R. v. Fares s/o Dadi and 4 Others. Crim. Rev. 57-M-71; 27/10/71; Kisanga Ag. J.

R. v. Fares s/o Dadi and 4 Others. Crim. Rev. 57-M-71; 27/10/71; Kisanga Ag. J.

Four persons were convicted on their own plea, and one acquitted, on a charge of being in possession of uncustomed goods c/ss 147 (d) (ii) and 155A(c)  of the East African Customs Management act 1952 as amended by the East African High Commission Act No. 3 of 1958. The present revision was not concerned with the convictions, which were held justified, but with the propriety of an order made by the trial magistrate as to the motor vehicle used to transport the uncustomed goods. On the day he sentenced the four convicted persons, he made an order under section 158 (2) of the Act requiring the motor vehicle in question to handed over to the customs officer for safe custody. He adjourned the court and lat er heard the plea of not guilty entered by the fifth accused. At the end of this hearing he made a second order, restoring the vehicle to the true owner, Hamadi Sudi. It was argued by the Republic that having made the first order; the magistrate became “functus officio” and could not revise the order by making the second order.

Held: (1) “Section 158(2) under which the trial magistrate handed over the motor vehicle to the customs officer provides, “Any vessel, vehicle, goods, animal, or other thing, seized under the provisions of this section and any aircraft, vessels,

or other thing, which may be seized and detained under the provisions of this Act, shall be taken to a [Government warchouse or to such other place of security as the proper officer may consider appropriate”. it would seem that the provisions of this subsection merely concern the question where to keep the goods, etc,. After the have been seized but before any proceedings have been commenced, that is to say, it applies at any time during which the officer concerned is making up his mind whether or not to bring a prosecution in respect of the goods. For, under the following subsection 3, the Commissioner has power, subject to certain conditions, to release any goods etc. which have been seized under the Act. Thus the legislature cannot have intended that the court acting under subsection 2 may order that the gods etc. be kept at the Government warehouse and that at the same time the Commissioner acting under the following subsection 3 may dispose of such goods, because such provisions would cause a serious conflict. The correct section under which that order could have been made would be section 159 (3) (a) which provides, (3) Where an thing liable to for-feiture under this Act has been seized, then – (a) if any person is being prosecuted for the offence by reason of which such thing was seized, such thing shall be detained until the determination of such prosecution and dealt with in accordance with the provisions of section 160:” (2) “The motor vehicle was liable to forfeiture under section 156(1) of the Act because it was used in conveying the goods which were themselves liable to forfeiture and sine the accused persons were now being prosecuted for the offence connected with this transaction, the Court could properly order detention of the motor vehicle in question pending determination of the matter. I am also satisfied that such an order did not make the court “functus officio”. The terms of the order were that the vehicle “be handed over to the Customs Officer for safe custody”, and it would seem clear to me that this was merely an order for custody pending a further order for final disposal of the motor vehicle.” (3) “Section 160(1) provides that, “Where any person is prosecuted for any offence against this Act and any thing is liable to forfeiture by reason of the commission of such offence, then the conviction of such person of such offence shall, without further order, have the effect as condemnation of such thing.” The accused persons were prosecuted for being in possession of uncustomed goods and the motor vehicle was liable to forfeiture because it was used in conveying the goods, so that in terms of this subsection the conviction of the accused persons automatically operated as a condemnation of the motor vehicle.” (4) “Again section 162 (1) provides, “Where any thing has been seized under the provisions of this Act as being liable to forfeiture, then the condemnation of such thins shall in no way be affected by the fact that any owner of such thing was in no way concerned with the act which rendered such this liable to forfeiture.” According to this subsection it is clear that such condemnation cannot be prevented from taking effect by the fact that the owner of the vehicle was not in any way concerned with the transaction which rendered the motor vehicle liable to

forfeiture, and consequently it would appear that having regard to the provisions of section 160(1) cited above the trial court would not be entitled to issue notice to the owner to show cause because the condemnation of the vehicle was automatic upon conviction of the accused persons.” (5) “It should be noted that the power to restore the motor vehicle tot eh owner is vested in the High Commission. Section 163 of the Act provides that, ‘Where any thing has been seized under the provisions of this act, then the High Commission may, whether or not such thing has been condemned, direct that such thing shall be released and restored to the person from whom it was seized or to the owner thereof, upon such conditions as it may think fit.” This means that after the court has adjudicated upon the matter and vested the motor vehicle in the Republic, then it would be competent for the owner to approach the Customs authorities and to plead with them and that the High Commission may direct that the motor vehicle be released and restored to such owner upon such conditions as it may think fit.” (6) Order of the trial court restoring he motor vehicle to the true owner was set aside the record remitted back to the trial court with the direction to cause the motor vehicle in question, if still lawful belongs to the said Hamadi Sudi, be forfeited to the Government under section 162 (20 (a) of the Act.