[1949] EACA 45

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and SINCLAIR, J. (Tanganyika)

## ISSA NURA, Appellant (Original Accused)

REX, Respondent (Original Prosecutor)

Criminal Appeal No. 218 of 1949)

(Appeal from decision of H. B. M. High Court of Zanzibar-SIR JOHN GRAY, C. J.) Manslaughter—Whether facts amount to omission by culpable negligence.

The appellant was convicted of manslaughter; there was evidence that the brakes of the bus driven by appellant were defective and the lights of the vehicle did not function. The expert witness put in a plan not drawn to scale and there was no evidence of the width of either bus, nor was there evidence that appellant was driving on the wrong side.

*Held* (18-10-49).—(1) There was no evidence that the lack of light or lack of braking-power or speed of the appellant's bus, were responsible for the accident.

(2) The evidence did not justify a finding that the appellant was guilty of negligent driving of such a gross degree as to justify a conviction of manslaughter.

Conviction and the sentence quashed.

Appellant absent, unrepresented.

Summerfield for the Respondent.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.)-The appellant was convicted in the High Court of Zanzibar of manslaughter Ъ́v negligent driving of a motor-bus. The person killed was a passenger in another bus with which the motor-bus driven by the appellant collided on a moonlight night on a straight road which was 9 ft. wide of tarmac in good condition, plus a grass verge 6 ft. wide on one side and $4\frac{1}{2}$ ft. on the other. It was in fact three days off full moon that the collision happened.

It is in evidence that the brakes of the bus driven by the appellant were defective and that his lights were functioning very feebly or not at all. The evidence of eyewitnesses as to the speed at which the two buses were travelling is very meagre. The appellant says he was driving at 10 to 15 m.p.h. at the time. The driver of the other bus says he was himself driving at 20 m.p.h. and two of his passengers gave evidence, one that the bus was going at a "moderate speed" and the other that it was going "fairly fast". Two passengers in the appellant's<br>bus gave evidence but apparently neither of them was asked by anyone as to the speed of the bus. The expert witness said that in his opinion the appellant's bus must "have been travelling fast" but no one thought of asking him on what grounds he came to that conclusion or what he meant exactly by "travelling fast". A conviction for driving at an excessive or dangerous speed could not be obtained on such evidence.

Not a single one of the eyewitnesses was apparently asked as to whether either bus was on its proper side of the road or not. The appellant, who was undefended by an advocate, gave evidence on oath but it was never suggested to him in cross-examination that at any material time he was driving his bus on the wrong side of the road or that the collision was due to that fact. The appellant in his evidence said that he swerved on to the grass verge to make room for the other bus. The driver of the other bus gave no evidence to the contrary, he apparently never having been asked about this most vital point.

The only evidence on this point apart from that of the appellant (who was not cross-examined on it) is that of an "expert" witness called for the prosecution, who examined the road and the buses the day after the collision happened. This expert put in a plan, *not drawn to any scale*, and amazingly he omitted to measure the width of either bus. Even now we do not know the width of either bus. Upon this expert witness's evidence alone the learned Chief Justice has found that the appellant's bus was "well over on his wrong side of the road". The evidence of the expert on this point is, however, far from satisfactory. He says: $-$

(1) "I have marked with a $X$ on exhibit 1 where I think the accident happened; but *that is only an estimate*"; and

(2) "If a point of impact was point $X$ on exhibit 1 bus 1843 (appellant's bus) must have been well over on its wrong side".

That evidence in a serious criminal case does not by any means sound at all conclusive or convincing, particularly as it was never suggested to the appellant in cross-examination that he was, in fact, driving on his wrong side. Nor was the driver of the other bus asked about this point.

Quite the most astounding fact in the case was never investigated at all. The right arm of the deceased was torn right off and there is evidence that it was found *under* the appellant's overturned bus. The body of the deceased was found near the *other* bus over 200 ft. away. The deceased was not a passenger in appellant's bus but in the other bus. How did his arm come to be torn off and found under appellant's bus? One possible explanation is that as the buses were passing the deceased for some reason put out, or had out, his right arm which caught in some part of appellant's bus and so it got wrenched off, and his body got pulled out of the bus. No other explanation has been suggested and none seems more likely. Mere running over would not sever an arm. The effect on the steering of either or both buses of the terrific drag caused by the process of pulling an arm right off and dislodging the body would of course be mere speculation as no one at the trial appeared to take any notice of this most astounding fact of the collision. It may well be that but for the terrifically effective contact made by the deceased's extended arm being caught in, and dragged off by, the passing vehicle, there might have been no collision. The expert witness was never asked by anyone about the possibility—or indeed the probability—of this explanation of the torn off arm. Apparently it was just assumed by all concerned that it was an ordinary incident of a collision between two motor vehicles that a passenger should have his arm wrenched off, and that it required no investigation or even comment! This is an important and incomprehensible feature of the trial.

The learned Chief Justice in the concluding part of his judgment said: -

"On the evidence I am satisfied that the accused caused the deceased's" $\mathbf{C}$ death by an omission amounting to culpable negligence to perform a legal duty."

Before this Court can consider whether the "omission" on which the learned Chief Justice founded his conviction was of that degree of negligence required for a conviction of manslaughter, it must first ascertain what was the "omission" to which the learned Chief Justice referred. If it was the omission to drive on the left-hand side of the road then the evidence seems to be quite inadequate to prove that there was that omission. There is no evidence that the lack of lights or the lack of braking power of the appellant's bus, or the mere speed of the appellant's bus, was responsible for the collision. If the appellant was right in his evidence that he had to swerve on the grass verge to avoid the other bus—and The was neither contradicted nor even cross-examined on that point—then the collision was due to the *other* bus not keeping sufficiently to its proper side of the road. Though most curiously no one at the trial thought of ascertaining the width of either bus it is obviously more than doubtful if the two buses could pass safely without at least one going partly on to the grass verge. There is no evidence from anyone, not even from the expert witness, to suggest that the impact was more than perhaps one rear hub-cap of each bus meeting. There is

no evidence as to damage to wings or mudguards of either bus. That means that the collision was due simply to a matter of an inch or two in steering error. Is such an error, even if it were all to be blamed on the appellant, which on the evidence is doubtful, sufficient to constitute that very high degree of driving. negligence required to constitute manslaughter?

In our opinion the evidence did not justify a finding that the appellant had. been guilty of negligent driving of such a gross degree as to justify a conviction: of manslaughter. That conviction and the sentence following upon it are therefore: quashed.

From the evidence it does appear that the inspection and control of motor vehicles in Zanzibar permitted two motor-buses, which in the opinion of the Government expert witness "were a perfect menace and should never have been allowed to run", to run on the public roads. No doubt some steps will be taken. to prevent any continuance of that menace, but the Courts must not be tempted. to assist by convicting of manslaughter in cases where the necessary degree of negligence is not proved to be present.