19770402 TZHC Mwanza1

' ' NC — ~ "-- IH THE H ICH C OLJ. I QiI' TA ZANIA AT flWAiZA ADPELLLTE J1:ISDICTION IGI C.CJIIT C.IhIiTiiL L 0 15 0] 1977 '(Original' "Traffic';: Crininal Case No.1 of 1977 'of the District Court of Mwanza District at Ianza• Before .F. Putabazi, .Esq,., District Niagistrate) SEIEPii,NI K,AJEGE .. . . .. . .. . . APPELLANT Tersus THE REPTJBLI:C o.00: RESP01DE1'TT CHkEGE Dri'ving a motor vhicle without a valid Third Party isks Insurance Policy contLory to sect ion 4(J and ) .(2).of,'the Motor Vehicle Insurance Qrdinance Cap.169. •J'UDEMENT KAIITI,.J.,- Accompanying a conviction and a,.'f.ine of 150/=, dr one month: imprisonment, ias an order disifying 'the appellant from holding or obtaining a driviig licenOc, 'for a period of . 12 months, fiom the date of the order. The sppcllent seks to have the disquplification order 'set aside., on the given ground, that he,was only an employee driver who could no± 'have knowfl, that, the third party Insurance , cover' Policy had expiiéd or not. Thii'ground was not raised in ritigation by the .ppellant, before the trial magistrate. But,.'the charge shoCt ,demonstraies..:±n sufficient particulars, that the .appellant,was just a mbrë driver, with no rosonsibi1ity at all, to hav 'the vehicle insured as dictated by the Law. ...:Although, section 4(l) 4(2) pf Cap.'169, is one of strict • liability, it gives'discr':tion to the court, on the

grounds Of; "special reasons" to order no disqualification, and where none exist, to. even impoC.o a lChger, than, 12.months period of disqualification. It would, seora, that whether or not disqualificotien is or'Lred, would repei'o on whethcr, in the eyes of the, trial, court especial reasons have been shown. In this .cao, the ppel1ant said when reevant1y invited to show, why he' Chould not be disualified "My mother is sick and I have children to look after. I am hirimg ahouse." Rightly, the trial court found no 'sccil. reasons" and hence the disqualificat:Lon, 'This phrase epecial reasons" has, over the years, aCquired a special meaning. As far as the driver is 'concerned, courts hove token the liberty of using this "special reasons" as an open window, for t o-clii: the ariver l±nie'vitly . -', -2— In the early of earliest of, •cas.oa — REX VS kTU..VA AJihED I.T0L,.:.. 99, Jiahon, J., dëa...ing ii;bh the same section, whore the arje1iant was just a driver,, hold that, that the fact that a rerson employed as a driver does riot ':.now, that the vehicle which ho is driving is not insured according to lam, 4iS P. special reason for Tefraimjng:. from disqhaiifying him. . Sir ilarly on the ano issue in.. Rashid V. FLepu'o.lic (1970) EtOCO.Th Vo.306 of Onyiuha J. (then) relevantly i:otoralia, said "What is srocial reason must depend on ccisbs'ioes Of onc csc It 1 'if TiO

to gencraliso. The. appellant was an i)3_-., sopaiscated driver working under a big company by responsible people or officials.... I do not think, it would be rc haonable to expect the appellant to confront his employers and ask them to satisfy him that this particular vebicic was insurod I lind that LC5Cfl9 eis -L, in this csa w',,, icb. rculd be a court refrain from making an order of disqualification on the appellant. The order of disqualification imposed on, the, appellant should be set aside. i'Jr. Justice Lawe., in V. vs John G-oeon and Simon Jeremiah (1957) VA .664 at page 667 WaS probably saying tho same, when he observed I quote — It requires little imagination, to envisage the likely pesult of the dri,ver, telling h i s eroulcyor that he wished to see the third party insurance rolicv before, he could drive a vehaclo If tbe cmp o or was sutei1pi in g, cj. . .. . evade s tie. law by neglecting to ta1.e, an insuranco, the driver roulc oriiipt]y, find hithself without omployi:ncnt, who as if the' • enip]oyer was a. man of intagrity .aiid had .takon out such an insurance, 'ho would robaloly be ready to produce it for perusal. In such cipeumstc.rces, it is unjust that the 5olice should c 1ieg nc rver who could net 50 exectod be 'nd da not 01 has, liebility in tha'C rospocb, with an offence of dLv1ng a vniclo u w' ich r unnsuc ed against third I porty fiske Tao oiricr c-i

alTi lys be pi sui'i ed to kuc The low, es to uhird pe 1nsurnce, and he is the person who should in.v,ariablT be prosecuted and who should, if found guiltr, be dealt with adequately particularly in view of the fact th -b a member of the public would be unable to obtain dny' compensation, if the uninsured vehicle of an impecunious ownor injured him. . I with respectagree, with the above observations. The policy of the law' here is. to. protect third.. parties, making it easy and possible for the third party in..jured torocover comroensuiate compensation from the assured.. An uninsured impecunious owner, even, when, successfully sued, cannot compensate the injured unless like Shaillock, a ieund of a fresh is the substitumu for cash. O'o '/3 ,, C. • 0 -3- Similarly, a driver of such uninsured vehicle 9 if he is not the owner suffers doubly at the altar of the negligence and delinquonco of the amloyer. Pnd whore the driver is disqualified, the owner would have no inhibitions, to switch from a disqualified driver to another, leaving the disqualified one, without driving employment, :Cor the whole a period of disqualification. I would therefore hold that, although being an employed drivor does not excempt him from criminal liability under Cap.169 of driving an uninsured vehicle, his being one, would in the circumstances, amount to specia1 reasons" as to ontitle him to non disquolification In the event, I consider that spocial reasons did S exist hero, as to make the court refrain from disqualifying him. The disqualifying order is hereby set aside. The appeal is allowed. Delivered this 2nd day of April, 1977. N1iMZA HIGH COTJRT E.W. KATITI A PR jj7j JUDGE