Mashaka Sinka vs Republic (Criminal Traffic Appeal No. 4 of 1998) [1998] TZHC 2318 (26 June 1998)

: I •· .f '' ··: -_,,\ ;:IN l'HI.: rlIGH CUUR'l' OF TANiANIA ,, · .- , A'f HBEYA I• ,.._ i.'••,• CRii'-'iINAL J'W-iFFIC l\l)PEAL Nu,4 OF 1998 (From the decision f the District Court of S 1 wanga at Hukwa in Criminal 'lraffic Case No. 2<3°1 of 1996 Before M.J .B. Hat1isi D/Resident r,;agistrate} iV1.A.SP,.AKA SINKA :,('00000003001)00000 , .• • APPELLANT Versus i· 1 rHE f'UBLIC o o o,, o Q ') o ~ o ~ o Q o o o () o o RB8POY.iDEfT ., •' ... ------- ---- . , JUD3EENT : ,: . . r.:: .- 'l'he, apJ?ellant,; "iviASHA S/0_ 1-KA, .v1as arraig~~~ before the district court of Surnba,1~~a on an indictment wh{ch carried 4b counts under the Tioad 'I'raffic Act, ' ' 1973, hereinafter _ca;lled !he Act. They were: First count .,.,,.._,,.,.,.,,.-- Dangerous driving, contrary to sections 40(1), 27(1)(a) a:n. 63(2) (a) of the Act. ' .Se_cond tJ1f.th __ count: Causing death through dangerous driving, ., - . contrary to sections 40(1) 1 .27(1)(a). and 63(2)(a) of the Act.· ···:; ' .. Sixth to lo.U5j;,.Y-tt12J..Y:.t4; ccn.:int's: Gu~'ing 'b~-diiy injury through dangerous i"'.;ing, contr,y. to secions · 40( 1), 27(1) (a) and 63(2) (a) of t.he Act .• r ·. · ~ ·; 'l'he appellant' wfm was reprsented. by hr •. iViwangole, learned advocate' at the trial, pleaded not guiltJ: to all counts·· .. After a-full trial,· however, he was convicted of all counts as charged and sentenced thus: .. K_gst couE,!: Fine shs.20,000/= or two months irnpr;i,sonment in defaulto .Second t~. fif!li.~~lt.: 11hree years imprisonmei1t on ea<;p. count • .::lixth to Fo:-ll'.tY.:-~~~J;lL£.o~: · 'l'wo years irnpriso11ment on each counto ;r.ne driving licence of the ap}Jellant was cancelled for a period of -wo._ years 1 and.the sntence for the second to fourtysixth counts was ordered to·run concurrently.. 'l'he convictions and sente;ces aggrie 1 ied the appellant I herice ·,,• ' .~ ·~ . this- appeal which was preferr-d and argued before me by his learned advocate, 11r .. Mwa...'1.goleo This appeal was 1 M I shall demonstr?i,te • partly resisted and partly ~ . .1:·. "" ' ·., . ' . unre,eisted by the learned Senior 8tate Attorney for the Hepublic, ~irs Makuru. eoooooooooeo /2 . '1., . .,,..,- -

2 The prosecution 1 s evidence was that in the ,norning of 21.11.,96 at 8.0o A.M the appellant was driving e. mini-bus make Toyota DCM reg;.N9. TZF 7343 along Bumbawanga - ;funduma road. Daniel Ha1inga DW2 was its ti,wnboy and Mashak.a Yuda DW3 was its conductor.· · 'l''he bus was bound for ibeya and it was overloaded by mostly students of Kantalarnba Secondary School who were going on leave. ·l'he students included Leonard Joseph PiJ.3, Otto ]V1popo PW4, Godfrey .Anganile PW5 1 Sos _Jacob P ✓ 6, Eli 11lia Mwambona P\tv7, li'araji Yohana PW8, and Vedest 'l1hadeo P1,J9. One Juma Baraka P'vJ2 was.also in the bus. Several passengers were standing ' having missed seats in the bus. 'l'he bus; according to PW2 - PW9, was travelling at a high or terrific speed. Another bus had overtaken their wini--bus cJJ.d the appellant increased speed in an effort to overtake it in its turn. 'i'he mini-bus was chasing the bus infront. 1'he ap:pellant claimed it was a lorry and not a bus which had. overtaken his us. '11he road, went on the _witnesses, was rough and dusty. 'I'here was a c:J.1ift and a bridge ahead. It was in Laela areao 'l'he appellant did not reduce speed. AB the mini--bus was descending the drift, the appellant lost control of it, swerved to lhe right side of the road, hit the bridge, and overturned. 'J.'t1ey had heard no tyre-burst o Laela police station wa.s beside the roa.;l nea.1~ the place of the accident. '.!.'he Regional T·.caffic Officer, ASP Kitia Ph/11, and two 'I'raffic Officers, PC }<'red . . Hr10 and PC Mwindadi PW1, were at the station. '.1.11ey saw the bus which overtook the mini-bus. l'hey saw the mini-bus approach and p2..ss. According to them it. was travelling at a terrific speed of about 80 mph. ;rhey claimed to be experi- ,.. enced in matters of speed of rnotor vehicles. 'l'hd road was roμgh and they expressed cbncern as the drift and the narrow bridge were ahead. 'l'he bus did not reduce sped, and shortly thereafter the accident occurred. }'hey rushed to the scei1e of the accident. 1'assengers were l6 in all. .four passengers died - one on the spot .and. thre,e at the nearby Laela Health Centreo 'rhe deceased were Kana Ngwele, Humphrey. 1v1boye, Mester ·Luwenya and A.nord Hwambele. From their post,.rnortem exatnination reports (E..···d P5 - PS) cause of death was acute haemorrhage shock. 3everal passengers, il'.\clucl.ing the appellant and HJ2 - PW9, were injured, some seriously. Phi10 drew a sketch-plan of the scene I • OOOOQO>;iODQ000000.00000. /3 ('

3 (.&ct P9) assisted by the turnboy DW2. According to Ext_P9 ttle bus lost contro,1 · at point B and hit the bridge at point C which was 669 feet away. On 24-.11,.96 the mirii-bus was inspected by a qualified Vehicle Inspector and Exa.mining Office:, ASP Mwangolo, and in his Vehicle Inspection report (Ext P27) the bus did not have any defects· or damage before tLe accident, but it was extensively damaged in the 'accident. 'l'.l1e parts damaged in dueled broken front indicators, coinpletely damaged whole body work, broken all window glass, broken all side.window glass, . . . •, completely broken windscreen, bent steering arm,· broken rear window glass, and damaged engine mountings. According to the three traffic police officers, high speed and reckless driving were the cause of the accidenL In his defence,· the appellant dnied t_hat the accident occurred because of his negligence. He claimed he was ctciy_ing the bus at between 50. and 6Q l<.p._h. ·. ·f. ,! . ; : ' . His story which w&.S supported by m:2 and D~3 was that a tyre burst had caused the accident. Mro hwangole preferred three grounds of appeal

1. That the learned trial magistrate e;rossly erred in holding that the cause of accident wai, due to high speed. · 2. 'lhat the learned trial mai;isttate erred in law in convicting the appellant· when the :prosecution had failed to prove its case beyond all rea.sonable do_ubt.
2. That the learned trial waistrate grosi;3ly misdirected himself in' the assessment of the evidence. on record. : I would; firstly, dispose of the unresisted aspect of the appeal. I respectfully agree wi.ti'l. -both ir'S Makuru and Vir. Mwangole that counts·· 6 7, 10, 12, 13, 14, 15, 16, 17, 10, 19, 21, 22·, 23, 24, 25, 26,. 27, 28, 29 ,· 30, 8; 31, 33, 36, 37, 38, 30 .,, ' 40, 41; 42, 44, Lf5, and 46 were not proved. 'l'hese .;34 counts were all of Causing bodily injury through dangerous driving. But the victims. iri reP.tc\·-,of -.them did not tesify. ; . . ';' ' ' : : ' ·'' ' l'heir.•·recorded statements, if' any, were .. not· tendered -_n evidenc _in terms of section 3_4B of the ,L'vidence Act 1967, anμ even then, it is doubtful whether the conditions SPE\Cified.1;mder section 34B(2) of the. Act. -oJid have' been. satisfied.. iihe identities of the victims' therefore' were not specifically established. '-'So the convictions in respect of the 34 counts were improperly entered by the trial court·:. : .Ln consequence I I allow the appeal in respect of these 34 counts, quash their convict;i.on.s and se:t aside their sentences. eio•o••oo••oooee•• /4

4 - We are left with covictiorts · and sente:nces in respect ·of. counts 1,. 2, 3, 4, 5, 9, 11, 20,32 1 .34, 35 'a:fict 43. They are Jw0- counts~ 'rhe clp.im.of a : ., ' . . . . tyre burst was, in the circumstances,.clearly an invention. It is inconceivable that the tyre burst would have been. heard only by D':'12 and not by PW2 - PW9 as well. :Eiven the appelJ.ant a,.YJ.d DW3 di°d not say they heard a tyre burs;t •.. A tyre burst of a speeding motor vehicle blasts loudly. Had there been a tyre burst,.• those in the bus as well as those at Laela police station would cert,ainly have heard the blast o The a.spect of the tyre burst did not reflect anywhere in the Vehicle Inspection Report (Ext .P27). Had there been a tyre burst, that fact would certainly not have escaped the notice of the Vehicle Inspector and Exa,--;iination Officer. :ith respect ito l"'1r. M.wangole, PW10 drew the sketch-plan (Bxt P9) on b'efng· directed and shown by mJ2o PW10 marked point B as the place _,,. - . of the tyre burst, not from his own observation, but as told by DW2. He himself bad maintained throughout that the cause of the accident wa.s excessive speed and. not a tyre burst. I agree with Mrs t.\akuru that the claim of a ty:re burst was, in all the circumstances, rightly rejected\by the trial court. This brings rne to the question whether excessive speed was the cause of the accident. 'l'his court has had occasions to remark that evidence of opinion as to the speed of a motor vehicle is not usually reliable, particularly where such evidence consists of a bare assertion and is unsupported by ot•her evidence as other words, _opinion evidence. which should not be relied on is that which is. bare, . ' . . .. . arrived at· on insufficient; da·a EUrd bY, a process of faulty reasoning. But where such opinion.evidenc is based on certain material observations and is supported -~ . . . . . . . ~ .. ,:, by real or othe.r ~~idenc'e, there would usually be no justification for not taking it into account· i.long" with·su.ch other vidence as may be availa:ble ,:;..., s·EE ~~.:'1el1¥.e In}he .presen. ce, there··· . . . . , fore, this court is, entitled to tal~e· :i.nt'o account the' ;dpinion evidence of _PW1 to P\11 'I as to the speed: at which 1 tl1e a.ppelJ.,a11t 11:as c.)rivi1;g hrtly bef;re the accident along with such other evidence as t may ,,be on- the record.,. OCIDOOQOOOOOOOOCOD-0 /5

.. 5 Cx1 the. evidence_ o:( opinion, . P~ ✓ 2 to· HJ9 said the bus was travelling at a high 1:,pe~do : Some said terrific speedo 'l'hey did not et1d there. They also said that t_;he.ir bus. was· chasing another bus which had overtclcen their bus in an ef'for~ ,to over:take it as· wello So theirs was not bare .opinion evidenceo It was base·d on material observationso The three traffic police officers, . . . likewise, aid 'the bus was . travelling at a ter;ific speed. 1 rhey took except:i,on to that spe.ed as ahe'ad there was a drift and a narrow bridgeo 'l'hey were experiened and assessed the speed at 80 mpho ... So theirs, again, was not bare opinion_ evidence~,, It was based -on experience and material observationso '.l'here was evidence that the bus had nO defects or damage before the accident, and that it was extensively damaged in the accidento There was also evidence that the bus hit the bridge and_;vertned some 669 feet after it lost control. Jill these matters were clearly indicative of excessive speed, for it is inconceivable that the bus would have sustained such serious and extensive damages, or moved such a long distance before it overturned, had its speed been other than excessiveo On the evidence, and in the circu:nstances, therefore, I ara satisfied, as was the trial court, that the cause of the accident was the excessive speed ·at which the appellant was driving, and that it was that style of. driving which disabled the appellant from controlling the buso The question, then, ·is whether that style of .driving amounted to reckless or dangerous driying. There is no· yardstick for measuring what amounts to dangerous drivingo It is now well· settled that the test in such cases is an objective test. In the words of the Court of Appeal for East .Africa in the case of f<l;t:i.1:_J<o (1968) E.A. 97, at page 101 ~ . . ''If on plain facts, as shown _by t1e evidence, the act done ·--1 .... by the driver is one which any reasonable person in the absence of any explanation would say is a dangerous driving, then that driving is dangerous.:, In the present case, the accident occurred in broad daylight, on a straight stretch of road. 'l'he road was rough and dusty. 'i'here was a drift followed by a narrow bridgeo Another bus had overtaken the bus and was ahead. ooooeoooooooo /6

. r i i;,· .[/J]f}' ! 6 °' 'rhe appellant was at a high speed in an effort to overtak.e. 'l'his would account for the fact that the appellan~ swerved to the right side of the road~ lost control of the bus, 'Which knocked. at the right side of the bridge. On those facts, had the appellant been exercising the degree and care of a reasonably competent driver, he should have reduced the speed. Ile did not do so. .I 91n.s,ati,sJied, as was the trial court, that any reasonable person would hold tlvt,_the _a1?pellant I s style of driving aniounted to dangeros or r'eckless driving, and as the accident resulted'fri deaths of, and bodily injut±es to,. ,human beings, the charges in the -~~~ counts were proved

• beyo:nd· reasonable doubt. In f::ie event 7 the a.ppel against convictions and sentences in the twelve counts is hereby dismissed in its entirety. ·-------·· · In the final analysis, therefore, this appeal is partly allowed and partly dismssed as fully in,dicated in this ,judgment. B.P. MOSHI JUDGEo 26 June '1998c For 1-.ppellant: I 1 1r. Mwangole, advocn.teo For Republic~ 1'1rs o tfakuru, SSA. I CEkl'IFY 'J_Tf-L'..T TEIS I.G A TRUE CCPY CF 'l'H.E ORIGINALo