Republic vs Mohamed Abdallah & Another [1987] TZHC 25 (13 August 1987)


Kazimoto, J.:  Mohamed Abdallah and Omari Issa whom I will refer to as the first and second accused respectively pleaded guilty to two counts under the Transport Licencing E Act No. 1 of 1973 and two counts under the Motor Vehicle Insurance Ordinance Cap 169 of the Laws.  The first accused was the driver and the second accused the owner of the motor vehicle.  In the counts under the Transport Licencing Act the first accused was sentenced to a fine of Shs 1,000/= or 4 months imprisonment in default and F second accused was fined to pay shs 1,500/= or 4 months jail in default.  They were also sentenced to pay shs 500.- and shs. 600/- respectively or three months jail each for the offences falling under Cap. 169.  The first accused was disqualified from holding or obtaining a driving licence for 12 months and the second accused was exempted from G such disqualification as it was found that he had advanced special reasons.  The record has been called up for revision of  sentence in respect of the counts under the Motor Vehicle Insurance Ordinance, Cap. 169 of the Laws.
The learned State Attorney has urged that the sentences imposed in the counts in H question were inadequate taking into account the seriousness of the offence.  Both accused have stated, as they did in the court below, that they are first offenders and have families to support.  I agree with the learned State Attorney.  An offence of driving a I motor vehicle without third part insurance risks is more dangerous than driving a motor vehicle without TLB.  The

dangers involved in the event of an accident occurring are far too great.  I have taken A into account the fact that accused are first offenders.  I will therefore set aside the sentence imposed in respect of counts 2 and 4 and instead substitute a sentence of a fine of shs. 1,500/= or six months jail in default for first accused on count two and as for the second accused he is sentenced to a fine of shs. 2,000/= or six months imprisonment on B count four.  Needless to say that as they have already paid the fines imposed by the District Court, they are now to pay the difference between the present sentence and that imposed by the District Court.
Another point which calls for decision in whether the learned Principal District C Magistrate was right in exempting the second accused from disqualification.  In mitigation against disqualification the second accused stated that he was not driving the motor vehicle, that the motor vehicle was being driven to a garage and that his family depend on driving the said motor vehicle.  The learned State Attorney submitted that these are D not special reasons.
First it must be pointed out that the learned Principal District Magistrate was quite aware of the mandatory provisions of section 4(2) of the Motor Vehicle Insurance Ordinance.  Next it should be added that the obligation to take out third part insurance cover rests on E the owner of the motor vehicle and not the driver.  Therefore the fact that the second accused was not driving the motor vehicle does not afford special reasons.  In this respect the learned Principal District Magistrate has erred in finding special reasons.
The second accused has stated that he had a family which depend on  his licence as a F means of livelihood.  The learned State Attorney has submitted that this is not a special reason as much as it does not relate to the offence.  In other words he is stating that special reasons must be special to the offence and not to the accused person.  He referred the court to the case of Whittal v Kirby [1964] 2 All ER 552 and Angelo G Muyagi v R. [1970] HCD No. 60.
There is a rich authority on whether special reasons must be special to the offence only or whether it must be special also to the offender.  In Kingombe v R. [1969] EA 532 Bramble, J. held that testing a vehicle after effecting repairs does not constitute special H reasons.  In that case the appellant was convicted of driving a motor vehicle on the public road without third part insurance c/s 4(1) and (2) of the Motor Vehicle Insurance Ordinance.  On appeal against disqualification order the appellant contended that the vehicle was being tested after undergoing repairs and that this constituted I

"special reasons".  In dealing with the issue before him the learned judge stated: A
   I can do no better than refer to an English case Gardner v James [1948] 2 ALL ER 1069 in which the defendant was anxious to test a motor cycle which  he had just bought and B assembled himself.  It has no insurance and the defendant pleaded guilty to a charge of using a motor vehicle without third part insurance.  On appeal it was held that testing a vehicle in those circumstances did not constitute "special reasons" entitling the justices to refuse to suspend the licence. C
Then he went on to observe that the offence was a serious one exposing users of the road to great risks in that if they were injured they would get no compensation.  In the present case the accused has pleaded that he was taking the motor vehicle to a garage. D The learned trial magistrate wrongly found this as amounting to special reasons.
Then comes the case of Lawrence Maliki v R. [1973] LRT No. 12.  In this case the appellant was charged, among other offences, with causing death by dangerous driving E c/ss 44 (A) and 70 of the Traffic Ordinance Cap. 168 as amended by Act 41 of 1964.  He was convicted and disqualified from holding or obtaining a driving licence for 18 months.  The appellant appealed against the disqualification order on the ground that he depended on his licence for his livelihood.  Onyiuke, J, stated that "the fact that he F depends on driving for his livelihood is not a special reason for not making the order of disqualification."
Lugakingira Ag. J. (as he then was) stated the matter more decisively that special reasons must be reasons connected with the offence itself and not with the offender.  In G Joachim Gregory v R. [1975] LRT 44 the appellant was charged with and convicted of causing death by reckless and dangerous driving c/ss 44 A(1)(a) and 70 of the Traffic Ordinance Cap. 168.  He was disqualified from driving for six months.  He appealed.  In dealing with "special reasons" the learned judge stated "In a string of H authorities which need not be cited this court has laid it down that special reasons must be reasons connected with the offence itself and not the accused".  And in Shilli Kisabu v R. [1977] LRT N 60 the appellant was convicted of reckless driving and driving while under the influence of drink or drugs.  He was sentenced and also disqualified from I driving.  He advanced the following reasons for non-

disqualification, that it was his first accident, and  he has a large family to support. In A dismissing the appeal against the disqualification the learned judge stated and I quote:
   The court would thus not consider such factors as the size of the offender's family, the fact that he earns his living by driving or his long clean record. These are factors special to the offender B but they do not pertain to the offence.
I have demonstrated several instances which this court found no "special reasons".  But the court is not unanimous on what constitutes special reasons in Sadrudin K.M Pirani C v R. [1977] LRT 58 the appellant was convicted on his own plea of careless driving c/s 50 of the Road Traffic Act 1973.  He was sentenced to a fine of shs. 300/= or two months jail in default.  He was disqualified from holding or obtaining a driving licence.  In mitigation against non-disqualification the appellant stated that he was a pilot, that he was D required to go on duty at night, that he is always called on duty at week days and his parents are old and that he would suffer if his licence was cancelled.  Biron, J. stated and I quote: E
   To return to the question of the construction to be put on the term special reasons in section 27 of the Act, it does not necessarily follow that the same construction must be put on the term special reasons in section 27 of the Act as is put on the same term in section 63 of the Act, which described mandatory minimum sentences in the absence of special reasons, as the F same expression used in different sections of an Act may  be construed differently.  The reason why the term special reasons in section 27 is given the very narrow construction, that the reasons must be special to the offence, is a hangover from the interpretation of special G reasons in section 49 of the Traffic Ordinance (Cap.168 Sup 57) Revised Laws, which section created the offence of driving whilst the driver's efficiency was impaired by drink or drugs, which interpretation, incidentally, unless I am mistaken, stems from the construction put on  H  the same term special reasons by the English courts following the court of Appeal decision in Whittal v Kirby [1947] KB 194.  The same narrow construction  of the term special reasons is also put on the same term used in the Motor Vehicle Insurance Ordinance I

   (Cap. 169-Supp 60) Revised Laws, for driving motor vehicle without there being in force a A policy of Third Part Insurance.
His Lordship went on to find special reasons as advanced by the appellant and proceeded to set aside the order of disqualification.
Whatever good reasons  his Lordship had in adopting a wide and liberal construction, I B with greatest respect to his lordship, do not share the view expressed in Sadrudin K.M Pirani v R. (Supra).  In a country like Tanzania driving to some people is a profession.  It is a bread earning business.  To say that dependence on licence for C livelihood is a special reason, is to render the provisions demanding disqualification in the absence of special reasons impotent and would defeat the whole policy behind such legislation which is to safeguard innocent road users from drivers who drive their motor vehicles on the roads. D
The policy behind Cap. 169 is to compensate the innocent road user in the event of an accident.  That policy would be defeated if the court were to allow an accused driver to plead dependence on his licence as a means of his livelihood.  I would consider that the interpretation in Kingombe v R., Lawrence Maliki v R. and Joachim Gregory v R. E (Supra) as to what amounts to special reasons as sound in policy.  In the present case the second accused's mitigation did not amount to special reasons.  They did not relate to the offence.  They were reasons personal to the accused.  He ought not to have been exempted.
For the above reasons the order of exempting the  second accused from disqualification F is quashed and set aside.  I order that the second accused be, and is hereby, disqualified from holding or obtaining a driving licence for a period of twelve (12) months from the date of this order.
G Order accordingly.


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