19780317 TZHC Dodoma 1

IN THE HIGH COURT. OF TANZANIA AT DODOMA APPELLATE JURISDICTION CRIMINAL APPEAL NO0 201 OF 1977 (ORIGIrAL CRIMINAL CASE NO. 78 oF 1977 OF • DISTRICT COURT OF MPAPWA) OMARI MOHAIVIED YASIN. • • • • . . . . APPELLANT (Original Accused) versu. THE REPUBLIC. . e o o . .. . . Respondent (Original Prosecutor) chargo: Being reckless and negligent c/s 233(d) of the Penal Code Cap.. .16. Vol. I of the revised laws. JUDGMENT CHIPETA, J. The appellant, Ornery . s/o Mvhamed Yasin was convicted of an offence cited as being reckless and negligent, c/s 233(d) of the P.na1 Cede, and was sentenced to pay a fine of shs. 500/= or ftir xncnths imprisonment. He was further ordered to pay t the complainant shs. 5001= as c :mpensation. He now appeals. The prcsecuticyr's eidence is to the following effect: at about 10.55 p.m. on .18th November. 197€ the complainant, •one Naf.teli Mdutu was •n his weyh0r.a from an areacalléd Hazina in wapwa:thwrship.As ha passed by the âppellnt's house, three dogs •cherjad at him and one of them bit the complainant's left leg. The complainant immediately reported the matter to .'.nlice At the time the. ccmplainen+: was bitten by the dog the appellant was asleep in his house, bit a turn—boy of the appellant (P.W.2) came to the scene shortly .ftor the complinant had been bitten. According to P.W.2 the appellant's dogs are always tied, and that on his arrival at thescene he (the witness) found the appellant's dogs. tied. The witness i1ded that there is anothr erson s. mc 30 paces away from the scene who also keeps dogs. In his defence., th appellant told the trial court that he owns four dogs which he has been keeping fur the last six to seven y. -irs During all, this time the dogs have never bitteh anyone, • and fc - >r twoyears prior to the inidcnt his servant, one George, had, been icoking after the dogs and had instructions from the appel1ant.. to keep the dogs tied. - The learned trial district magistrte, it would appear. fouid as a fact that the dog which bit the complainant belonged to the appellant, -and then held that under the law of master and servant the appellant was vicariously liable for the criminal negligence of his servant. He acccrdingly convicted the appellant as charged. . . . . 'I • . . As a general rule cf criminal liabi1it; a master who has not per.ticipaatd in tI commission of an of fnce is not criminally /for liabitho cts or omissions of his servant. Such liability can ehly ../2 -2-. attach to a master by statutory provisions which create the offence in terms 'b;at impq;se strict liability, or where it is plain that the acts or ommissions of the servant were authorized, abetted or connived at by the master. In caseswh.ere crimin'l liability is imposed by statute, • a cc:urt must, before attahing liability to a master for acts drO1LSiOflS of his servant, decide whether the prohibition or duty imposod is absolüté. To .dcide this question the object cf the statute, the language used, and the person_ n whom such duty would ordinarily he imposed must be considered. - The relevant provisions under which the appellait was arraigned state: 11 233. Any person who in a manner so rash or negligent as to endanger human. life or to be likely to cause harm to any c.ther person (a) (ID) .: omits to prcauticns against any probable danger from any animal in his po s se s sion;: • : (0) . .. .,- S cf) (h) •. is guilty of. a ,misdemeanour" In my viEw, the Juty tc take care f an animal is • -•• imposed en theP(,ssessor and a possessor may or may not be the owner. It is clear to me,thereref.re ) tht the prcvislcns quoted above d not impose an absolute prhibiticn or duty on a master0 •In.otherwords, they d not create absolute liability en a master. That being sc, and on the facts cf this case, the appellant cannot in reasc.n be held vicariously criminally liable for the acts or omissions cf his servant unless there is evidence that he authorized,...abetted, or connived at the acts or omissions of his sarvant George. . . . The duty f the ownor cx possessor f an animal lik'ly to endanger human life is.tc s'e that it is kept in good hands.. The appellant gave charge ef his dogs to is ervnt. That servant had ]capt the dogs safely for tw years. Besides-the servant had nstructiens from the appellant to kep the dogs tied. At thetime of the incident the apj.ellant was asleep in his house. There is, therefore, no Cvidence that the appellant failed to take good care of. the dogs, let alc.ne that he abetted, authorized, c connived at the acts or. omissions of his servant. To give charge of dogs to a servant with instructiuns to him to keep them tied in circumstances which suggest that the servant had for a long time discharged, his duties carefully cannot by any stretch of the meaning of wcds amount, per se, to rashness or negligence on the port : the master. Jpertnent WhilC en this point it iskashness. c;r negligence in the to deserve provisions quoted above, in my view, means rashness or negligence that the which is culpable. It is not every slip or mistake that amounts to criminal rashness or negligence. For these reasons, I repectfully agree with both the learned ceunsel for the defence and the learned state attorney for the RcqUblic ,thct the principle of vicarious ciniinal liabi]4ty was misapplied by the learn-ed magistrate, and -th;at th. learned magistrate, with respect, failed to consider the legai'meaning of the words "rash" and "negligent". -3- In the result, this appeal must succeed. The cnviction is accordingly horeby quashed, .nd the sentnce and order of compensation are hereby set aside. The fine, which I note hasbeen ppId, must be refunded to the appellant. The compensation, if paid, must also be refunded to him. B. ;CHIPETA JUDGE Delivered in open court at Dodc.ma, this 17th day of )arch, 1978. B0 • CHIPETi JUDGE F. S. Chambakare, Esq. C.unsel fr Defence flr. Mchora - State Attorney for the flepublic.