19950609 TZHC Dar es Salaam

., . IN THE.HIGH COU~T .OF TANZANIA ! A'l' DAH E$ SAIA AM . ·· HIGH CO\JRii" 'CRIMINAL APPEAL NQ.160/94 ORIGINAL . TRAFFIC CAbK NO. 1818/1992 OF THE DISTRJC'l' COURT OF ILALA DISTRICT AT KIVUKONI .. 'I BEFORE MINGl .!:.5~o, R_c;Sll.i.":NT MGISTRATEo ·- .. ,.- RUGAMBWA PESHA.ooooooooooooo•OooooooeAPPELLANT (Original accused) v1::raus THE HEPUBLlC ••••••••••• o . . . . . . . . . . . oRE::iPONDEI-?1.' · (Original Prosecutor) i i '.,- J'UDGMli:.!L'L ·.:. KYANDO, J. This is an appeal from the judgment of the District Court Q,. Ilala, a·; Kisutu, Dar es Salaam, whereby the appellant a Corpo~aii°i Secretary of the Tanzania Finance Development Company Limited, wae convicte t of the Offence of causing death through careless driving. · of a r.orxcc:· vehicle on a public road c/ss 41 and ,63 (2) (b) of tne Road '.b·.-_\ffi:) Act, 1973, and was sentenced to a fine of Shs. 30,000/t or, i:.:,defa1-lt, to two y.~---~s imprisonment. He was ,also disquali:f';.ed · · from holdin 6 v. driving lice:!ce for -:wo years. The particulars of the of.::·(;!1C8 for which he (the appellant) was tried a:id convicted we:r:: st-~ted in the charge sheet thus:- "'l'h",t Lugambwa c. Pesha c:1 the 1st day of Mc.1.rch, 1992, at about 08.30 hours along Morocco and New BagcJ.moyo Roads, within the District of Kin0.:1doni, in Dar es Salaam Regi.on, being the driver in-charge of motor vehicle Reg. No. tZ 69840 make Peugeot 504 Saloon, did drive the said mot or vehicle on the eoi d public roads in a manner which, having regard to all the circumstances of the· case and the natu~e of the place• was careless to any persons using the ~oad (and as a result he knocked (down) to death one Jakobo s/o Mussa a pedestrian who \-ias crossing tbe road from the left to the right side of the road. 11 ·This is how the p.::-t ·. •·ul&.rs of the offence were stated in the \ charge sheet. There is no statement of the particular o.ct Which. ,he 1 prosecuti·211 thuught const ~ tub:,d car~lc-'.ss driving. connee;;~. In this I. need only echo the ol;>servations of 1:iy b:cother Lug::i.kingira, J 4,Ji · · 1 IGAYA Vo R~.PU:6.wIC /_f.97§7 LRT n"32. The learned Judge s.:.dd at P;eJlf-9 o:f the Report:- \ ..• 2 - "It aeems that this court will not tire in expressing its misgivings at the manner in which traffic offences (sic) are laid. These offenceSv, at least those invol ... ving reckless or dangerous driving, are not absolute at all. It is essential, therefore, that the charge states the act or omiseioncomplained of, thctt is, what c on~,i tut es the dangerou_s or reckless mannt; r of -the accused's mode of driving. The accident itself is a more result of the offensive style of driving and not a necessary result. ~t thato It is then wrong to say · that because an accident has occured the driver must h~s be0n driving dangeruuslyo Accidents can and do c,]ci:r through. very innocent manoeuvres of ~:10tor vehicles ~nd sometimes outside the will of the driver~ Ehen, therefore, the charge in this case speaks of ;i drivingtt• in a manner ( which) having' regard to all the circumst_ante• of the case is 'dangerous, 11 it is saying absolute~y nothing that was offensive in the appellant's style of driving. The "manner'' must actually be stated, e.g., that I the accused was driving too fast, too. slowly, inattent~ vely, erratically or such other manner which having regaYd .,•'.•. to the prevailing circumstances .at the time would pose~- danger to other road users. In the absence of such / allegation the present charge h&a:dly disclosed tlie / offence." t :/ I / 'rl1ese observations a:-:iply no less to the offence of causing dea.h by careless d:!:'iving chur 6 ed in tl1is case and it is hopped that tn future -;.;he prosecution will b2 ~:c :~c:ful to specify the actual ac~ constituting careless driving. The act constituting c~reless driving in this case as emer- from the evidence was alleged to be speeding. Juma Mohamedi (PW~) testified that on 1st March, 1992 ut around 8.30 a.m. he was ar. the junction of Morocco and Bagamoyo Rof.ds. He said while there ·1 I· he saw the deceased passing and crossed the road. In the middle of the road a motor vehicle knocked him down. The driver of the Ga~. picked him and rushed him to the Muhimbili Medical Centhe. Then · Traffic Police Officers arrived to inspect the scene. It was Pw.;•s opinion that the driver, who is now the appellant, was driving· at high spe~d and he (fW.3) did not hear any horn from the appellazt•t vehicle b(:;fore the vehiole knocked down the deceased. The rest of · the evide11c.:; as led or aqduced by the pfosecvtion shows that the deceased died at the Muhi~bili Medical Centre while receiving treat, ment. He died at arounc. midnight the same day. He w~s an old mazi •.••1, ... 3 - and was apparently new to Var es Salaam. C.4265 Cpl. Abdallah S&nkondo (PW.4) told tha court below 1-. he was. a traffic polioe officer onduty at the junction of Moroc;_o and Bagamoyo Roads, near where the deceased was rundown, and he ·~ testified tnat he heard a motor vehicle brake and when he turned 10 look he saw a p~rson lying on the road after being knocked down ~J the braking motor vehicle. '.1.'he pe1son was knocked down while drossing tl:e road from one side to another. PW • .3 tendered a sket,ti plan of the scene (Exhibit P.2) and the Report on P~st Mortem Examinati-::,n (Exhibit P.3) of the de.ceised. In hi:::. defence the: o.ppeallant testified that oh the date o& the acci,~_,,::t hH left his home, at Alla Estate, Kinnridoni, and wao heading for Kiji tonyama, along New Bagarnoyo Hoad in the motor vehicle 1ri0ntioned in the particulurs of the offence. He wa.s the driver of the vehicle and ,befure he reached the juncticn of MoroQco/ Bagamoyo Roc!.ds, op.i:'"osite Gogo Hotel, he saw a bus coming in the opposite direction. He stopped to let pedestrians cross the road arid the bus crossed to Kinondoni. . There \oJere a Traffic Police Officers where he stopped and after a while; he said, the Tra:£fif ~ol;i.c1 al:1.owed him to proceee1' He said as he drove on., not ver«J fast, suddenly he saw a. person running across the road in :ftOnt of him-. He said he tried to apply brakes and managed to stop• but he told the trial ¢o'ijrt in his evidence, the person J·umped · the .. , and was thrown "toLbumpe:- of my car and fell J.own in front ·of my car, 11 He said the '.l'raffic Police came and told him to take I ·' tha pcrs on to the MuhimW,li Medical Centre where, as .stated above.• The c..ppellant did .not <U,spute .::xhibit P.2 and P.3. He called Joyce Chande (DWo2) as hi.s witnesz, H.;.;r evidence was brief and:lf as follows:- II I live ~.:.. ai, Mikochen:i. and am a business lady. On 1st Harell, 1992 around morning time I was aroun<.l Morace o area. I know accused by nameo Even before that day. Iwas on the wa1 to Muhimbili Hospital along Bagamoyo Road waiting to cross the road. I saw accused on that clay inthe morning. While ,driving motor vehicle from Namanga (Town) towards Kijit.onyama.. At first he stopped and allowed pedestrians to pass. I crossed the road .with oth,er people. I happened to see two 'l'raffic Police, one· on a motor cycle and anothe• I o~e was helping pedestr:ians to cross the road. Dainess callee. nw. ~~hen I looked:to her I saw one P,erson cu:.:c1enly cross line; the road, Ac·cua.ed stopped suddenl~, an(.'. the ...•.. /4. - "" .. 4 - victin1 fell down on the road near the accused I s car. Victim was se11t to Muhimbili Hospital. After ·a while I left." Unc!.er c:~,:,ss ... examination DW. 2 stated that she knew the apptallaft befor(;3 th0 ..:.:~ te of the accide·nt and he was a neighl::lc·~,r of her yaunger sister. She said the deoease¢l was crossing from the left side to the ri~ht of the road a::. ~,ng which· he was knocked down and that she saw him frc.:m the begimdr..g, wllen he started to t:·oss the road wht1e runningo In his ju::"..gment the learn., ."t magistrat-3 relied t,1ostly on the 1 evidence of F'l.'o3 and Gtated that it seems the app1llant 11 ~as d.r,iv. too fast 9 11 and he did pot apply (sic) t!".o l1orn, in orcler to avoid the accider.t. He said the evidence of PWo3 under cross examii,16'.\'0J showed tha·c the deceased was not running while dressing the road from left to right. He said for these reciwone the appellant was guiltr of causing death through eateless driving. The ~ppell~nt has submitted a total number of ten grounds ehatl1 nging th:, conviction and sentence. Counsel, Mr. Ndyanubo for the · appella:.r~ ailJ Mr. Mlipano, learned. state Attorney; for the. Republ''• filec. 11:::ittcn submissions. l•lr. Mlipano says :i:-: his si:bmissions tlu,.'t . he dc(:s not ;;;:;upr,ort the appellant I s conviction. 1 rl1;; Lil'l:!.y prosecution witness as to the speetl ~t which the appe. iLlant w~s driving was PV.-o;,. He diL: pot give an estimation of the speed in t0rms G. g. of ld."i..ort,,:Jter13 per :1oc:c~ L: only said the appellant ,-ms driving "t ov ::,-st. 1 r ,lo not think myself that this opinion, of a s{ngle witness, '-·" r1::g-..J, (.s to cpeed is cmough to prove bc:yonJ ull reasonable doubt that the accider,t hai)pcncc.1 due to speeding on the appellant I s part~ In. f;;.ct circumstances obtll.1 ning at the time would appear not to bear him out on this. The appellant was approachwg a junctiono He could not therefore, have been driving 11 too fast" tO'!!f~rds a junction. lt was incumbent on· him to go slowly in order to go thr0ugh the junctiono Secondly, there were traffic Police Officers around I do not think that in that situation the appellant would have taken the risk of speeding, Lastly he had just stasied tc proceed to Kijitonyama; aft~r he had. stopped to let pedestr:irns cross. He woul~ ther~fore not have gained such speed, witbiJl. such a short .time, as to amount to. fast drivint;o In n-,;;.y c .... Ge both the ?".'osecution and the defence ovidence t,ende to indicate thut it was the ~8ceaseC h5.n~self who wqs negligent;-.. PWt, says he (the deceased) did not check the rJotor vehiclEa right nor !_eti" · · •• •l'i,· - 5 - before crossing DW.2 says he crossed while running. He is the ope theref,,re who caused the accident and not the appellant. The triai c curt erre~ in convicting the appellant.~ I u11ow, .for the above reasons, the appeal and I quash and set aside the appellant's conviction., I. quash and set aside the scmt~nce of a fine also and I direct that if it was paid it is· to be refunde.d to the appel.Lant or if he went to jail in defaul1 . of payment of the fine he is to be released therefzrom immediately unless held there for anoth~r lawful cause, Finally, I quash and set aside the Order of disqualification. Sgd. L.A. A. Kyando JUDGE· DAR ES SALAAM 9th JW1e,, .19~ Fot tfa appellant - absebt; notified For the. ~:espondent - Mlipan.o, State Attorney J~dgment delivered. •........ . This is the certified true co~y of the original ::~. ~:J'. ~,.,-~;,_:,i[J~.. ~ ···-. ~~-. ·~ ... •;,: -- -~:' ,;.'.~ .. -~·- .. ,. ... ,. I I ' '