Rashid v. Republic Crim. App. 342-M-70; 29/7/70; Onyinhe J.

Rashid v. Republic Crim. App. 342-M-70; 29/7/70; Onyinhe J.

The appellant pleaded guilty to two counts of driving a motor vehicle on the public road without due care and attention c/ss 47(1) (a) and 70 of the Traffic Ordinance (Cap. 168) and “using a motor vehicle without a third party risk insurance policy’ c/s 4 (1) & (2) of the Motor Vehicle Insurance Ordinance (Cap. 169). He was sentenced to a total fine of Shs. 250/- or two months imprisonment in default and disqualified from holding a driving licence for twelve months. On appeal against conviction and sentence, additional evidence was admitted to show that (a) at the material time policy o insurance existed and (b) there were special reasons why the appellant should not be disqualified from holding a driving licence. The evidence showed that the accident in question occurred on the 4^th of April 1970. the vehicle (MZD 474) which appellant was driving belonged to a large building and engineering company which engaged special agents in Dar es Salaam to handle its insurance matters. On the 24^th March a letter had been written by the agents to the National Insurance Corporation requesting renewal of insurance in respect of the vehicle. On the 1^st April a further letter was written and it ended by saying, “In the meantime, the risk understood to be held covered”. On the 15^th May a letter issued from the General Manager N.I.C. stating that a policy in respect of the MZD 474 which had expired on the 31^st March was renewed from thereafter to expire on the 31^st March 1971.

            Held: (1) “There being no policy of Insurance in respect of MZD 474 on the 4^th April 1970, appellant’s plea of guilty is taken as unequivocal and his appeal against conviction is therefore incompetent. A distinction should be drawn between the existence of a policy of insurance, on a particular date and the issue of a policy of insurance with retrospective effect to cover that particular date. The former complies with s. 4 (1) while the latter does not. The question, posed above, cannot, therefore, be concluded by the fact that an Insurance Company considers itself ‘on risk with regard to a particular date. The assumption of risk by Insurance Company may be relevant and conclusive in civil proceedings but that is another matter.” (2) “I find as a fact that what the Insurance Company did was to issue a policy of insurance in respect of the vehicle (MZD 474) with retrospective effect from 1^st April 1970. This was perfectly legitimate but unfortunately it could not save the appellant from conviction under s.4 (1) of the Motor Vehicle Insurance Ordinance. There was no policy of insurance in respect of the use of the vehicle (MZD 474) on the 4^th April, 1970”. (3) “The letter from the agents that in the meantime, the risk is understood to be held covered.” Compliance with. 4(1) of the Motor Vehicle Insurance Ordinance cannot be regarded as cover note for “s. 4 (1) of the Ordinance contemplates a document embodying a valid contract of insurance or at least a cover note. Section 5 provides that in order to comply with the requirements of s. 4 the Policy of Insurance ‘must be a policy which is issued by a person who is approved by the Governor in the Gazette, as an insurer for the purpose of this Ordinance’. The whole policy of the Ordinance would be defeated if oral undertakings were to be held to be a compliance with s. 4 (1) of the Ordinance.” (4) “Special reasons’ has been described as “a mitigating or extenuating circumstance, not amounting in law to a defence, yet directly connected with its commission, which the court ought o consider when imposing punishment.” WHITTALL v. KIRBY [1946]2 All England Reports 552). A circumstance peculiar to the offender as distinguished from the offence cannot be regarded a special reason. Thus the fact that an accused is a first offender or that he has committed no motoring offence for many years is not a special reason but is rather a general reason not directly connected with the commission of the offence under s. 4 (1) and is the sort of mitigating fact advance by any accused in an ‘allocutus’ after being convicted of any offence.” (5) “What is ‘special reason’ must depend on the circumstances of each case. It is unwise to generalize.” The appellant was an unsophisticated driver working under a big company manned by responsible officials I so not think it would be reasonable to expect the appellant to confront his employers and ask them to satisfy him that his particular vehicle was effectively insured. I find that special reasons exist in this case which make the court would refrain from making an order of disqualification on the appellant. The order of disqualification imposed on the appellant should be set aside.” (R. v. Mtumwa [1951] 1 T.L.R. 99, 100 and R. v. John Gedeon [1957] E.A. 664). (6) “In cases like this, the more appropriate person to be charged is the owner or employer who has ordered or let the driver use a Vehicle which has not been insured though this is not to negative the criminal liability of an employed driver. (R. v. Gedeon [1957] E.A. 664 and John s/o Mhanze [1969] H.C.D. 62). Fine on the second count is therefore reduced to Shs. 50/-“(7) “Appeal partly allowed.”