MASUMBUKO ATHUMAN v REPUBLIC 1991 TLR 19 (HC)

 

MASUMBUKO ATHUMAN v REPUBLIC 1991 TLR 19 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta J

31 January, 1991

Flynote

Criminal law - Causing death through reckless driving - What constitutes reckless

driving. B

-Headnote

The appellant was charged with and convicted of causing death through reckless

driving. The deceased was running across a lorry driven by the appellant. It was

alleged by one prosecution witness that the appellant was C "driving at a high

speed". There was no evidence on record that the appellant was driving at a high

speed.

Held:(i) A court cannot convict a person of dangerous or careless driving when the

finding of dangerous or D careless driving is based solely on opinion evidence about

his speed where such opinion is arrived at on quite insufficient data - Daya v Republic

[1964] E.A 529 followed;

(ii) P.W.I's statement that the appellant was "driving at a high speed" cannot

suffice to prove the fact of speed. E

Case Information

Appeal allowed.

Mwampona, for the Republic. F

[zJDz]Judgment

Chipeta, J.: The appellant, Masumbuko Athuman, was charged before Kigoma District

Court with the offence of causing death by dangerous driving contrary to sections

40(I) and 63 (a) of the Road Traffic Act. 1973. He was convicted as charged and was

sentenced to two years imprisonment. He was further disqualified from driving for a

G period of three years. He now appeals.

The evidence on record reveals that just before the accident, the deceased, who was a

child, had been playing with one Almasi Juma (P.W.I) aged 14 years, some ten paces

from Kigoma - Kasulu road. The deceased threw an orange peel at P.W.I, and when

the latter tried to retaliate, the deceased ran away to go across the road, and as he H

did so, a lorry which was being driven by the appellant knocked him. He died shortly

afterwards from the injuries he received as a result of the accident.

The appellant stopped the motor vehicle a short distance (78 feet) from the point of

impact and ran away for fear I of mob justice.

1991 TLR p20

CHIPETA, J

A There were two eye-witnesses: P.WI is the only one who said that the appellant

was "driving at a high speed". P.W.2 never talked about the speed of the motor

vehicle.

In his defence the appellant said that he saw the deceased from a distance of 12 to 15

paces.

B On the evidence on record, and as rightly pointed out by Mr Bilaro, learned state

attorney, the speed at which the appellant was driving cannot be said to have been

established. A court cannot convict a person of dangerous or careless driving when

the finding of dangerous or careless driving is based solely on opinion evidence about

his C speed where such opinion is arrived at on quite insufficient data. (See Daya v

Republic, [1964] E.A 529).

In the present case, P.W.I simply said that the appellant was "driving at a high speed".

That cannot suffice to prove the fact of speed.

D Was there, then, any other evidence to prove dangerous driving on the part of the

appellant? As I understand the law, a conviction for careless or dangerous driving

must be base on a finding of fact that the driver charged with the offence was guilty

of some act or omission which was negligent and which was a departure from the E

standard of driving expected of a reasonable prudent driver. The duty of drivers is to

keep a reasonable look out for obstructions or traffic ahead in time to avoid a

collision. But, as Law, J pointed out in the case of R. v Wallace, [1958] E.A 582, at

page 585:

F The duty is keep a reasonable look-out, and not to have to anticipate

unreasonable or dangerous behaviour on the part of other drivers.

G To put it differently, the offence of dangerous driving is not an absolute office but

involves a finding of fault on the part of the driver. In other words, the test to be

used is the objective test (See Mkwenye v Republic. [1973] LRT n. 50; and Khalif v

Republic, [1973] E.A. 364). In the words of Onyiuke, J in the case of Pyarali v

Republic [1971] E.A. 169, at page 171:

H .. if the manner of actual driving produces a situation, which viewed

objectively, that is to say, which a reasonable man would consider dangerous then

that driving is dangerous ...

I To put it in another way, when a driver who is in control of his vehicle, does

an act which any reasonable person would

1991 TLR p21

say is a dangerous piece of driving or a dangerous manoeuvre, then that

driving is dangerous. A

So, the mere fact that an accident has happened does not necessarily mean that a

particular driver has driven dangerously. For instance, if a driver, through no fault of

his own, is faced with a sudden emergency and, is taking B evasive action to avert an

accident, collides with another vehicle or knocks down a pedestrian, such a driver

cannot be said to be guilty of dangerous driving.

In the present case, the prosecution alleged that what constituted dangerous driving

was that the appellant "drove recklessly faster on the said road". But, as pointed

earlier, the evidence as to speed was no more than opinion C evidence based on

insufficient data. From the evidence, it appears to me that the deceased tried to cross

the road when the appellant's motor vehicle was already very near, and so the

appellant was faced with a sudden D emergency through no fault of his own.

For these reasons, I respectfully agree with Mr Bilaro, learned state attorney that the

appellant ought to have been given the benefit of the doubt. The appeal accordingly

succeeds. The appellant's conviction is hereby quashed E and the sentence and

order of disqualification are set aside. The appellant shall be released from custody

forthwith unless otherwise lawfully held.

Appeal allowed. F

1991 TLR p21

G