R. v. Ignatus Kawala, Crim. Rev. 49-DDM-72, 22/7/72.

 

R. v. Ignatus Kawala, Crim. Rev. 49-DDM-72, 22/7/72.

            MNZAVAS, J. – In this case the accused was recorded as having pleaded guilty to two counts namely: (1) Transferring a firearm without permit signed by authorizing officer c/ss 15 and 31 (1)(4) of Arms and Ammunition Ordinance, Cap. 223; and (2) failure to observe precautions relating to the keeping in safe-custody of firearm c/ss 29(1) and 31(2)(3) and (4) of Cap. 223. He was, on the 1^st count, sentenced to a fine of Shs. 200/= or 3 months’ imprisonment in default and Shs. 100/= fine or 3 months’ imprisonment in default on the second count. The record shows that when the prosecution was asked by the court to state the facts leading to the charges he said: “Facts of the case as per charge sheet”. It is not clear from the record whether the particulars of the charges were read to the accused but the accused is recorded to have answered – “Correct”.

            Dealing with the charge in 1^st count the particulars were as follows: “The person charged on the 11^th day of April 1972 at about 10 hours at Santamari village, within the District of Sumbawanga and Mbeya Region, in the United Republic of Tanzania, did transfer a firearm No. 33912 S/Gun make Spanish without a temporary transfer permit signed by authorizing officer.” The learned District Magistrate accepted the particulars as constituting the offence under section 15 of cap. 223. As rightly stated by the learned state attorney this was a gross misdirection by the trial Magistrate. The particulars of the offence were incomplete in that they do not say whether the transfer was by way of gift or whether it was for a consideration. Neither is it clear whether the accused sold the shot-gun to the transferred.

            If, for argument’s sake, the accused had only lent the firearm to his friend he could not be said to have committed an offence under section 15 of Cap. 223. To commit an offence under section 15 of the Arms and Ammunitions Ordinance, Cap. 223, the transfer must be ejusdem generis with a sale or purchase, or it must be shown that the accused had given away his firearm as a gift to the receiver. It is not clear from the record whether the above transfer of the firearm by the accused to his friend amounted to a sale or a gift. The learned district magistrate is strongly advised to read the decisions in R. v. MWALIMU s/o SAUDI (1959) E.A. 415, JOAKIM MICHAEL v. R., (1963) E.A. 235 and LULU v. R. (1971) H.C.D. n. 400 to mention but a few on this point. I agree with the learned state attorney that the trial magistrate was wrong in law to enter a plea of guilty. The trial was clearly a nullity. The conviction is accordingly quashed and the sentence is set aside.

            As for the second count the Republic also argued against the conviction. It was argued that the facts accepted by the trial Magistrate did not amount to an offence under section 29(1) of Cap. 223. In support of his argument the learned counsel referred the court to the decision in SALATIEL v. R. (1971) H.C.D. n. 439. The particulars of the charge which the trial magistrate accepted as constituting an offence under section 29(1) were as follows: “The same person on the same date, time and place as mentioned on the 1^st count, being a person who has in his possession or control of a firearm No. 33912 Spanish S/Gun, did fail to take reasonable precautions to prevent the said firearm falling into the possession of unauthorised person, to wit he deposited it with one Petro s/o Saudi a who is unauthorized person under the Arms and Ammunition Ordinance.” It is clear that the above particulars of the charge do not amount to an offence under section 29(1) of the Arms and Ammunition Ordinance.

The section is in my opinion meant for a situation whereby an owner of a firearm so carelessly keeps his firearm that it falls in the hands of an unauthorised person. It does not cover a situation whereby the owner of a firearm voluntarily gives away his firearm to another person as it was in this case. And, if I may add, the fact that the second count depends on the first count which has already been found to be misconceived, the conviction in the second count is equally bad. Like in the first count the conviction is quashed and the sentence is set aside. It appears that the accused has already paid the fine vide Exchequer Receipt No. 218975. The fine of Shs. 300/= is to be refunded to the accused forthwith.