19760100 TZHC Arusha

117 1 IN THE HIGH COURT. OP TANZANIA im ti • APPELLETE JURISDICTION HIGH COURT CRIMINAL AP?EL NO 389 OF 1974 - -' ORIGINAL. CRIMINAL CASE NO. 63 OF 1974 - OF THE DISTRICT C-OUR OF ANTJSHA DISTRICT AT ANUSHJ BEFORE: J. A. OSSO, Esq,., Senior Resident Magistrate . UD 775 PTE JOEL CELCHA . . . .... APPELL'dTT (Original Accused) verEus THE.REPTJBLIC . - . . . . . ............ . . . . . . RESPONDENT ... . . . . . . . (Original Prosccuto') - - JUDGE'I.iEI'TT 1ThLALI, AG. J. . . The appellamt was chorcd and convicted in the dsirict Court of Arusha District at iusha with the offence of Careless driving- on a public road c/s 42 Xl,): (a)- of the • Road. Traffic Act No. 30 of 1973 and was sentenced to 12 • months imprisonment, and was disq,uaiified frQm holding or obtainin'g' a driving licnco for •a---period'oft.ree years. He + is now apoaling to mis Court ajir-t the conviction and sentence. The facts .of the case accoring. -to. th p,oseion are the 9/1/74 at about 5•45 .n0, the 'appollat, was: diving an amy lorry reg. Nd J .W. 5549 along ArushEt/Monduli Road and . - that iifront of. him was an army .aLlbulanc,sdriven by P.W.2 (Michael I-yombo) 'and.ahsad of P. 1,V..2'.s- ambulance was - another army lorry, driven by one who was not called, to give evidenc at the trial. . . - There-i..als.o no dispute that at one point the appellant manouvred to dTertke the P-.W.2'a ambulance and in the

course of so doing there -vaa a, cpllision between appellant's lorry and P.W .2's ambulance. It was, the prosecution case 'at the t'iial that when the appellant mànoured 'to. overtake- 'ihd-'-P.W.2 1 .- ambulance, the driver, in the ar lorry' ahead- of. thote nibu-lance.:as. 'well as P.W..2 in the ambulance 2 flicked on their light side indicator to warn-the. appellant not to overtake as there was a lorry approac1ing in 'the opposite direction. The appellant however ignored the warning , and wont ahead with the result that he had to swerve to hth loft side to avoid colliding with the 1or'y opposite. 2 with the result that appellant's lorry collided with- P,71,2ts arebulanco which hit-at'-the embal-aaent nearby before. bQimcing back to the off-side where it overturned.' • The appellant's defence at the trial was that neither P.W.2 in the ambulance nor the army lorry ahead of P.7,2 made any warning against apellnnt' a overtaking the ambulance, but instead 1".1,2 flicked on his indicator allowing appellant to overtake. He............ He did so, only to be iafi od by his pecocnLors that the 2iJJUlEflCO had oerturnoö. i-ic uoaod ever collidiag with the anbulance and denied the presence of any lorry approiifl,g in the opposite direction. The impytant poijat in this case is oneofcredi12ili.ty. concorninc the apooJlait and P 2 Tbo eory given by P.'T.2 at the tri.l was.suppo.rted by

P...i.5• (liii. 6557 -Ptt. PlOoseph Barnabas) who was togothor with P.W.2 in the biLance. I can sop no reason why P.37..3 shou1d have -lied to support P.M. I think the brel couri was antilled to occopt the cvidonco of P 1.2 and 2,113, The conicioi. of uhc appellant was therefore proper4 As to the eonionce, tho Maxned tcir'l Resident Magistrate, wrongly thought that it had no discrion to inaposo a sentence les,s than the nini1um prescribed under S.63 (2) (b)of the hct. I think, had the Learned Resident Kagistrte road the entire section, he would have discovered at the e.r.dDroVieion for diecretion to iraposo aissor penaiiy.e •'ut eino the appellant hashy now served the .oitonco., -thorois no use now considering the deirability 'of inposi.ag a looser sonouco than iht i_posed by the trial court. . . .\o': Th;ere•'is iiowevor one point which appears fron the record. The appollanu 7rae d isqualifiedilom obu JIilPg or holding a driviig liconeL witaaat beng giee oprrtu_uty to show if he had any special reasons to exenpi hin from discivalification. This Was wrong, since the trial court has discr.tion under S... 27 . of the Jci.-.. I will therefore set aside the order of dsqualificetion but orJor and I do now that the eppollant be rotifaod to ,apycar bfr c tja trio 1 couru to chOw if he has any epeciel rrose is for not hoi -ig d1qtel]f1ed for the porloa 01 • 3 years,. othorwirie the appeal is dasiaissed; 'TT2L L *LLLI) - ... M. JUDCE. . Judgeneent delivered in open. Court this sanlo day of January 1976 in Jrusha in the presence of aepollant and hr Mwipopo, Learned te .tiorncy. (r L. ILlLL1LI) FL]/LTh. 11G., JUDGE