[1994] UGHC 109

## J^E^EPUBLIC. OF. UGANDA

IN THE . HIGH COURT. OF UGANDA AT. KAMPALA CRIMINAL APPEAL NO 1. OFJL224, (Arising from Traffic Case No. NPT 7126/93

of Buganda Road Court)

VICKERY T. A.: ........... APPELLANT VERSUS

UGANDA: RESPONDENT BEFORK: The Honourable Mr. Ag,. Justice E^S, Lugayj.zi R U L I N G:

The Appellant herein was charged with two traffic offonces under *tniu* counta. Tho- first count was ra-clcl^s-s. driving contrary to section 116(1)(a), 136(2)(b) and 65(1)(a) of the Traffic and Road Safety Act 1970. The second count was unlawful use of a motor-vehicle cont.rua'y to section 2(1) and (3) of the Motor Insurance (Third Party Risks) Statute,1966. The Appellant did not plead guilty to the offence in the first count and is therefore. supposed to be tried for it.

However, as far as the ofxonco in the second coun-tis concomod, the Appellant was taken to have pleaded guilty. He was convicted and fined UGS. 60,000/= or one week's imprisonment in default.

It is that sentence which the Appellant has now appealed against. In his Memorandum of Appeal, the Appellant stated that he was not aware that his insurance policy had expired just a few days before the date on which he was charged with the offence herein. Secondly, he said that he was not notified by his Insurers of the impending expiry of the insurance policy for the cor in issue. He wa.s a.lso of the view that these insurers

(like in Britain) ought to have given him a temporary cover for at least two weeks at the time of notification.

At the time of his Appeal, the Appellant complained that because the trial Magistrate did not take the above extenuating circumstances into account? that is why he gave him such a harsh sentence.

The State on the other hand, was of the view that the sentence was fair in all tho circumstances of this case.

Be that as it may, section 2(3) of the Motor Vehicle Insurance (Third Party Risks) Statute 19oo, provides as follows,

> "(3) Any person who contravenes the provisions of subsection(1) of this section commits an offence and shall on conviction bo liable to a fine not exceeding one hundred thousand shillings or to a term of imprisonment not exceeding two years or to both such fine and imprisonment".

The above provision aside, there is subsection (4) of the above section which tho learned magistrate did not apply. It provides as follows,

> "(4) A person convicted under the provisions of subsection (3) of this ection shall, unless the court for special reasons thinks fit to or:'?r otherwise, and without prejudice to the power of court to order a longer period of disqualification, be disqualified from holding or obtaining a driving permit for a period of twelve months from tho date of conviction in addition to the penalties that may be imposed under subsection 3 of this section".

In view of tho above provisions setting down a maximum fine of UGS. 100,000/= or, maximum imprisonment ^oxa term of two years or both fine and imprisonment and also an almost

automatic disqualification from driving a motor-vehicle for sometime for the offence in issue, the fine of UGS, 60,000/s would, in my viowj have been fair if all the other things were well in this case.

I have found it necessary to qualify my statement above, because after going through the court proceedings (for the court below) I felt quite uneasy about the charge and the plea. Consequently, despite the fact that this was an appeal, I decided to make use of court's revisionary powers under section 341(1) of the Criminal Procedure Code to correct the situation.

The details of the charge as laid down in count II were as follows,

# "c.t2 STATEMENT OF OFFENCE UNLAWFUL USE OF A MOTON VEHICLE, C/S 2(1) and (3) of the Motor-Vehicle Insurance

(Third Party Risks) Statute, 1933.

# PARTICULARS OF OFFENCE

VICKERY THOMAS ALBERT on the same day, time, road and district unlawfully used the same m/v on the road which was not insured against Third party risks in accordance with the said statute.

#### MAGISTRATE" i

## (TURYAGUMANAUE GRACE) SP OFFICER PREFERRING THE CHARGE"

From the above, it is clear that the details of the day, time and place relating to the offence in issue were not indicated in the above count with "reasonable clearness" as is required under section 36(g) of the Magistrates' Court Act 1970.

..-/4

Secondly, as per section $2(1)$ of the Motor Vehicle (Third Party Risks) Statute, 1968 which provides as follows,

$4:$

"2(1) It shall not be lawful for any person to use, or to cause or to permit any other person to use, a vehicle on a road unless there 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 in respect of third party risks as complies with the requirements of this section".,

what is prohibited, is the use of a motor-vehicle on a road unless such reter-vehicle has in force in relation to its use, a third party/insurance cover. However, when you carefully read the particulars of the offence in issue, you would be left wondering whether it was the road or the motor-vehicle which was required to be insured against third party risks?!

The above apart, when the charge in issue was read to the Appellant, this was his reply,

"True but I shall plead mitigating<br>circumstances"

In view of the above therefore, the learned trial Magistrate ought to have entered a plea of "Not Guilty". However, it is surprising that he did the opposite.

According to R. R. Bhayani v R. Criminal Appeal No. 43 of 1958 (which is reported in the Digest of Uganda High Court cases, volume II at Page 22 as case No. 31, MB 12/58) it would appear that a combination of a bad charge and a bad plea would lead to nullification of a lower court's proceedings.

$...5...$

In the instant case, I doubt whether the charge in count II can stand as a good charge. The plea taken under it, is also equivocal. In the circumstances, I have no choice but quash the conviction under count II and set aside the sentence of a fine. I would order no retrial because I am of the view that like in R. R. Byajrani v. R. (supra) the proceedings herein as far as they related to count II were a nullity.

The court record is hereby sent back to the trial / court to enable the learned Magistrate to complete the Appellant's trial under count I.

> "•CT ^x jii. S. Lugayiar.

ll/3/19c4

Read before: • »-'W. • 4-\* —r^b - w- -> Appellant. Mr. Oburu Court Clerk.

- - A E. S. Lugayizi / ^U ⁰ GJE 11/3/1994.