SIMONS v. COMMISSIONER OF POLICE [1963] 1 GLR 205

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 1ST MARCH, 1963

BEFORE: APALOO J.

 

CASES REFERRED TO

(1) R. v. Justices of Yorkshire (West Riding); Ex parte Shackleton [1910] 1 K.B. 439

(2) R. v. Lyndon; Ex parte Moffat (1908) 72 J.P. 227

(3) Williamson v. O’Keefe [1947] 1 All E.R. 307; 111 J.P. 175; 63 T.L.R. 152

(4) Lines v. Hersom [1951] 2 K.B. 682; [1951] 2 All E.R. 650; [1951] 2 T.L.R. 481

(5) Petherick v. Buckland [1955] 1 All E.R. 151; 115 J.P. 82

NATURE OF PROCEEDINGS

APPEAL against sentence of a fine and disqualification imposed by the circuit court on the driver and owner of an uninsured vehicle for permitting the driving of that vehicle while uninsured.

COUNSEL

N. Y. B. Adade for the appellant.

Boison for the respondent.

JUDGMENT OF APALOO J.

In this case, F. A. Simons appeals against a fine and a disqualification order imposed on him by the circuit court on the 20th November, 1962. The appellant was the owner of a Mercedes Benz saloon car No. AS 9360. On the 14th September, 1962, his driver was seen driving this car at Aboabo No. 1, Kumasi. At that time, the motor car did not have in force in relation to it, a policy of insurance as required by the peremptory provisions of section 3 of the Motor Vehicles (Third Party Insurance) Act, 1958.1 Accordingly, he and his driver were charged with committing a breach of the said section. The appellant pleaded guilty to the charge of permitting the use of an uninsured vehicle. The learned circuit judge convicted the appellant on his own plea and imposed on him a fine of £G150 or in lieu thereof one year’s imprisonment with hard labour. In addition thereto, he was disqualified from holding a driving licence for a period of twelve months.

As I said, the appellant appeals against the fine on the ground that it was excessive having regard to the circumstances of the case. The appellant has not sought to say the fine was unlawful. In fact, counsel expressly concedes that the sentence was not unlawful. The circuit court was entitled to impose on the appellant any fine up to £G200. The fine which is well nigh the maximum seems to me to be on the high side but as I understand the authorities, I cannot interfere with it unless I am satisfied that the learned circuit judge acted on wrong principles or that the sentence is so manifestly excessive as to amount per se to an error in principle. The record is silent as to what factors the learned circuit judge took into consideration in imposing this sentence. The appellant himself has not furnished me with any material on which I can justifiably hold that the learned circuit judge acted on wrong principles. Although the notice of appeal complains that the circumstances of the case made the imposition of this sentence much too severe, counsel frankly said that he

[p.207] of [1963] 1 GLR 205 was not himself aware of the circumstances and his client had not put him in possession of any facts in that connection. The sentence is admittedly lawful and is largely a matter for the exercise of the learned circuit judge’s discretion. I can find no ground for disturbing the sentence and the appeal against sentence must fail.

The more serious argument which was put forward was the contention that the sentence of disqualification which the learned circuit judge imposed on the appellant was unlawful. It was submitted that on a true and proper construction of section 3 (2) of the Motor Vehicles (Third Party Insurance) Act, 1958,2 an owner not in actual control or engaged in the locomotion of the car cannot be disqualified under the section. Although counsel conceded that there is no direct authority for his contention, he relies on the case of R. v. Justices of Yorkshire (West Riding); Ex parte Shackleton3 which he said was near enough authority for his submission. In that case, the Kings Bench Division following the decision of R. v. Lyndon4 held that allowing a motor car to stand on a highway so as to cause an unnecessary obstruction is not an offence in connection with the driving of a motor car within the meaning of section 4 of the Motor Car Act, 19035, and therefore a man convicted of that offence was not bound to produce his licence for endorsement.

Contrariwise, counsel for the respondent submitted that the section ought not to be interpreted in the restricted way contended for by counsel for the appellant because, says counsel, it is a purely statutory offence which involves no moral stigma on the appellant. He argues that the offence ought to be viewed more seriously in an owner than a driver. He contends that Ex parte Shackleton can be distinguished on the ground that in that case the order for endorsement was discretionary whereas the present section makes the imposition of a sentence of disqualification imperative. I do not consider this an apt distinction. For his part, he relies on the cases of Williamson v. O’Keefe,6 Lines v. Hersom7 and Petherick v. Buckland.8 I have read and considered all these cases. None of them is directly in point and none attempted to give any guidance as to the proper construction of the section with which I am confronted. I have accordingly not found them helpful in construing this particular section of the Act in question. In the end, I have to rely entirely on my own resources wholly unaided by authority.

I must confess that I was for long attracted by the construction contended for on behalf of the appellant and the attraction which I felt for Mr. Adade’s argument was enhanced by the fact that section 17 (2) of the Road Traffic Ordinance, 19529, which entitles a court to impose a disqualification order was only intended for the actual driver of a car not

[p.208] of [1963] 1 GLR 205 the owner. After much reflection and upon a further examination of the dominant object of the Motor Vehicles (Third Party Insurance) Act, 1958, I have come to the confident conclusion that there is no justification for restricting section 3 (2) of the Act in the manner contended for by counsel for the appellant. It would lead to frustration and injustice such as Parliament could not, in my view, have intended. It would in fact be at variance with the ipsissima verba of the section.

In my judgment, the dominant intention of section 3 of the Act is to impose a duty on the owner of a vehicle to see that it is insured when used either by himself or by any other person and in addition to a fine, to impose on him or any person who drives an uninsured vehicle, an order of disqualification in terrorem to ensure obedience to this section. Unlike dangerous driving, the offence has nothing to do with the safe or unsafe locomotion of a vehicle. Supposing for example that both an owner and his chauffeur were licensed to drive a motor car, and at the master’s orders the chauffeur runs the owner’s guests home in his uninsured car. If the chauffeur was caught both the owner and the driver would have committed an offence against section 3 of the Act. If the argument for the appellant be right, it would follow that only the chauffeur who had no duty to insure the vehicle could be disqualified and it would be open to the master to say to the chauffeur, “Off you go, I take the wheels myself.” Or if the master was then unlicensed, he could then apply and obtain a licence and thus do away with the driver who was disqualified for acting on his orders. To think that such a thing could be possible offends against one’s ideas of propriety and commonsense. I can find nothing in section 3 (2) which compels so unsatisfactory a construction and I am wholly satisfied that the construction contended for on behalf of the appellant is wrong. The point here is really a short one which does not admit of a great deal of elaboration. In my opinion, ingenuity of counsel apart, section 3 (2) of the Act in its ordinary and natural meaning imposes an imperative duty on the court to impose a sentence of disqualification on both a driver and the owner who permits the driving of an uninsured vehicle.

The appellant admits that he permitted the driving of an insured vehicle. He was accordingly liable to be disqualified from holding or obtaining a driving licence for a minimum period of twelve months. It follows that the learned circuit judge was entitled and indeed bound by the peremptory provisions of section 3 (2) of the Act to impose the sentence of disqualification on the appellant. In my judgment, the appeal fails on both grounds and is dismissed.

DECISION

Appeal dismissed.