MARI v. THE REPUBLIC [1968] GLR 801

DIVISION: HIGH COURT, ACCRA

DATE: 11 OCTOBER 1968

BEFORE: ARCHER J.

NATURE OF PROCEEDINGS

APPEAL against conviction and sentence for careless driving. The facts are sufficiently set out in the judgment.

COUNSEL

M. O. Nti for the appellant.

Hayfron-Benjamin for the respondent.

JUDGMENT OF ARCHER J.

The appellant was charged under section 8 (1) and (5) of the Road Traffic Ordinance, 1952 (No. 55 of 1952), for driving a vehicle without a licence in force. He pleaded guilty and was convicted and sentenced to four months’ imprisonment with hard labour. He has appealed on the ground that the fact that he failed to produce his driving licence did not support the charge. I cannot see any substance in this ground. He failed to produce his licence because he had none. The appellant admitted that he had been disqualified from driving. The next ground is that the trial magistrate failed to consider the explanation of the accused. In my view, the explanation given as stated in the records cannot exonerate him. His explanation amounted to a confession and the only consideration which the trial magistrate could legally give to the confession in court is to accept it.

The last ground is that the sentence is wrong in law because the appellant had committed a first offence under section 8 of the of the Ordinance and section 32 imposes a fine only in such a case. At first this ground sound plausible but when one reads section 32 very carefully, it seems that the operative words are “second or subsequent offence.” These words in my view must be given a wide meaning and not a narrow meaning. If section 32 had intended that a trial court should impose imprisonment only when a second similar offence is committed, the legislature would have been cautious enough to use the word similar. Offences have been created by sections 5, 7, 8, 9, 10, 13, 16, 23, 24, 26, 27, 28 and 30 of the Road Traffic Ordinance and the punishment laid down for all first offences under any of these sections is [p.803] of [1968] GLR 801 a fine not exceeding N¢100 but in the case of a second or subsequent offence, the punishment is the said fine or imprisonment a term not exceeding six months or to both such fine and imprisonment. It follows that where an offender is convicted under one of these sections for the first time, the trial court can only impose a fine but when a second or subsequent offence which need not be similar to the first offence is committed, the trial court has power to fine or imprison. It is obvious that one can only be disqualified from driving under section 9 (1) of the Road Traffic Ordinance, 1952, and also under section 3 (1) of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958). The appellant admitted that he had been disqualified from driving at the time of the offence. Disqualification is another mode of additional punishment but nowhere in the record is the offence for which he was disqualified stated. It is therefore impossible to say with certainty whether the appellant was disqualified for an offence committed under the Road Traffic Ordinance, 1952, or under section 9 of the Motor Vehicles (Third Party Insurance) Act, 1958. It is also impossible to say that “a second or subsequent offence” has been committed under any of the sections referred to in section 32 of the Road Traffic Ordinance, 1952 . There is therefore great doubt as to whether the appellant committed a second or subsequent offence under the Road Traffic Ordinance. I am therefore of the view that the last ground of appeal should succeed because on the facts disclosed to the trial magistrate, he had power only to impose a fine. The sentence of four months’ imprisonment with hard labour is therefore set aside. The appellant is fined N¢60.00.

DECISION

Appeal against sentence allowed.

L. F. A.

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