19791212 TZHC Tabora

4 IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION V HIGH COURT CRIMINAL APPEAL NO 0 101979 /El ORIGINAL CRIMINAL CASE NO017 OF 197eIQYTHE?4sp DISTRICT COURT OF KIGOMA DISTRICT AT IGOMA •'' . V V VI ..V BEFORE: W. S. NKULUNGU •.. •• •,• V DISTRICT MAG TE Republic versus JOHN MWITA CHARGE: 1ST. COUNT: Causing çleath through :dangerous driving V 'c/s.40(1) and 63(2)('a) and 27,,(1)a);of'the.jy Traffic Act N. 30 of 1973 2ND. COUNT: Causing bodily injuries through dangerous driving c/s 41 and 63 (2)(a) and 27(1)(a) of V,the Traffic Act No. 30 of 1973. .... - V' V TtVfl r M V MUSHI, J pp The appeliatit, ,JOHN MWITA, was charged with two traffic offence. The fir.st one was: causing death thr Q ugii dangerous driving c/s .40 (1) and 63 (2)(a) and 27(1)(a) of the Traffic Act No. 30 of 1973. The second count was causing bodily i'juris through dangerous driving. V c/s 41and 63'(2)(a) and 27(1)(a) of theTraffic Act No 0 30 of 1973. V' The appellant was convicted on both counts and was sentenced to three years imprisonment and one (1) year .imprisonrneritrespectivelI ar-te VV sentences was to run consecutively. The appellantis licence was cancelled for five (5) years. He is. ' appealing ainstVconvjction'and sentence. The appeal was allowed V now proceed to give the reasons or when this case came for hearir The appellant wading an Isuzu lorry No. TZ.32620:betweefl V Uvinza And Malahi Ranch. It was an open body lorry; 1€ was carrying., 40 bags of cement and 30 passengers. The journey fiom Uvinza stVated at 1100 p.m. but, the journey was a slow one as the VéhiCieVStOppeçl several times because of engine trouble. The vehicle stopped severaj. times but managed to move after repairs each time. The evidence adduced by the prosecution witnesses is similar. However themost detailed'evidence is that of 0W.4 one 14r. Urio who was the Manager of the Ranch. The relevant part of his evi4ence reads as follows — "There was a tractor whih was levelling the road andit made a cettain ditch which our lorry entered. On getting out of it, the front wheel were high so the motor Vehicle. swayed and the V accused was trying to control..it but he failed and it overturned. The ditch was there when we passed to' Uvinza and the accused controlled the motor vehicle that we passed safely. The accused was driving in a fair speed. The motor vehicle swayed. and wanted to go off the road. The accused tried to return it to the road and some of the people on the body were thrown out. T.1s it swayed to the other side and the accused tried to return it on the road when other people were again thrown, out. Then it over-turned".. This is the most relevant evidence as it described what happened. The appellant opted to say róthing in his.defencè. Counsel for the appellant has explained in his. memorandum of appeal that the court erred in convicting the':appeliantwithout a specific act of dangerous driving and secondly that failure to:ta1ce,precaution at a depression cannot be and is not an incidence of 6anqerousr.drivIing. According to the 'charge sheet, the appellant was driving in a dangerous manner as a result of which he failed tO control the motor vehicle. The ac' whicii coristitU'éd dangerous driving is not stated in the charge sheet nor is mentioned in the evidence. It has always being stated that it is mandatory to state precisely i-n the charge the act or omission which constitute danierousvifg. This is not only necessary for the accused to know exactly what wrong he committed in his driving in order to be able to defend himself but also for the prosecution to know what evidence to read to prove their case. Whatever this case there is no evidence of any dangerous driving f aiy kind. All we know is that the appellant was driving in a fair speed, but the vehiIe went into a ditch which wasi on the road. The mere fact that the vehicle went into the ditch which ditch was on the road, does not per se prove thatt driver s negligent. After t1 vehicle had entered into the ditch there is evidence that the driver did all he could to bring the /ehicLe to normal but in the cause of doing it some people were thrcwn out f'oin the vehIcle. The question to ask is whether the appellant did or omitted to do anything in attempt to bring the vehicle to normal after it had entered the ditch. The answer is definitely no. He did his best in the circumstances. -Vhyc should he be victimised' The Republic was unable to support the conviction and so I a. This appeal must succeed. The convictions ar quashed and the sentences set aside. The appellant must be set at liberty unless otherwise lawfully held. The order for disqualification also fails. N. M. MUSHI, JUDGE. 12/12/79 if 4 V.