R. v. Abdallah & Others Crim. App. 112-D-71; E.A.C.A. 13/12/71; Duffus P. Lutta and Mustafa JJ. A

 

R. v. Abdallah & Others Crim. App. 112-D-71; E.A.C.A. 13/12/71; Duffus P. Lutta and Mustafa JJ. A

The Director of Public Prosecutions appealed against a decision of a judge acting in his appellant capacity. The judge had set aside the forfeiture order made by the district magistrate in five criminal prosecutions under the National Agricultural Products Board Act, 1964, Cap. 567, for a breach of the National Agricultural Products Board (Transport Control) Order of 1969, G.N. 247/69. Paragraph 3 of the Order prohibits the transportation of any agricultural product, to which the Act of 1964 applies, which exceeds 30 kilos in weight, without a permit from the Board and then in accordance with the terms and conditions specified in the permit. Paragraph 8 of the Order makes it a criminal offence to contravene any provision of the Order and provides that on conviction the court ‘may, in addition to such fine or term of imprisonment, order that the agricultural product in respect of which the offence is committed shall be forfeited to the United Republic.’ The appellants had pleaded guilty to contravening the legislation and the magistrate either before or after fining them, called upon each to show cause why an order for forfeiture of the produce, the subject of the charges, should not be made. In the absence of them offering any reason the order was made. In setting aside the order of forfeiture the appellate judge seemed to have been influenced by the fact that the cumulative effect of the fines and the forfeiture were, ‘grossly excessive for a statutory offence involving no moral turpitude.’

            Held: (1)”The judge, acting on the authority of the decision in the case of Ngulila Mwakanyemba v. R. (Case No. 314 in the 1968 High Court Digest – Tanzania) said that the forfeiture order should also have shown the authority under which it was made and should also have contained sufficient reasons to show that the magistrate had contained sufficient reasons to show that the magistrate had applied his mind judicially as to whether or not to make the order. [It was submitted for the D.P.P.] That the district magistrate had followed the correct procedure in law and had ordered the forfeiture in the exercise of his judicial discretion and he asked this Court to restore the district magistrate’s order ….. [T]he respondents, supported the judgment of the High Court and he submitted that the district magistrate had not exercised his discretion judicially as he appeared to have cast the onus on the defendants to show cause why he should not order the forfeiture.” (2) “The order of forfeiture was clearly a judicial discretion given to the trial court. The principles governing the exercise of judicial discretion have been widely dealt with in numerous cases. In the case of Yakobo Mbugeramula v. R. 18 E. A. C.A. 207 at 210 this Court, in considering the order of forfeiture under the Arms and Ammunition Ordinance of Uganda, said-  

‘In short the exercise of discretion remains a matter dependent upon the facts of each particular case which must be exercised judicially in the light of such facts.’” (3) “It would be wrong to lay down any definite rules as to the exercise of discretion but the following quotation from Stroud’s Judicial Dictionary (3^rd Ed. Vol. I “Discretion”) based on the cases therein set out, in our view aptly sets out some of the general rules that do apply. ‘Where something is left to be done according to the discretion of the authority on which the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the statute, otherwise the act done would not fall within the statute. ‘According to his discretion’, means, it is said, according to the rules of reason and justice, not private opinion.” “(4) “We would here consider the case of Ngulila s/o Mwakanyemba quoted by the learned judge. We have read this judgment, which is a short judgment of Duff, J. in his Revisional Jurisdiction in Criminal Revision No. 48 of 1968. In that case there was no provision for forfeiture in the offence charged and the learned judge said – ‘Every forfeiture order should specify the authority under which it is made and should contain sufficient reasons to show that the magistrate applied his mind judicially to the question whether or not the order should be made.” The facts in this case are quite different in that here the right to order forfeiture in each of the five cases is contained in the paragraph under which the defendants were charged and here clearly there was no necessity to the magistrate to again repeat that he made the order for forfeiture under that paragraph when, in fact, he was clearly sentencing the defendants under the same paragraph. We agree that the proceedings should show that the magistrate has applied his mind judicially in dealing with the question of forfeiture but in this case, as we have pointed out, the magistrate in fact showed in his record that he called upon each of the defendants to show cause against the forfeiture before he proceeded to make the order of forfeiture. We think it would be preferable for the court not only to show that it is considering whether to make the order of forfeiture but also to state why it made the order but this is not a fatal defect. Each case must be considered in its own particular circumstances and in this case, with respect to the views of the learned judge, the facts show an apparent flagrant disregard of the law by each of the defendants.” (3) “The National Agricultural Products Board Act, Cap. 567, together with the National Products Board (Control and Marketing) Act, 1962, are both Acts to control and regulate the production and marketing of agricultural products and the particular order in this case – the National Agricultural Products Board (Transport Control) Order, 1969, exists to carry out the provisions of these laws. All these laws and the order were fully considered and brought into force by the Government for the national prosperity and the general good  of all the people. In these five cases the facts show that these appellants have, in fact, completely disregarded the law and have made no attempt to explain their acts and really put forward no plea in mitigation. The greater the amount of forward no plea in mitigation. The greater the amount of

The produce involved the greater was the attempt to evade the law. In each of these cases a considerable amount of produce was involved and in four of the cases the offence took place at night, when the transport of produce is forbidden. In these circumstances we are of the view that the district magistrate did not inflict an excessive fine. The fine was only Shs. 250/- on each defendant and the maximum was a fine of Shs. 2,000/- or a sentence of six months imprisonment or both the fine and imprisonment. We are also satisfied that the district magistrate’s order of forfeiture was made only after he had considered all the facts before him and was done in the exercise of his judicial discretion and should not therefore have been set aside by the High Court.” (6) Appeal allowed. Order for forfeiture restored.