RAMADHANI SALIM MTEI v REPUBLIC 1985 TLR 223 (HC)

RAMADHANI SALIM MTEI v REPUBLIC 1985 TLR 223 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

January 23, 1984

CRIMINAL APPEAL 8 OF 1982 C

Flynote

Criminal Practice and Procedure - Sentencing - Arms and Ammunition - Suspension

of a D licence to own a pistol - Duration of suspension order not specified - Arms

and Ammunition Ordinance, Cap. 223, s.31(3).

Criminal Practice and Procedure - Sentencing - Natural justice - Forfeiture of pistol to

the Government - Order of forfeiture made without hearing the appellant - Arms and

E Ammunition Ordinance, Cap. 223, s.31(4).

-Headnote

The appellant was convicted on his own plea of guilty to a charge of failing to observe

safe custody of his pistol, contrary to ss.29(1) and 31 of the Arms and Ammunition F

Ordinance, Cap. 223. He was a businessmen based in Arusha and a holder of a pistol

legally issued out to him. He had come to Tanga on business and secured a room at a

guest house. Before retiring to bed, he requested the guest house care taker on duty

to keep the pistol for him in safe custody; but he retained the magazine with eight

rounds of G ammunition. The basis of the charge was that in the circumstances he

ought to have deposited the pistol at the Police Station. He was sentenced to pay a

fine of Shs.500/=. The trial court also suspended his licence to hold a pistol

indefinitely, and ordered forfeiture of the pistol itself, as well as its magazine and the

eight rounds of ammunition. H He appealed against the order of forfeiture.

Held: (i) The law requires that when a court orders suspension of a licence or permit

to hold a firearm under s. 31(3) of the Arms and Ammunition Ordinance, the period

of suspension should be specified; consequently the trial magistrate's order was

erroneous I for failing to specify the period of suspension;

1985 TLR p224

SISYA J

(ii) the power to order forfeiture of arms under s.31(4) of the Arms and A

Ammunition Ordinance is a discretionary power which must be exercised judicially,

for failing to call upon the appellant to advance reasons why his pistol, magazine and

rounds of ammunition should not be forfeited, the order of forfeiture was made in

breach of natural justices;

(iii) in view of the appellant's clean record, the absence of mala fides in his act

B of surrendering the pistol to the guest house care taker, and the reasons advanced

in the appeal, the order of forfeiture does not remain with much merit;

Case Information

Appeal allowed. C

No cases referred to.

Judgment

Sisya, J.: This appellant was charged with and he was, on his own plea, convicted of

the offence of failing to observe safe custody of arms and ammunition D contrary to

sections 29(1) and 31 of the Arms and Ammunition Ordinance, Cap. 223, and he was

sentenced by the learned Resident Magistrate, Tanga, to pay a fine of Shs.500/= or, in

default of payment thereof, to go to jail for a period of one month. The learned

Resident Magistrate also suspended his, i.e. appellant's, licence, indefinitely and E

ordered forfeiture of his pistol, its magazine and eight round of ammunition which,

incidentally, were the offending objects in the case.

The appellant paid the fine. This appeal is against the order of forfeiture only. F

The established facts of the case show that the appellant was, prior to his conviction

in this matter, holder of a pistol (Exh. P1) which was legally issued out to him as per

Exhibit P3. On 21/1/82 he came to Tanga from Arusha on business. He had his pistol

with him and its magazine which carried eight rounds of ammunition. On his arrival

in Tanga he G secured a room at Unguja Lodging. Later at about 9.00 p.m. before he

retired to bed he requested the guest house's care taker then on duty, one Saidi Ali to

keep the pistol for him in safe custody. The appellant, however, retained the

magazine and the rounds of ammunition. The handing over was in writing but the

relevant piece of paper was not, H as it ought to have been, tendered by the Public

Prosecutor who prosecuted the case in the Court below. Thereafter Said Ali went and

reported the matter to the Police. Eventually the appellant was arrested and

subsequently brought to justice.

In making the orders against which the appellant is now appealing I

1985 TLR p225

SISYA J

the learned Resident Magistrate observed that the appellant ought to have deposited

the A pistol at the Police Station; that it becomes particularly dangerous when

firearms fall into the hands of unauthorised persons; and that observance of

regulations, safeguards against increasing armed robberies.

In his petition of appeal which is home made the appellant avers that the learned B

Resident Magistrate erred in making the orders of suspension and forfeiture by not

taking into account the following factors, that is to say, he was holding the pistol

lawfully; that he has held the said pistol since 1974 without breaching any regulation;

that as a businessman he needs the firearm for his own protection as well as for the

protection of C "tourists" whom he deals with in the course of his business; that he

put up at Unguja Lodging after failing to secure accommodation at any one of the big

hotels in Tanga; that he was new in Tanga; that he felt insecure at the said Unguja

Lodging, that the course of action which he pursued was the best that he could in the

circumstances, and that the D offence which he committed was more technical then

anything else.

The learned Resident Magistrate derived his powers of suspension from subsection

(3) of section 31, Cap. 223, which lays down thus, and I quote: E

(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. F

As can easily be observed this provision of the law is couched in mandatory language.

The only option left upon to the Court is to either order forfeiture of a licence or

permit, whichever may be the case, or to order suspension thereof. In the instant

matter the learned Resident Magistrate opted, as he was perfectly entitled to do, to

order G suspension of the appellant's licence.

The law, however, requires that the period of suspension be specified. The learned

Resident Magistrate did not do so. By failing to specify the period of suspension the

learned Resident Magistrate, therefore, erred. This error, however, is to my mind, H

curable on appeal. It is my considered opinion that the period between the date of

conviction and order, i.e. 28/1/82, to date is enough to meet the justice of the case.

I now move to the order of forfeiture of the firearms. The relevant provision of the

law here is s.31 (4) Cap.223, as amended by Act No. 50 of 1964. It reads: I

1985 TLR p226

SISYA J

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

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

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

The power to order forfeiture under this provision of the law is discretionary.

Needless B to say, such discretion must be exercised judicially.

As can be gleaned from the record of proceedings of the instant matter it becomes

apparent that the appellant was not called upon to advance reasons why his pistol,

magazine and round of ammunition should not be forfeited to the Government. Such

a C move is very important because failing which may be tantamount to denying the

appellant his right of being heard on this particular point and consequently resulting

in the breach of natural justice. Had the learned Resident Magistrate called upon the

appellant to address him on the question of forfeiture I am minded to believe that the

latter would D have advanced the reasons which he has now done in his petition of

appeal. And had the learned Resident Magistrate heard and considered these reasons

it is doubtful if he still would have made the order of forfeiture. This doubt, as the

law requires, must be resolved in favour of the appellant. E

I have myself considered the reasons advanced by the appellant as conscientiously as I

could and, in all the circumstances of the case, I find them plausible. The appellant

has a clean record and he, readily, pleaded guilty when the charge was read out to

him. I take this as a sign of contrition. I see no sign of mala fides in his act of

surrendering his pistol to the guest house attendant for safe custody, the inherent

dangers that exist in such a F move notwithstanding. To my mind it was more of a

tactical error than anything else.

All in all, for the reasons given I am satisfied that this appeal has merit and it is

hereby allowed. The order of forfeiture is quashed and set aside. It is further directed

that subject to licensing regulations the pistol (Exh. P.1), the magazine and eight

bullets G (Exh.P3) shall now be restored back to the appellant.

Appeal Allowed

1985 TLR p227

A