MICHAEL R. KABONGO v REPUBLIC 1989 TLR 31 (HC)

 MICHAEL R. KABONGO v REPUBLIC 1989 TLR 31 (HC)

Court High Court of Tanzania- Mbeya

Judge Mwaikasu J

21 March, 1989 H

Flynote

Criminal Practice nad Procedure - Forfeiture - Firearms and Ammunition Ordinance

(Cap.223) - Conviction under section 31(4) to be followed by forfeiture order.

Criminal Practice and Procedure - Forfeiture order made by trial court seven years

after sentencing and without notice or audience to the Republic and appellant -

Whether I procedure is regular.

1989 TLR p32

Principles of Natural Justice - Forfeiture order made seven years after sentencing - A

Whether the trial court becomes functus officio - Duty of court where prosecution

fails to apply for forfeiture order - Firearms and Ammunition Ordinance (cap. 223).

-Headnote

The appellant was at the material time of the incident the holder of two firearm

licences B for two rifles. On 2/3/l980 the appellant left the two guns with someone

who was not authorised to possess any firearm (Mr. Sanga). The guns were found

with the latter person. Consequently both the appellant and Mr. Sanga were charged

with the C appropriate offences under the Firearms and Ammunition Ordinance,

Cap. 223 and sentenced. In terms of s. 31(4) of the Ordinance, upon conviction of the

appellant, the firearm was liable to be forfeited or to have the licences suspended for a

specified period. This was not ordered by the trial court. The record remained so

silent for seven D years until the same court was moved by the Director of Public

Prosecution. The trial magistrate proceeded to make the forfeiture order without

notice to the prosecutor who was to represent the Republic, and the appellant whose

guns were to be forfeited. This appeal is based on the grounds that such order was

made seven years after sentence had E been passed and without notice or hearing to

the appellant, or any application for the order from the prosecution.

Held: (i) Procedure adopted by the learned trial magistrate was grossly irregular, in

that F by denying the parties the opportunity to be heard, he offended one of the

cornerstones of justice, i.e. principles of natural justice;

(ii) the order for forfeiture ought ordinarily to have been made soon after

passing the sentence;

(iii) the trial magistrate does not become functus officio and thereby

incompetent G to make the order later by merely omitting to make any other order

such as forfeiture or compensation as required by law;

(iv) where the trial court inadvertently omits to make an order that order

could H be properly considered and made at a later stage after sentencing, provided

that all parties concerned have been given notice and an opportunity to be heard;

(v) in a situation such as the foregoing, the trial court need not wait until the

prosecution applies for such an order.

It should, in fact, be its duty to move for such order (see section 31(3) and (4) of I

Cap.223 as amended by Act No. 50 of 1964).

1989 TLR p33

MWAIKASU J

Case Information

Appeal allowed. A

[zJDz]Judgment

Mwaikasu, J.: Before the lower court, (Kapaya, RM Esq.), the appellant, Michael Z.

Kabogo, was convicted upon his own plea of guilty to the charge of failing to take

proper precaution for safe custody of a firearm c/s 13(1) and 31(1) of the Arms and B

Ammunition Ordinance Cap.223.

He was then sentenced to a fine of shs.2000/= or six months of imprisonment in

default thereof. He paid the fine. No order of forfeiture of the firearms, which were

two rifle guns or suspension of the licences in respect of such guns was made by the

lower court C when such sentence was passed, which was on 18/8/80.

It was then seven years later and upon being urged to do so by the DPP, vide his

letter Ref. No. J/C.ll0/l8/l49 of 9th September l987, that on 21/l0/87, and without

notice to and in the absence of the appellant, the owner of the two guns, the lower

court made the D forfeiture order.

That then is the subject of this appeal on the grounds that such orders was made

seven years after sentence had been passed and without notice to the appellant, or any

application for that order from the prosecution, and that the lower court erred in law

in E making such forfeiture order without hearing the appellant first.

The appellant was represented by Mr. Mwakasungula, learned counsel and Mr. Naali

learned State Attorney appeared for the Republic.

Arguing the appeal Mr Mwakasungula, learned counsel for the appellant contended F

inter alia, that when the lower court sentenced the appellant on 18/8/80, without

making the forfeiture order, it was thereby functus officio, as regards the order of

forfeiture. It had therefore no power to make any order subsequently. Thus the order

made on 21/l0/87 to forfeit the appellant's two guns seven years later was wrong in

three G respects: first, there was no applicant for such order as no prosecutor

appeared when the order was so made; secondly, the appellant himself was not

present nor informed of such application if any. It was therefore prayed that the order

should be quashed with an H order restoring the two guns to the appellant.

Mr. Naali, learned State Attorney declined to support the order of forfeiture so made

upon finding that there was a clear irregularity on the face of the record. For the

order having been made seven years after the sentence was passed was itself irregular.

Then I considering the fact of the case the appellant ought to have at least

1989 TLR p34

MWAIKASU J

been called upon to show cause as to why the order should not be so made. He A

therefore also conceded that the appeal should be allowed.

I allowed the appeal when it came up for hearing on 17/3/89, reserving my judgment

which I now proceed to give.

Briefly the facts show that the appellant was at the material time of the incident the

holder B of two firearms licences for two rifle guns.

Then on 2/3/80 the appellant left the two guns with Erasto Asheri Sanga who was not

authorized to possess any firearm. On the same day at about l0 p.m., such firearms

were C found with the said Sanga but it is not clear under what circumstances the

guns were so found, and whether the same were found at the said Sanga's home or

not.

Consequently both the said Sanga and the appellant got charged with the appropriate

D offences under the Firearms and Ammunition Order, Cap. 223 and sentenced

accordingly.

In terms of s.31(4) of the Firearms and Ammunition Ord. upon conviction of the

appellant for contravening the provisions of the Ordinance, the firearm was liable to

be E forfeited or to have the licences suspended for a specific period. That was not,

however, so ordered by the learned trial magistrate and the record remained thus

silent for a period of seven years until the lower court was subsequently moved by the

D.P.P. as stated above. Then the learned trial magistrate proceeded - making the

forfeiture order F without notice both to the prosecutor who was to represent the

Republic and the appellant who had to be heard why such guns should not be so

forfeited. Hence this appeal. In the first place I totally agree with both learned

counsel that the procedure adopted by the learned trial magistrate was grossly

irregular, in that by denying the G parties the opportunity to be heard, particularly

the appellant, he thereby offended one of the cornerstones of justice, which is one of

the principal arms of the principle of natural justice that no one should be condemned

guilty or have his property confiscated, without being given the opportunity to be

heard.

The other aspect of the appeal is that the order was irregular for being made several

H years after the date when the sentence was passed, and that by then the trial

magistrate was functus officio.

Admittedly, the order for forfeiture ought ordinarily to have been made soon after

passing the sentence. That is why in terms of s. 351(4) of the C.P.A., when a forfeiture

I order is so made in which an appeal lies, it shall not, except when the property is

livestock or

1989 TLR p35

MWAIKASU J

is subject to speedy and natural decay, be carried out until the period for presenting

the A appeal has passed or when such appeal is entered until the disposal of such

appeal.

But one interesting question is whether where the trial magistrate has passed a

sentence but omits to make any other order such as forfeiture or compensation as

required under the law, he thereby becomes functus officio in respect of such

forfeiture or B compensation order, and therefore incompetent to make it

subsequently.

In my judgment I would not subscribe to such view. For it appears clear to me that

the authorities so far available on the point do relate to the powers of the trial

magistrate or C judge to the stage of sentencing, or some other order of the court

finally determining the trial of the case such as an order for no case to answer. Yet an

order for forfeiture that is to be made after the conviction and sentence of an accused

person, is a separate exercise of judicial discretion over and above the sentence passed.

It is in effect a D separate legal duty imposed upon the trial court that has to be

exercised after the conviction and sentence have been passed. Though hinging upon

an accused's conviction, it is a separate exercise of judicial powers over and above the

power of sentencing. E

Thus where it has inadvertently been omitted, it could, in my view, be properly

considered and made at a later stage after sentencing, provided that all parties

concerned - the Republic and the accused person have been given notice and an

opportunity to be heard. F

In such situation the court need not wait until the prosecution applies for such an

order. It would, in fact, be its duty to move for such an order. For in terms of s.31(4)

of the Firearms and Ammunition Ordinance as amended by Act No. 50 of 1964, it is

there provided, thus: G

(4) All arms or ammunition and any equipment or tools used in the

manufacture and assembling of such arms or ammunition, and any vessel, in respect

of which an offence is committed is liable to be forfeited to Government. H

That then imposes a duty upon the trial court to consider making the order for

forfeiture of the firearms or ammunition in respect of which an offence has been

committed in contravention of the provisions of the Ordinance. There is, in fact,

another duty imposed I on the trial court to the like effect as provided for under

1989 TLR p36

MWAIKASU J

sub-s.(3) of the same section which provides thus: A

(3) Any person so convicted who holds a licence or permit under this

Ordinance shall be further liable to forfeiture of his licence or permit or to suspension

thereof for such period as the court thinks fit. B

In this regard comparison can be made with the provision under s.7(2) of the

Minimum Sentence Act 1972, relating to the making of orders for compensation. It is

there provided thus: C

(2) An order under this section may be made at anytime after the sentence has

been passed, and where it has not been made immediately after the sentence has been

passed, the court which passed the sentence or any court having revisional

jurisdiction over it, may make such D order at any subsequent time on the

application of the owner of the property or on its own notice.

However, in considering whether orders of forfeiture provided for above should be E

made, it is imperative, as a matter of justice that opportunity to be heard should be

given to all the parties concerned.

In this case this court was inclined to make an order for the suspension of appellant's

licences in respect of the two guns.

However, upon considering the circumstances of the offence of which the appellant

was F convicted, and that seven years had elapsed during which the appellant was

deprived of the use of his firearms as they remained in the custody of the police, it

was found that such period was already more than enough in denying the appellant

the use of such G firearms as a lesson for him to exercise greater care of the same.

Accordingly the appeal had to be allowed setting aside the lower court's order for

forfeiture with an order that the two guns should be restored to the appellant.

H Appeal allowed.

1989 TLR p37

A