20040326 TZHC Moshi

IN T~ H!GH eOORT OF TAN7....ANIA -~---- AT r.;OSHI (DC) CRil,JINAL APPF.sAL NO: 6 OF 2003 ORIGINAL DC MWANGA TR. CASE NO: 13/2001 KALIMBO MZAVA ••••••oeoooo•o• APPELLA.l\'T

VERSUS THE REPUBLIC •••••••••••••••• R8SroNDENT l!f>N. B~M. ~]1kA-t-:[!. The appellant in this case was charged with the offence of causing death through dangerous driving c/s 40; (1) and 63 (2) of the Road Traffic Act, I973 as amended by section 13 (1) (c): of Act No. 16 of I996. On vonviction he wa(:l sentenced to a term of three (3):years imprisonment. On top of that the court ordered cancellation of his driving license in terms of section 27 (1) (a) of the ' I Road Traffic Act for a period: of three (3) years. · The appeal is against both I I ' conviction and sentence. The hearing of this appeal proceeded in his absence on account of his election to that effect. The Republic was represented by I Ms Makala, learned State Attorney. The facts of the case as recorded by the trial court were briefly that on 24/12/2001 at about 12030 pn, .,the appellant was driving a motor vehicle along Mwanga - Moahi road at Kit0-i area. It was the contention of the prosecution that the appellant- dr,ove the said motor vehicle dangerously as a result of which he knocked down ope person known as Zuhura Musa and caused I her death. I The memorandum of appeal haa raised six (6) grounds. In a.ssence: ~11 of them dwell on one broad ground· th1.t the prosecution did not prove their case beyond all reasonable doubts. This was steadfastly challenged by Ms. Makala who submitted that the conviction and

sentence was justified on the ground that 1 the case was proven beyond all reasonable doubts~ I share her. views. In a charge of causing deat~ through dangerous dr:Mng C/S 40 (1) and 63 (2) of the Road Traffic Act I973, the particulars of the offence should distinctly state the act of dangerous driving alleged as has always been insisted by the courts such as in the case of Francis Buzuka. Igaya v.R (I978) LoR.To 32. The reason is that ;this offence, .like reckless driving, is not absolute. This point however, ·was clearly expounded by this court in the •••/2 ..... ··- ... '. _.,_. = 2 case of Nassoro Hamidu v. Republic (197?) J.. .,R ..T. Y/ in whieh ·tugaki11gi;ra J; (as he then was) said that: "It was next contended that there was.no evidence of dangerous driving. The law on this point is well established and clear. Dealing with drivin5 without due care and attention in R.v. ,Wallace (19.58) EoAo 582, this court held that a conviction for the offence could not be founded on a mere fact of a collision, bu·t must be based on a finding of a fact that the driver cha.rged.'with the offence ·was guilty of.some act or omission which was negligent·, and which was a departure from the standard of driving expected of a reasonably. I. prudent drivere The same-is true of dan~erous driving. The p~osecut~o~ does not establish its ' case by merely poiting at the'results, in this case the

death of a person-, the prosecution has to adduce evidence that will show that the accused engaged in certain acts or omissions that · constituted dangerous driving:•• More illustration was a.fforded.by that honourable judge by citing the case of Simpson v., Peat, ( 1952) 1 all EoRo 4lf? in which he quoted Lord Goddard to have said at page 449 that: :, ... Because an accident does occur it does not follow that a particular person has driven either dangerously or without due care and attention. But if he has, it matters not why he did so. Suppose a driver is confronted with a sudden emergency throu~h no fault of his own. In an endeavour to avert a collision he swerves to his right-it is shown that had he sw~rved 'to the left the accident would not have happened. That is being wise after the event, and, if the driYer was, in fact, exercising the degree of ca~e and attention which a reasonably prudent driver would exercise, he ou~ht not to be convicted, even though another, and, perhaps, more highly skilled, driver would have acted differently:., This ii" ~ .. -., : ·' . , ___ ~ -•~ 1·~ ~~:::-inciples involved in cases of this kind, I ·,-ri 11 h~ 11:uided by therli in this judgment• .••• /3 It 3 - In our present case, I agree with the Republic that the finding of the trial court that the appellazit'was driving dangerously was well . founded . because there was sufficient evidence

to that effect. In the first place the learned trial senior district magistrate considered that the sketch map which was produced in court and admitted'as exhibit PE1 showed that there was another motor Vehicle parked at point •B•. The deceased had alighted from that motor vehicle and had intended to cross the road. He also weigh~, in my view properly so, that the evide~ce of ~11 No. D. 312 Cpl. Maulid that the appellant knocked the deceased because he did not reduce the speed as he approached the motor vehicle which was parked~ as aforesaid, at point 'B', a place which was al.so a bus stand constituted dangerous driving. On the basis of such reason, any prudent person cannot avoid reaching the conclusion that a dutiful driver would have slowed down or even stopped in anticipation of sparing other peoples' lives • . -.:.. · I also agree with the Republic that the trial court properly found that in view of the: fact that _the appellant knocked the deceased at point ncn and stopped at point 11:E;" which was 21 meters away from point :;en, ttiat was another clear evidence of dangerous.driving. This was suggestive th~t he did not stop immediately because he was speedy. Further evidence on the point came from . who was at the scene of the accident. This witness testified, PW.3 Shaban Omari ; and the trial court believed, that the appellant did net hoot to alarm the pedestrians nor

did he apply brakes before he knocked the deceased. I totally agree with him. In my view, h~ did not apply brakes because he was driving at an excessive speed. In that it is well settled that speeding constitutes dangerous driving as was held by this court in the case of Ali s/o Mpal.ilo Kailu v. Republic (1980) T.LoR. 170, the trial court rightly convicted the appellant of that offence. In view of what I have said above,I find that the appeal lacks merits, it is therefore dismissed in its entirety. In that the sentence was not at of the Judge, 26/03/2004. • •• /4 . , r ,, ,·· - 4 -- Date: 26/3/2004 . Coram: BoHoKo Mmillat J. Appellant - Absent Respondent - Mr. Juma, State A ttcrney _ c/c :- Evel_ine Matiku Judgment delivered this 26th day of Mareh 1 Zoo4 in the absence of the appellant but in the p,l"e.Se?\C6 of learned Republic. =.t,,(: toIMr, ,- Juina. :J.o.r th,(p AT MOSHI. B-41 -;1{-~ Mmilla, Judge,. 26/03/2{)(A. I',