SAMSON KAYORA AND LEONARD MSIMBA v REPUBLIC 1985 TLR 158 (HC)

SAMSON KAYORA AND LEONARD MSIMBA v REPUBLIC 1985 TLR 158 (HC)

Court High Court of Tanzania - Tabora

Judge Maina J

April 23, 1986

CRIMINAL APPEALS 101 & 108 OF 1985 F

Flynote

Criminal Law - Exporting restricted goods - Definition of "export" - Section 2 East

African Customs and Transfer Tax Management Act (44 of 1967).

Criminal Law - Exporting restricted goods - Whether restricted goods may include

goods G not specifically declared to be restricted.

Criminal Practice and Procedure - Pleas - Plea of guilty to an offence not properly

disclosed in the charge and by the facts - Whether unequivocal.

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

disclosing H the offence alleged - Whether proper.

-Headnote

The first appellant was convicted on his own plea of guilty to a charge of exporting

restricted goods to Burundi c/ss 146(c) and 155(a) of the East

African Customs and Transfer Tax Management Act, 44 of 1967. He was sentenced I

to a fine of Shs.3000/= and the goods and the vehicle,

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MAINA J

which belonged to the second appellant and in which the goods were being carried,

A were ordered to be forfeited. The particulars of the charge alleged that the first

appellant was found in Kasulu District exporting maize flour, beans and maize, all of

them in modest quantities, to Burundi. To that charge the appellant replied: "It is

true I exported B the crops to Burundi from Tanzania without a permit." No law

was cited under which the said goods were declared to be restricted goods.

Held: (i) "Export" means to take or cause to be taken out of the country. Since the

first appellant was found and arrested with the goods in Tanzania, he cannot be said

to have C exported the goods to Burundi from Tanzania;

(ii) it is necessary for the prosecution to establish that the goods in question

are lawfully declared "restricted goods." As the charge and the facts did not disclose

this, the conviction cannot be upheld;

(iii) although the appellant purported to plead guilty to the offence of

exporting D goods to Burundi, the charge and the facts as given by the prosecution

were not consistent with that plea.

Case Information

Appeal allowed.

No cases referred to. E

Kwikima, for the appellants

Mussa and Nyabiri, for the respondent.

Judgment

Maina, J.: These two appeals are consolidated. The first appellant F Samson Kayora

was charged with, and convicted of, exporting restricted goods contrary to section

146(c) and 155(a) of the East African Customs Management Act. He was sentenced to

a fine of Shs.3,000/= or twelve months imprisonment in default. The vehicle in

which the goods were being carried was forfeited to the Government. G The second

appellant, Leonard Msimba, is the registered owner of the motor vehicle, and he is

appealing against the order of forfeiture.

The first appellant was jointly charged with twenty-six others. He was the fourteenth

accused in the charge sheet. The particulars of the charge allege, inter alia, that the

H appellant was found at Migongo village, Kasulu district, exporting to Burundi

restricted goods, to wit, three tins of maize flour, two tins of beans and one quarter of

a tin of maize. When the charge was read over to the appellant he is recorded as

saying "It is true I exported the crops to Burundi from Tanzania without a permit."

The prosecutor I then outlined the facts. In so far as the first appellant is concerned,

the facts allege that at the time of his arrest the appellant

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MAINA J

"used his motor vehicle Reg. No. UJ 945 to export the crops". The appellant is A

recorded as admitting the facts as correct. He was accordingly convicted on his own

plea of guilty and sentenced as above. The orders of forfeiture of the goods and the

motor vehicle were then made.

Mr. Kwikima, learned counsel for the appellants, submitted first of all, that the plea

by the first appellant was equivocal. He said that the first appellant could not have

pleaded B guilty to the offence in all its ingredients. Learned Counsel further said

that the goods found with the first appellant were of small quantities and some are

perishable so that they were not for export. Mr Kwikima added that there was no

Government Notice brought to the attention of the Court to show that those goods

were restricted goods. C Finally, he said that the first appellant was found in

Migongo village in Kasulu district within Tanzania and so he could not have said that

he exported the goods. Mr. Mussa learned State Attorney conceded and said that the

Republic did not support the conviction.

I think there is force in what Mr. Kwikima has said. The first appellant could not

have D told the court that he exported the goods to Burundi while the particulars of

the offence and the facts given by the prosecutor clearly show that the first appellant

was arrested in Migongo village within Kasulu district in Tanzania, with those goods.

The plea is inconsistent with the facts. Since the first appellant, like the other

accused who were E jointly charged with him, was arrested in Tanzania with those

goods, I do not see how he could be said to have exported the goods "to Burundi from

Tanzania". He could not possibly have said that he exported them to Burundi.

Section 2 of the E.A. Customs and Transfer Tax Management Act gives the following

F definition of the term "export":

export with its grammatical variations and cognate expressions means to take

or cause to be taken out of the Partner States. G

For the purpose of the Act, it is provided in section 2(2)(c) that "in the case of goods

exported overland, the time of exportation shall be deemed to be the time at which

such goods pass across the boundaries of the Partner States". When the first appellant

was arrested on 13.10.1985 at 5.00 a.m., he had not taken those goods out of the

country. H In the circumstances, the first appellant's conviction cannot stand.

I may also add for the benefit of the learned trial magistrate that since the charge and

the facts did not disclose under which legislation, principal or subsidiary, those goods

were declared to be "restricted goods" for the purpose of the Act, the first appellant's

conviction cannot be I

1985 TLR p161

sustained. It was necessary for the prosecution to establish that the goods were A

declared restricted goods.

As regards the second appellant, I agree with Mr. Kwikima that the forfeiture of the

motor vehicle cannot stand. Since the first appellant's conviction cannot be

sustained, it follows that the sentence and order of forfeiture must be set aside. It is

noted that the B order of forfeiture was made even without giving an opportunity to

the owner of the motor vehicle to oppose the order. However, since the conviction is

not sustained, I do not wish to consider that aspect of the case.

These appeals are allowed. The conviction of the first appellant is quashed and the C

sentence and order of forfeiture are set aside. If the first appellant has paid the fine, it

should be refunded to him in full.

For the avoidance of doubt, the second appellant's motor vehicle Reg. No. UJ945

should be returned to him.

In exercise of revisional jurisdiction, I quash the convictions of the twenty-six

accused D persons who were jointly charged with the first appellant, as the pleas and

facts were similar. The sentences and order of forfeiture of their properties are set

aside. The fines, if paid, should be refunded to them in full.

E Appeal allowed.

1985 TLR p161

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