19750808 TZHC Tanga

IN THE RIG-H COURT OF TANZANIA (IN THE DISTRICT REGISTRY) AT TANG-A .-• CRIRINAL APPEAl NO. 11 OF 1974 (FRoT, T IE LCIIO1 Of Jh IT?.IGf COURT OF RAflDEITI AT HARD1\iI Ii GGITINAL C.SE RO 33 OF 1974) BEFORE:- A. B. LUGEiJIO, Esci., District Maistrate JOSEPH s/o. JAMPS ........................ APPELLANT (Original Accused.) versus THE REPUBLIC ............ RESPONDENT (Original Prosecutor) JUDGHENT JONATI-L'UT, J. .1 . . The District Cou.rt of aaJcn± ce.ivicted. JOSEPH JIfES of causing - death through dam erous driving, .9/.4 . ..(i) of the Road Traffic Act., 1973. He was sentenced to 3 yOar' inpri3orirnont. He now petitions this court against both the conviction and sentence. . The appol1at was iroa.gly chargid and convicted under the Road- Traffic Act, 1973, . this because the offence was committed in the month of Octobor, 1973 while the Act did no lt come into force until the 13th January, 1974. The Act had no ret'opctivo effect end it coifld:not aply in respect of an offence cuaaittsd before the effective date. At the time of its commiccion and until January 12th, 1974 tee oor- tivc legi1aticm c Prilic Orb,nanco which was repealed and replaced by. the Road fraffic Act. The apajelimirt washowever not charged until Fobrury 21st, .1974, that ic, after GRe Ordinnc. 1apcd and the Act cmc into fooe.: This notwithetandina in vie...of the Prevsjons of soc bion 14 of the In rpr.ttio.. of Law.s and 0-encial Clauses Act, 1972, it s..1oula h ye bcco eoepotcn as at the data of char in the p o1lmt, to orm proceedings under the rcca Lcd Ordinance As the ape7±ent shodld have been charged undc± the Ordinance it may be considered wh;t:iar this. court, in the event of dismissing the aaeal against conviction on Lacrit, can properly base such conviction on the repealed legislation in substitution for there-enacting legislation. Windhaai, C.J. in R. v Indo Parsad. Jamuram Dave, Cri:z±nal.Revision 40-D-63, L(1963) LTanganyika Law Report SupplencntTTo 1/64, discussed at ..A.65 .. length the power of -this court, on appeal. or in revision, to do and what tho.court of trial outhi to have done, and in particular, to convict under J. raJeaLed eric. repiaced logslaion in place of a charge and conviction based on the replacing legislation. He hold, inter_alia, that this court, h-a the iJeaTer to do so provided th-.:..t the offence is in Thvory essential the same under the old and the new sections, and provided, that no failur of justice would result from the alteration". 7,7ith the thie vice andLnuracrous decisi.ons oi thie court which have since followed it, I respectfully agree. •... ....... I -2- I h' cnre wns franod uncr s 40(1) LRA In the present ca of tho'Road. Traiic L.ct. It reada, "40' (1) Any person who 'causes bodily injury or the doath of- croon b who driiug of a otbr vwhicie or retailer r;ecol'ebsly.' or at a'spoo.orI.ii rnao hch' having regard to all tha, circunstars of the case 9 is d.angerovs', to the public or toany other person shall be guilty of an offence". The corrcspcnding provisions of the Traffic Ordiunnce under *hich the appellant shoul6 have been charged are in section 44 11 (i)(a) and they rea ... '.1 '... '44A-(l)ny geroun Who cousus the death of another j'erson (a) by driving a aotor',vchicle on bu road. •... recklessly or at a speed or in a niamier or in such, a condition whichis dangerous - to the public having regard to all the . .. . c'ircunis'tances of' the case (including the nature, coidition and use of the road and the :auount of traffic which is actually at the tins or which might reasonablr be expected to be on the road.); or" i is clear tia, aparT fro ru" ndd.itionel ole ent of bodily injury contained. in the Ict, which in reference to a separate offence. -from that of Causing death by dangerous dr iv ing and which should for this purpose be disregarded, -the provisions of the Act and thoso of the Ordinance are 'oss ont,ially.. identical. The words cl 'the Ordinance' that fare in bracket are- for elucidation and do not add anything o the offence of causing death through dangerous driving as defined., in the ct. It would further appear that, to 'subdtithte"a charge end coiwiction for the offence under the Ordinence would n t result in a f ilure of, justice end., accordingly, this would coo to be c proor c so to make such subsuitution. .. . . "•' ''. It cocos, howevor, th this court csnncl,aftcr all dot ermine the ape'aI on 'its monte. The Offence under.. section 44-(l) of the Ordinance is, by sub 7 soct4011'(2)'of the section, triable by.a court of resident magistrate. These proceedings, however, wore brought and heard. inn, district. court presided over.by a district magistrate. Ho would have had no jurisdiction to try the offence under the Ordinance'. 1itii foi oxccnions, -ohio cour in who. exercise of its powers undor sections 319(1), 329(1) and 346 of the Crinjisl Procedure Code can do no mere than the court of trial had jurisdiction u0 do. In The pro' sent. case, The trial nagistrato net hfving had jurisdiction to 'try the offence under the Ordinance, this court cannot substitute a conviction thcrO-under, this because had the district magistrate tried the appellant on a charge under the Ordinance, which should have been the aperopriate legislation, flid' rocendings would. have 'cuon a nullity for lack of jurisdiction on his part. • ' The only course open to this court is to nullify the Proceedings. -41 . . . . . . . ./"3 P 11 -3- According1y they are set aside and it is ordered the apo11ant be charged afresh for the offence under the Ordinance and tried by a resident nagitrate, with jurisdiction. Should such fresh prbceedings resu1.t in a conviction, in passing sentence full consideration is to be given to the period the apo1lant has been in prison serving sentence in the present proceedings. - 7 I (P. IT. JOPATHiN) JUDGE. Delivered in open Court this 8th day of Augtst, 1975. (, M. JONiT}I.1TT) JUDGE,