19850326 TZHC Mtwara

tifc., IN TI-IE r:IGH COUkT OF TANZANIA APPELLttTE JUkISDICTlON HIGH COURT CRI~l~AL A~PiAL NOa31/82 OEUGHfAL 'I'Ro CrtliiINAL CASE NOo: 18 · U}' 1981 OF THE D/C OF LI~DI Dl~TKICT'AT LINDI Before PYAi·li,E,AGARA, Esq., R/i"1AGISTJIATE KA! :PUi'✓ l Y,:'1 UCEun;zr hKOt\ iJA LINDI Lil,iTE:D oooooaooAPPELLANT (Original nccused) versus THE ~EPUBLIC oooooooaoo ■ oo~RESPONUENT (Original Prosecutor) ....... ---------~ J U D G !•1 E N T ,.l ! MSUMI, Jo ' ' ' The t,rial r1esident t.agistrate ,. as he then was1 conv_icted the ' . c;c~_used• one Iddi H2rnisi of Keckless Uriving c/ss 42(1)(,i{ff~~3(2)(b) qncf' is· ( 1) (a) of tf1e ~" r2,ffic Act No. 30/73'.,_ He sentE:nce<l/to pay a fine 1 of Shs.3,000/= or six monhhs jail in def~ult~ The learned trial magistrate farth.2r ordered the ett1ployers of the accused - Kampuni ya Uchukuzi Vik:oa wa Lindi corni1tonly refer.red by its acronym. elf KAUL! - to pay compensation to the complainants whose_ cattle: were e.ither killed or injured consequsnt to the accused 1 s act. d.f reckless driving. In this appeal, KAULI throuqh the service of the learned counsel Nr. Hchora; is challenging the L~ga.li ty of the said compensation or<ler. On thJ· other hand the le,.1rnecl State Attorney who appeared on b·::!half of the Republic declined to support the order .. With respect, nb practising lawyer·_ wori:h the title wouh.1 fail to notice the illegality of this. order. ,~he- relevari,t prosivion of the law vide which this order is purportedly to h2cv~~ bE!en in:de is section 176(1) of the Criminal Procedure Code. I-'or the advantage of the learned trial magistrate the said provision is hereby quoted in extensio: 176 -~(1) ·,,vhen an accused person is coQvicted by 11 any court of any offence not pl:mishable with death anJ it al)L)ears from the evidence that soI!le other person, ivhc,ther or not he is the prosecutor or· a witness in the case, has suffered material loss' or personal ihjury in consequence of the offence committed and that substantial,compensation is, in. the opinion of th0 court recov~rable by that person by civ.il suit, such court may, in its discre-::ion and in uddition to any other lawful punishment order the convicted person to pay to that other_ per-so11-··sttch~-compensation' in kind or money' as the court d,2erns fair and reasonable".;; (Emphasis supplied) ,. 2 For ~he purpose of this appeal this court only wish to point out to the learnsd trial magistrate that such compensation order may only be made ;:-,ga:;_nst a 11 cc,nvicted person 11 o In this dppeal not only that appellant company wu.s not a convictedperson but it was not charged at all in thiJ.t case" By tmy form of description, KAULI was not a party ·co the said traffic case. ·.I:t is thus incomprehensible how the learned trial magistrate decid-2d to make such a draconitm sort of an order a.g21:Lnst j_·:::c But even if the appellant was legally subjective to the provid.ons of section 176( 1), it is c1ear that the purpt>rted order :;_n this case was made in violation of cme of the cardinal principles of nei tural jus ticeo. .The learned trial magistrate ought to have h:::urd tht:- appellant before imposing the o.rdero One of the principles or natural justice dictates tha:t:no person is to be condemned unhearct; he should first be given -a right of hearing·. It appear::; that in r.1<::tking this order the ,learned trial magistrate was motiv:3.ted by his anxiety to administer practical justiceo Being a mere driver, the solvency of the accused was highly'doubtful hence any order of compensation against him would be of no practical utility to the cattle ownerso But, with respect," ~n order to be·. 6£ any help at all, the laarne6 trial magistrate's sense of practic~l j~iti6e ~ust not be repugnant to the~ statutory lawo ,vhere the notioz; of p·ractical justice clearly contravens the wise comm~nds of our legislators, it has to bow downo In conclusion, this appeal is allowed. Being legally obno:xious, the purporded order of compensation is hereby quashed. \ :',-_.l_ \'' . \\,\,!..__ ~l';,v._, H c A ___,klsum.1. Judge 26/3/85