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
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
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
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
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
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