Lulu v. R. Crim. App. 353-D-71; 13/9/71; Mwakasendo Ag. J.
The appellant was convicted by the District court of Mpwapwa of two offences, that is to say, (a) Failing to keep a record of game hunted contrary to sections 23(1) (b) & (3) and 53(1) (a) (ii) of the Fauna Conservation Ordinance Cap. 302 of the Laws; and (b) Transfer of Fire Arm without permit contrary to sections 15 and 31(2) f the Arm and Ammunication Ordinance, Cap. 223 of the Laws; and was sentenced respectively to pay fines of Shs. 400/= and Shs. 500/=. The District Court further ordered his fire arm to be forfeited to the Government of the United Republic of Tanzania.
Held: (1) “Taking the first count in the Charge Sheet, I have no doubt that the appellant was properly convicted of the offence. His plea to the charge was without question an unequivocal one. Therefore the only other matter that I need consider is the severely of sentence. Bearing in mind the facts narrated by the prosecution in support of the charge in the first Count I do not think the offence so disclosed is to any extent a serious one and it does appear from the record that the District Magistrate was of the same view. There was therefore no justification for the District Court to impose a sentence which is, in the circumstances of the case, manifestly excessive. This the Magistrate did without bothering to find out whether or not eh appellant, a first offender, had the necessary funds to meet the fine imposed. On consideration of the facts in this case I am not satisfied that the fine imposed correctly reflects the intrinsic gravity of the offence charged and it is accordingly reduced to Shs. 150/=
(2) “With regard to the second count, the learned lady State Attorney referred to the High Court Case of Joakim Michael v. Republic (1963) E. A. 235. In that case Joakim Michael was charged with transferring to another his shot gun and ammunition without a permit, contrary to section 15 of the Arms and Ammunition Ordinance. When the charge was read over and explained to the accused he said: “It s true. I handed that man my shot gun and sixteen rounds of ammunition. I had no police permit.” The Magistrate held that the accused’s answer amounted to an unequivocal plea of guilty and convicted the accused. In revisions, Weston, J. held that “(1) The association of the word “transfer” in section 15 of the Arms and Ammunition Ordinance, with the words “sell” and “buy” and the use of the expression “either by way of gift or for any consideration”, clearly shows that the intention is to restrict “transfer” to any disposition analogous to sale or gift, that is to say, to any disposition as a result of which the property in the arms or ammunition passes. (ii) Nothing that the accused said, nor his concurrence with the facts stated to the Court by the prosecuting officer amounted to an unequivocal admission of any transaction by which the property in the shot gun and ammunition passed to the person to whom the same were handed.” The learned Judge accordingly declared the trial a nullity. In the instant case when the charge was read over and explained to Lulus/o Mang’ati, he said “I plead guilty”. The record is completely silent as to the actual words used by the accused. Nor does one get any inkling as to the nature of the transaction involved from reading the statement of facts by the prosecuting officer. The accused has however clarified the matter in his memorandum of appeal where he stated that he had merely asked the person who was with the rifle to carry it for him into the forest where he was going to hunt wild animals. Accepting the accused’s word with regard to the transaction involved and I have no reason to disbelieve him in the absence of any other evidence to the contrary, it is clear that the transaction in this case cannot, in law, be described as a “transfer” in the strict legal sense of the word. Even assuming that the accused had lent the gun of him friend that would not bring his conduct within the ambit of section 15 of the ordinance. In my judgment, the facts as disclosed can never ground a conviction for an offence under section 15 of the Arms and ammunition Ordinance and applying the principles enunciated in the Joakim’s case, I quash the conviction, set aide the sentence and order of forfeiture.” (3) “The result of this case does perhaps demonstrate guite plainly the inadequacy of the Arms and Ammunition Ordinance in restricting the “lending” of fire arms to unauthorized persons. Section 15 of the Ordinance would not, as already pointed out in this judgment, apply to this type of transaction. And yet this king of transaction is alarmingly on the increase. The position is such that argent review of the Law with regard to the ‘lending” and “transferring” of fire arms is called for.” (4) Appeal allowed in part, that is to say the fine imposed on the first count is reduced and the conviction, sentence and order of forfeiture under the second count are quashed and set aside.
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