19800619 TZHC Tanga

j ,U 2 i6 C, C • IN THE HIGH COUBT at TANGA —: APPELLATE JURISDICTION .-5 5 AL'.Ai CRIMINAL APPEAL NO. 69 OP 1979 (ORIGINAL CRIMINAL CASE NO. 24/79 OP THE DISTRICT COUBT OP WJ!!EZA AiThMD WAZIBI......,...,.Appêllant (oi'ig.Aoeuse4 vre THE REPUIO.,...,,,,,..Resjondent to:) JUGEMENT jsya J:- The appellant was convicted of Causing death by de.tigeous driving contrary to Sectiona 40 (i) and 63(2)(a) of the Road Traffic Aot, 1973, and he was sentenced to a line of she.. 3,000/.. or, in default of payment thereof, to go to prison for twelve mont3B. His driving licence was also suspended for a period of three years. :He paid the fnO and he is now appealing, The appellant is a driver employed by KAMATA, On the night of the accident he was driving a bus registxtion no TZ 22502 Whigh was destined to Tanga. At about 2,OOa,xn, when the bus was at Mkanyageni it overturned killing one Tunpe Abdula Amaui 1 WhO was a passenger in the said bus and injuring several others. One Mau].jdi Abdallah (pv15) testified to the elf et that he was in the said bus, occupying seat no 1, near the driver and that he was awake at the time the bus overtrned pW5 is recorded to bave gone on to say and I quote I rm the record of proceedings:- "It was raining and there was a dwa (sic) the 1314o wasin Ugh speed thus it left (sis) road and otertth'ned on the left side of the road to Tanga." It is not clear to rae what the learned trial niagistrate ,eanc by the word "a down", I note that in his judgeinent he used the same word again when he wrote "the place of the accident has dovi Senior Inspecr Damiano (PW6), a motor vehicle inspector Stationed at Tang testified that he inøpected the bus after the accident, .) I 4 He could ±iot.drive it becue of the dange done to it as a resti.t of the accident, Adcox'ding to him, however, the brakes, steeringand tyres were in good Working o±der before the accident. The front bnper, left sIde heat 'amp, water tank behind. screen s emergency door, passenger seatS steering wheel and the chassis were damaged as a relt of the.accidentj He tendered his motor vehicles inspection report, Eh P.3. In his statement in defence which he gave upon affirmation the appellant stated that when he arrived at Mkaiyagi village th steering suddenly failed. He was then driving at 30 kilometers p hour, The'bus then went off the road an&it overtued, Ac.cQrdiniz to the appellant the place was also Slippery. -. The appellant called one witness at the trial He is one I(odest Andrew, a bus inspector also employed by KAMATA. He told th.e trial Court that at the aaterial time the bus was going doVi hill when he noticed that stOering had gone wrong. He saw the appellaivt trying to bring it under control but the bus overturned. In his judgement the ieaied trial magistrate, as it were swallowed the evidence of PW5 and PW6, hook, line and sinker. He forned the opinion that because of the damage to the steering and the seats which he said It were scattered all over in the bus" the impact must have been great and this, to him,signified high speed, before In arguing out this appeal me learned counSel for the appellant, Mr, Mramba, submitted that the learned trial magistrate's finding that the bus was being driven at speed is not supported by the evidence on record. Indeed, it is true to say that the only witness who made any mention of speed in the case was 1W5, himself not a driver. This witness did not,however , say at what Speed, intermS of kilometres per hour, the bus was travelling immediately before or at the time of the accident. Further he did not say how he knew that the bus was ma 'ving at speed. In short the evidence of pW5 on the issue of Speed iS too sbali.ow and, therefore ,of no probative value. Turning to, the evidence of pW6 he also d±d not say howe he kiew that the, steering was serviceable before the accident, particularly so when he admittedly said that he failed to drive the bus himself. As regards. the damage to the seats which the learned trial magistrate said were scattered all over in the bus I, with respect, have been unable to find the witness who said S • At any rate it is not known from the evidence on record how much centi1ugAi I I 4' -3-.. 1 force must have been applied to pull out the hiss seats, that is to say, if indeed they were pulled off, and its equivalent in terms of speed. This must be a highly specialiSed and technical field. As aforesaid no evidence at all Was adduced on this aspect of the caSe. In rejecting the appellant's defence the learned trial magistrate said: " I can not believe the defence evidence that the steering of the bus failed to wOrk'. Vith respect, the learned t±jal magistrate did not have to bee' the defence story. All that the appellant needed to do to succeed in his defence was to raise a ±easonable doubt in the mind of the learned trial magistrate... If the learned trial magistrate felt unable to accept the defence story then the correct terminology for him to use was that the evidence adduced by the appellant in his defence did not raise any reasonable doubts in his mind. By saying that he did not believe the defence story I find it almost impossible to disagree with Mr. Mramba that the learned trial magistrate decided the case on the weakness of -the defence. Like any other Criminal case the duty in this case was on the prosecution to prove its case beyond any shed of doubt: The appellant was under no obligation at all to prove his innocence, If I may go further the sketch plan,Exh.PI, which was drawn by pW3 s'hows that the buS began to swerve at point 'A" on the road and it overturned off the road on its left and correct side only sixty nine feet away which is equivalent to twenty—three yards distance. If indeed the bus was p therefore, travelling at speed it is 4oubtful if it would not have covered a muchlonger distance,par-ticularly so when the appellant said that he did not brake immediately after the steering developed 'se problems. In his judgement the leaxed trial magistrate criticised the appellant for not braking instantly after the steering failed. That is, however, being wise after the event. All in all, there was absolutely no legally admissible evjdence on the mode of driving adopted by the appellant before or at the time the bus overturned. Further the appellant's defence that the steering failed to work was not contradicted by cogent evidence by the prosecution. That being So -then it would seem that the appellant Was p at the time of the accident confronted by a sudden emergency through no fault of his own. He cannot,therefore, be held liable for the accident in which, sadly, a person lost his life. - . . . ./4 '7 -4- In the final result this appeal must succed. The conviction which, incidentally, was not supported by the learned state attorney is quashed and the sentence passed thereon set aside. It is hereby ordered that the fine of Sh. 3,OOO/ paid. by the Sppellant be refunded to him. The order of suspension is also st aside. Delivered in open, court at 1 anga this 19th day of June,I980." ( H.E.D. sisy ) JUDGE