19800828 TZHC Dodoma

\- . ,-~··"' .;.. ,.. "·. --·tt~-:" !; , '~' ... 1~N 1 I , JV IN lli:E HIGH COURT OF TANZANIA

AT DODOMA

APPELLATE JURISDICTION L ---·-· . CRIMINAL APPEAL NO. 247 OF 1977 (Original Crilllinal Case No, 64 OF 1976 Of the District Court of Rungwe District at ~kuyu) BER:>RE: E. H~ NDUNGURU, E$q,., DISTRICT MAGISTRATE. HARRISON S/0 YN3AY.A MW.AKIS~ALEI"E •• ~ •••• ,. • • .; •••• •• • .APPELLANT versus lli:E REPqBLIC •••••••••••••••••••••••••••••••••••••••• RESPONDENT CHARGE: Reckless driving r. motor vehicle on the public road c/s 42(l)(a) and 63(2)(b) of Road Traf:fic Act No. 30/73. lill2~ SA.MATTA, J., - This is an appeal from a decision of the district court of Rungwe district whereby the appellant, who faced a charge of reckless driving, contrary to s. 42(1)(a) and 63(b) of ihe Road Traffic Act, 1973, was convicted of inconsiderate use of a motor vehicle, contrary to s. 50 of the aforementioned Act, and was .., sentenced to a fine of shs. 2,000/=. llie case against the appellant arose from an accident which involved the motor vehicle the appellant was,·driving on June 23, 1975. llie evidence Which was laid in the scale aga:inst the appellant disclosed two versions regarding the circumstances which caused the accident~ One version was given by PW.5, Elia Taraka, who said in part: ''I drive a tractor No. MB 2351 belonging to M/S Chinvanje Tea "l!state in ihis District. On 23/6/1975 at about 9~00 a.m. I was driving tne tractor along ~yu/Kyela road· at Chinvanje village~ I was going

towards Tukti.yu sidei I had a· turn boy who was in the trailer tied to the tractor~ As I was about to turnto· my ;;,igh t I warned my turllboy to signal when· we were approaching the junction of the right bye-way. ../2 1,•,1:: 0 •• - ·- '., t - 2 - When I was about to turn to :!i}at bye-4fay I looked at m,y back nd found· no traffic coming behind ine. My ~-boy did not aiann C.l'.l'.\.i'tn.at ·there w~as another traf:fic co~ l;>ehin9. m~, I sigha'lled by~ rign.t arm pointing at the r{ght bye;..way t~ shi;>w th·at I was tummg iQ:to that wny. When I kad comple'tely mov~ .into th.at way a I/R ST 7013 driven by the accused came behind me"off . th~ :roacl on the right and wen-.; to kn.Qc:k a wall of a culvert,. .Aceu~ed I a J,androver stopped a·;; trie impact •• H Accused was to$ t'ast~~'(the emphasis :i.s suppli:xl)i The witness' turnboy,·PW~e,. supported ihis story except o'.1 one principal point, According to him, the appellant's vehicle was about 45 paces behind the trailer· as Elia Taraka wo.s a· ;out to turn the· tractor into the · - "bye--way. tt n:te other version, ,as given by PW.-4, Ambokile Simon-. ~- - He said: "On 23/6/1975 r @aw accused in ICieJ.a, at "Mi;:i.kwalu1. vil~e'~ H.e was there"ofi duty as o. driver of" a 'L/it~'FtT 701'.h I aske<i him to take me to Mbeya. H(; ·agreed. He took me ta Mbeya* We wewe fue only two.in the I/:i, I seat,ed with accused on his

le-Pt, When we were Passing Chiwan,je ·village in Tumyu District .we gav~ a lift to a matJ. by the VR.-" tUii After 0. short distance we met 0. , tractor ahead of us, It hr:1 a t·raileri .Aecused hooted. t'or the tra- ctor; Thie driver o:f the· tJ :1ctor looked behind at us and gav,~ ai te. When we had approad.ed 'the tractor, the tractor abruptly tu.med to. tn~ ;right in.to a bye.;way without a -warnil.ng. Due °tP that L;trieJaocuaed turned t:, his right ot-.f the road in e.:ffort to avoid the tractor~ In t'1e cours.e of that the I/~ went te lm.ock a wall of' a culvert on the rigl;l.t oft' the :rqa.d, The I/R stopped ·at the impact," '.!his story dovetailed with the e·ppell.~i 1f} defence, , was r;i.ghtly pointed out by Mr~ Saffar:L, . As . counsel for the . ;r,epu.blic 1 credibility of vlitnesses was a crucial question in th..e " . . " <iete:rrn.ination of the case~ Surprisinglf, the learned magistxate 's judgment contains no wore. on that point, The learned magist:Fa~ :vejeceted i:he appellant's story partly beeauae i t it were true 11 tl'l,!f Land Rover would have collided at least with trailer., 11 I .ovm I am unable to follow that line of reasoning., How could the lend rover collide with the trailer when it ( the landrover) had left the roaa and moved towards the culvert? ~e whole id-ea b.ehind the • _app§llant's manoeuver of his metor v.ehiele ... if his story was trµ.,e

- wa1;3 to avoid that c0lli-sion~ ~e distance which tl<t\:l land-WGV,,eJ> :covered before it was br0~ght ¢o -~ step by ·the cu.l:ve,:-t wo_t4;I.4 rt~ to 'f:luc;gest that the appellant 'V\'a$ Q.,rivli.ng -at a fuirly high sp~e!i, but this .fact b.@ .. :to be W(l)ighed . in "''the. ii@.t . o.f' 'the f'aot. t}lat .. 'the ·," appellant was dr,ivtni _on a fli@wey·:, . ·.. . ,· ...,1,,, ,' ·.·:1- '.!,:. • ._,./; ;, :! C (\ - 3 ;.. '.lh~ learned magistrate does not appear to have addressed his tnind. to the contradiction between the evidence of IW .2 and that .,, of PIV.5, Elia Tarakn. .According to p.,v.5, there was no ~ehicl-e behind the trailer as he was a·>out to tum to the right. '1h1.Ei ia contradicted by PN.2, who i eatif'ied that at thnt time the a:t>pellilliil;s landrover was about 45 paces hind the trailer, I:F PN ,·5 was not telling the truth on the p0::lr i d :id his evidence not require great ! , - 'tt'\.. scrutiny before it was accep·: >·..i? I would nnswer hat y_uestion/\the af'firmntive, The witness wo· ild appear to have been determined to put every blame for the · :_,ccident' on the appellant~ Ju0ging from the total' I y of·the evidence on record 1 I am not, uL .. ike the learned tri ] maeistn:ite 9 persuaded thr-it the prosecuto:t1 had discharged ht:; burden in the cnse. Th.e probability that the appellant's story ,;:us true , . existed at the end of the trial. :Fbr

the reasons I have g_iven, I allow the nppeal, quash the conviction, which, inciden!ally, was not supported by Mr~ ~affari, and set aside the gentence. lf' the fine w,.ts paid, the same shriuid- be refunded to the appellant~ - Delivered this 28th day of' .August, 198C?r in the presence of Mr, Sa.f'f'arl. -~~~:- ... , ~ ~ ~ - ~ ; : : _ _ / \ ....., ....__,A,/ . \:,,...-~- , ;· B. Ai SMfu\TTA JlJDGE