3PLR – ZACCHUS ODUNSI V. INSPECTOR-GENERAL OF POLICE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ZACCHUS ODUNSI
V.
INSPECTOR-GENERAL OF POLICE
SUPREME COURT OF NIGERIA
20TH MAY, 1955
3PLR/1955/20 (SC)
OTHER CITATIONS
BEFORE: MBANEFO, J
REPRESENTATION
Adeyinka for appellant.
Ejimofor for respondent.
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE:- Motor Traffic offence – Failure to produce insurance certificate on demand – Motor Vehicles (Third Party Insurance) Ordinance section 17 (1) – Time within which insurance certificate must be produced
INSURANCE AND REINSURANCE – THIRD PARTY INSURANCE:- Offence under the Motor Vehicles (Third Party Insurance) Ordinance – How proved – Whether failure to produce Certificate of insurance even where car owner had one constitutes the offence
INSURANCE AND REINSURANCE – THIRD PARTY INSURANCE:- Purpose of Ordinance – Whether the Motor Vehicles (“Third Party Insurance) Ordinance does not make it obligatory for the driver to carry the certificate of insurance on his person – Whether in the case of an accident the driver has 24 hours to produce the certificate but that if there be no accident he must produce it at once – Whether the production of the certificate should be made within a reasonable time after it was requested – Reasonable time – Whether depends on the circumstances of each case
TRANSPORT AND LOGISTICS LAW – MOTOR VEHICLE:- Traffic offences – How proved – Third party insurance certificate – Whether an offence for a driver not to have same on his person at all time – How treated
INTERPRETATION OF STATUTES:- Proper construction of section 17 (1) of the Motor Vehicles (Third Party Insurance) Ordinance Cap. 139
MAIN JUDGMENT
MBANEFO, J.:
The appellant, who is the District Engineer, Aba, was charged before the Magistrate Grade III, Aba, on two counts-the first count for exceeding the speed limit in the township contrary to Regulation 36 (1) (a) (1) and thereby committing an offence punishable under Regulation 102 (1) of the Road Traffic Regulations No. 2914$. The second count charges him with failing to produce a policy of insurance when demanded by a Police Officer in uniform contrary to section 17 (1) of the Motor Vehicles (Third Party Insurance) Ordinance Cap. 139. and thereby committing an offence punishable under section 22 of the same Ordinance. The Magistrate convicted him on the two counts and sentenced him on the 1st count to a fine of 20s and, on the 2nd count he was cautioned and discharged. The appellant has appealed against his conviction on both counts.
With respect to the first count the appellant is a first offender and the offence in respect of a first offender is punishable by a fine of £50. By the second proviso to section 5 of the Magistrate’s Courts (Appeals) Ordinance Cap. 123 the appellant has no right of appeal in respect of his conviction on this count since the fine imposed by the Magistrate was less than £5. When this was pointed out to appellant’s Counsel he withdrew the appeal in respect of the conviction on this count and the appeal proceeded only with respect to the 2nd count.
The facts as established by the evidence are that the appellant was seen driving along the Factory Road in Aba Township going in the direction of the Railway Gate. Opposite the premises of Messrs G. B. Ollivant Limited he passed two Motor Traffic Police Constables who, suspecting that he was exceeding the speed limit, chased after him on their motor bicycles. They overtook him within a distance of less than a mile but were not able to stop him before he branched off to his house. They followed him to the front of his house and, after telling him that he had exceeded the speed limit and having some argument about speedometers and percentage errors, demanded his certificate of insurance. The appellant said he made a quick search for it but as the constables could not wait he told them that he had it but that he could not lay his hand on it immediately. The constables said that he did not produce it at once and so they left.
It is not disputed that the appellant had at the time a Certificate of Insurance. The prosecution say that he should have produced it on demand and that in so far as he did not do so he had contravened the provisions of section 17 (1) and that it does not matter if in fact he had the certificate or not. The whole case before the Magistrate turned on the proper construction of section 17 (1) of the Motor Vehicles (Third Party Insurance) Ordinance Cap. 139. Section 17 (1) reads as follows:
“Any person driving a motor vehicle on a highway shall, on being so required by a Police “Officer give his name and address and the name and address of the owner of the motor “vehicle and shall produce his certificate of insurance and any person contravening the “provisions of this subsection shall be guilty of an offence against this Ordinance.”
This section is taken from section 49 (1) of the Road Traffic Act in England and the wording is the same except for a slight variation. Section 40 (1) of the English Act has a proviso which is missing from section 17 (1) of the Nigerian Ordinance. The proviso says that if the driver within five days after the date on which the production of his certificate was so required produces it he shall not be convicted of an offence.
Section 17 (2) which is worded similarly to section 40 (2) of the English Act but without the proviso to it says that in the case of an accident the driver shall produce the certificate as soon as possible but in any event within 24 hours thereafter. Section 40 (2) has a proviso similar to that following section 40 (1).
The Motor Vehicles (“Third Party Insurance) Ordinance does not make it obligatory for the driver to carry the certificate of insurance on his person. It seems odd that in the case of an accident the driver has 24 hours to produce the certificate but that if there be no accident he must produce it at once. The purpose of the Ordinance is to protect third parties in case of an accident by ensuring that motor vehicles are covered by third party insurance and it is essential that the driver should satisfy the Police Authorities as soon as possible after an accident that the vehicle was covered. Reading section 40 (1) and (2) of the English Road Traffic Act that intention seems quite apparent. Is it the intention of the legislature that in Nigeria the opposite should be the case? I think not. When a Police Officer asks for the certificate of insurance it becomes a question of fact whether or not the driver is in the position to produce one and the onus is on him to satisfy the Police Officer that he has one. This he can do by producing the certificate either immediately or so soon afterwards as is reasonably convenient. An inordinate delay in producing one may be evidence that none was available.
The Magistrate takes the view that section 17 (1) requires that the certificate should be produced there and then on the spot and failure to do that is an offence under the section. I do not agree that it is intended that such a restricted interpretation should be placed on section 17 (1). To take that view would cause great hardship and would make section 17 (1) when read with the following subsection appear absurd. A driver required to produce his certificate and who failed to produce it there and then on the spot commits an offence under the Ordinance, and then, if going a mile further he drives the car into a ditch he will have 24 hours to produce the same certificate and if he produces it within that time he “shall not be convicted”.
Taking that restricted view the Magistrate did not consider the question whether or not the appellant did produce the certificate soon afterwards. That point was not considered in the learned Magistrate’s judgment. The appellant said that he contacted the Superintendent that night and told him what had happened and that as a result his driving licence which had been taken by the constables was returned to him the next morning. The prosecution under this count would not have been necessary if the appellant had taken his certificate to the Motor Traffic Office and explained himself instead of thinking that the constables were impertinent in saying that he exceeded the speed limit. I am concerned however with interpreting section 17 (1) and I hold that the production of the certificate should be made within a reasonable time after it was requested. What is reasonable depends on the circumstances of each case. Taking that view I allow the appeal on the 2nd count and in respect of that count I set aside the conviction of the appellant and order that he be acquitted and discharged.
Appeal against the conviction on the second count allowed.
