IN THE COURT OF APPEAL FOR EAST AFRICA
AT DAR ES SALAAM
(CORAM: SPRY, V.-P., LAW, AND MUSTAFA, JJ.A.)
CIVIL APPEAL NO 24 OF 1971
AKBER VIRJI. . . . . . . . . . . . ……….………………………….…. . . .APPELLANT
.A N D
EMU MWAKANGATA. . . . ……………………….... . …. . . . . . . . RESPONDENT
(Appeal from the judgment and decree of the High Court of Tanzania at Dar es Salaam (Biron, J.) dated 18th March,1971 in Civil Appeal No. 23 of 1970)
26th August, 1971
The following Judgments were read:
MUSTAFA, J. A.
Emu, the respondent, had filed an action against Akber, the appellant, in March, 1967 in a Magistrate's Court claiming damages arising out of a collision between their respective motor vehicles. Akber denied liability and counter-claimed from Emu. Emu was wholly successful in the Magistrate's Court. Akber appealed from that judgment to the High Court at Dar-es Salaam. The High Court set aside the judgment and ordered a hearing de novo.
The case was then re-tried before another Resident Magistrate who found that Emu was solely to blame for the collision and dismissed his claim with costs.
He also disallowed the counter-claim of Akber apparently on the ground that there was insufficient evidence to support the claim for damages.
From that judgment Emu appealed to the High Court which reversed the finding of the trial Magistrate and held that Akber was solely liable for the collision. The learned judge remitted the case to the Resident Magistrate's Court for assessment of damages. Akber is appealing from that judgment to this Court.
Akber' s case was as follows. On the material day he was driving a land rover with his turnboy sitting beside him. He was driving on the Tukuyu/Mbeya road towards Mbeya.It was a very dusty road. There was a lorry about 150 yards ahead of him, going in the same direction and raising a cloud of dust.
He saw a car coming from the opposite direction when the car had passed the preceding lorry and was a short distance from him; he saw the car veering directly towards him. He said there were some women on his left side of the road and to avoid the on coming car he turned to the right side of the road, i.e. to his wrong side of the road. As he was doing so the on-coming car also swerved back to its correct side process both his land rover and the on-coming car collided with each other.
There is evidence that both the vehicles ended on the wrong side of the road in relation to Akber. There was damage to the left i.e. the near side of Akber's land rover and damage to the right i.e. the off side of Emu's car. Akber's version was that he had to swerve to his wrong side of the road in order to avoid a head on collision with Emu's car which was coming directly towards him.
Akber's turnboy in substance corroborated this testimony. There was also another witness for Akber, an inspector of police, P.W.3, who said that he arrived at the scene shortly after the collision. He saw both the motor vehicles were "on the right hand side if one was facing Mbeya" i.e. on the wrong side of the road so far as Akber was concerned. He saw skid marks of Akber's vehicle on his correct side of the road and also skid marks of Emu's vehicle from "his wrong side of the road going to his correct side".
He then gave as his opinion "according to what I saw the impact took place when the defendant's car was on his correct side of the road and both vehicles were dragged to the other side of the road".
He also said that Emu told him that because of the dust he had unfortunately driven on to his wrong side of the road. Both Akber and his turnboy also alleged they heard Emu telling the Inspector about his having driven on to his wrong side owing to the dust. Emu gave evidence and called no witnesses. He said as he was driving towards Tukuyu a lorry passed him from the opposite direction.
Shortly thereafter he saw Akbar's land rover also coming from the opposite direction. The land rover collided with his vehicle while he was still on his correct side of the road. He said there was a "head-on collision of the two vehicles”.He said that the lorry had raised a cloud of dust. He denied that he had crossed over to the wrong side of the road because of the dust or that he had said so to the Inspector. Emu seemed to allege that Akber drove his land rover across the road to his side and thereupon the collision took place. The trial Magistrate reviewed and considered the evidence. He said he had not the slightest doubt that the account given by Akber and the turnboy and the Inspector was correct and that Emu was solely to blame "for driving on the wrong side of the road and causing this accident .
The learned judge in his judgment referred to the evidence of the Inspector and quoted from the portion which reads:
"According to what I saw the impact took place when the defendant's car was on his correct side of the road and both the vehicles were dragged to the other side of the road."
The learned judge commented "the Magistrate, apparently in reliance on this evidence found for the respondent and dismissed the appellant's claim".
The learned judge then quoted extensively from several cases in respect of the well-known principle that a first appeal is by way of re-hearing and that a judge on appeal can differ from a trial court on inferences from facts, and in certain cases, from the findings of facts themselves. The learned judge then proceeded to "examine and evaluate the evidence”. He criticized the evidence of the Inspector and particularly his opinion that the impact took place when Akber's land rover was on his correct side of the road.
It is true neither Akber nor Emu had said that the impact took place on Akber’s correct side of the road. However, that was the Inspector's opinion as to the point of impact. He also appears to have attached great significance to the fact that the Inspector's evidence was inaccurate as regards the moment when he arrived on the scene, although this is hardly surprising in view that he gave his evidence more than three years after The Inspector had also given factual evidence of the skid marks left by both the vehicles, the nature of damage to the es and the oral admission of Emu that he had driven to the wrong side of the road because of dust.
These pieces of evidence, particularly that about the skid marks, were not sufficiently taken into consideration by the learned judge. Magistrate did not only rely on the opinion he relied on the evidence of Akber, the turnboy and of the inspector in coming to the conclusion that Emu was solely to blame for the collision.
The learned judge in his attempt to discredit the evidence accepted by the trial Magistrate said: "It will be necessary to refer to these proceedings", these proceedings being those of the first trial at the Magistrate’s court and those of the High Court ordering a re-trial. The learned judge then referred to them extensively. With respect, I think the learned judge misdirected himself here. I think the previous judgments and proceedings were previous sworn testimony of the witnesses could have been put to them when they were being cross-examined. It could not without being put to the witnesses and properly produced, be used as evidence, as the learned judge did, to discredit or contradict the evidence given at the second trial. Mr. Tarimo for Emu has submitted that these proceedings were admissible under section 35 of the Evidence Act.
That section is clearly not applicable as none of the circumstances listed in the section existed. Indeed in Roe v. R.A. Naylor, 1im (1918) Vol. 87 1.J. K.B.959 Swinfen Eady, M.R., said at page 963:
"Counsel for the appellants sought to rely upon some finding of the Judge in the first trial of the action. In my opinion, he is not entitled to do that. This action was sent for a new trial, and the second trial superseded the first, and any finding in the first action was got rid of when the action was sent for a new trial."
That seems to me to be both good sense and good law.
The learned judge even took objection to the Inspector's assessment of the value of Emu's car. It was obvious that the Inspector, who was the officer in charge of the traffic section at the time, was asked what in his opinion was the value of Emu's car and he replied to that question. The learned judge said that the Inspector "even went out of his way in that, apart from giving his opinion as to whether and how the collision occurred, he also gave an evaluation of the appellant's car, which he put at shs.2, 000/-, thus setting himself up as an expert assessor". I would have thought that the Inspector was justified, when asked, in giving such an opinion and he should not have been censured for so doing.
The learned judge relied on the proceedings in the previous actions and the inferences there from to discredit Akber’s and his witnesses' testimony and to reverse the factual findings of the trial Magistrate. Once these previous proceedings are excluded, the evidence on record would support the trial Magistrate’s conclusion that the collision was due solely to the fault of Emu. There were two versions before him and after a careful review and analysis he chose to believe the version given by Akber and his witnesses. I can detect no misdirection of law of fact in the trial Magistrate's reasoning and conclusion. In my view the learned trial Magistrate’s finding in the circumstances, since the material he relied on to do so was inadmissible.
I would allow the appeal, set aside the order of the High court and restore the judgment and finding of the trial magistrate.
I would award the costs of the appeal and of the High Court to the appellant.
I agree with the judgment of Mustafa, J .A, and with the order he has proposed.
As Law, J.A., also agrees, it is so ordered.