HUSSEIN KASIMU v THE REPUBLIC 1986 TLR 18 (HC)

 

HUSSEIN KASIMU v THE REPUBLIC 1986 TLR 18 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

November 3, 1983

CRIMINAL APPEAL 9 of 1983

Flynote

F Criminal Practice and Procedure - Charges - Accused charged with dangerous driving and

causing death through dangerous driving - Counts not preferred in the alternative - Illegal.

G Road Traffic - Evidence - Evaluation of - No evidence that appellant departed from the

standard of driving expected of a reasonably prudent driver.

Evidence - Evaluation of - No evidence that appellant departed from the standard of driving

expected of a reasonably prudent driver. H

-Headnote

The appellant was charged with and convicted of two offences of dangerous driving and causing

death through dangerous driving. On appeal the High Court considered whether or not it was

legal to prefer the two counts separately. In addition I the High Court re-evaluated the

evidence adduced before the lower court.

1986 TLR p19

SISYA J

A Held: (i) Having charged the appellant with causing death through dangerous driving it

becomes not only most undesirable but also contrary to law to charge him, by way of another

and/or separate count, of the lesser offence of dangerous driving;

(ii) in so far as the appellant had the right of way and there was no traffic ahead and in

the absence of evidence of B a departure from the standard of driving expected of a reasonably

prudent driver the mode of driving adopted by the appellant before and/or at the time of the

accident cannot be faulted.

Case Information

Appeal allowed. C

Case referred to:

1. R. v Wallace [1958] E.A. 582

[zJDz]Judgment

Sisya, J.: The appellant, Hussein Kasimu, was charged with and convicted of two offences of D

dangerous driving and causing death through dangerous driving. Both these are offences under

the Road Traffic Act, 1973. He was sentenced by the learned Resident Magistrate, Tanga, to a

substantive term of three years imprisonment. His driving licence was also cancelled for four

years. Aggrieved, he has now appealed to the Court. E

In paragraph two of his judgment the learned Resident Magistrate made the following

observation regarding the two counts that is to say, 'The particulars are similar since it is the act

of dangerous driving that is said to have resulted into the F death of a motorcyclist...' There can

be no doubt that the offence of causing death through dangerous driving which, incidentally, is

charged in count two is major to the one charged in count one, i.e. the one of dangerous driving

which is minor. Not only that. As quite correctly observed by the learned Resident Magistrate,

the particulars of the first, or the G dangerous driving count are the same and/or are included

in the offence charged in count two, i.e. that of causing death through dangerous driving. Since

the two offences charged were founded on the same set of facts it is not immediately H clear to

me why it was decided to charge the appellant with both the major and the minor offences. It is

just like charging a man with robbery with violence in one count and with stealing or assault in

another count.

As aforementioned the learned Resident Magistrate convicted the appellant. He did not end

there. He then proceeded to I and, in fact, he did sentence the appellant on both counts. On

count I he sent

1986 TLR p20

SISYA J

A the appellant to jail for two years and on count two appellant was sentenced to three years

imprisonment; sentences to run concurrently. In so doing the appellant was, in effect, punished

twice for the same offence of dangerous driving.

Having charged the appellant with causing death through dangerous driving it became not only

most undesirable but also B contrary to law to charge him, by way of another and/or separate

count, of the lesser offence of dangerous driving. In this connection reference is hereby made to

section 21 of the Penal Code which lays down that: C

A person shall not be punished twice, either under the provisions of this Code or under

the provisions of any other law, for the same offence.

D Obviously, there would have been no need for me to say all this had the two counts been

preferred in the alternative. The question that now arises is what is to be done about the

illegality. I will defer this question and deal with it later in this judgment, if need be.

It is now fully established that in cases of dangerous driving the act or omission upon which the

prosecution rely to prove E dangerous driving must be specified in the charge. The act and/or

omission of dangerous driving alleged by the Prosecution in the present case and which is shown

in the charge as laid is that the appellant, while driving a bus registration no. TZ 58576, failed to

slow down at a road junction and further that he failed to 'take proper precaution to F prevent

the occurrence of an accident'. This latter aspect of dangerous driving, that is the omission to

take proper precaution to prevent the occurrence of an accident, is nebulous and it ought,

therefore, to have been particularized. This was not done.

G Be it as it may, the case for the prosecution rested almost entirely on the oral testimony of a

single witness who claimed to have witnessed the accident which involved a bus and a motor

cyclist and in which the latter, sadly, lost his life. The substantive part of the evidence of the said

eye witness, one Joseph Andrew Mang'enya (PW1) reads and I quote from the record of

proceedings: H

'.... On 18/5/82 at about 9.00 a.m. I was at between 12th and 13th at a watch repairer.

While there standing I faced east towards Tanga Cinema and saw a bus with "AMBIYANSE"

writing. It was a leyland bus. While approaching towards bus I

1986 TLR p21

SISYA J

A stand from Tanga Cinema direction it entered 13rd (Sic) road without stopping. A motor

cyclist was then driving along 13th road. The two met and the motor cyclist hit the bus at the

door to passengers. ....'

B After the accident the Traffic Police were informed. The Traffic Police officer who visited

the scene after the accident, one P.C. Makoye (PW2), gave evidence at the trial. He stated that

he saw brake marks and also what he described as 'crutch pulling marks after accident' at the

scene. These were caused by the motor cycle. There were no brake or tyre marks which were

caused by the bus. P.C. Makoye drew a sketch plan which was tendered and submitted in

evidence C and marked P.1.

The bus was inspected by a motor vehicle inspector, one Corporal Idi (PW3). It was passed as

mechanically sound and/or in order prior to the accident. The motor cycle could not be

examined because it was extensively damaged. D

P.C. Makoye ((PW2) stated in his evidence that one of the persons whom he found at the scene

was one Mwakasha. He was the person who claimed to have "stopped" the appellant. P.C.

Makoye could not recall seeing Joseph Mang'enya at the scene.

The said Mwakasha was not called as a witness and consequently he did not give evidence in the

case. E

In his statement upon affirmation in his own defence at the trial the appellant stated that on the

relevant day and at the material time he was driving from the direction of 18th Street towards

the bus stand. He crossed the 17th, 16th, 15th and F 14th Streets. Before he did so he stopped at

each and every street because there were "stop" signs. There was, however, no 'stop' sign before

the 13th Street. Nevertheless, he slowed down and he looked right and left. There was no traffic

and, therefore, he drove on. Moving in the first gear. As he was crossing the 13th Street he heard

"something G on the left hand side" but he did not know what it was. People then rushed

towards him while shouting, "You have killed! You have killed". He stopped the bus, stepped

down and ran away because he was scared. H

In his judgment the learned Resident Magistrate was satisfied that the motor cyclist, one Joseph

Thomas Mramba, died as a result of the injuries which he sustained in the accident. This finding

is sound as it is supported and justified by the evidence. The learned Resident Magistrate was

also satisfied that the accident occurred at the junction of the 13th Street I along which the

1986 TLR p22

SISYA J

A appellant was driving the leyland bus. This too cannot be faulted.

In dealing with the appellant's story in his own defence at the trial the learned Resident

Magistrate had this to say, and I quote from his judgment:

B 'The accused claims he did not see the deceased on the motor cycle. In other words the

deceased came from the blues. PW1 Joseph David Mang'enya saw him along 13th Street. PW2

P.C. Makoye detected motor cycle tyre marks covering 38 feet. I do not think that the deceased

had descended from heaven and dropped at the place of accident'. C

He repeated this theme in his judgment when he, again, said:

'The accused gave evidence denying to have had prior notice of the deceased on the road

along 13th street. The deceased did not descend from heaven like manna! D

With respect, it seems the learned Resident Magistrate misunderstood the import of the

appellant's evidence on this aspect of the matter, that is to say, when he, i.e. appellant, denied

seeing the deceased prior to the accident. As a result E of the said misunderstanding the learned

Resident Magistrate completely missed the point which the appellant was trying to make.

If I may begin by somewhat digressing a little, it is not correct to say that P.C. Makoye saw

motor cycle tyre marks F covering a distance of 38 feet. What P.C. Makoye said he saw

covering the said distance of 38 feet were actually motor cycle brake marks. Brake marks, it must

be pointed out, are not the same thing as and/or are different from tyre marks. The former are

caused by friction when the tyres rub against the surface of the road as a result of braking

whereas the G latter are simply an impression left by tyres as they roll along the surface of the

road. P.C. Makoye did not see, at least he did not say that he saw, any tyre marks at all at the

scene, be they of the motor cycle or of the bus. Indeed he could not have done so if the road at

the scene is, as most of the roads in the municipality of Tanga are, tarmac. H

Secondly and, perhaps, more importantly I think it is clear upon a proper construction and

interpretation of what the appellant said regarding the deceased's presence or non presence

along the 13th Street that all he meant was that he did I not see the deceased ahead or in front

of him prior to the accident. This, in fact, is borne

1986 TLR p23

SISYA J

A out by the very way the accident occurred. It was not, so to speak, a head on collision nor

was it the front part, or a portion thereof, of the bus which came into contact with the motor

cyclist. The evidence, on the prosecution's own side, is that it was the motor cyclist who

knocked the bus, and this was on the side near the passengers' door. It cannot be denied, in fact

it must be conceded that, positionwise, the passengers' door of a bus is behind the driver's seat.

The B question that now arises is, how can a man see what goes on behind his back? The

answer is obviously that he cannot. My understanding of the law is that it is a primary duty of

drivers on a road to keep a reasonable lookout for obstructions or traffic ahead in time to avoid a

collision. C

The learned Resident Magistrate dealt with the duty of drivers on the road. On this aspect of the

matter he directed himself in the following terms:

D 'Even assuming that the accused was on a major road and the deceased on a minor road

the accused was duty bound to consider that there might be other road users. Instead he crossed

the 13th street as if the two roads were exclusively for his own use. He faulted in his duty to take

care. His driving was dangerous and I so find.' E

With great respect, this was a serious misdirection. The duty which the law imposes on drivers is

the duty to keep a reasonable look-out, and not to have to anticipate unreasonable or dangerous

behaviour on the part of other drivers or F road user, see R.v Wallace [1958] E.A. 582 at page

585. In the instant matter there is uncontroverted evidence of the appellant that when he got to

the junction of the 13th Street and Lipia Street he slowed down and crossed when he noticed

that there was no traffic ahead of him. G

The status of the two streets, that is 13th Street and Lipia Street was not determined. When

questioned by the trial Court on this point P.C. Makoye is recorded to have said, and I quote

from the record of proceedings:

'XXD BY COURT: There is no sign on either road to indicate which is minor and which

is the major road'. H

In such circumstances it was open to the trial Court, as it also now is open to this Court, to find,

which I do that the two I streets under query are of equal status. That being the case the

position at

1986 TLR 24

SISYA J

A law is that any person driving, pulling or propelling any vehicle or riding any cycle or

driving any animal on either of these two roads shall give the right of way to traffic approaching

along the road from the right, see s.13 of the Tanga Town Council (Traffic) By-Laws 1956. The

evidence which was adduced in the case shows that it was the appellant who had the right of

way. Since vehicles must move on the road it was not incumbent upon the appellant to stop at

the B junction, of course, so long as there was no traffic, of which indeed there was none at the

material time, ahead or in front of him.

C On the mode of driving which the appellant adopted at the time of the accident the learned

Resident Magistrate had this to say and, again, I quote from his judgment:

'PW1 Joseph Mang'enya, an eye witness did not see the accused stop before he crossed

the 13th Street. In his opinion the D accused was speeding. The witness laid no basis for that

opinion. However, apart from his testimony there was indelible evidence on the road indicating

a distance of 66 feet the bus covered after the accident' (The underscoring is mine).

E With the greatest respect this passage bristles with misdirections. First and foremost it is the

mode of driving before or at the time of the accident which counts and/or matters; not after the

accident. This is because anything can happen after an impact, for example, the driver may lose

control. By dwelling, primarily, on what happened to the bus after the F accident in coming to

the conclusion that the appellant was driving at speed the learned Resident Magistrate,

therefore, erred in law.

G Secondly, it is not correct to say that PW1 Joseph Mang'enya, expressed any opinion on the

speed at which the appellant drove the bus. I have gone through the evidence of PW1 several

times but nowhere did he express such opinion on the speed of the bus, or even of the motor

cycle for that matter. All PW1 said which has some bearing on the mode of H driving which

was adopted by the appellant before or at the time of the accident was that the appellant did not

stop before he crossed the 13th Street. I have already pointed out that since the appellant had

the right of way and in the absence of any obstruction or traffic ahead there was no need for him

to stop at the intersection of the 13th and Lipia Streets.

I In fairness to the learned Resident Magistrate there was a witness who made reference to the

speed at which the appellant drove

1986 TLR p25

SISYA J

A the bus. This was P.C. Makoye (PW2) who said, on this aspect of the matter:

'The bus driver had not stopped because there are no brake or tyre marks. He stopped at a

long distance and this tells of high Speed'. B

To say the least this piece of evidence is highly speculative and, even more the reasoning

displayed by Makoye is based on wrong premise. In the acknowledged absence of brake and/or

tyre marks is it not possible, it may be asked, that the C appellant could have covered the

distance of 66 feet, or even more for that matter, while driving at 15 kilometers per hour or even

less? If the answer is in the affirmative - Which, in all the circumstances of the case it could jolly

well be - then can that speed be described as high? No. Surely not. D

The learned Resident Magistrate ended his consideration of the issue of speed by saying:

'I will therefore be excused if in the circumstances I am permitted to hold that the

accused speed was high'. E

With respect, the learned Resident Magistrate can neither be excused for nor permitted to so

hold. This is because there is not even a grain of admissible and credible evidence or any other

material from which it can legitimately be concluded F that the speed at which the bus was

being driven by the appellant at the time of the accident was high.

It is conceded that speed, per se, is an element of danger. Its proof, however, is a matter of

evidence of which there is G none in the instant case. No wonder the Prosecution themselves

did not include speed in the charge as an act or one of the act and/or omissions which they

would rely upon to prove dangerous driving.

On my evaluation of the evidence and, as afore intimated, in so far as the appellant had the right

of way and there was no traffic ahead and in the absence of evidence of a departure from the

standard of driving expected of a reasonably prudent H driver the mode of driving adopted by

the appellant before and/or at the time of the accident cannot be faulted. This appeal, therefore,

has merit and it is hereby allowed. The conviction is quashed and the sentence and order of

disqualification imposed thereon and made as a result thereof are accordingly set aside. I

1986 TLR p26

A It is further directed that unless the appellant is being held for some other lawful purposes

he is to be set at liberty forthwith.

Appeal allowed.

1986 TLR p26

B