Mwananchi Engineering & Construction Co. Ltd v Republic 1985 TLR 243 (HC)

MWANANCHI ENGINEERING & CONSTRUCTION CO. LTD v REPUBLIC1985 TLR 243 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

June 22, 1984

CRIMINAL APPEAL NO 2 OF 1983 B

Flynote

Criminal Practice and Procedure - Charges - Charge containing something not known to anyone - Whether proper.

Criminal Practice and Procedure - Charges - Defective charges - Charge alleging that "bog stearing" was out of order - Both parties understanding "bog stearing" to mean "stearing C system" - Whether the defect in the charge is fatal.

Evidence - Admissibility - Admissibility of Reports - Vehicles Inspection Reportadmitted under s. 34B(2) of the Evidence Act, 1967 - Whether proper.

Road Traffic - Vehicle inspectors - Appointment of vehicle inspectors - Road Traffic Act, D 1973, s.4(a).

Road Traffic - Vehicle inspection - Vehicles inspected by a person not duly appointed a vehicle inspector - Whether inspection report may be accepted.

Road Traffic - Defective vehicle - Steering mechanism locked due to driver's carelessness E - Whether it amounts to having a defective steering system.

Road Traffic - Defective vehicle - Broken windscreen - Three layer windscreen cracked on one side - Whether the crack amounts to broken windscreen.

Criminal Practice and Procedure - Compensation - Jurisdiction to order compensation in a criminal trial - Order of compensation for vehicle damaged in an accident - Whether criminal court has jurisdiction.

-Headnote

The appellant company was charged with and convicted of permitting a defective motor vehicle to be driven on the public road contrary to the Road Traffic Act, 1973. It was sentenced to a fine and ordered to pay Shs.8,000/= as compensation to the owner of H another vehicle damaged as a result of the offending act. The defects, as alleged in the charge, were a broken windscreen and a "bog stearing" being out of order. Nobody, not even the trial court magistrate, was able to tell what "bog stearing" meant. The evidence showed that the windscreen was only cracked on one side and the vehicle was  fitted with a security lock in its steering mechanism as a precaution against theft of the vehicle. The locking system and the ignition system were designed to be controlled centrally  and simultaneously such that the lock would open immediately upon igniting the engine A and it would lock upon removing the ignition key. But on the material day the central and simultaneous control had developed some faults: the ignition key continued to control and operate the locking system without igniting the engine and the vehicle had to be started by connecting certain wires. Apparently, after starting the engine, the driver B was careless and did not turn the key fully to undo the steering lock. On appeal it was argued, inter alia, that the trial court magistrate should not have relied, as he did, on a motor vehicle inspection report by a person not duly appointed under the Road Traffic Act, 1973. 

Held: (i) "Bog stearing" which was referred to as being defective in the charge is something not known to exist in the present motoring world and by containing something which is not known, the charge was defective; (ii) as both the prosecution and the defence proceeded on the understanding that "bog stearing" actually meant the steering system, the defect in the charge did not D embarrass the appellant and it did not occasion a miscarriage of justice; (iii) the Motor Vehicles Inspection Report was improperly admitted in this case because the application of s. 34B(2) of the Evidence Act, 1967 under which it was purportedly admitted is in respect of the admission of written statements and not reports E like this one; (iv) the admission of the Motor Vehicles Inspection Report was also improper in that the purported report was made by a person who was not a motor vehicles inspector duly appointed by the Minister in accordance with the Road Traffic Act, 1973 F and moreover he did not appear to testify in court and his expertise and experience was dubious; (v) in view of the evidence showing that the steering system was merely locked due to the carelessness of the driver, a charge alleging defects in the steering system has not been established; (vi) the evidence shows that the windscreen was only cracked on one side and G it was not letting in water or air; it was not broken as the charge alleged; (vii) the order for compensation had no basis in this case and in making it the trial court magistrate acted in excess of jurisdiction;

Case Information

Appeal allowed.

No cases referred to.

Mwakajinga, for the appellant

A.T. Akaro, for the Republic

Judgment

Sisya, J: The appellant company was charged with and convicted of A permitting motor vehicle to be driven on the road while its condition is defective. This is an offence under the Road Traffic Act, 1973. The company was sentenced by the learned District Magistrate, Korogwe, to pay a fine of Shs.750/= or distress in default. The fine was paid. The company was also ordered to pay Shs.8,000/= as B compensation "to the owner of the motor vehicle registration no. TAJ 33". Dissatisfied the appellant company is now appealing. The particulars of offence in the charge as laid reads: C The person charged (on 19th day of December, 1980 at about 12.00 hrs at Manundu along Korogwe/Tanga road within the District of Korogwe Tanga Region) being the owner of a m/v Reg. No. SU 1784, L/Rover did permit the said m/v to be driven on the public road while its general mechanical condition was not in good order in that bog stearing (sic) was out of order and windscreen was broken. In the third ground of appeal the appellant company avers that the learned trial Magistrate erred in law by convicting it on a charge which was not understood even by the learned Magistrate himself. At the hearing of this appeal before me it became abundantly clear that the argument here centred on the term "bog stearing". It was submitted by the learned counsel for the appellant, Mr. Mwakajinga, that no such a thing known as "bog stearing" (or is it "bog steering) is known in the whole framework of a F motor vehicle. 

The learned State Attorney, Mr. Akaro, on the other hand, submitted that "bog steering" is modern terminology. He, however, did not go further and elaborate what it really is. Instead he went on to argue that those who handle motor vehicles know it or, at the very least they are expected to know it. With respect to the learned State Attorney, I think this is placing too much a burden on those who deal with G motor vehicles in one way or the other, and it is also pitching one's expectations unnecessarily high. True to the appellant's allegation in Para 3 of the petition of appeal the learned trial Magistrate did indeed concede his failure too to comprehend what a 'bog steering' is. H This is clear from the portion of his judgment which reads, and I quote: I would first of all wish to deal with this question of bog steering. Admittedly even after consulting many English Dictionaries I have failed to grasp what the vehicle inspector meant I when he said the bog steering was out of order. 1985 TLR p246 SISYA J Indeed if so then one wonders how the learned trial Magistrate expected the appellant to A understand as the duty in law was on him, i.e. the learned Magistrate, to read over and explain the charge to the appellant in a clear and simple language.  

All this said, I, most respectfully, agree with Mr. Mwakajinga that a "bog steering" does not exist in the present motoring world. I am not competent to talk of the future, which does not B concern us here anyway. At best it is a misnomer for, (as one of the witnesses speculated in the Court below) a Steering box. If so then why, it may be asked, was the charge sheet not amended accordingly? Be it as it may one thing is clear in my mind and that is by containing something which is not known the charge is defective. The question that naturally arises next is, what effect C does the said defect have on the subsequent proceedings in the Court below? This issue was, commendably, considered by the learned trial Magistrate in his judgment. He concluded by finding that the defect or error was not fatal because throughout the D trial both the prosecution and the defence proceeded on the understanding that the said 'bog steering' actually meant "the steering box". It is true, and this is apparent from the record of proceedings of the trial Court, that both the Prosecution and the defence took the "bog steering" to mean the Steering system. The evidence which was adduced in the case points to this fact. In the circumstances I am not persuaded that the appellant was E embarrassed in putting up a defence, as the same was in line with the Prosecution case. In other words I am satisfied that the defect under querry did not occasion a miscarriage of justice. So much for this ground 3. Now, turning to the factual background of this matter, evidence was adduced at the F hearing of the case in the Court below to the effect that the appellant company is owner of a motor vehicle registration No. SU. 1784, a landrover. On the date of incident, at about noon, the branch manager of the appellant company at Korogwe at that time, one Juma Riziki (DW1), instructed one of the company drivers, one Felix Mapunda (PW3), to drive the said landrover to M/S Sikh Garage to have its windscreen, which had cracked, replaced. The said landrover was fitted with a lock. 

This was a precautionary measure against motor vehicle thefts. The locking device was fixed to the steering system of the landrover. Originally, this locking system and the ignition system of the H landrover were being controlled centrally and simultaneously; that is to say, immediately upon ignition of the engine of the landrover the lock was automatically opened. Upon switching off the engine and removing the ignition key the locking system was in operation: The steering would lock upon a light twist. It is common ground that the centrally controlled mechanism of the ignition and locking A systems of the landrover developed some defects as a result of which each system had to be controlled separately. The key for the locking system had to be turned full and not half way before the vehicle was sent in motion. The evidence shows that Felix (PW3), the appellant's driver, started the landrover by B connecting certain wires. He then set off for the garage. Following behind him was one Surinder Singh (DW3), an all round automobile engineer who worked for almost a decade in garages in Britain and Europe. He is also owner of the Sikh Garage. While on the way Felix suddenly felt being pulled on one side. He tried to control the vehicle but failed. The landrover then knocked against a stationary lorry which was parked on the road side. Felix was injured in the accident. Mr. Singh took him in his own vehicle and rushed him to the hospital. He, i.e., Singh, swore that when he was removing Felix from the landrover he saw the ignition key lying on the floor in the cabin. The police were informed and both the appellant's landrover and the lorry were sent for inspection. The said inspection was done by a mechanical inspector called George who was employed by the then Ministry of Communication and Works and stationed here at Korogwe. 

The said George did not give evidence at the hearing of the case. It was E stated that he had gone out of Korogwe for medical treatment. His reports on both vehicles were, however, tendered and admitted in evidence at the trial in the Court below. The one in respect of the appellants landrover is P.1 and the one in respect of the lorry, registration no. TAJ 33 is P.2. The learned trial Magistrate purported to admit F the said motor vehicle inspection reports under Section 34B (2) of the Evidence Act, 1967. With the greatest respect to the learned trial Magistrate, S.34B(2) is in respect of Written Statements. It does not deal with reports at all. For provisions of this section to come into play all the conditions laid therein must fully be met or satisfied. At any rate this provision of the law was misapplied here. At the hearing of this appeal it was argued by Mwakajinga for the appellant company that the learned trial Magistrate misdirected himself on the evidence by placing too much reliance on a motor vehicle inspection report prepared by a person who was not duly H appointed in that field. The learned trial Magistrate dealt with the issue of George's appointment as a vehicles inspector in the following terms and I quote from his judgment: A mechanical inspector in a Government institution is a very respected person. The I government cannot employ bogus inspectors to inspect its motor vehicles. It would be ridiculous to see competent vehicle inspectors A inspect public motor vehicle while the government motor vehicles are inspected by bogus inspectors. 

G.N.171/67 does not say that only Police officers are to be appointed examiners and inspectors of motor vehicles. It merely endorsed police officers who were by then gazette to assume the position of vehicle inspectors and B examiners provided they were competent drivers notwithstanding that they had a technical know how or not. But with the present case the motor vehicle had been inspected by a Comworks mechanical inspector. He is a person with technical know how. He is therefore an expert. In my view he was competent and so his report is admitted in law as that of an expert. With respect, this passage bristles with misdirections and misconceptions. It is perhaps convenient to start by looking at what the learned trial Magistrate had to say about this very same man, George. He said, earlier in the same paragraph from which the above passage is quoted: After perusing the vehicle inspection reports, Exhibit P.1 and P.2, this George appears to have inspected the motor vehicle on behalf of the inspector of vehicles. He doesn't seem to E suggest to the Court that he himself is also a vehicle inspector. His qualifications are not known either. This passage contains the naked truth on this aspect of the matter. It beats my F comprehension, therefore, how the learned trial Magistrate, almost in the same breath and without more, proceeded to find the same George 'a person with technical know how', 'an expert' and competent to be a motor vehicle inspector. 

This is simply outrageous. It seems to me that the learned trial Magistrate completely missed the point which was G raised by Mr. Mwakajinga for the Appellant on this aspect of the case. It must be borned in mind that the appointment of motor vehicle inspectors is a matter of law. The power to appoint vehicle inspectors is vested by law on the authority responsible for road traffic i.e. the Minister for Home Affairs and this power is conferred upon him by H Section 4(a) of the Road Traffic Act, no. 30 of 1973. As was, quite correctly in my view, pointed out by Mr. Mwakajinga in his address to the Court no such appointments have so far been made under this Act no. 30 of 1973. There was appointment of motor vehicles inspectors which was, however, made by Government Notice no. 171 of 1967 I which was, with gratitude, brought to my attention by Mr. Mwakajinga. 1985 TLR p249 SISYA J The said government notice no. 171 of 1967 was issued under the provisions of the A Traffic Ordinance, Cap. 168. Admittedly the said Cap. 168 was repealed by Act No. 30 of 1973. Section 117(2)(b) thereof reads: (b) until new appointments are made under this Act, any appointments made under the Traffic B Ordinance repealed by this Act shall be deemed to have been made under this Act. The head note of GN 171 of 1967 which, with great respect, the learned trial C Magistrate, does not appear to have read or, if he read it, and with even greater respect, he does not appear to have understood, reads: Appointment of Inspectors and Examining Officers of Motor Vehicles. D Para or Item 1 thereof reads: 1. All gazetted Police officers who are themselves competent drivers are hereby appointed to be inspectors and Examining officers for the purpose of examining E persons as to their competence in driving motor vehicles. Now where does a mere endorsement for the assumption of some position by police officers appear in this piece of subsidiary legislation. By vesting powers of appointment in the Minister of Home Affairs Parliament in its F undoubted wisdom knew what it was doing. Likewise by confining these appointments to gazette Police Officers, and not to any other person with the requisite technical know how, those who made that decision must have known what they were up to. For anyone to depart from the laid down procedure and law will be to stultify the whole G process designed and laid down by the legislature. In the wake of the current call to all to follow and respect the law I am not in the least attracted by the learned trial Magistrates reasoning on this aspect of the case. Suffice it to say that George was not appointed a motor vehicle inspector. He was not H authorised by law to inspect the appellant's vehicle. The report, P.1, which he prepared was thus wrongly received and treated. The same must be and it is hereby extirpated from the record. This should be sufficient ground for this Court to allow this appeal because without George's report there is no basis for the charge. I 1985 TLR p250 SISYA J Assuming that I am wrong on this point I have, nevertheless, considered if P.1 could be A taken as expert opinion. I am, however, not aware of any provision of the law on whose authority P.1 may properly be admitted as such. The difficulty is made the more by George's failure to testify at the trial. As the position stands, George still remains a person of dubious expertise. His special knowledge, skill, experience or training to qualify him as an expert in this field of motor vehicles in unknown and, perhaps, this may be the source of the difficulty which has been experienced over his term "bog steering" in the case. 

Exhibit P1 is no expert opinion at all. Again, assuming that the vehicles report, P1, was properly admitted and admissible, the case for the defence was that there was absolutely nothing wrong with the stearing system as such. The defence argued that the steering locked because Felix (PW3) turned the key only half way and because of the vibrations while the landrover was in motion the said key then must have disentangled itself. The story that the steering was locked received support from the Prosecution own side. PW1, the driver of the other lorry, swore that he saw Felix try to struggle with the steering just before the impact. Had the learned trial Magistrate reviewed the evidence with judicial objectivity he would have found that the steering must indeed have locked. Had there been some other defect in the steering then certainly one would have expected it to show excessive play and not to lock. On my evaluation of the evidence I am satisfied that the steering locked and the explanation given by the defence for so doing is, in all the circumstances of the case plausible. The fault was, indeed, that of Felix who was careless in turning the key of the lock half way. That was no defect at all and I so hold. Finally, turning to the windscreen. P1 shows that it was broken. The defence story given by D1, DW2, DW3 and DW4 is that it only had cracks and on the passengers side. 

According to the defence witnesses the said cracks did not let in air or water at all as the G windscreen had three layers of glass. The only evidence on this point was given by the defence. As aforesaid George himself did not give evidence. There is a difference between a broken windscreen and a cracked windscreen. In the absence of any direct evidence on this point on the prosecution side the defence version stands unshaken and H there was no reason which was advanced by the learned trial Magistrate for rejecting it. On my part cracked windscreen which lets in neither water nor air does not come within the ambit of section 39(1) of the Road Traffic Act. Before I pen off, let me point out that it has not been easy for this Court to find or see I the basis for the order of compensation. This issue was not properly before the Court, if at all. The learned trial Magistrate, therefore, overstepped his bounds of propriety when he nevertheless made the order and he acted in excess of his jurisdiction. All in all, for the reasons given I allow this appeal. The conviction is quashed and the sentence passed thereon is set aside. The fine which was paid should now be refunded  to the appellant company. The order of compensation is also set aside. It is ordered accordingly.

Appeal allowed.

1985 TLR p252

D