Peter Mlomo vs Republic (Criminal Appeal No. 25 of 1999) [1999] TZHC 209 (1 November 1999)

IN THE HIGH COURT OF TAi"'lZANIA AT MTWA..~ .APPELLATE JURISDICTION CRIMINAL APPEAL NO. 25 OF 1999 ORIGINAL TPJu'FIC CASE NOo 1 O:E' 1999 OF THE DISTRICT COURT OF !viTWARA AT MTWARA BEFORE: P.,Mo MABUI,A, ESQ., DISTRIC'l' 1"IAGI3TRATE PETER IvlI.JJNOo ♦ oooooOooAPPELLANT versus: THE REPUBLICooooooooRESPONDENT JUDGMENT The appellant PETER MLOHO, an old man of 50 years was charged with causing death through dangerous driving on a public road c/s 40(1) and 63 (2) and 27 (1) of the Road T~affic Act No. 30 of 1973. He denied the charge. However at the end of the trial he was found guilty f..as charged and was convicted accordingly. He was sentenced to 2 years imprisonment. His driving licence was cancelled for a period of 3 years. He was also disqualified from obtaining cill.Y licence of any type. He was aggrieved with the conviction, sentence and the cancellation and disqualification order •. , It was alleged by the prosecution at the trial that on 8-.2-.99 at about 11.30 Am while PW3 OMARI HCHOPA was. on his way back to Mtwara. from Msijute when he arrived at Mayanga he saw the deceased .AMIRI OMARI riding.a bicycle going towards Mtwara direction. He was riding his bicycle on the left side of the Lindi-Vitwara public roc1.d. He was in front of him. Then the appellant came driving a lorry Reg. No. HB.4946 Make Hino towering a trailer Reg. No. TZ 83547 which was carrying bridge iron bars. He was also driving t0i1ards Mtwara. He was driving at a normal speed. He was also driving.on the left side of the road. When he approached the deceased about 15 to 18 paces, the deceased turned right from lefta The appellant tried to avoid him and applied brakes. However the deceased was scratched by the protruding iron bars whereby he fell on the road 2 metres from the point of impact (B-C) and died. The matter was reported to Mtwara Police Stntion whereby PW1 No.' D 2972 SGT ABDUL visited the scene and drew a sketch plan Exh. P1. The deceased was taken to Mtwara Government Hospital where a Post Mortem

2 Exrunination was performed. : kccording to the.Post Mortem Examination Report Exh P2, the cause of de-a.th was found to be due io severe· head· injury and severe bleeding from the lieado . The appellant \·las c6nse(1uently ch.itrged with the. above offchcd . . . . !n his dfnce the appellant stated that on the material day e was dr-i ving the said lorry which was to1e1'ing the ·said trailer carrying 15 i:6ris of bh.dge it-on bars.; He vias driving on the left side of the road~ ne was driving at a normal sp0edo · wh&n he arrived at Msijute he 5£\'1 the deceased riding on his bicycie going towa.r'ds Mhiaral He was riding on the left side of the ' road• When he approached hiin about 18 pacs, suddenly he (deceased) turiled on his right from left, He triecl his level best to nvoid him anci applied brakes Iie succeeded in avbidirig to crush himo But . . . unfortunately the deceased was scratched by. the protruding iron bars whereby lie fell on the roado He said he was not driving dangerously but carefully~ He said he was drivi_i-:1g at a normal speed nnd that is why the said lorry nnd trailer did not over turn when he applied brclrns so suddenly; The learned trial District Magistrate was satisfied with the prosecution evidence that the appellent caused the death of the deceased through driving dangerously on a public road. The appell.?.nt was found guilty as charged. He was convicted cu1d sentenced as above. He was aggrievedo Hence this appeal. Before this Court he was repr8sented by Mr. Kuinwembe learned advoca.te. Mr. Kumwembe raised only one ground of appeal; namely:;.. 11 That the learned trial Magistrate erred in finding that the appellant was at the material time driving dangerously, ·when from the totality of the prosecution evidence there seems to exist the probability that the deceased could have been the cause of.the accident which caused his death. Elaborating on this the lenrned advocate had this to say and I quote in extenso:- 11There is only one ground of appeal as can be seem in our memorandum of appeal. Through the evidence at the trial there was no evidence that the appellant was driving dangerously. The Court should have found that the deceased was knocked dovm through his own fault. There were 3 prosecution \·1itnesses. But only P'J3 Omari Mchopa was the eye witnesso He said the deceased crossed from left to right and , ./-z..,

3 the appellant tried to avoid him5 The deceased was knocked by the iron bars carried in the appellant's motor vehicleo He said the appellant was driving at a normal speedo This evidence did not disclose ax1ything that the appellaJ1 t was driving dangerously• PW1 Sgt Abdul said the deceased crossed from left to righto He said in his view the appellant was supposed to be car.eful. He did not elaborate. The appellant had applied bral.(es and had tried to .avoid him. In cross examination PW1 said the loe,d was 60 tons which is not trueo It was only 15 tons. He said he did not know the speed, but that the motor vehicle stopped just after a few metres, and that there were skid marks showing that the appellant had applied brakes in trying to avoid the deceasedo The sketch plan shows the skid marks to be 15 metres. This shows that the appellant saw the deceased 15 metres away crossing from left to right ruid swerved trying to avoid him. The deceased fell about 2 metres from where he was knockedo This shows clearly that he was not knocked by the motor vehicle but was scratched by the iron bars after the appellant had avoided hime The speed was not high otherwise the dec8ased v1ou.ld have been thrown far away and not only two metreso The map does not show the length of the motor vehicle and the protruding iron bars. There was no evidence at all to show how the appellrui.t was driving dangerously. On the contrary there was ample evidence that the deceased crossed from left to right abruptly without any warning to the appellant. The appellant tried his level best to avoid him. He managed to avoid him but the iron bars scratched him. This was an unavoidable accident attributed by the deceased's negligence. The trial Magistrate did not analyse the evidence. He simply said a distance of 15 paces was enough to stop. It would appear he doubted the sketch plano He also said the maP did not show the deceased ,1as ... --~ .· ... knocked down by iron bars. How could it show that? He said the map showed n1mocking' 1 which means knocking by a motor vehicle and not iron bars. He said the circumstances showed the appellant was driving dangerously. It is not clear as to which circumstances the learned Magistrate was referring to because the present circumstcmces show clearly that he was not driving dangerously, and that the accident was caused by the negligence of the deceased himselfo In view of all this, it is my humble submission that the prosecution failed to prove the guilt of the appellant beyond all reasonable doubt. His conviction should be quashed and the sentence and orders be set aside. 11

"" 4 In reply the learned State Attorney Mr. Masaju who represented the Republic at the hearing of this appeal replied as follows and I quote in extenso:- 1 iThe Republic is supporting the conviction and sentence. The evidence of the prosecution proved the guilt of the appellro;it beyond all reasori.able doubt, The case of &,MK-IENY.§Y.~~-R,1.~~7;2_1:F'."f' 50 is very relevruit in cases 6:t this nature. In the presei1t case the charge sheet says he Y..nocked the deceased while trying to overtake him. Therefore the question of speed_is not very necessary. Ai.so dangerous driving does not necessa:i:'ily mean. high speed. The standard is that'or a prudent driver as was stated in the case of PATEL Vs R ( 1968) EA 970 .. ~.....,__,.,...,,,,.... . ., W "-.:,.,, .. .,,ni=··:•.o 'rhe question of speed is not necessary although it may be of value if on the high side., Mt The 15lskid marks is evidence that the appellant was driving at a high speed. If the deceased crossed from left to right atid the appellant followed him there; that also was 2, fault. He should have continued on his left side. In his defence the appellent said there was anothGr motor vehicle coming from the opposite direction. This is not reflected in the sketch plan. Tho appellant was driving dangerously otherwise he would not have knocked down the deceased. 'l'he map shows the deceased was knocked on the left side of the road 4 metres from the right edge. There was nothing on the map indicating that there was another motor vehicle coming from tho opposite direction. The appellant was the one showing PW1. He ,-muld have shown him so. The trial Nagistrate rightly rejected this allegation. The trial Magistrate correctly said the deceased \·1as knocked by the appellant's motor vehicle even if by the iron bars \vhich were carried therein. Had he been knocked by the iron bars he would have been thrown fm- aw2.:y outside the road and not only two metres on the road. The appellant was properly convicted. The fact that the appellant strengthened the prosecution case is also relevant as was hld in the case of I MPALLO_ ,!{AILU _Vs E...UJ8?)_1'g__170. The sentence imposed is lawful.. The appellant caused tho death of the deceased through his dnngerous driing. The c2J1cellation and suspension of his driving licence are also correct. The fact that he depends on driving is irrelevant as was held in the case of LAWI§J'!9~ MALIKI Vs R ( 1973) ,~12. The appellant had shown causes why his driving licence should not be cancelled in his mitigc,tion·. If this was not enough this Court can call him to do so or return the record to the trial Court. His medical report is irrelevant because it was not produced at the trial nor was it brought here as additional evidence

5 ' as per the case of RVs GON (1971) 3 WLR 343~ Even if the trial Magistrate did not artaiyse the evidence, this i~ curable under Si 381 CPA 1985i ·· Also .thj,s Court can analyse the evidenbe as was held in the ca:se of H'ASSAN Vs R ( 1981) TLR 167. This appeai has rio merits and should be dismissed~ • 1 : :.. In his counter reply the appellant's learned advocate Mr, Kumwembe counter replied as follows, arid I quote in extenso:- "It is true this cc:\Se did not concern speeding. But ovespeed:i.ng as part of the relevant fact for a cherge of c~using death through dangerous driving. The ~earned State Attorney has gone completely against the evidence of his own witness. Mchopa said the deceased was knocked down by the protruding iron bars. It is possible for a victim to fall where the deceased fell when knocked down by protruding iron bars. The charge sheet talks of failure to take care when overtaking the victimo But the prosecution evidence said differently. A trailer goes straight when the cabin swerves right and then left at almost instantly. It was possible the appellant swerved the cabin on the right to avoid the deceased and went back left whereby the trailer scratched him by its iron bars. The trial Magistrate did not analyse properly the evidence before him. He arrived at conclusions which were not supported by evidence. The prosecution did not prove the guilt of the appellant to the required standard. Where death occurs through an accident, it is not necessarily the fault of the d.rivero The victim can be the cc.use as it was in this case where the deceased crossed from left to right. I still insist that this appeal ·should be allowed. i; I have caxefully considered the evidence on record, the appellant's ground of appeal as eleboratcd by his advocate, the reply by the learned State Attorney for the Republic, together with the overall circumstances surrounding this case. The appellant was charged with causing death through dangerous driving on a public road. It was therefore the duty of the Prosecution to prove beyond all reasonable doubt that when the appellant caused the death of the deceased, he WM driving in a manner ,1hich having regard to all circumstances of the case was dangerous to the public or to any other user or users of that road at that particular timeo The stnndard applicable in such circumstance is that of a reasonable prudent drivero Driving at a high speed may nmount to dangerous driving. But in the present case the question of high speed does not arise because there is ample evidence by the only prosecution eye witness PW3 Omari Mchopa

that the appellant was driving at a normc:J. speedo This was confirmed by the appellant himselfo There was a_ word by the learned State Attorney that the 15 metre skid marks is an i..'1.dication that the appellant was d.r.iv:i,I}g at a high Eipeed. I have carefully considered this. But with respect to the learne.~ Counsel, the Court was not furnished with reliable information about the qualificat:j,9? of the learned State Attorney in assessing speed. PW1 Sgt Abdul a Traffic ·officer .. wl.1,9_ was supposed to have some good ideas on motor vehicle spe.c.d, said nothing useful on thiso ... He said he was not sure with the speed of that motor vehicle at the time of the accident. Comme1:1ting on the skid marks he simply said those skid marks were for nescapingi 1 accident. With all these, it would be dangerous to join hands with the learned State Attorney tha.t the appellant was driving at a high speedo It is my humble holding that he was drivin 6 at a normal speedo But as properly stated by the learned State Attorney, dangerous driving does not necessarily mean driving at a high speed. We have then to consider other matters surrounding the appellant's driving at the material time. There is no dispute or at least there is ample evidence both by the prosecution and the llefence that at first the deceased v,as riding his bicycle on the left side of the road. But suddenly when the appella."11.t \vas just about 15 to 18 paces from him, he turned from left to right without any warning to the appellanto The crucial question at this stage is as to what the appellant was supposed to do under such situation? There is ample evidence by both the prosecution and the defence that the appellant applied brakes There is ample evidence by the appellant that he also swerved trying to avoid himo He managed to avoid him., But unfortunately he -las scratched by the protruding iron bars carried in the trailero He fell on the road about 2 metres from the left side edge of the road. That is what the appellruit did. There was a word by the learned Stated Attorney that the deceased was knocked dovm by the appellont 1 s motor vehicle and not by the protruding iron bars which would have thrown him far away outside the road on the left. There we-1..s also a word by the said learned State Attorney that when the deceased turned on the right the appellMt should have driven straight instead of swerving where the deceased had turned. I have carefully considered all these. But I think, since the appellruit was driving at a normal speed, after applying brakes for 15 oo o/7 • o • o

7 metres the motor vehicle had almost come to a halt. A scratch by iron a bars from a motor vehicle which has almost come tolhalt m·ay probably riot throw the victim, to such a far distance as suggested by the learned State Attorneyi Also had the deceased beeh knocked down by the front part of the appellant's motor vehicle, there would be some dented marks ;, . ·! . i either oh ·the bu)Il]?.er or mud.guard or head light or an& front parto There . ' was no evidence that any .. such -nv:i.rk was detected. In fact PW1 Sgt Abdul said nothing at all on this.i It ~ould -appear the appellant 9 s motor vehicle was not inspect,.::d. Otherwise a motor vehicle Inspection ' i Repdrt would have been tendered as exhibit. A scratch by iron bs does not cause any dented mark on the iron bars. The ron bars are too hard to bend on a human bang As far as sv,ervirig on the right is concerned, it all depends on where the victim is.i If he is at such a position that by driving straight or swcrv:ing on the left the driver '1ill avoid him, then the driver should swerve on the left or drive straight. If he is at such a position that by swerving on the right the driver will avoid him, then the driver should serve on the right. If he is at such a position that by driving straight the driver will avoid him, then the driver should drive straight. In the present case the appellant applied brakes and swerved on the right. He managed to avoid tho deceased. But unfortunately he was scratched by the protruding iron bars. The next question is whether what the appellant did was what a reasonable prudent dri vor was e:>..'})ected to do? Here is tlrn appellnnt driving a lorry toworing a trailer with 15 tons of iron bars. He is driving at a normal speedo It is in a tarmac road. He sees a cyclist pedelling his bicycle on the left side of the roado He quickly makes an assessment of the situation and is satisfied that the situation.is safe, and that he will go through without any difficult, and the cyclist will sail safely without any problem. Suddenly ,-1hen he is only about 15 to 18 paces away, the jolly cyclist turns ri5ht without eny wning. He applies brakes nnd tries his level best to avoid him. He manages- to avoid crushing him to asheso Unfortunately the protruding iron bars knock him down. I· mn quite satisfied that under those circum.st,:inces the appellant did what wn.s expected of any reasonable prudent driver. That was a mere accident attributed to a great extent by the ngligence of the deceased himself. The trial Court should have found so. There was no evidence by the prosecution to show what contributed dangerous driving by the appellant. There was no evidence as to the manner of driving by the appellant that could be said to be dangerous. The authorities cited by the learned State Attorney can be very useful :in a proper case

r 'I • t ti 8 This is not a proper case for the reasons .I have stated above~ ·1t would appear the learned trial District Magistrate was·cu.rried away by a wrong assumption that whenever a driver causes death through cl.riving, then the driving must be dangerous. ·This was a very unfortunate aB!3Utnptiono It is upon te above reasons that I do hereby qua.sh the conviction a..i.d set aside the sentence and canceilation and. isqualification order The appellant is to be released from prison forthwith unless ·- · - . lawfully held in connection Nith nnother case or co.seso Appeal allowed. /i /._;' / --· So -N KAJI . JUDGE .£s!..: Judgment has been delivered in th8 presence of the appellant's advocate Mro Kumwembe, the appellant in person and Ivlro lfasaju learned State Attorney for the Republic this 1st day of Novembe:c, 1999. R/A /J _, l /1 / . f i. / - S. N. KAJI JUDGE 1.11.,99