19820106 TZHC Dar es Salaam

IN THE HIGH COURT OF TZNIA T DM ES SILAM AfPELLJTE JUTIJDICTION 4 HIGH COURT CRflVIINJL APPEAL NO.64 OF 1979 ORIGINAL CRBNIL C.ASE NO. 713 OF 1973 OF THE DISTRICT COURT OF D'3LJ.h1[ DISTRICT JT KIVTJKON1 DIRECTOR OF PUBLIC VCTSIiS IvIOFiiMED .A}fl\ED . .. • , , . . . . . o . . . . . . . . . . . . . . . . . . . . . . . . . RESPONDENT CHiRGE Careless driving on the road c/s 50 and. 63(2)(d) of the rood. Traffic .ict, No,30 of 1973. JUDGLI]T LAPIGLNO, J. - This is an appeal by the Director of Public Prosecutions ogain$t the decisionì of the learned Resident Magitrate ace itti ag the respondent Mohamod haL1ed of careless driving contrary to sections 50 and 63()(d) of the Road Traffic Ict, 19.73.. The charge laid against the respondent stated that he failed to stop his vehicle end allow the oncoming vehicle, to pass first before turning to his right side.. The raspondent denied. that: allegation and a full trial was held.... The 1rosecut'i.on brought two witnesth'es, /1 Ferdinand Ishengoma and a traffic. officer: PW2 Bendson. The resyondent gave evidence on affirmation in his defence and called no witness.. I will first state some uncontro- versial facts.. On pril 3, 1973 at about 6.30 p.m. the respondent was. driving: his saloon car registered as TN ll' along the United Notions. Road from the direction of the Mor..00ro Ho ad towards the direot:Lon of the 3alend.or Bridge. it the time PVl Ishengoma was also his car a i:::'eot registerect as T2 20362 on the sane road from the opposite direction.. The two cars collided at the junction of the United Nations Road and a side rood culled Maliki Road.. The ruspondent was than negotiating a turn into the Maliki Roud and the front of PW1's car hit the respondent Viva ox the near side. The impact was great and the . respondent s car was tnrown 40 ft. Irom tlac probable point of impact. Both vehiples sustained extensive domo:e.. The .oaiaa point which fell for dtcrminotion was whether he resronlont 9 piece 0 f driving was erratic as alleged in the -2 - Primary dchool he saw the car emerging from the opposite direction. Then without stopping it abruptly swerved. to the right. Ho said that the car :;os then very close to him and that he vainly tried to evd.e the collision by slamming on his brakes. The reaponcient disputed tnat account. He told the cou.rt that he stopped for two or three minutes when he reached the junction. He said that he looked ahead and saw no car coming on the 300—metre stretch 0±' open road... He said that he then started to turn to his ri;ht in o:der to enter Meliki Road.. But, he said., in a flash PWl a car ceins cruising and knocken his viva. The trial magistrate rejected tho iDrosecutionvs contention that the respondent hod not stopped. before turning into Maliki Road.., He found that the respondent had stopped and. he attribuled the collision to the high speed at which PVl was driving his car and to his trying to tu'n into Maliki 'oad while drivi4'ip; at such speed. The iihP. is dissatisfied with those findings. I hove studied the evidence adduced by PNl and the respoid.erab before the trial court as well s the sketch plan which was tnde- red. by '!?vv20 respect, I agree with Mr. Huka who represented - the .F.. P onat 'chore was no ev.iuen'tiul basis icr the magistrete ; fnding that Tdl wonted. to make a turn into Maliki Load. That finding, it comas to me not find support even in the testimony 0± 'hIe 1S00n00flt Counsel .oa ohe respona,ent, loT. ..lucc&co?m, natits ma to find. b ties point of ioaaac; was inaide Naliki io ad I regret to soy that I SOC no evidence that can support mach. cfiriditig. In fact the dcc iintar 0u evidence, the sketch plan, clearly shows that the collision took place inside the Uiited Nations od. — near the right edge show one is facing inc bPolender Bridge.. La my assessment I think, with respect, that It was impossible to dismiss ties prosecution ocntntion that the respondent did ot stos cttie junction in order to allow Pls car to pass lcfore n.. k a racponJc..ii eure,cL into i\nnini ±0 else could the accident have happonod? Ike respondent claimed that when he reaci'ied tiont junction he did not see any car on 'bho 300—metre It 1of the open road hod. He I think for good measure, that he stooped for two or tirose minutes before making the turn.. hf that ic so ,then it is inconceivcdile that P1]l would. have emerged. and. reached. tne junction before he the respondent had successfully completed mcicinptiie turn end cleared his car out of the way. I think, upon the whole, met the evidence asoabliahed. c cisar breech at' Uh ccwobs ci' anho tI:ctain raaae..awt 'es - - 3 - The learned magistrates finding that PW1 was driving at high speedjs a sound one. That is the unavoidable deduction which one draws from the resultant damage and poitionb of the two vehicles and; from PWl's failure to dodge the respOndents car. Irided his speed was not only fast but excessive as well. Because, as the evid;thice sno, the United Iations Road curved in eithe' Idirection frM the piiib of impact and the limit of vision decxease as O±1E ajiróaches that point. How.evr,as counsel for the appellant has rightly pointed out, PW1's negligence could not at law have exonoreted the respon.ent. For what I have said,: I. allow this appeal, reverse the finding and convict the respondent of the o±'fenco wih which he as charged. I remit the case to the trial court for passing the sentence and, for adjudicating upon the euspension of the reso- ndent Lvin; licence under the provision of aectin 27(l)(b) of the FQad Traffic ct. Delivered incouxt. • ...A it Bar as 3alaam JTJD 6th January