20180723 TZHC Mbeya

I. I IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA 0 S CRIMINAL APPEAL NO. 32 OF 2017 (Original from Resident Magistrate's Court of Mbeya at Mbeya) ENOCK S/O MWAIGAGA ................................... APPELLANT VERSUS THE REPUBLIC ................................................ RESPONDENT JUDGMENT Date of last order: 25/05/2018 Date of Judgment: 2310712018 Dr. M. C. Levira, J The appellant, Enock Mwaigaga was arraigned before the Resident Magistrate Court of Mbeya facing five counts falling under Road Traffic Act, Cap 168 R.E. 2002. The first count being Causing Death Though Dangerous Driving Contrary to Sections 40(1), 27(1)(a) and 63(2)(a) and the rest four counts being Causing Bodily Injury Through bangerous Driving of a Motor Vehicle contrary to Sections 40(1), 63(2)(a) and 27(1)(a) all of the Road Traffic Act (supra). Page lof 15 I The appeal at hand has got an interesting background. According ) to the Charge Sheet the incident took place on 1st September, 2015. On 10/11/2016 the appellant was arraigned before the trial court; the charge was read over and explained to him, he denied all the counts and thus, the court entered a plea of not guilty in respect of all the counts. On 16/11/2011 the matter was scheduled for preliminary hearing; however, the learned State Attorney came with amended Charge Sheet and four witnesses. The said charge was read over and explained to the appellant who denied the first count of Causing Death Though Dangerous Driving Contrary to Section 40(1), 27(1)(a) and 63(2)(a) of the Road Traffic Act, Cap 168 R.E. 2002. He admitted Causing Bodily Injury Through Dangerous Driving of a Motor Vehicle contrary to Sections 40(1), 63(2)(a) and 27(1)(a) of the Road Traffic Act (supra) to four people, where separate counts were prepared. At page 10 of the proceedings, the accused/ appellant was sentenced to go to jail for four (4) years for counts No. 2, 3, 4, and 5. The sentence was ordered to run concurrently. The court Page 2 of 15 11 ordered further to proceed with the hearing of the first count. After full trial, on 5/12/2016 the court pronounced its judgment. At page 2 of the Judgment the trial Magistrate indicated that the accused/appellant pleaded guilty to counts No. 2 to 5 of Causing Bodily Injuries through Dangerous Driving and he was convicted and sentenced accordingly. Therefore, the judgment is in respect of the first count which he pleaded not guilty. While sentencing, the trial Magistrate stated as hereunder: "The accused is a convict. He is serving a four years jail term. I have considered his mitigation and prayers by the State Attorney. I am of the view that strong sentence be awarded to him. In the event, under section 63(2)(a) of Cap 168, he is sentenced to go in jail for four years. Sentences to run concurrently." [Emphasis added]. The Magistrate also gave an order under Section 27(1)(a) of Cap 168 of cancelling the appellants driving licence for three years. The appellant was aggrieved by both conviction and sentence to all five counts including those which the trial court considered that, he admitted by pleading guilty. He lodged his appeal in this Page 3 of 15 court against both the conviction and the sentence. The petition of appeal comprises of ten (10) grounds of appeal which can best be summarised as follows: That the trial magistrate erred in point of law and in facts when convicted the appellant for count No.2 to 5 relying on unequivocal plea. That the trial Magistrate erred in law point and facts by convicting the appellant relying and depending on the exhibit (VIR) and PF3 of Jonathan Nyanda which tendered in court without being verified by the appellant. That, the trial magistrate erred in law point and facts when convicted the appellant for count No.1 relying and acting on evidence of PW4 without corroboration with any exhibit. That, the trial magistrate erred when convicted the appellant relying on the evidence of PW1, PW2 and PW3. That, the trial magistrate erred in law point and facts when convicted the appellant on 1st count believing the evidence of PW5 without according the appellant any right while admitting exhibit PE4 tendered by the said witness. That, trial magistrate did not consider defence evidence. Page 4 of 15 fr That, the appellant was sentenced contrary to the ) requirements of the law, the Road Traffic Act, Cap 168 RE 2002. That, the charge against the appellant was not proved beyond reasonable doubt. At the hearing of this appeal the appellant was not represented by an advocate, he appeared in person, while the respondent, Republic was represented by Ms. Lugano Mwakilasa, learned State Attorney. Being a layman the appellant had nothing useful to add to his grounds of appeal. He claimed that the charge against him was not proved beyond reasonable doubt and thus, prayed to be set free. He however, prayed for his ground of appeal to be adopted to form part of his submission. The prayer was granted. In her submission, Ms. Mwakilasa learned State Attorney supported this appeal on two main grounds. The first being that, the sentence pronounced to the appellant at the trial court for the first count is excessive as it contravenes Section 63(2)(a) of Page 5 of 15 Road Traffic Act, Cap 168 R.E. 2002. It was her argument that since the law provides for the maximum sentence of three years, it was wrong for the trial court to sentence the appellant to go to jail for four years. She prayed for the sentence to be reduced. Second, the plea of the appellant on account of other counts was equivocal due to the fact that in mitigation the appellant stated that the accident was a bad luck. According to her, it was necessary for the court to vacate the plea of guilty entered and inquire from the appellant to know whether he maintains the plea of guilty. Failure to inquire from the appellant resulted to an equivocal plea. The trial court was supposed to conduct full trial or seek for further clarification. In support of this point she cited the case of Josephat James Vs. The Republic, Criminal Appeal No. 316 OF 2010; Court of Appeal of Tanzania, Arusha, (Unreported). Having considered the submissions by both parties and court record, I find that there are two main issues calling for determination. First whether the appellant's plea was unequivocal. Second, whether the appellant was properly Page 6 of 15 sentenced. I will start with the 2', 3rd , 41h and 5th counts which ) were considered that the appellant admitted. At page 6 of the proceedings the charge was read over to the accused, he replied as hereunder: "1 count: Its not true" "2nd Count: "Its true, I caused bodily injuries to Aron Nyanda through dangerous Driving." "3rd count: Its true, I caused bodily injuries to Turnaini A. Mboya through dangerous driving." 4th count: 11 Its true, I caused bodily injuries to Asegelila Mboya through dangerous driving." "5th count: Its true, I caused bodily injuries to Holand Mboya through dangerous driving." Immediately thereafter, the count entered a plea of guilty to Thoth" counts, save for first count. It is not clear what he real meant. However, going by record, the accused/ appellant pleaded guilty to four counts. At page 9 of the typed proceedings the trial Magistrate made a finding in the following words: "The accused person has pleaded guilty to four counts (4) and has disputed one count. He has also admitted Page 7 of 15 7~ 15 all facts leading to the commission of an offence. Ifirtd him guilty as charged on his own plea of guilty and I ) accordingly convict him". From the above extract, it is clear that the finding made by the trial magistrate was in respect of four counts and the purported conviction intended to address them all. The appellant was sentenced to a concurrent sentence under Section 63(2) (a) of the Road Traffic Act (supra) to go to jail for four years in respect of counts No. 2, 3, 4, and 5, while the said provision provides for the maxim sentence of three years. In one hand, I agree with the learned State Attorney that the sentence was excessive as it exceeded to limit provided by the law. As correctly pointed out by Ms. Mwakilasa, in mitigation the appellant stated that "the accident happened as a bad luck". Section 40(1) of the Road Traffic Act (supra) under which the appellant was charged provides: "Section 40(1): Any person who causes bodily injury to, or death of, any person by driving of a motor Page 8 of 15 vehicle or trailer recklessly or at a speed or in a manner which having regard to all the circumstances of the case, is dangerous to the public or to any other person shall be guilty of an offence". JEmphasis added]. In the first ground of appeal, the appellant is faulting the conviction in regard to the 2nd, 3rd , 41h and 51h counts on account that he did not admit those counts and the elements of the charge. According to him the plea he entered was equivocal. His complaint was supported by the learned State Attorney basing on mitigation of the appellant. The above quoted provision of the law put 'reckless' as a fundamental element of the offence with which the appellant was charged. By stating that the accident was due to bad luck it means that, the appellant was not ready to assume full responsibility. He had some reservations which at any stretch of imagination could not leave the plea of the appellant free from ambiguity. Under such circumstance, I agree with both sides that the plea of the appellant was equivocal. The first issue is answered in negative. However since all the offences were committed in the same transaction, it is my considered opinion Page 9 of 15 4- that whether to order full trial or not will be determined in the cause of my discussion hereunder. Turning to the first count, record is very clear that the appellant pleaded not guilty in respect of it. After full trial the trial court was satisfied that the charge against him was proved beyond reasonable doubt. The appellant was convicted of Dangerous Driving contrary to Sections 40(1) and 62(2)(a) of Cap 168 [R.E. 2002] as per record and was sentenced to four years in jail. As indicated earlier, the appellant in the rest of his grounds of appeal is mainly complaining that the charge was not proved against him to the required standard and that, there were some irregularities in the admission of exhibits. Regarding the exhibits tendered at the trial court, it is important to consider as to whether the appellant was accorded an opportunity to challenge them. In his petition of appeal the appellant complained that exhibits were admitted without him being accorded an opportunity to verify them first. I think this issue need not detain me much because I have gone through record and find that, the appellant did not object production of Page 10 of 15 any exhibit. He was accorded the opportunity and had no ) objection. Having so stated I find that the second and fifth summarised grounds of appeal have no legs to stand. Another equally important issue to consider is whether the charge was proved beyond reasonable doubt against the appellant. In the fourth ground of appeal the appellant faulted the evidence of PW1, PW2 and PW3 and PW4. According to the trial court record, PW1 was a police officer, he went to the scene, drew the sketch map, issues PF3s to the victims. He his evidence based on the map that the incident was caused by high speed relying of the distance (125fts ) from the accident to accused's motor vehicle. PW2 was a businessman working near the scene of crime, he was eye witness of the accident and actually, he was involved in rescuing victims. He testified that Noah, the vehicle of the appellant was driven at a very high speed and caused accident. PW3 was a victim and he was the one driving the motor cycle involved in the accident. His evidence was direct. His testimony was to the effect that his motorcycle was knocked from behind by the appellant's vehicle Page 11 of 15 which was at a very high speed. PW4 was among appellants ) passengers and she testified that the driver was driving at a very high speed. It is not true as complained by the appellant that the evidence of PW4 was not corroborated by exhibit. Exhibit P3, sketch map of the crime scene which was admitted without being objected by the appellant corroborated that the motor vehicle was driven at a very high speed. Therefore, I do not see the ground of faulting the trial Magistrate's finding which based on the evidence adduced that the appellant was driving at a very high speed. Another ground of appeal was that the defence case was not considered by the trial Magistrate. At page 23 of the trial court proceedings, the appellant testified as Dwl. He stated that on the material day he was driving from Umalila and he encountered an accident. In general his defence was on account of how the accident occurred. At page 8 of the judgment his evidence was considered and analysed. The court was satisfied that the appellant was driving dangerously and his evidence did not shake the strong prosecution evidence which proved the case beyond reasonable doubt. Therefore, it is not true that his defence was Page 12 of 15 not considered as per the sixth ground of appeal. Thus, I find this ground of appeal baseless. Regarding the seventh ground of appeal that, the appellant was sentenced contrary to the requirements of the law, the Road Traffic Act, Cap 168 R.E. 2002; I agree with both sides, the trial Magistrate ought to have sentenced the appellant in a term not exceeding three years as per the requirements of Section 63 (2)(a) of the Road Traffic Act (supra) as stated earlier. Having discussed as it appears above, I do not see the need to fault findings of the trial Magistrate with regard to the guilty of the appellant. I am satisfied that the charge against him was proved beyond reasonable doubt. Following circumstances of this case, I am of the considered opinion that despite the fact that the sentence of the appellant was ordered to run concurrently with the sentence in the previous counts; ordering full trial in respect of those four counts (2nd, 3rd , 4th and 5111 ) will not be in the interest of justice. This is so because the evidence on record is enough to establish that Page 13 of 15 truly he committed the alleged offences to the respective victims indicated in the charge sheet. The witnesses to be called are the same as all offences were committed under the same transaction. Basically they have already testifies everything. It is my considered opinion that there is no way the rights of the parties will be prejudiced is the court will not give that order; this finding is based on the mode of running the sentence preferred by the trial Magistrate. Being the case, this appeal is partly allowed to the extent discussed above. In exercise of powers vested in this court, the appellant's sentence is reduced to three years imprisonment. The order made under Section 27 (1) of the Road Traffic Act, Cap 168 R.E. 2002 remains intact because that is the law. Dr. M. C. Levira Judge 23/07/2018 Page 14 of 15 S . Date:23/07/2018 ) Coram: Hon. Dr. M. C. Levira, J Appellant: Present For the Republic: Ms. Tengeneza - State Attorney B/C: Mrs. F. Mponzi Ms. Tengeneza - State Attorney: Madame Judge, the matter is for judgment, we are ready to proceed. Court: Judgment delivered in the presence of Ms. Tengeneza learned State Attorney and the appellant this 231(1 day of July, 2018. Right of Appeal Explained. Dr. M. C. Levira Judge 23/07/2018 Page 15 of 15