SAIDI KIKA v REPUBLIC 1985 TLR 236 (HC)

SAIDI KIKA v REPUBLIC 1985 TLR 236 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

September 23, 1983

CRIMINAL APPEAL 28 OF 1982 D

Flynote

Criminal Practice and Procedure - Charges - Charge and statement of facts not

disclosing any offence - Whether conviction proper. E

Criminal Practice and Procedure - Appeal - Trial court errors not raised by appellant

due to ignorance - Power of appellate court.

-Headnote

The appellant was convicted, on his own plea, of transporting agricultural products

without a valid permit contrary to ss.3 and 7 of the National Milling Corporation F

(Specified Agricultural Products) (Control of Transport) Order 1976, GN80 of 1986.

The order prescribes a maximum limit of 30 kgs of paddy and/or rice, which may be

transported without a permit. But while alleging in its particulars that the appellant

transported three bags of paddy and three bags of rice, the charge did not show the G

weight of the products, and the facts as given by the prosecution showed that he was

found with three sacks of rice only. The appellant was sentenced to pay a fine of

Shs.800/= and the rice was ordered to be forfeited. He appealed against sentence and

forfeiture. H

Held: (i) While the charge and the statement of facts are inconsistent in their

description of the nature of the offending object, none of them specify its weight,

which is essential ingredient of the offence charged;

(ii) by failing to specify the weight of the offending objects, neither the charge

nor the statement of facts disclosed any offence; the plea of guilty was therefore I

equivocal and not capable of supporting a conviction;

1985 TLR p237

SISYA J

Case Information

Appeal allowed. A

No cases referred to.

Judgment

Sisya, J.: This appellant was convicted, on his own plea, of the B offence of

transporting agricultural products without a valid permit contrary to sections 3 and 7

of the National Milling Corporation (Specified Agricultural Products) ( Control of

Transport) Order, 1976. He was sentenced to pay a fine of shs. 800/=, or in default of

payment of the fine, to go to jail for four months. He paid the fine. The offending C

objects, i.e. paddy and rice, were ordered forfeited to the government. This appeal is

against sentence and the order of forfeiture only.

Upon going through the record of proceedings it was observed that there were some

other unsatisfactory aspects of the case which were not raised by the appellant in his

D petition of appeal. I, nevertheless, propose to deal with these all the same. This is

so because the appellant was not represented by learned counsel at the hearing of the

case in the Court below. Had he availed himself of such services then, perhaps, the

position would have been different from what it now is. Further, it is because the

appellant is a E raw citizen - at least that is the impression I got when I saw him at

the hearing of this appeal. The said features under querry stem from the charge it

speaks and I quote:

Offence Section and law:

Transporting Agricultural products without a valid permit c/s 3 and 7

of the National F Milling Control of Transport Order (sic) GN 80/176 made under

Section 12 and 17 of NMC Act. No. 11/1975.

Particulars of Offence: G

Saidi Kika charged on or about the 26th day of June, 1982 at about

11.30 hours at Makorora within the District and Region of Tanga being not holder of

valid permit or authorised person or agent of National Milling Corporation did

transport 3 bags of paddy and 3 bags of rice from Kitivo Lushoto District to Tanga

without permit from H N.M.C.

The proper citation of the order quoted in the statement of offence is as cited in the

opening paragraph of this judgment. According to an endorsement on the relevant I

charge sheet it becomes crystal clear that the same passed through the hands of the

learned trial Magistrate, at

1985 TLR p238

SISYA J

least, before it was "read over and explained" to the appellant. This exercise, that is

of A Magistrates going through charge sheets before the same are "admitted" and/or

read over to accused persons is commendable and desirable and this Court will be all

out in support of it. The said exercise will, however, have no meaning at all if it is

done perfunctorily. In this connection Magistrates are, once again, called upon to be

B meticulous in whatever exercise they engage themselves in whilst in office. The

Magistrate here did not bother about the error in the statement of offence. So much

for that.

Section 3 of G.N. 80 of 1976 under which the appellant was charged and convicted

and the schedule thereto impose an absolute restriction on the transportation of

paddy and/or C rice 'exceeding thirty kilograms at any one time' without a permit

issued by the National Milling Corporation. It is manifest, upon reading the provision

of the law in point, that the weight of the agricultural product involved is an essential

ingredient of the offence. Upon a proper interpretation and construction of s.3 of

G.N.80 of 1976 and D by necessary implication the transportation of rice and/or

paddy, or any of the other products specified in the schedule for that matter, of or

below the weight of thirty kilograms is not an offence at all under that piece of

legislation.

In short, by failing to show the weight of the 'three bags of paddy and three bags of

rice,' E a material factor and/or essential element, the charge, simply, did not

disclose any offence.

Not only that. The statement of the facts of the case as presented by the learned

Public Prosecutor which is remarkable for its brevity may, conveniently, be quoted in

full. It reads: F

P.1

Facts are that on 26/6/82 at about 11.30 a.m. at Makorora No. 5428 P.C.

Hamidu of Police, Tanga, was on duty. He came across accused carrying three sacks

of rice. Accused said he G had brought then from Kitivo, Lushoto, without a permit

from N.M.C. Accused said he brought the rice for his children in town."

The weight of the offending object was, again not given in the statement of facts. As

a matter of fact even the said offending object had been 'reduced' 'from three bags of

H paddy and three bags of rice' to three bags of rice only. As the position stands it is

not clear whether the appellant had, in all six bags; three of paddy and another three

containing rice as alleged in the charge or if he had only three bags of rice as stated by

the learned Public Prosecutor to the learned trial Magistrate. Be it as I

1985 TLR p239

it may, the fact of the matter is that even the statement of facts discloses no offence A

under s.3 of G.N. 80 of 1976.

In view of the aforegoing one wonders to what offence the appellant pleaded when

he is recorded to have said, "It is true", and a plea of guilty entered. On my part in so

far as both the charge as laid and the statement of facts of the case as presented

disclose no B offence the appellant's plaint cannot be said to be unequivocal. The

proceeding was thus, a nullity ab initio and it is so declared.

In the final result the conviction, sentence and order of forfeiture cannot be allowed

to stand and the same are, consequently, avoided. It is further ordered that the fine

which C the appellant paid should now be refunded to him and the rice, Exh. P.1,

restored to him. In the likely event of the rice having been disposed of then the

appellant should be paid its equivalent monetary value. In other words this appeal is

allowed.

D Appeal allowed.

1985 TLR p239

E