Jeremia Thomas vs Republic (High Court Criminal Appeal No. 24 of 1998) [1999] TZHC 313 (19 February 1999)

MO.SHI J. ______ ;.)._ __ IN 'i'HE HIGH comtr OF TANZANIA AT MBEYA HIGH COUiT CRIMINAL APPEAL NO.. 24 OF 1998 ,\0-.ciginal Criminal Case No. ·118 of :1997 of. Vibeya District Ccu.rt at rribeya. District. Before: S.M. Rumany'ika. ~ Resident Ma.gistra.te) •. JEilliMIA 'l'riOMAS ., ••• , ••• " • o •• , ••• , , • APP~LLANT Versus Trt.E REPUBLIC ,c;o o o o o , o o o o o o o o o o , o ~ o RESFO.N.OENT ~, .......... ,....-.-.-.- .,.,,. .......... -....-,: .... ___ .. ..__. .... ; ... -.-- ..... ,. .,..-:,. ' . JUDGl'4.I!,1'JT .......... - . ..,.. ... - ... -- 'rhe appellant, Jeremia 'l'homas; was. arraigned "l;lefor, the district court of ,. (, J i'libeya. on an indictment containing four c~u.nts. ' Three.r•_qo~?ts were uder the Road .. : f" . (· (. Traffic Act 19?3, hereinafter called .th!., 'and' 6:ne.., po_μt was under the Motor .• ,.·, ·. ,. . ' . ' Vehicle Insurance Ordinance, Cap. 169. He-as convicted as charged and sentnced to fines and terms of imprisonment in default. The counts and ,_their respective sentence were ;Ii)E.?t_c9..u..9_t: Reckless driving, contr.i:iiy to section. 13(2) of the Act as amended by 1kt No. _16 of 1996. Fine shs.30,000/= or Nine months jail in default. Seconc .. cunt: Driving a motor vehicle on the public road without Insurance, contrary to section 4 (1) (2}. and (4) of Cap. 169. Fine shs.5;000/= or two months ja.il in _defaulto 'lt"l:hJ:d ,c2.unt :. Failure to reI>ort an a.cciden.t I contrary to sections .57( 1) (b) and· 13 ('2)- (b)' of the Act as am.ended by Act No. 16 of 1996. Ii'ine shs.3,000/= or one month jail in'. default"; Fol!l:..th _ £?Unt ~ Causing b9-dily injuries. through careless . dr"i Ving, contrary . . .... to sections 41 and 13(2.} (b) of the Act ,as amended by Ac.t . No. 16 l'")f 1996. Fine sh:c;.5Q ,Ooi?J== or twelve month~ jai~ in default. There was as well an order to compensate each of the injur~d persons shs.5,000/=• 'l'he convictions and sentence a.ggrieved the appellant, hence this ~ ., .. ; appeal which was preferred and argued before me by his learned advocate, Mr .• Mbise. ,, The appeal was u:ri ... resisted ·by Mr. Vi"tlokozi, learned state attorney for the Republic. oooo·cooooooci,·oooo /2 '' ., .

The only eye witresses to the accident whq testified. we/e bungara. }iamadhani . ,'.," (PW2), the appellant (DW1), and Atha. nobert (DW2) .o On 30.6.97 at about 2.30 pm the appellant was driving an Iuzu Tii-iper lorry Heg. No. TZ 48536 along the left side of the Iringa/Hbeya highway·heading for Mbeya. town. The lorry.was J.aden with gravel from Mswiswi area, and he was wHh Atha Hobert (DW2), also a drivero After passing Uyole,the appellant saw ahead some traffic police officers inspe- cting a bus they had stopped~· If was at ?-Jane Nane ground where there is a police out-post. ~:'he bus was parked on the left side of the road. Coming far behind the lorry was a mini-bus Fleg.i No. 1 rZE 8651 driven by Bungara. Rama.dhan (PW2)·carrying 32 pazsengers, among them Fani Anyisile and Frank Nwaka.je .. The appellartt slowed down the lorry and indicated,that he wastμrning to the right side of -che road in order to bypass the stationarY bus. I-l_e in f; 9 ct began to · move •right. But one of the. traffic police. officers waved at him to topo He was st'ill a distance from the stationary bus. E;,o he returned to his left side of the road and stopped the lorry some distance behind the stationary bus. After the lorr,y had stopped the rni_ni-bus came_ along and ,1ammed behind it. '.1.'he impact forced the 1,orrry off· the road and fel1 into a ditch. The rnini.,bus also left the road and overturned. 'I'he passengers in the rnini-~bus became furious and wanted to assault the appellant who had to dash away for safety and kept ::-.,::. in the- bush for the night till at f.30 am the ,f.olloy1ing r10rning when he reported at :Mbeya Central :folice Station • .i-i.bout an hour after the accident WP 3073 PC '.Lukae (HJ1) of Y,beya ':):'raffic Police arrived at the scene. She was the only police officer to testify. None of· the traffic. ,::iolice officers wh6 witnessed the accide_nt t,estified. She found .t., both vehicles where they had :),anded as well as PW2 and mi.12 among other pe;sons. She prepared a sketch plan (.ii;xt P1) with the assi.stance of H'12 and DW2. In it the _point of inipact was on the left edge of the road.·· Jome passengers were injured, among them :F'ani Anyi.si.le and F'rank l''iwakaje. However, none of the passengers testified. .She reco:rded the statement of ]:i'~ank on 30;6,;-97; and that. of ]Tani on 25.7.97. She tendered the· statement· in evidence apparerttly uride:{ section _34B of the i.'vidence Act 1967, and were marked .t .. }:.?!. She teridered __ the /3 cf.'

3 FF3 of l<'ani and Frank in evidenc~ and weie marked Jllict _Po Mro Mbise preferred three grounds of appeal which were:

1. The learned trial Resident l·1agistrate erred on convicting the appeliant ori. the offences cha:rged ,vhen th~ case against him wa~ not proved t9 the standar,d set by the Luw in Criminal matters • . 2. The. learned, trial nesid.ent Mae;istrate .did not understand. the fa.cts of the case before him and this led him to a. wrong conclusiono 3o TJ.'1.e ?rder of compensation was r:1rbi trarily made by the learned trial Masistrate as the 'sppellant ·wa's not· given any opportunity to oppose the same and no .. evi(kncE:, y;as adduced. by either side upon which the order could be ma.deo. ·r,·• I \·JOuld, firstly, consider the :conviction on the second count.. I agree with Mr. Mulokozi and iV.iro Mbise tha.t .. the second count was not proved. Absolute];y ·, . > no evidence was adduced on- it. H-J1 did not even mention. it. It remained a mer.e !:ll.legation in the charge sheet •. 'l'he appellant denied it. -Jith ree;pect to the l;earned trial magistrate, it takes evidence to convict a. person of • t ~ • • crime. It takes far more than mere allegatio.n. 'I'here has_ .. to be evidence ···-··: _J,' which is legally admissible in a court of law, an_d, moreover, such ev.idence . ... ;,kT has to prove the e;uil t of the accused be:rond all rea.donable doubt. 'l'he convict ion on the sec_ond count ,nust, in consequence, be set asideo I am next to consider the conviction on the third • c0urit. I would once .agai.n agree with both learned Counsel that the. conviction on' that count was against the weight of evidence on record. The· accident occ°L\rred iri. the .presence of. tr.a.f.fic police officers who directed DW2 to bike the tru,ck to the police station. So the question of failure to report the a.cc:i,dent could not have arisen. 1l'he appellant gave a sound reacon for dashiDE away t:o sa.fety. The threat on his life was real.· In any event,. the law required the appellant to report the accident at the nearest police station.as soon as it·was reasonably pra.cticable and not later than twelve hours after the time of- the accident. '.!.'he appellc;lnt .said t;he effect of the accident· on .him:was that_he- got confused. and lost c::ontro], ,,· of hi1E1self. for. some. time. Th~t- was a normal and ordinary effect of .an accident. Be that as it might 1 the. appell2.r1-t could not be said. with any degree of. certainty //.J.

4 to have failed to beat the i"equired deadline by the tirne he reported at central police sta.tion,:at 7· •. 30 am the following day. 'I'he conviction on the third count, likewise l haB 1 to be quashed .• . . . I am, finally, to consider 'the convictions on the :first and fourth counts • . The trial court found that the appellant was driving the lorry at a recklessly high · .)speed at· the ti111e of the accident. But this was clearly a: misdirection on the facts established in evj_dence. The lorry had. already stopped at the left side of the road at· the time of the impact. Even the sketch plan (Ext P1) supported the evidence of the appe1lalit and D·,v2 on this. I agree with both learned Counsel that there was no evidence of reckless dJ. 0 iving on the part of the appellant. Rathe:;~, it was D:J2 who was at fault for the accident. He had achnittedly seen what was happening ahead of him. But he did not slow down the mini-bus. 'I'he havoc ca.used by the impact was clearly indicative bf that he was driving the bus at a. recklessly high speed. 'rhe gravel la.den t'rhck ·.v:as thrown to a. distance of 210 feet off the road from the point o.f impact. ' As rightly ;~~ pointed out by both learned Counsel, there was no wa.y in the circumstances that the ap,pellant could be blamed for the accident. To found '2•·• convictioi1 on the offence of reckless driving, it must be proved that the driver charged with the offence was guilty of some a.ct or omission which was negligent, and which was a. departure from the standard of driving expected of a. recisonably prudent dJ.i ver. 'l'his could not be said of the appellant on the evidence and in the circumstances. ·'l'he sta.teients (.Et P2) of Fani and Frank were improperly adrnitted in evidence. They were ina.clJ11issible. Section 34B (1') of the Evidnce Act 1967 allows production of a. statement of a witness who for some reason cannot b_e called to the court to testify orally. No reason was given fol" failure of :F'ani and Frank to testify. Even then, before such a. statement ~ i is tendred in court for admission as evidence in the case being tried, each of the six conditions set out under section 34B (2) (a.) to (f) of the' Act must be compl'.ied with fully. In this case, conditions (d)° and (~) were not complied with. $p the statements (1,"xt :£.12) were inadmissible. For the reasons 'f 1{ave given, the . . ( ,,. ; convictions on counts one and :four must be ·quashed as well. aoaoooooooao /5

• J 5 I accordingly allow the appeal, quash the convictions, set aside the sentences and the order for coinpensation. The fines and the compensation pa.id are to be refunded to the appellant. NJ.' MBEYA. 19 February 1999~ B,.P, M03HI JUDGE. l"or Appellant z Absent o For Re_public: JV"ir. Bonifa.ce, State .Attorney. 18 A 'l'HUE COPY C:F' TaE ORIGINAL.