H D'Souza, Ag. J.: The appellant Safiel Mrisho was at all material times a private with Tanzania Peoples Defence Forces (T.P.D.F) at Dodoma. He was a driver. On 8/2/82 he was brought before the District Court at Dodoma in Traffic Case No. 50/82 charged with three counts under the Road Treaffic Act No. 30/73. On the first count he was charged with causing death through careless I driving c/s 41 and 63 (2) (b), on the second with failing to report an accident to the nearest police station or police officer within
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12 hours c/s 57 (2)(b) and 63 and finally on third count with driving a motor vehicle on a public road A with defects. In each of the three counts the particulars stated that the offence took place on the 4th of February, 1982 at about 19.30 hours along Arusha road within the municipality of Dodoma. The appellant pleaded guilty to the third count and was fined Shs.500/= or 6 months in default. B Thereafter the trial proceeded on the other two accounts.
At the trial PW.1 Shabani Badi stated that on 4.2.82 at 7.15 p.m. he saw an army truck overtaking a Peugeot motor vehicle and crashing into an oncoming cyclist. The army truck did not stop but put off its lights and disappeared. The cyclist, he says, was on his correct side of the road when C knocked. PW.2 Inspector James Kombe was on 4/2/82 informed of the hit and run case. He went to the army camp at Dodoma where he found one truck being repaired. He found the appellant there in uniform. He told the appellant and others present that he suspected that the motor vehicle had been D involved in an accident. He found the front part of the motor vehicle damaged. He found grains of sugar in the front mudguard. He also found a piece of trouser identical to the trouser worn by the cyclist. On cross-examination by the defence counsel PW.2 stated that the front bonnet of the vehicle was damaged. He did not know who drove the vehicle to the police station. He did not keep E the piece of trouser as exhibit. PW.3 Police Constable Bruno went to the scene of the accident on 4/2/82. He found neither the cyclist nor the motor vehicle there. He drew a sketch map of the scene which he tendered in court. At the point of impact there was sugar spread about. The next day he F went to the army camp at Dodoma where he arrested the the appellant, fond the truck, and ordered the appellant to drive it to the police station. He found black threads from the deceased's trousers and sugar particles on the oiltank and mudguard of the motor vehicle. He went to the hospital to see G the cyclist. Later the same day the cyclist died. PW.4 one Joseph Massawe testified that on 4/2/82 he was driving a Peugeot motor vehicle into town, when a military truck, driving fairly fast overtook his vehicle, and crashed into an oncoming cyclist.
In his defence the appellant agreed that he was driving the said motor vehicle No. JW 4390 on the H day in question but he says he returned to the camp and parked the vehicle at 6 p.m. On that day between 13.30 p.m. and 6 p.m. he went to the army unit at Veyula to ferry flour beans, sugar and vegetables. After 6 p.m. he said he went home. The sugar grains found on the motor vehicle must I have come from the sugar he was ferrying for Veyula Unit and not
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A from the package deceased was carrying. The black threads must have come from some soldier's clothing. He said on the day his vehicle had no battery and no lights. Cross examined by the prosecution he said that he admitted the third count because on 4/2/82 he had used the motor B vehicle. He agreed the motor vehicle was inspected in his presence and he signed the motor vehicle inspection report. He did not know how the sugar grains got into the front mudguard.
DW.2 Donatus Gasper a T.P.D.F. soldier, stated that on 4.2.82 the appellant was sent to Msalato to C collect fertilizer. He left at noon and returned at 6 p.m. He parked the vehicle and went home. AT 6.20 p.m. one TPDF soldier Samwel Mwita went with the motor vehicle to Chadulu. He returned at 8.30 p.m. He said this Samwel Mwita was a Mechanic. By 13.4.83 he had left employment and gone D home. On cross-examination Dw.2 said he was sure the appellant was ferrying fertilizer and not food stuffs on that day. DW.3 Alphonce Jengela a TPDF staff sergeant testified that he is incharge of transport. He sent appellant to Msalato at 12.00 to collect fertilizer. Appellant was not seen by him again until 6/2/82. Dw.4 Sergeant Togo of TPDF at Veyula testified that between 12.00 noon and E 2.30 p.m. the appellant helped them to ferry foodstuffs, including sugar. He says the youths off-loading the sugar spilled some. When loading it the youths passed the front of the vehicle.
The trial court found that the appellant was the one who drove the truck involved in knocking down F the deceased. It based the finding on the following facts: 1. An army truck was involved in the accident. 2. The truck used by the appellant on the day of the accident was found to have damages in-front. 3. There was sugar on the front mudguard and oil tank of the truck. 4. The deceased at the time he was knocked down was carrying a parcel of sugar that burst during the accident, spilling the G sugar. 5. There were pieces of black thread on the truck. 6. The deceased was wearing a black trouser at the time of the accident.
Learned counsel for the appellant Mr. Mbezi argued that the evidence fell short of proving that the H truck examined by the vehicle inspector was the one that was involved in the accident. He argued that the vehicle inspection report Exh. 'A' did not show any damages after the accident. The pieces of thread were not proved to have come from the deceased's trousers and the sugar on the mudguard and oil tank was explained by the defence.
I In the alternative counsel argued that even if the truck involved in the accident was the same one examined by PW.2 it was not proved
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in evidence that the appellant was the one who was driving the vehicle at the material time. He A stressed the defence evidence that one Samwel Mwita another soldier had used the motor vehicle after the appellant parked it at the army compound.
The investigation in this case was far from satisfactory. Nobody explained why no definite B comparison of the threads or piece of trouser found on the motor vehicle was made with the deceased's trouser and why both items were not kept as exhibits. It was erroneous for the trial court to consider that piece of evidence. I will consider the effect of this on the conviction later. The same however cannot be said for the sugar found in the front bumper and on the oil tank. As it was C proved that the deceased was carrying sugar at the time he was knocked down, and that the accident caused this sugar to spread about this was one of the factors the trial court would take into account.
Learned counsel stressed greatly that the defence was wrongly rejected or not given weight. But let D us look at the defence carefully. One day after the accident the appellant was challenged as the perpetrator of the accident. He did not tell the police that another person drove the vehicle after 6.30 p.m. Some four months later during the trial this suggestion was not put to the police witnesses. E Nor was the suggestion that the vehicle had been carrying sugar for the army put forward. As was held in the case of R. v Ehsanulhag s/o Karim Bux (1940) 7 E.A.C.A. 48 it must inevitably affect the mind of the tribunal by detracting from the force of the defence when an explanation of some fact, prima facie inculpatory of the accused which in the circumstances must have been readily available F to him, is not offered until some late stage in the proceedings. In this case the defence appears to have been developed as an afterthought to cater to the prosecution evidence. I would say that the trial court was entitled to reject the defence. This does not mean that because the defence was G rejected the court was entitled to convict. The burden of proving the case beyond a reasonable doubt was still on the prosecution.
Learned counsel for the appellant argued that the vehicle did not show damages as Exh. 'A' did not reveal the same. With respect I cannot agree. Exhibit 'A' has two pages. The report on page two H shows that the front bumper was scratched on the off side and that the front mudguard was cracked on the off side. The report also noted the finding of sugar particles on the bumper bonnet and oil tank. This report was signed by the appellant on both its pages. I
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A Aside from, not noting the significance of the appellant signing the vehicle inspection report showing damages/defects before and after the accident the trial court also failed to consider the significance of the appellant's plea of guilty and his agreement to the facts on the third count. In the B case of Hamadi Juma v R. [1970] HCD 30 Seaton, J. held that words spoken by an accused in his plea could not be used as evidence against him. However in an earlier case R v Madirisha Kitikiti [1969] HCD 233 Duff, J., citing a decision by Biron, J. in Issa Mohamed v.R Criminal Appeal 108 (PC) C of 1968 High Court Dar es Salaam and the English decision in R. v Hazeline [1967] 2 Q.B. 857, held that such words can be used in evidence. Of these two conflicting views the latter appears to be sound. I see no reason why words spoken by an accused to anyone else can be evidence against him but not words spoken by him in open court. However in this case things are slightly different as D in this case the appellant agreed to the facts as put to him in the third count. These mentioned the date, time and place of the driving. The date, time and place coincide with the date, time and place the deceased was knocked down. I hold that this admission should have been taken into account against the appellant.
E In this appeal it would appear that the trial court erroneously took into account the evidence of the threads from the trousers of the deceased and equally erroneously failed to take into account other admissible evidence on record.
F Where the trial court has wrongly admitted or rejected evidence at a trial the issue for a first appellate court is whether, on the evidence properly admissible and on record, the trial court would have convicted.
In this case I find that the admissions of fact on the 34th count coupled with the evidence of G reckless driving given by the prosecution witnesses was sufficient to prove the case against the appellant beyond a reasonable doubt.
If any corroborative evidence is needed (which I find was not needed) this can be found in the finding of sugar particles on the appellant's vehicle, the damages to the same, and his agreement to H sign the vehicle inspection report.
I accordingly dismiss this appeal in its entirety.
I Appeal dismissed
A