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THE REPUBLIC OF UGANDA
IN THE COURT OF UGANDA AT MASAKA DISTRICT
REGISTRY
CRIMINAL APPEAL NO. MSK-00-CR-CV-0009 OF 1999
(Arising
from Original Criminal Case No. NPT 514 of 1997)
ISINGOMA ASAFU
APPELLANT
Versus
UGANDA
RESPONDENT
BEFORE: THE HONOURABLE MR. JUSTICE FMS
EGONDA-NTENDE
JUDGEMENT
[1] The
Appellant, Isingoma Asafu, was convicted of two counts. Count 1 was reckless
driving contrary to Sections 118 (1) (c) and
65(1) (a) of the Traffic and Road
Safety Act 1970. Count 2 was causing bodily harm by reckless driving contrary to
Sections 116 (1)
and 138(2) (a) of the Traffic Road and Safety Act 1970. The
trial Court sentenced the appellant to six months imprisonment; cancellation
of
the appellants driving permit for three years and disqualification from
obtaining any other driving permit for three years on
the first count. On Count
2, the trial court sentenced the appellant to two years imprisonment. The
appellant now appeals against
conviction and sentence on both counts.
[2]
The prosecution called seven witnesses to prove its case. PW1 was Nsabiyunva
Monday Vincent, twenty-six years old, and a resident
of Kibaale village, Bukoto
County, in Masaka District. PW1 testified that on the 3rd March 1997
at about 10.30 a.m. he was traveling in a vehicle from Kinoni to Masaka. The
vehicle stopped at Kaboyo village and he
alighted from the vehicle. He moved to
the left side, away from the main road, to join the minor road going to Kibaale.
A minibus,
registration no. UAR 957, coming from Mbarara side came and knocked
him. It did not stop but continued on to Masaka.
[3] PW2 was Debrah
Karijja, a forty-year-old housewife, resident of Kaboyo village, on the main
road between Masaka and Mbarara. She
was at home on the 3rd March
1997 at around 10.30 a.m. She saw an Isuzu bus coming from Kampala towards
Mbarara. Another vehicle, a taxi came from Mbarara
side towards Kampala. Before
the two vehicles reached each other the taxi from Mbarara side, stopped and PW1
came out. Behind this
vehicle, a Posta bus following it slowed down and also
stopped. A minibus registration number UAR 597, following behind the Posta
bus
slowed and then overtook the Posta bus on the left-hand side and knocked PW1.
This vehicle did not stop but continued on its
way. It was dry on that day. It
had not rained.
[4] PW3 was Namatovu Mary, 45 years old and a resident of
Kaboyo village. She was at home on the 3rd March 1997. She heard
noise outside at around 11.00 a.m. She came out of the house. She saw that PW1
had been injured in the left
leg. It was broken and bleeding. PW4 was Dr. Mary
Lynch a medical practitioner for the last 36 years specialised in surgery and
tropical
medicine and attached to Kitovu Hospital for the last ten years. On the
30th March 1998(7) She received PW1 as a patient. PW1 complained of a
severe injury on the left leg. She examined him and found that all
the tissues
of the leg were dead. He had a fracture of the thigh and lower leg. She
amputated the leg to save the life of the patient.
He became a cripple for life.
She classified the injury PW1 suffered as grievous harm of a severe degree. A
medical report made by
the witness was admitted as exhibit P 1.
[5] PW5
was No. 24888 P.C. Ojara attached to Masaka Central Office. He received the
report of the accident on 3rd March 1997 at the traffic office in
Masaka. He recorded it and proceeded to the scene of accident. He did not meet
anyone at the
scene. Nor did he interview anyone there. He drew the sketch plan
and left. The sketch plan was admitted in evidence as exhibit P2.
[6] PW6
was Masembe Saaka. On the 3rd March 1997 he was traveling in the same
vehicle as PW1 from Kinoni to Masaka. When they reached Kaboyo the vehicle
stopped and PW1
alighted. He moved to the murram road to Kibaale. A vehicle came
from behind and knocked PW1. This vehicle did not stop. After the
accident the
witness took PW1 to Kinoni Health Centre. PW7 was James Christopher Opio,
Inspector of Vehicles stationed at Masaka.
His entire testimony was hearsay and
inadmissible. I shall therefore omit it reproducing it here.
[7] The
defence called one witness and this was the accused. He stated that on the
3rd March 1997 he was driving a vehicle 597 UAR from Mbarara to
Masaka. When he reached Kaboyo, an accident occurred. He was following
a Posta
bus. There was a small vehicle ahead packed in the middle of the road. When the
Posta bus reached this small vehicle it stopped.
Accused tried to stop but
failed because he was driving too close to the Posta bus. He swerved to the
left. PW1 who was on that side
slipped and fell. Accused drove over his left leg
crushing it. He stopped suddenly but then drove on. He went and made a report to
Masaka Police Station. It had rained on that day.
[8] The trial court was
satisfied that the prosecution had adduced sufficient evidence to prove the two
counts against the accused
and found him guilty as charged. Appealing against
that conviction and sentences the appellant sets forth seven grounds of appeal.
At the time of arguing this appeal, ground 6 was abandoned. The first ground was
to the effect that the trial Magistrate erred in
law and fact when she came to
the conclusion that the appellant act was reckless in absence of evidence to
support the conclusion.
[9] Mr. Kamugunda, learned Counsel for the
appellant, argued the appellant provided an explanation as to why he was not in
control
of the vehicle at the time of the accident. And that therefore in the
circumstances he acted neither recklessly nor dangerously.
Mr. Simon Khauka,
learned Resident Senior State Attorney appearing for the respondent supported
the conviction, arguing that there
was sufficient evidence upon which the trial
court acted to found a conviction. In my view there is ample evidence on record
to prove
that the appellant was reckless in his management of the motor vehicle
in question at the material time. On his own admission he
failed to bring his
vehicle to a stop. When it became evident that having failed to do so, he would
have to swerve off the road on
the left or the right side of the road, to avoid
hitting the Posta bus that he had been following, he chose to swerve to the left
off the road. Of course he avoided swerving to the right for there was an on
coming Isuzu bus from Masaka.
[10] In ground 2 the appellant complains
that the learned trial Magistrate erred in law when she convicted the appellant
of the offence
with which the appellant was not charged. Mr. Kamugunda learned
counsel for the appellant, submitted that the appellant was charged
with
reckless driving contrary to sections 118 (1) (c) according the judgement of the
court below. He had in fact been charged with
dangerous driving, according to
the section referred to in the charge sheet. He was then convicted of the
offence of reckless driving
with which he had not been charged. Mr. Kamugunda
submitted that as the offence of reckless driving was not a minor or cognate
offence
to the offence of dangerous driving, the court below erred in convicting
the appellant of reckless driving.
[11] Mr. Khauka, in response to these
arguments submitted that the appellant had been charged under the section for
dangerous driving.
The trial court treated the charge as one of reckless driving
and convicted him accordingly. This conviction was proper in law in
respect of
the offence of dangerous driving and ought to be upheld.
[12] I think it
is useful to set out the charges as they appeared in the charge sheet.
"Charge
Uganda Versus Isingoma Asafu, m/a aged 25 years, Uganda of
Mbarara in the
District of Mbarara.
Statement of Offence
CT 1: Reckless Driving c/s 118 (1) (c) and 138 (2) (b) and 65 (1) (a) of the
Traffic
and Road Safety Act, 1970.
Particulars of offence
Isingoma Asafu, on the 3rd day of March 1997 at about 1115 hrs at I
km after Kinoni along Masaka Mbarara Road, in the District of Masaka, did drive
a motor
vehicle Reg. No. 597 UAR Toyota Hiece Omini Bus, on the road, in such a
manner which was or might have been dangerous to the public
having regard to all
the circumstances of the case.
Statement of Offence
CT. 11. Causing Bodily Injury By Reckless driving c/s 116 (1) and 138 (2) (a)
of
the Traffic and Road Safety Act, 1970.
Particulars of Offence
Isingoma Asafu, on the 3rd day of March 1997 at about 1115 hrs at 1
km after Kinoni along Masaka Mbarara Road, in the District of Masaka, caused
bodily injury
to (Monday Vincent) by the driving a motor vehicle Reg. No. 597
UAR Toyota Omini Bus recklessly."
[13] Section 118 (1) ( c) of the
Traffic and Road Safety Act, 1970 actually refers to the offence of dangerous
driving, rather than
the offence of reckless driving which is created under
section 118 (1) (a) of the Traffic and Road Safety Act, 1970. The particulars
of
the offence in count 1 refer or attempt to make out the offence of dangerous
driving rather than reckless driving which appears
in statement of the offence.
It would appear that the intention of the prosecution was to charge the
appellant with the offence of
dangerous driving but inadvertently mentioned the
offence to be reckless driving in the statement of offence, even if the section
referred to was for dangerous driving and the particulars were for dangerous
driving too.
[14] The trial court examined the evidence on record,
considering this to be a case of reckless driving and purported to convict the
appellant of the offence of reckless driving. In doing so, the court referred to
Section 118 (1) (c) of the traffic and Road Safety
Act, 1970 as the section
under which appellant was being convicted. This section created the offence of
dangerous driving. In the
circumstances of this case, I am unable to let the
conviction on this count stand. The trial court was under a duty to make sure
the charge was proper under the law, including the correct reference to the
proper sections of the law before the proceeding with
the trial. It did not do
so here. Even in conviction, the court failed to state the proper section under
which the offence of reckless
driving arises from, which is what I presume, the
court intended to convict the accused of.
[15] If I were to accept Mr.
Khauka's submission that the appellant was charged with the offence of dangerous
driving and that the
conviction was for dangerous driving, presumably because
the section referred to is the section that creates the offence of dangerous
driving, this would be ignoring the fact that the trial court in consideration
of the facts and the law dealt with them on the basis
that the appellant was
answering a charge of reckless driving. The two offences of dangerous driving
and reckless driving are two
different offences, though there may be
similarities. The legislature created two different offences, which must be
prosecuted as
different offences. In part I am in agreement with Mr. Kamugunda
that the appellant was charged with one offence and tried and convicted
of
another offence that was not minor or cognate to the one charged. The conviction
in count 1 must therefore be set aside. Ground
2 succeeds.
[16] Ground
No. 3 was to the effect that the trial Magistrate erred in law when she
convicted the appellant on the count 2 basing
her conclusion on count 1. Mr.
Kamugunda submitted that if ground 2 succeeds then ground 3 ought to succeed
too. I do not think so.
Notwithstanding the confusion that arose with respect to
the offences appellant was charged with, tried for and convicted of , this
does
not render the conviction in respect of count 2 automatically untenable. Even if
the trial magistrate bases her reasoning on
the fact that a conviction on the
count 1 enabled her to find, for purposes of count 2, that the appellant had
caused bodily injury
to PW1 by driving the vehicle in question recklessly, the
setting aside of the conviction on count 1, compels this court to determine
if
there is enough evidence to find that the appellant committed count 2, rather
than necessarily upsetting a conviction on count
2.
[17] As noted above
in consideration of ground no. 1 above, I think there is enough evidence, that
the appellant drove motor vehicle
597 UAR recklessly. The appellant was
following the Posta bus. The Posta bus came to a stop. The appellant ought to
have also brought
or otherwise managed his vehicle that it stopped behind the
Posta bus. He did not manage to do this. And the explanation is that
he was
driving too close to the Posta bus to bring his own vehicle to a stop. This
explanation arises from his own testimony. This
was in my view sufficient
evidence of reckless driving. That is not all. He left the main road, attempted
a manourve, on the left
side of the road, to overtake the vehicles ahead of him,
on the wrong side of the road, and while there knocked down PW1. He acted
in
reckless disregard for the safety of other people. He ought to have brought his
vehicle to a stop, behind the Posta bus.
[18] PW3 and PW4 testified as to
the injuries sustained by PW1. PW3 saw PW1 just after the accident. She noticed
that his leg was
broken and bleeding. PW4 was a surgeon who amputated the PW1,
removing the limb, after all tissue had died. She classified the injury
as
grievous harm of the most severe degree. PW1 is now a cripple. I think the
evidence that PW1 suffered bodily injury as a result
of being knocked by a
vehicle driven recklessly by the appellant is overwhelming. I am satisfied that
count 2 was proven. The conviction
for the same shall stand.
[19] Ground
4 was to the effect that the trial magistrate erred in law and fact when she
based her conclusion on matters not proved
by prosecution evidence. In his
address to this court Mr. Kamugunda, learned counsel for the appellant,
submitted that no prosecution
witness referred to the appellants driving as
reckless or dangerous. He therefore submitted that the ingredients of the
offences
in both counts had not been proved. As I have noted above there was
sufficient evidence available on the record to conclude that
the appellant drove
his vehicle recklessly. He drove without caution and in a rash manner. He
evidently managed his vehicle in complete
disregard of the consequences of his
conduct. The evidence of PW1, PW2 and the testimony of the appellant are
sufficient proof to
arrive at this conclusion.
[20] Ground 5 was to the
effect that the trial magistrate erred in law when she admitted in evidence and
relied on Exhibit 1, which
was improperly tendered in evidence. Mr. Kamugunda
learned counsel for the appellant submitted that the exhibit in question, which
was an inspection report of a motor vehicle, had not been proved in law. Its
maker did not tender it in, and no basis was laid for
someone else to tender the
same in. I entirely agree. This exhibit was not proved, as its maker was not
brought. It should not have
been admitted into evidence. Nevertheless, its
exclusion does not weaken the case against the appellant.
[21] The last
ground is to the effect that the appellant was sentenced to an extremely harsh
punishment without an option for a fine.
Mr. Kamugunda submitted that the
appellant was sentenced under Section 138 (1) (b) of the Traffic and Road Safety
Act, 1970, whereas
he should have been sentenced Section 138 (2) (b) of the same
Act. He submitted that sentences of 6 months and two years of imprisonment
were
very harsh for a young man of twenty-five years. He ought to have been given an
option for payment of a fine. Mr. Simon Khaukha
supported the reasoning and
orders of the trial court on sentencing. The option of a fine had been
considered but rejected.
[22] As I have set aside the conviction on Count
1, the sentence of six months imprisonment; cancellation of driving licence and
disqualification
from applying for a driving licence are accordingly quashed.
With respect to the sentence on count 2, the trial court referred to
the
contents of Section 138 (2) (a) of the Traffic and Road Safety Act, and found
that a sentence of two years imprisonment was the
adequate punishment for the
offence. The maximum punishment was five years imprisonment. Two years was the
minimum custodial punishment.
I cannot fault her reasoning. I am not persuaded
that the trial court either applied the wrong principles or that the sentence is
so manifestly excessive that as an appellate court I ought to interfere. This
ground to this extent fails.
[23] This appeal succeeds in part and fails
in part. The conviction and sentence on count 1 is quashed. The conviction and
sentence
on count 2 is upheld.
Dated, Signed and Delivered at Masaka
this 25th day of August 1999.
FMS
Egonda-Ntende
Judge
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