a vehicle is overtaking another vehicle the duty of avoidance of collision lies wholly on the overtaking vehicle. In Chaplin v. Hawes1 it was held that in cases where parties meet on the sudden and an injury results, the party on the wrong side should be held responsible, unless it appears clearly that the party on the right side had ample means and opportunity to prevent it.

[p.115] of [1963] 1 GLR 113

In the instant case the width of the road at the bus stop where the incident occurred was thirty-nine feet which, according to P.W. 1, “cannot take three vehicles abreast each other.” At the time of the incident P.W. 1’s vehicle which was on the right side had drawn abreast the omnibus and, therefore had no means or opportunity to prevent the danger. The appellant who did not have the right of way and who failed to stop after having been signaled by P.W.2 to do so, drove his vehicle through the small space between the stationary omnibus and P.W.1’s vehicle in motion. In his statement to the police, exhibit E, he stated inter alia as follows:

“On reaching mile 31 on that road after having descended a slope, I saw a municipal bus stationary on the near side of the road. I was driving at a speed of about 30 m.p.h. immediately I reached the rear portion of the bus; I saw another vehicle almost at the same spot from the opposite direction. I signaled the driver in charge of that vehicle to slow down. I tried to pass through the bus and that vehicle but it was too late. As a result the front portion of my vehicle hit the off-side rear portion of the on-coming vehicle. I brought my vehicle to a standstill; I walked to the spot and saw three persons lying. Two were dead but the one was conveyed to the hospital unconscious.”

We are satisfied that the proximate cause of the accident was the fault of the appellant in failing to stop his vehicle and in attempting to force a hazardous passage. We are of the opinion that the course taken by the appellant in those circumstances was rash and such as a person exercising reasonable care would not have taken.

Learned counsel for the appellant submitted further that “the learned circuit judge misdirected himself on the alleged overloading of the appellant’s vehicle as the cause of the accident.” He contended also that there was no conclusive evidence as to the overloading of the vehicle because the examining officer in his report stated that “the vehicle should be weighed to prove my point,” but it was not weighed. In support of this contention he cited the case of R. v. Bang Weyeku.2 In that case the appellant was convicted of murder in the High Court of the Calabar—Aba Judicial Division—primarily on the evidence of several prosecution witnesses who testified that shortly after the deceased was stabbed he said, in the absence of the appellant, “Bang has shot me.” On appeal the conviction and sentence were quashed and the appellant was acquitted and discharged on the ground that the evidence of the deceased’s statement was inadmissible, and it was impossible to say that without that evidence the trial judge must inevitably have come to the same conclusion as he did.

In this case the learned circuit judge relied primarily on exhibit A3—the certifying officer’s report—in arriving at the conclusion that the appellant’s vehicle ,was overloaded. The certifying officer was neither the chief transport officer nor the engineer transport officer of the Ghana Government Transport Department. The report was tendered in evidence by P.W.4, an inspector of police; but the certifying officer who examined

[p.116] of [1963] 1 GLR 113 the vehicle and made the report was not called to give evidence. In our opinion exhibit A3 was wrongly admitted in evidence by the learned circuit judge. Such a document would be admissible in evidence and its contents fully considered without calling upon the person who made it to give evidence if it was made under the hand of the chief transport officer or the engineer transport officer: see section 121 (3) of the Criminal Procedure Code, 19603:

“Any document purporting to be an original report under the hand of a person gazetted as the Chief Transport Officer or as an Engineer Transport Officer relating to the condition of any motor vehicle or trailer, may, if it is directed to the court or produced by any police officer to whom it is addressed or by someone acting on his behalf, be admitted as evidence of the facts therein stated in any trial before a District Court. For the purposes of this subsection ‘motor vehicle’ and ‘trailer’ shall have the meanings respectively assigned to them under the Road Traffic Ordinance [No. 55 of 1952].”

The question which we have to consider is, in the absence of exhibit A3, would the learned circuit judge have come to the same conclusion? The cause of the accident was not due to unserviceability of the appellant’s foot brake which was the result of the overloading. There is also no evidence that when the appellant’s vehicle reached the rear portion of the omnibus he applied his brake and found it unserviceable. In exhibit A3 the appellant stated, inter alia, as follows:

“Immediately I reached the rear portion of the bus, I saw another vehicle almost at the same spot from the opposite direction. I signaled the driver in charge of that vehicle to slow down. I tried to pass through the bus and that vehicle but it was too late.”

On a full consideration of the fundamental facts of this case we are satisfied that without exhibit A3 the learned circuit judge would inevitably have come to the same conclusion as he did.

It is for these reasons that we dismiss the appeal.

DECISION

Appeal dismissed.

[Reported] by S. A. BROBBEY, ESQ., Barrister-at-Law.]