THE REPUBLIC v SEBASTIAN NDOMBA 1986 TLR 190 (HC)

THE REPUBLIC v SEBASTIAN NDOMBA 1986 TLR 190 (HC)

Court High Court of Tanzania - Mtwara

Judge Rubama J

8th July, 1986.

CRIMINAL REVISION 24 OF 1986

Flynote

D Commercial Law - Insurance - Causing a motor vehicle to be used on a road

without a certificate of insurance - Motor Vehicle Insurance Ordinance, Cap. 169,

s.4(1).

Commercial Law - Transport licensing - Using a goods vehicle without transport

licence - Transport Licensing Act, 1973, s.10(1)(a)(2) and (7). E

Criminal Practice and Procedure - Sentencing - Previous High Court judgment

misinterpreted - Magistrate imposing sentences which do not reflect the seriousness

of the offences - Accused not disqualified from holding or obtaining a driving licence

as required by the law. F

-Headnote

After convicting the accused of, inter alia, causing a motor vehicle to be used on a

road without a certificate of insurance and using a goods vehicle without transport

licence, the trial magistrate purporting to rely on a High Court decision G imposed

lenient sentences and failed to comply with a mandatory requirement to disqualify

the accused from holding or obtaining a driving licence for some period. The High

Court ordered revision.

H Held: (i) While the primary duty to have a policy of insurance for motor vehicles

in respect of third party lies with the owner of the motor vehicle the law makes it

unlawful for anybody to use or to cause or permit any other person to use a motor

vehicle on a road unless the motor vehicle has an insurance or third party insurance

cover; I

1986 TLR p191

RUBAMA J

A (ii) according to s.4(1) and (2) of the Motor Vehicles Insurance Ordinance,

Cap.169, the consequences of driving a motor vehicle which has no insurance cover is

equally borne by the owner or anybody in control of the motor vehicle and the driver

of the motor vehicle irrespective of his status;

B (iii) the import of s.10(1)(a)(2) of the Transport Licensing Act, 1973, is at all

four with s.4(1) of the Motor Vehicles Insurance Ordinance, Cap. 169;

(iv) the trial magistrate grossly misdirected himself in passing lenient

sentences on the basis of R. v Athumani Saidi.

Case Information

Order accordingly. C

Cases referred to:

1. R. v Athumani Saidi [1967] HCD 20.

[zJDz]Judgment

D Rubama, J.: Sebastian Ndomba was convicted of four offences: failing to fix a plate

number (identification marks) c/s 14(1) and (5) of the Road Traffic Act, 1973,

secondly causing a motor vehicle to be used on the road without a certificate of

insurance c/s 4(1) and (2) of the Motor Vehicles Insurance Ordinance, Cap. 169,

thirdly E using a goods vehicle without transport licence c/s 10(1)(a)(2) and (7) of

the Transport Licensing Act, 1973 and fourthly failing to bring motor vehicle to the

Police Station after being ordered to do so c/ss 87 and 113(1) and (2) of the Road

Traffic Act, 1973. Fine of shs.100/= or one month imprisonment in default was

imposed in respect of the first to F third counts and shs.200/= or one month

imprisonment was imposed in respect of the fourth offence.

I ordered revisional proceedings for the following reasons: the imposed sentences did

not reflect the seriousness of the offences and that the accused was not disqualified

from holding or obtaining a driving licence for some period in G conformity with

s.4(2) of the Motor Vehicles Insurance Ordinance. The trial magistrate in imposing

these sentences had thought he was correctly interpreting a decision of this court. He

stated: H

In the case of R v Athumani Said [1967] HCD 20 it was held that the primary

duty with respect to motor vehicle rests with owner not driver. The driver should

not be fined heavily. The accused is not the owner of the motor vehicle and I

1986 TLR p192

RUBAMA J

A according to this case quoted above, he should not be heavily fined as the

primary duty with respect to the motor vehicle does not lie on him.

With respect the learned trial magistrate misinterpreted the case he quoted. What

was stated in the quoted case was that B the "primary responsibility for obtaining a

vehicle licence [rested] with the owner of the vehicle, and a fine of shs.150/= [was]

excessive when applied to a mere driver." (emphasis supplied). The case did not say

that the primary duty with respect to motor vehicle rested with the owner and not

with the driver as the learned trial magistrate stated. True the C primary duty of

maintaining a motor vehicle in good repair or for that matter, for fixing a plate

number (identification marks) or for obtaining a road licence or motor vehicle

insurance rests on the owner of the motor vehicle. But there are D several other

duties involving a motor vehicle usage that primarily lie on the driver. To quote the

obvious to highlight the point, the primary duty of driving on a public road carefully

and with consideration to other road users lies with the driver and not the owner of

the motor vehicle being driven.

E While accepting the fact that the primary duty for fixing a plate number for

identification purposes lay with the owner of the motor vehicle, I do not subscribe to

the view that a very small sentence that amounts to a no sentence be imposed on the

driver of such a motor vehicle. Granted the driver may not easily notice defects in a

motor vehicle when he takes it F out for a drive but he would definitely know at

once that the motor vehicle he is about to drive has no identification marks. It does

not need a genious to know that driving such a motor vehicle was an offence. For

anybody who so arrogantly sets out to commit such an offence, the sentence to be

imposed has got to reflect the abhorrence of the society G for the act done. A

sentence of shs.100/= was very low.

The case of R. v Athumani Said (supra) does not have the general application that the

trial magistrate had conferred to it. Even in some cases where the primary duty is on

the owners of motor vehicles, statutes have come in to specify that the consequences

of breaching such laid down duties are equally shared by the owners of the motor

vehicles and their H drivers. I will deal with two such cases that are relevant to the

case under review. The accused was fined shs.100/= or one month imprisonment in

default for driving a motor vehicle without a motor vehicle insurance cover because

the I

1986 TLR p193

RUBAMA J

A primary duty to buy the motor vehicle insurance lay on the owner. With respect,

the trial magistrate had misdirected himself. S.4(1) of the Motor Vehicles Insurance

Ordinance states:

... it shall not be lawful for any person to use, or to cause or permit any other

person to use, a motor vehicle on a road unless there B is in force in relation to the

use of the vehicle by that person or that other person, as the case may be, such a

policy of insurance or such a security in respect of third party risks as complies with

the requirements of this Ordinance.

C Mark the use of the words "for any person". Ownership is not in issue here. So

while granting that the primary duty to have a policy of insurance or such a security

in respect of third party for motor vehicles lies on the owner of the motor vehicle, the

law makes it unlawful for anybody to use, or to cause or permit any other person to

use a motor vehicle on a D road (mark you "a road" and not necessarily "a public

road") unless the motor vehicle has an insurance or third party insurance cover.

Equally general is the section of the law that sets out the sentence for any one

contravening the law in that matter. Opening sentence of s.4(2) of the Motor

Vehicles Insurance Ordinance states: E

If a person acts in contravention of this section he shall be liable to a ...

F My interpretation of s.4(1) and (2) of the Motor Vehicles Insurance Ordinance is

that the consequences of driving a motor vehicle which has no insurance cover is

equally borne by the owner or anybody in control of the motor vehicle and the driver

of the motor vehicle irrespective of his status. The seriousness of the breaching of the

law in this respect is not G lessened by the fact that the driver may not be the one

with the primary duty of buying an insurance cover for the said motor vehicle. The

trial magistrate had therefore misdirected himself in passing a very lenient sentence

on the accused on this charge. H

The import of s.10(1) (a) (2) of the Transport Licensing Act, 1973 is at all four with

s.4(1) of the Motor Vehicles Insurance Ordinance. The responsibility to see to it that

a goods vehicle or a public service vehicle shall be used for the carriage of goods for

hire or reward or in connection with any trade or business carried I

1986 TLR p194

RUBAMA J

A on by a person in accordance with the terms of a licence as issued under the

Transport Licensing Act, 1973 has not been primarily put on the owner alone.

Section. 10(1)(a) (2) and (7) spreads this primary obligation to a wider range of people.

The definition of "owner" under the Act is wider and covers those who have rented

the motor vehicle. An B `owner' in relation to a vehicle which is the subject of

hiring agreement or hire purchase agreement means "the person in lawful possession

of the vehicle under that agreement" while the status of a driver even when employed

as such has been elevated to a level that would make it difficult for him to plead for

leniency on account of his having broken the law in the C course of his

employment. The law has made it his primary duty to see that the motor vehicle he

drives has the requisite licence. For s.10(2) of the Transport Licensing Act, 1973

provides:

D When a goods vehicle is being used on a road for the carriage of goods or a

motor vehicle is being used for the carriage of person, the driver of the vehicle, if it

belongs to him or is in his possession under an agreement for hire, hire purchase or

loan, and, in any other case, the person in whose ownership or possession the vehicle

is, shall for the purpose of this Act be deemed to E be the person by whom the

vehicle is being used.

Section 10(7) of the Transport Licensing Act, 1973 which provides for the

punishment is equally in general terms. Its F opening sentence reads:

If any person uses a motor vehicle in contravention of this section he shall be

guilty of an offence and shall be liable on conviction ... G

Mark the use of the words "any person uses a motor vehicle" and if these are read, as

they should be, together with what the law deems to be the user of the vehicle at

given instances as stated in s.10(2) of the Act, then one is made to H understand that

no leniency is to be shown when passing sentence to a mere driver only because he is

an employee. Leniency may of course be shown to such a person but for reasons

other than the fact that the primary duty to buy or obtain appropriate licence under

the Transport Licensing Act, 1973 lied on the owner of the motor vehicle. The Act I

specifically forbids such an approach. The trial magistrate had

1986 TLR p195

RUBAMA J

A therefore misdirected himself when he took this very factor into consideration

when sentencing the accused after convicting him, for having used a motor vehicle in

contravention of s.10(1)(a) and (2).

I have, I hope, made it clear that the case of R. v Athumani Saidi (supra) is not

applicable in every case where a driver is convicted of a traffic offence either under

the Road Traffic Act, 1973, the Transport Licensing Act, 1973, the Motor B Vehicles

Insurance Ordinance, Cap.169 or any other law. True the duty to maintain a motor

vehicle in good repair or obtaining a road licence for it rests on the owner of the

motor vehicle and that a trial court when passing sentence to a C mere driver has to

bear this as a mitigating factor. But the accused could not say that he needed the

permission of the owner of the motor vehicle he was driving to comply with a police

order given to him personally. The accused was duty bound to send the motor

vehicle to the police. He needed no permission of his employer to comply with this

order. The D trial magistrate had therefore grossly misdirected himself in passing a

lenient sentence on the basis of this court's authority.

Another thing. The trial magistrate had not complied fully with s.4(2) of the motor

Vehicles Insurance Ordinance. The E accused was not called upon to state why he

should not be disqualified from holding or obtaining a driving licence for a period of

twelve months from the date of the conviction. This mandatory sanction in the

absence of special reasons was overlooked.

F I had evaluated the need for revising the sentences upwards to give them the teeth

they so obviously lacked. Because of the time lapse, I had thought for sometime of

leaving them as they were, but that would be wrong. The trial magistrate had

seriously misdirected himself on this issue. Accordingly I set aside the sentences

imposed on all the four offences and substitute the following sentences: G

2nd offence: 500/= or three months imprisonment in default.

3rd offence: 1,500/= or five months imprisonment in default. H

4th offence: 1,500/= or five months imprisonment in default.

5th offence: 1,000/= or four months imprisonment in default. I

1986 TLR p196

A The accused is also disqualified from holding or obtaining a driving licence for a

period of twelve months effective his date of conviction, i.e. 7.10.85.

Order accordingly.

1986 TLR 196

B