Nyamhanga s/o Siki vs Republic (HC Criminal Appeal No. 176 of 1977) [1978] TZHC 274 (11 April 1978)

_ IN THE HIGH COURT OF TANZANIA \Q - AT WANZA APPELLLTE JURISDICTION HIGTI COURT CRThIINkL APPJAL 10 176 OF 1977 ORIINAL:CRThIINAL CASE. NO.282 OF 1975 OF TE DISTRICT COURT OF SE.IENGETI DISTRICY AT SERONERA. Before V. S. Lemnge, Esq., Distric't agistrate NYA11A.NGA s'o SIKI . . ,. . .•. . .-. .. . . .. . . . ........... . . . PPELL.i.NI' (Original Accused) versus . . THE RUBLIC . . . . . . . . ... • . . . . . . . . .. . .............. . . . R.ESPOi'DE1T (Original Prosecutor) JUDGEMENT ... SISYA, J. . ... . .... . . • The appellant was convicted of Dangerous Driving 9 anoffence under the Road Traffic Act, 1973, and he was sentenced .toa fine of Shs.500/= or in default thereof to go to prison forsix months. Dissatisfied he is now appealing to this Court The facts of the case are not c1r0 In Oertain respects thej • •'eeven confused if not absolutely unintelligible. On my part I am not sure whether the facts represent xactlywhät the witnesses themselves said or whether it is all due to wht thust be a negative attitude on the part of the learned trial Iviagistrate towards the recording of evi,dence, •In this connection .1 think it. is not insignificant, and I hasten.to say so, that in the opening sentenceof the admitting minute of the instant appeal my learned brother, Lugaking.ra J., had thisto say and 1 quote, "Admit. The trial !iagistratets work always attracts.a review." (The underscoring is supplied). Needless.to say this dOes not speak well of the learned Magitrate whom., i.aih personally aware, is one of the long standing District Magistrates there are in the fudiciary. Be it as it may., I think I need not ?mphasize that it is of prime and utmost:importance that evidence which is an unindispensable basis and foundation stone of.eeryjudiciá1 decision must be clearly and intolligibly re'corded. Failing which it mar not he possible for an appellate Court to tell how the trial • at the.cIonclusion it.did in givecae and, coneq1ent1y to say whether or not justice had been done in the said p under querry. Now, getting back to the instant appeal three witnesses testified - on the Prosecution side at the t'ial. To domonstrte what I said earlier on about. the, facts of the case .1: intend; to quote from the record of proceedings in the lower Coiirt the. substantive and relevant portions of the evidence of the - said three witnesses for the prosecution which le, already notable for its brevitr in any way. . . . •, 1 PW1, one S. M. Lyiino, who described himself as the officer incharge of the Police Station, JJugtmu is recorded to have said and I quote - "I remember accused to be a driver. I 1iov : Richard Lena. 01113/8/75 at 9.45 a.m., I was on duty with Cpl. Athumani I 'saw.. ..' '-•• a motor vehiele ST.7824been (sic) driven' by the accused frcLugumu to TANIJ office.: ThLchard Lena who had a motor cycle IJZH 324Honda. (Sic). I noticed accused following a wrong 9ight He wont to the rght side of the motor vehicle. The door of MZH 324 went to the g±ass. I stopp.ed the doo' who he would not expect. (SI.). I went to te a sketch plan..... I tender .... .• . Exh'!A", Sketch plan." '. . •: . .

2- The said sketch plan purports to represent, what is shown as the Police Station Road. It has a. line which, apparently, was meant to show the direction and the word "Mijini" Ia written above it. The said line, however, has.pointbrs on both.sides. Therefore, by 1ooki'n a. it' one cannot say which. direction of the road I'Mujinill is. PW2, Richard Lena, the ccnplainant in the case is recorded to have said:- "I em working at Conworks as boy spanner (sic)... I know how to drive (sic),,amotor cycle. Accused is our driver. Accused was coming from Mawasiliano. I was , driving a in/v I:IZH 324. Accuod followed .. me and I ran to the bush. I ws going very slowly. Accused was stopped by . Police and he was alright (sic). I uced . to see accused at Oornworks0 I do not know - Why accused. followed me. The 'road was. .. straight no rain at all. PW1 .nd Athuman. '.... wore surpriscd and stcpped accused." P73, Athumani 1i, is recorded to have said, in his testimony, and I quote:- "I am a.Cpl. attached C.I.D. I know . . Richard Lema. On 13/8/75 at 9,45 a in. 1 was with Lyimo going to Police Station. ' . 1 met 'a:.motr vehicle coming, from the town. . going to Police roed. I saw and followod the rn/cycle. , Mr.'Lyimo stopped it. Accused 'cuid not say why he was doing so. Lema ran to the bush we stopped the accused.' was going to hurt Lcma (sic) the driver of the m/.yc1c honda. The road was ..straight (?) no rain no corned (sic). The in/v was going at a level (sic) speed." ., ..... In his sworn statement in defence the appellant said that• on the day of his arrest he was driving a lorry registration No.ST.7094. He was going .to collGct: some stones at the then TAI'IU office. On the way he met a motor cycle which passed safoly. When he arrived at 'the said TANtJ office he was arrested and subsequently charged with the offence charged. After writing down a synopsis of the evidence adduced before hun the learned':: trial magistrate had the following to say and I 'quote 'from 'hip': judgemont:- "Summing up the case I do. not see.reasons why pva, PW2 and 3 could tell a li'against accuse&. Accordingly I find, him guilty as charged and convict him accordingly." . ,. •: •, , On my evaluation of the evidence there is hardly anything from the testimonies of PW1 to PW3, inclusive, from which one may infer the mode of drivin adopted by the appellant at the material time. As a matter of fact it is not even clear, 'en the evidence of PW1 9 PW2 and PW3 and the, socalled sketch plan, Exh."A", asto how the .ccmplainant approached each other. It is only the appellant himself who said that he and the moto cycle met, apparently'from opposite directions. The duty in the case was,. however, 'on the pt'osecution to. prove the.a'e beyond reasonable doubt. At no stage did this duty: shift to the appellant. At the samO time t'his,piece of .ê'videnc by the appellant notwithstanding the learned trial magistrato , rcmarkod in his judgement that the appellant approached from bhind the complainant. With respect there is not even a graih of bvi'dnce .../3

-3- to support this proposition. All in all I find tht no evidence was adduced to show that the mode of driving adcpted by the appellant at the material time was dangerous. In the event the conviction cannot be allowed to stand and the same is hereby accordingly quashed and the sentence is set aside. It is further directed that the fine paid by the appellant be refunded to him. Before I pen off I should perhaps point out that when sentencing the appellant the learned trial magistrate dc-mostrated a com1eto disregard of the provisions of Sections 27 (1) and 63 (2) both of which are couched in mandatory terms. There are indeed exceptions to the application of the terms laid down by the said sections and these are where there are special reasons for their non application. However, wherever such special reasons do exist it is incumbent upon the trial court to, specifically, say so and not sjnply depart from the terms laid down by the sections mentioned above or else the whole purpose for which these Sections, i.e. Sections 27(1) and 63(2) of the Road Traffic Act, 1973 were to serve would be stultified. In the final result this appeal succeeds and it is allowed in toto. Delivered in Court at vanza this 11th day of April, 1978. MWANZA H. E. D (IYA', 11th A]2ril 2 1978 JUDGE r