20070227 TZHC Moshi

IN THE IDGH COURT OF TANZANIA\ .,,

ATMOSHI C) (DC) CRIMINAL APPEAL NO. 51 OF 2005 (C/F DC HAI TR. CASE NO. 39/2003) KASSIMU NASSORO@ MWAKYAMBIKI ---- APPELLANT

VERSUS THE REPUBLIC-------·--- RESPODENT

JUDGMENT HON. JUNDU, .J. In the trial court, the Appellant was charged with eight (8) counts of causing death through dangerous driving c/s 40 (1) of the Road Traffic Act No. 30 of 1973. The trial () magistrate having read the evidence of the prosecution witnesses and the defence side held that the· prosecution had proved 1st to 4 th counts while 5th to 8th counts were unproved. In the said I st to 4th counts, the trial magistrate found the Appellant guilty of reckless driving c/s 40 (1) of the Road Traffic Act No. 30 of 1973. He sentenced the Appellant to pay a fine of shs. 20,000/= for each count of six months imprisonment mdefault. The particulars of the offences in the 1st to 4th counts· were stated in the charge sheet placed in the trial court by the prosecution side. In the 1st count, it was alleged that on 5th day of November, 2003 at about 8.00 hours along Moshi-Arusha road at Bomang'ombe within Hai District in Kilimanjaro Region, the Appellant being a driver of a motor vehicle No. DFP 566 make Mercedes Benz Tipper, drove it in a high'speed and failed to control it, as a result it ,,~;;,,, overturned and caused the death of one Hasnali Adamu Kimaro. In the 2nd count, it was alleged that on the same date, time and place through dangerous driving as alleged in the 1st count, the . Appellant caused the death of one Moses s/o Estomih Mushi. In the 3 rd count, it was alleged

that on the date time and place as alleged in the 1st count, the Appellant through dangerous driving caused the death of one Onesmo s/o Charles Kimaro. In the 4 th count~ it was alleged that on the same date, time and place as stated in the 1st count, the Appellant through dangerous driving had caused the death of one Moses s/o Mgogo. The record of the trial court shows that the prosecution side in the said court had called only one witness to prove its case against the Appellant. PW.I, D.4318 PC Sadiki, a police 1 '- . .. . . . . . . officer (T~affic) "rrom Bomang~ombe Police ·Station ill his evidence bef~re the trial magis~te . had testified that on 5/11 ?2003 at 8.00 a.m. he was informed about a fatal motor accident at 0 Ango area. He went to the scene of the accident and found motor vehicle with Registration No. DFP 566 Mercedes Benzi Tipper that had overturned near the road side and that four people namely Onesmo Charles Kimaro, Estomih Elisante Mushi, Hassanali Adamu Kimaro and Moses Hano Mhalo had died in the accident. He took the dead bodies to the mortuary and draw the sketch map of the scene of the accident (Exh. P.6). He inspected the motor vehicle and subsequently prepared the Vehicle Inspection Report (Exh. P.7). He also produced the PF3~ for - the late Onesmo Charles Kimaro, the late: Moses Estomih Mtishi, the late Hussanali Adamu _Kimaro and the late Mosses Hawo

Meralo as Exh. P2,. P3, P4 and PS respectively. He had further testified before the said court that there were four people who had been injured in the · _accident and.that he had given them PF3 to go to hospital for medical examination and treatment. (D The witness (PW .1) in his evidence had further told the -trial magistrate that one N gowi was -~till . admitted at the KCMC Hospital and that he had recorded his statement which he tendered in the trial court and admitted as Exh. P7. In his defence evidence, the Appellant as per the evidence on record had testified to the trial magistrate that on 5/11/2003 at 7.00 p.m was driving motor vehicle with Registration No. DFP 566 to carry sand from Kiteto to Hai accompanied by Gasper Swai (DW2) and Haji S_uleman (DW3) and that they were looking for labourers to assist them in the said work and that . . . . . it was raining heavily. He had testified that at Ango area they saw one person with an axe for diggmg stones coming towards them and immediately the motor vehicle swerved and fell on one side of the road whereby four (4) people died ail.d another four_ (4) people were injured. He thereafter reported the matter to the Police Station ap.d to his employer, the Water Project Hai. · On cross - examination by the Public Prosecutor, the record shows that the Appellant had replied that he drove the motor vehicle at 60 miles per hour and

that he had checked well_ the brakes and that it was slippery on the highway which caused the motor vehicle to swerve away. DW.2 in his evidence on record had told the trial magistrate that the motor vehicle had swerved to the bush and fell down due to rains and that the rain was the cause of the accident and that the motor vehicle was not in the high speed. Likewise, DW3 in his evidence.on record had told the trial magistrate that on the material day it was raining and that the ;motor vehicle had swerved on the _one.side of the road, fell down and four (4) people were instantly killed.- 2 Having been aggrieved by the conviction and sentence imposed on him by the trial magistrate, the Appellant has appealed to this court listing three grounds of appeal in Petition of 0 Appealnamely, that: (1) The learned trial magistrate of the court below hopelessly erred in law and fact in convicting the Appellant without any evidence of wrong doing at all. (2) The learned trial magistrate erred in the law and fact in convicting the Appellant without properly evaluating the evidence on record. (3) The learned trial magistrate erred in law and fact in convicting the Appellant without observing the standard of proof applicable to criminal cases. Based on the said grounds of appeal, the Appellant in his Petition of Appeal has prayed to this court to allow the appeal, quash and set aside the

conviction and sentence imposed on him by the trial magistrate. The Appellant is advocated by Mr. Maruma, learned counsel while Miss Mlay, learned State Attorney acted for the Respondent/Republic. On 31/7/2006, by consent, this court ordered the parties to argue the appeal by way of written submissions which they have duly complied · .with. The submissions of both parties show that the parties have argued the three grounds of appeal collectively. In her submission, Miss Mlay, learned State Attorney did not support conviction and sentence imposed on the Appellant by the trial magistrate. In his submission, Mr. Maruma, learned counsel for the Appellant has vehemently attacked the judgment of the trial magistrate for lacking any evidence of wrongdoing on the part of the Appellant and for absence of any evaluation of the evidence of the witnesses who adduced _, evidence before him and for the dismal failure to apply the standard of proof relevant in criminal trials. In other words, the main contention by the Appellant and therefore the main issue for / ) consideration and determination is that the judgment of the trial magistrate is in law not a judgment at all. Mr. Maruma, in his submission contends that.the said judgment is legally indefensible hence could not justify the conviction of the Appellant for the offences which he was charged with in the trial court. Having carefully

read the evidence on record, the judgment of the trial magistrate, the grounds of appeal iii the Petition of Appeal filed by the Appellant and having carefully considered the submission of both parties, I fully agree with the submission of Mr. Maruma that the judgment of the trial magistrate is in law not a judgment at all as I shall shortly demonstrate. 3 t First, as we have seen above, the prosecution side in the trial court had called only one witness, the Police Officer (Traffic) who had visited the scene of accident, inspected the motor vehicle-and subsequently drew-the sketch plan (Exh.P.l) and prepared the Vehicle Inspection Report (Exh._P.6).· ·He had also witnessed'.the dead and the injuredpe~ple in the accident as is· . . . . ~ . vividly clear in his ~vidence on record. However, this particular prosecution witn~ss·(PWl) in· his e~idence did. not test_ify as to the cause of th~ accident and apportion blame if any reasonably . . between the Appellant, the victims or even the motor_vehicle itself. As stated by Mr. Maru.ma in his submission, the incident was not investigated conclusively ·or as stated by Miss Mlay in her submission the incident was poorly investigated and prosecuted by the prosecution side. Apart from the evidence on the deaths and injuries that had occurred, the circumstances which led the accident as far as the prosecution evidence on record is

concerned are unknown. There are many questions which have been left unanswered. Was the driver too fast? Were the victims to blame? Was there any mechanical.defect on the lorry? Further, even the injured victims were . . . not called to the trial court to testify on the said traffic accident which had. claimed four lives. The prosecution side did not adduce any evidence to show that the motor vehicle was dangerously/reckles·sly driven or not. Secondly, as stated by Mr. Maru.ma, learned counsel for the Appellant in his submission,. there is total absence of any evaluation of the evidence adduced by the prosecution side and the defence side on the part of the trial magistrate in his judgment. He did not state in his judgment his reasons that led him to the conclusion of guilty of the Appellant for causing the deaths and/or injuries. He did not evaluate the evidence of the Appellant (DW.1) and his witnesses (DW.2 and DW.3) that on the material day there was a hea'vy rain and that the road was slippery which might have caused the accident. Indeed, he did not evaluate the evidence contained in Exh.P .1 ,) whereby PW. I had pointed out that, "before the accident, the motor vehicle's front wheel pipe had suddenly broken down and had caused the acddent;" · · In other words, the judgment of the trial magistrate lacked reasoning or evaluation of . . . point~ for consideration.and

determination by him that led him·to the verdict on the Appellants. As stated by Mr. Maruma in his submission, the judgment by the trial magistrate did not satisfy the test of a defensible judgment. There is a chain of uribrokeri authorities as to what constitutes a judgment a few of which have been cited to this court. by Mr. Maru.ma in his submission which I fuily subscribe to. 4 -- . I ; Section 312 (1) of the Criminal Procedure Act, 1985 states as follows- "312 ( 1) Every judgment ----------- shall contain point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by such presiding officer as of the date on which it is pronounced in open court." The above named definition of a judgment has been further amplified in the celebrated case of Amirali Ismail Vs. Republic TLR 370 where it was stated as follows- "A good judgment is clear, systematic and straight forward. Every judgment should state the facts of the case, establishing each fact by reference to the particular evidence by which it is supported; and it should give sufficiently and plainly the reasons which justify the finding. It should state sufficient particulars to enable a Court of Appeal to know what facts are found and how. Section 171 of the Criminal Procedure Code lays down that judgments, except in certain cases shall contain the point or points for

determination, the decision thereon and the reasons for that decision". Further guidance as to what is a judgment is stated in the case of Stanslaus Kasusura and AG Vs Pharase Kabuye, CAT Civil Appeal No. 26 of 1981 (unreported) where the Court of Appeal of Tanzania stated as follows ·' "In our judgment the judgment is totally defective, it leaves contested material issues of fact unresolved. It is not really a judgment because it decided nothing in so far as material facts are concerned. It is not a judgment which can be upheld or upset. It can only be rejected. It is in fact a travesty of a judgment" Based on the above stated authorities on what is a judgment and the shortfalls that I have pointed out that makes the judgment of the trial magistrate not a judgment in law, I hold that the appeal has merit and I hereby accordingly allow it. 5 .. lhereby quash.and set aside the conviction.and the sentence imposed on the Appellant by the trial magistrate. Any fines paid by the· Appellant be refunded to him or if he is in custody be released forthwith. It is so ordered. . ·\A >-vi\,,~"\ -1 ~---:::-, F.A.R. JUNDU

JUDGE 27/2/2007 ~~ Right of Appeal Explained. F.A.R. JUNDU

JUDGE 27/2/2007 . 27.2.2007 Coram: F.A.R. Jundu, J. For the Appellant: Mr. Maruma, Advocate For the Respondent: Miss Rugaihuruza, State Attorney C/C/: Muyungi Court: Judgment delivered in the presence of Mr. Maruma, learned counsel for the Appellant · ·and· Miss Rugaihuruza, State Attorney for the Respondent/Republic. ·' F.A.R. JUNDU

JUDGE 27/2/2007 ATMOSffi 6