HIGH COURT, CAPE COAST
Date: 1 NOVEMBER 1974
EDWARD WIREDU J
CASES REFERRED TO
(1) Elliott v. Grey [1960] 1 Q.B. 367; [1959] 3 W.L.R. 956; [1959] 3 All E.R. 733; 124 J.P. 58; 103 S.J. 921, DC.
(2) Hewer v. Cutler [1973] Crim.L.R. 762, D.C.
NATURE OF PROCEEDINGS
APPEAL against the conviction and sentence of the appellant by a district court, of the offence of use of an uninsured vehicle contrary to section 3(1) of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958). The facts are sufficiently set out in the judgment.
COUNSEL
Sampson for the appellant.
Turkson, State Attorney, for the respondent.
JUDGMENT OF EDWARD WIREDU J
On 13 August 1974, the appellant was arraigned before the Akim Oda District Court Grade I charged with the offence of the use of an uninsured vehicle contrary to section 3 (1) of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958), hereinafter referred to as the 1958 Act.
The particulars of the information preferred against him read as follows:
“Kwasi Appea Dankwa: Lorry Driver: For that you on 12 May 1974, on Akim Oda-Apotasu bridge near State Transport Corporation, Akim Oda in the eastern magisterial district and within the jurisdiction of this court, then being the owner and driver in charge [of] Bedford lorry No. GG 5418 did drive the said vehicle on the road when the third party insurance was not in force.”
He pleaded guilty to the charge and was convicted and sentenced to a fine of 030 or two months’ imprisonment with hard labour. In addition, he was disqualified from holding a driving licence for a period of twelve months, the statutory minimum as required under section 3 (2) and (3) of the 1958 Act.
His original appeal to this court was against the sentence but on the appeal coming on for summary hearing the point was raised on his behalf that on the facts as presented by the prosecution the appellant could not in law have been guilty. I therefore granted leave to counsel to argue the appeal against conviction also.
The facts as presented by the prosecution against the appellant in the court below were as follows: On 12 May 1974 round about 10.40 a.m. the appellant reported to the police that he was descending a hill on the main Oda Commercial Street and stopped behind a stationary Volkswagen car. That whilst being stationary a Bedford vehicle drove into the rear of his vehicle causing damage to it. In the course of police investigations into the appellant’s complaint, it was discovered that there was no valid insurance certificate on the appellant’s vehicle. The certificate having expired, the police took action against him accordingly under section 3(1) of the 1958 Act.
[p.310] of [1974] 2 GLR 308
The point taken on behalf of the appellant in this appeal was that on the true construction of section 3 (1) of the 1958 Act, the word use” contemplated some active movement such as driving in the sense of the vehicle being in motion. Learned counsel argued that the present facts showed that the vehicle of the appellant was stationary when the accident in respect of which the police were investigating occurred. He therefore contended that the vehicle not being in motion the appellant could not be said to have used the vehicle within the meaning of section 3 (1) of the 1958 Act. He submitted therefore that the conviction of the appellant was wrong in law.
Mr. Turkson, counsel for the respondent, submitted on behalf of the respondent that the word “use” in section 3 (1) of the 1958 Act was equivalent to have the use of a motor vehicle on the road and that as the vehicle of the appellant could be moved and in fact there was evidence that it was moved to the place where the accident occurred, the owner had the use of it within the meaning of the section notwithstanding the fact that the vehicle was stationary. He therefore contended that the conviction of the appellant was justified in law. For authority learned state attorney cited the case of Elliott v. Grey [1960] 1 Q.B. 367.
The Elliott case (supra) was decided under section 35 (1) of the United Kingdom Road Traffic Act, 1930 (20 & 21 Geo. 5, c. 43), the provisions of which even though are not in identical language with our own section 3 (1) of the 1958 Act under which the present appellant was prosecuted, the spirit behind the two is in my view the same. The facts of that case as stated in the headnote at pp. 367—368 read as follows: “The owner of a motor-car which had broken down left it in the road outside his house until it could be repaired. He suspended the third party insurance in the meantime. The car could not be mechanically propelled because, inter alia, the engine would not work, the battery had been removed, and there was no petrol in the tank. At the material time the owner had no intention of driving it or of moving it from its position in the road. The owner was convicted of unlawfully using the car without there being in force a third party insurance, contrary to section 35 (1) of the Road Traffic Act 1930.”
He appealed against his conviction to the Queen’s Bench Division of the High Court by way of case stated. His appeal was dismissed the court holding as stated in the headnote at p. 368 that:
“the word ‘use’ in section 35 (1) was equivalent to ‘have the use of a motor-vehicle on the road,’ and as the car could be moved, albeit not driven, the owner had the use of it on the road within the meaning of the section and was guilty of an offence.”
A close and careful study of the judgment in the Elliott case (supra) reveals that the question which arose for consideration in that case was the meaning of the words “use … a motor vehicle on the road” within the meaning of section 35 (1) of the United Kingdom Road Traffic Act of 1930. The judgment of the court which was read by Lord Parker C.J. contains the following significant passage at pp. 371—372:
[p.311] of [1974] 2 GLR 308
“One thing seems to be clear, and that is that ‘use’ there is used in contradistinction to the word ‘drive,’ which appears in other sections, such as section 11 and section 12, dealing with dangerous and careless driving. Prima facie, it is a wider term and includes something more than driving and certainly would include moving.
The other thing which I think is clear and, indeed, it is conceded by Mr. Miskin, who has argued this case with great care, is that an offence may well be committed under this section in the intervening periods between driving or between moving. But he says that the ordinary use of the word to ‘use’ a motor-car does contemplate some active movement either in driving it or taking part in a journey in it or moving it, and that the word is quite inapt to describe a motor-car which cannot be used because it is out of action, not merely because it needs a little petrol but because the machine cannot work at all. I am influenced by the fact that this section appears in Part II of the Act under the heading of ‘Provision against third-party risks arising out of the use of motor vehicles.’ If one goes on to section 36 it provides the form of policy of insurance which is required, which is: ‘insures such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle on a road.’ It is something for the protection of third parties. Approached in that way, it seems to me that the word ‘use’ there is, as Mr. Whitworth suggests, really equivalent to ‘have the use of a motor-vehicle on the road.’ Indeed, Mr. Miskin’s suggested definition, which I think was that ‘use’ means to have the advantage of a vehicle as a means of transport, including any period or time between journeys, itself suggests availability. In other words, it is really equivalent to what Mr. Whitworth suggests by the expression ‘have the use of.’”
As I have pointed out above the wording of section 35 (1) of the United Kingdom Act is not in identical language with our section 3 (1) of the 1958 Act which omits the words “on the road” yet I have no doubt in my mind that the mischief contemplated within the meaning of section 35 (1) of the 1930 United Kingdom Act is no different from that contemplated under section 3 (1) of the 1958 Act. In the Elliott case the court was emphatic that the mischief contemplated within the meaning of section 35 (1) of the 1930 Act was for the protection of third parties within the language of section 36 of the 1930 Act which is in identical language with section 6 (1) (b) of the 1958 Act. So has the 1958 Act as its aim the protection of third parties. Significant also is that in the Elliott case the emphasis was placed on the meaning of the word “use” as can be seen in the latter part of the passage from the judgment quoted above. It therefore affords a useful guide in the determination of the present case.
The Elliott case (supra) came up for further consideration in the same court on 18 October 1973, in the case of Hewer v. Cutler [1973] Crim. L.R. 762 where the mischief contemplated by section 35 (1) of the 1930 Act
[p.312] of [1974] 2 GLR 308
was affirmed. The facts of the Hewer case (supra) as stated at pp. 762—763 were as follows:
The test certificate for the defendant’s motor car expired on June 13, 1972, and before that date the defendant, finding that he could not drive the car because of a defective oil seal, left it parked on a road in Bristol. The defendant could not obtain a replacement seal and before June 13 he disconnected the linkage in the gear box so as to lock the rear wheels. The car could not be driven or moved and remained where it was until August, 1972. The prosecutor preferred an information against the defendant alleging that the defendant had used on a road a motor car without a valid test certificate contrary to section 44 of the Road Traffic Act, 1972. The defendant was convicted before the justices and appealed to the Crown Court. The Crown Court (Judge Forrest) was of the opinion that the defendant was not using the motor car on the road because the disconnection of the linkage had rendered it completely immovable, such immobilisation being as complete as if the wheels had been removed. The appeal was allowed and the conviction quashed. The prosecutor appealed by case stated to the Queen’s Bench Divisional Court and relied on Elliott v. Grey [1960] 1 Q.B. 367 in contending that by keeping the car on the road the defendant was using it within the meaning of section 44 (1) of the Road Traffic Act, 1972. [Similar provision in our law is contained in regulation 3 of the Road Traffic Offences Regulations, 1974 (L.I. 952).]”
The court rejected the arguments of the prosecutor holding as stated at p. 763 that:
“since Elliott v. Grey [1960] 1 Q.B. 367 concerned third party insurance the test as to use was not the same as that involved in the case before the court. The court would not extend Elliott v. Grey [1960] 1 Q.B. 367 and there was no user of a kind within the mischief contemplated by section 44 (1) of the Road Traffic Act 1972.”
It is clear from the above exercise and my finding above that the spirit of section 35 (1) of the 1930 Act and section 3 (1) of 1958 Act is the same, that to accept the argument of learned counsel for the appellant which tends to restrict the meaning of the word “use” within the language of section 3 (1) of the 1958 Act, will defeat the mischief contemplated by the Act. I hold in my judgment therefore that on its true construction, the word “use” within the meaning of section 3 (1) of the 1958 Act, is equivalent to “have the use of a motor vehicle on the road.” Accepting therefore that the appellant’s vehicle was stationary, since it could be moved, he had the use of it within the language of the 1958 Act: see the Elliott case (supra). He was therefore rightly convicted. His appeal therefore fails and the same will be dismissed.
DECISION
Appeal dismissed.
S.Y.B.-B.
