19781004 TZHC Mwanza 1

#6,/ J-Dl ~ IN THE HIGH COURT OF T1NZ1NII1 LT M1NZJ JFPELLiTE JURISDICTION HIGH COURT CRIMINLL L PFELL NO. 340 OF 1977 CIGINL CRIINAL CSE NO. 53 O 1977 OF THE DISTRICT COURT

OF DISTRICT AT MNZ 'BEFOR' L . . SEMZB;, ESQ., RESIDENT 'iGISTETE J.MES M.GR.AO •........ FPELWr versus `THE REPUBLIC ..........,...............,.. RESPONDENT CHLROE:.— 'Causing bc'dily injury, thrcu.h careless driving c/Is 41, the Traffic ct 173

JUDGMENT KiTITI, J. Convicted, seitcnced to a fine of Shs4500/=, or five ncnths ipriônient and dered to suffer, a period af disqualification of tbee ya' s by T'Twanza District Court, the appellant seeks to1 appeal; uga'nst cc'n"icticn, sentence, and the disqualification ord'r' he suffered. The appl1ant, was charged under sect.ion/ Subsection 42(1)(c) and 6'3(2)(b) of the Road Traffic ct, 1973'1 an offence which ctua11y, is, —Reckless or dangerous driving, a1thcuh the particLs of offence, talk about causing bodily injury, through careless driving, an offence under Section 41 of the Traffic .ct 1973 Nojwithstanding, th appellant was convicted, under Secticn/Susection 42(i)(a) 'reckless driving, - althGugh, the appellant had not been charged with it. The appellant, who had elected net to prosecute his appeal, dces contend in, his' rne'rno of appeal, that the prosecution evidence, w s insufficient, caiflicting and contradictory,' that his alleged neglience in the diving, had not been proved. Lay, and' unlegally assisted, the appcllnt could uot, tccbnically attack the charge. However, the lae.rne.. State ttcrny, Mrs. Matovu conced'èd, for carusi,ng, bodily injury, through careless driving, sectic'i 42(1)(o) of the Rod'Traffic flot, 1973, was a wrong one. She subnittod, that' 1 al hough, -tha -t was ihe cse, the particulars of offence, having unhidingly educated the appellant, that

actually the offence, was causing bodily injury through careless driving;, tao' appellant, could ict be said, Ao have been prejudiced, an that the 'defect was curablc, tinder the provisins of section 346 of the Cri?niflal' Procedure Cede Cap 20 Mrs. Matova, further argued tht', the a1ternativ conviction under section 42(l)(a) of the Traffic Ict 1973, under which the appellant had not been ohared, was irnproper first because, the offence under 42(l)(a), was in relation -tc the offence under 42(l)(c), not a ninor offence, nor was therei a'statutory justification, for such alte'rnative verdict. 'She finally sübnitted, evez the evidence available cculd not suprort conviction, under Section 41 of the' Traffic Lct1973% PursuIng the aulynissions' above, the fir's% 'aspect to be dealt with, is thepropria'ty of the sections, preferred in the charge. T±i particular's of affence, vehimently allege, tht th appellant, did through carclesa driving, cause bodily injury to the oonp1ainant, on the 11/2/19774 Obviously, as was pointed out by the learned State ittorney, this is an offence under the provisions of Section 41 cf the Traffic ict 1973, herein aftar to he briefly referred to':s thi li cto It follows therefore, thTt, with the incbrperaticr 7 - of the r1vart punishnen Scti•n 1 J.h ,. ri.ht chirgo, siruld have LJ been - causin(: bdi1y injuy, thcuch car1ss driving c/s 41 63(2)(b) of a .Aoi

Dfii1it1y .cirncc of Suction 42(1)(c) of.thc otfor the c'fIcicc of causin' b'di1y injury, trirough car1oss drivin:wa..'proper0 The sibmissic;ns by the epub1ic 7 on this ? aspoicil.re'"he1d •';. The question s that f11ows on heels imi itly 1 should be whether, the appellant was prejudicated there by 0 rs0 M atOVu I d submit tat.,he pJ1 ..oulp.Qt... ......... prGudica.ted as the rarticulcrs cf ofn clerlv and fla 1ie'ULU5ly7 informd the appu±l.antLof .tha:c 1ç ibit ch.irac with 3 Having examined the p ticulars.3 my ets±'act1c.n is 7 tht the said i'articulars, make no mistake that they are actually talkin about the offence of causing bodily injury through careless driing an offence well covered by.sc:.ction 4i9.e.çL )L4Wsei mhigous particulars, the appellant c'uld net have.-cn.tEi4fairio.d any •aebiguity ç as to what he was being charged wjihr and he could not th-iruforc be said to hdVC ben prejudic 1 If asistance in so ccnoluing ware needed, the case of JBDLJUL S., siu V 0 (i958)! :i7 2 is readily available for referrenc20 In this CaSU., C wrong section had been cited, but since the p0ri laro.of ffcnce were adquate to inform the appellant, of tie Tffc with wiich he was charged the c(-., urt held -thot there had nct been 2 any failure of justice. a.xid that the defect was curable Ender the relevant Criminal Froc-dure Code provisions 3 Similbiiy±ri DUDI HiISI v. r (1967)Hc 0 D0 Nc

.21 NTHONY Vs R. (1971) No n it has independently beei, held 2 that whore the rticulers of offe.ica v sot out all the ingredients of the cffenoe 2 i the accused cainot be said to have .i pudice'd . From the above it bohcves mci to say, as did.th carned State attorney, that the de!cict in the charge was of no Drojudicial effnoct n and Section 346 f the Criminal Procedure Ccdo Cap 20, was a.vailble. to cUre iS1a samu 0 Next, comes the issue cf, an a1ernative. dit0.. The tril rnagistra..ta 7 having found, that.. there was no. depflidhlo and sustaixiabIe evidence, to rjilQ-vi that2 the eomplainant did suffer bodily injury , as a result of the alleged careless driving wich ho had mistakenly thcuht fell under sociion 42()..)(c) of the act, convicted the appllant under section 42(1)() c the cckIoss di.ving, although the arpollant was net charged with it. Even asEuihg that section 42(i)(c) ; cited in: the charge, cre the right' one 7 an' aternativo verdict under. 42(74(a) of the Lct 7 . would haveben imprope.r This is Loca4se, in the absenc of statutory provisions, it is not for the court 7 to spiculatc 2 that the legislature, should have proy.ided for such a alri:ernatibe verdict, .nd ioroforci''5ro0eed,'• to act in. the, line of cur specutions," secc:'ndly no whore, is the offence uider sec -bion 42(74(a). said"to be a minor offence, to thë' offence üner section 42(J....c) of the

i'ct It'. is to be emphasized, that, when the prosecu±ion decides to prefer chage2 it must be sure 7 as. .t. which arm or. su'seoti.on f 'the sction9 where the offended section, thnc.ugh'. su'bsctc.ns, 'crea'ts many or several of±enocs r is covered, by the evidenco....they havel and not 'pe' the cou.rt!.s.. inaiy, the lerned SLe Ltterney, ar03d that the bov'e: notwithstding 2 the evidnce adduced, fell shrt of establishing, the cfincc discloscd by thepartioul3rs of offence0 The evidence we have, is that on the 11/2/1977the complainant, who wascycliñ"'' along' Nyarere Road, fell off his bicyle 3 The cc'.mplrinnt, who claimd to havc.becn injured as' result thereof, alleged, ha was n9ckd, by -the appel-I.a.riti ten driving a motor v - 1hle 'hidh±?ñ1 thrcugheareless drivina, The açpciuIant dqnics all -this 3 .. . ' . 3 - 'hile the evidence, is loud to the effct th:t the complainant fell off his bicycle, the PT.3 tArdI to shod bodily injury, though duly filled, to show the nature of the injuries, is neither signed by the Police Officer who issued it, hoping it was issued by a Police Officer 1 nor sinad by the doctorf 'ncr officially stamped. The trial magistrate rejected it. I' think he was sc àntitled, as unsigned as it is any mischicvcus mind, could h..vc filled it to suit his conviDianca. It is only, the ccmplaiiant's oral evidence, that showed how he had sufford bruises on the

shoulder, lf-t side of the head, on the hands, and consequently ad1ittcd to hostal for seven days. Even if, I wore prepared to aecopt this, in making my own findings where I must, the crucial issu2 would still be whether, the complainant suffered this, as a result of 'carelessness, on the part of the driver - the appellant. The complinont, did tell the court, that the appellant, necked him from behind, This in itself, would not amount to n'gligence on the part of the appellant. It has been, rightly held in E. Vs. WALLLE (1958) E1IC, thit a conviction in this type of offence, cannot be found on ore fact of collision, but must be built on a finding of fact, ho.sedn evidence adduced, th.t the driver did by omission or some act, d.tive nar;ligently. We expect a driw'r, to exercise the degree of cre and attention, which a reasoAiahly prudent driver would exercie, and any driver, who overtly and faultly, departs from the standard of driving expected of a prudent driver, is negligent. It is the low, that to support conviction fault on the part of the accused, is an essential element. See KHLIF Vs R. (1973( FA 467. in this case, F'.Ll Geor,e Fulgence testifiod, that the com1ainant over took the appellant's bus, bcf•ro he fell in front of the bua& And althcuh, P.W.2 PC. Julius told the court that driver - appellant, and the complainant where moving in the opposite direction, wheb the

colision occurred, his sketch plan, i3 consistent, with the tstimcny of the complainant and P.W.1. P.1.2 further told the court, tht the appellant was cvcr taking aothr vehicle, and on this there is no challenge. This evidence is reasonable, as it obviously explains why the appellant ws'16 feet, from the left side edge of the rcd. Since this 11 16 Ft" point, from the of the left side of the road, was also a point of impact, and as the Nyorere Road/lango Mmoja jn'-iox into 'which the complainant was to turn, was according to the sketch plan, 'still over 70 Feet away, the complainant's presence at the point '.f impact, cannot be explained by his prcess, to turn right, as per distance still to be covered, it was premature so to do, It rcmñns to be ccnluded, that the complainant prcssnco there, can only ',c explained by P,W,l'e evidence, that the clainant was ove±—to.king the appellants vhicic which wasr P.W.2, was alto ovor1aking another vehicle. The ocrnplainant's temerity and rishn'ss to overtake a vehicle, which was overtaking sr.other, was obviously an adventure to death, and chances seem, he was nocked whil in this exercise. The complainant was the au -thor of the events, that be fell him. In such circumstances, it is not kY;' to appcvtion fault or negligence, upon the appellant without doing injustice0 The evidence shows therefore, that there was no negligence, on thi part of the appellant. The appeal is allowed, convictin quashed and son -tenoos and disqualifi- cation order set aside& elivered this 4th day of October, 1978. F. W. KITI JUDGE -

HIGH COUET MNZ 4TH OCTOBER, 1978.