19820211 TZHC Mbeya

IN THE HIGH COURT OF ThNZANIA AT IU3YL I / •0 APPELLATE JID.aSDICTION I CRIMINAL LPPIPJI NO. 60 OF 1 93 1 (ORIGINAL CRIMINAL CASE NO, 83 OP 1981 N OF THE DISTRICT COURT OF r•1130Z1 DISTRICT AT I'tBOI Before: L. S. Ngrnyani, District Magistrate. EDWARD SUWI .. . . .. . . . . ... ..... . . . . . oIiPPELLA1IT versus THE REPUBLIC ........ OO-• •. •• . RESPONDENT CHiRGEz Unlawful tansportat±on of specified Agricultural products c/ss. 3 and 7 of National Milling Corporation (Specified Agricultural Procluc ts) Control tranport Act No.11/1 975 Order of 1976, JUD21ENT • ______ Paragraph 3 of the Nationar Milling Corpo.tation (Specified Agricultural Products) (Control of. Tranort) Order,. 197 6 , (G.N.80 of May 7, 1970 which has been made under the provisions of 8.12(i) of the National Milling Corporation Act, 1975, provides as follows: No person other than the Corporation the National Milling!. Cporatioor its agents shall transport or cause to be transported any specified agricultural product exceeding thirty kilograms at any one time except under and in accordance with the terms and conditions of C permit issued in that behalf by the Corporation: Provided that nothing in this paragraph shall apply to - (a) the transportation by the shortest or normal route of any specified agricultural prqduct by or on behalf of the producer thereof from the place of production to the place of storage, or from the place of production or storage to the nearest buying post or place of storage of the Corporation, its agent or any other person authorised to deal in such specified a,ricultural product; or -5'. (2) the transportation of any specified aicultural produdt not exceding one hundred kilograns at any one time by a person for his own consumptioii or for the consumption of his household or persons under his care where such seôified aicultural 'product has been acquired by such irson in accordance with any order or direction issued by the Corporation relating the marketing of such specified aicultural product; or the transportation of, any specified agriculti- ral product by any person who is the holder of a valid licence issued under the Business Licensing Act, 1972, authorising the retail or wholesale dealing in such specified. aiculturl product," Paraaph 7 of the same Order is couched in the following language: "Any person who contrcwenes or fails to comply with the provisions of txis Order shall be gulty of an offence and rh.11 b liable upon conviction to a fine not exceedij.ig five thousand shillings or to imprisonment for a term not exceeding twelve months or to both such fireand imprisonment, and the court before which the offender is convicted may, in addition to any penalty it may impose, order that the specified agiicultural product in respect of i4hich the offence was committed:sha'll be forfeited to the United Republic". to Accord.tharagraph 2 of the Order read together with the scheduieto the said Order, specified agriCultural products include finger millet, On April 6, 1981 a charge under the two paragr.phs I have cited was laid at the appellantts door in the distxict court of Mbozi. The charge was inelegantly &rafted but there can be no doubt that the appellant was not in any way prejudiced by the inel..ganceo It was alleged in the charge, inter alia that on April 49 198 1, the appellant had unlawfully transported eighty bags of finger millet. No weight of the produce was stated in the charge, but I think no rational person would doubt that eighty bags of fi.ngor millet must weigh more than one hundred kilograms Indeed, the appellant told this court that each bag weighed about one hu &eod. kilograms. When the charge - was read over and explained to him the appellant answered in the following words: "It is true that I transported the 80 bags of finger millet from 3urabawanga to ivrbeya without permit or authority of LN.C." The prosecutor then outlined the facts of the case. He did not .1-,_.. (3) discharge that function admirably, but the appellant filled the gap in the outline. He said: "1 admit the pros, facts as true and I have no objections to o±fr as I unlawfully transported the finger millet from Su.mbav'anga district to Mbeya' Having treated the appellant's plea as one o: guilty to the charge, the learned magistrate proceeded to convict the appellant as charged. When he was given the opportunity to say anything in mitigation of sentence, the appellant said: "I am a first offender. I have one young brother schooling and depends on me, I was to sell the finger millet in order to raise money for school fees for my young brother. I pray lenience". Later, when he was given the opportunity to show cause why the eighty bags should not be forfeited to the United Republic, the appellant said: "I was the leader of a group of people in the venture. My colleagues have not appeared who are also the owners of the bags of //the7finger millet. I pray that the finger millet be released to me After hearing that plea the learued magistrate proceeded to make an order for forfeiture in respect of the eighty bags of finger millet. The appellant is aggrieved by the conviction, sentence and the forfeiture orders Hence the appeal now before me In my view the appeal against conviction is incompetent in law. The conviction was founded upon the appellant's own unequivocal plea of guiltyUnder S312 (1) cf the Criminal Procedure Code, a section under which the appellant has sought to challenge the lower court's decision, only a person who is aggrieved by a deision has a right of appeal. One may respectfully repeat here what lORD c-ODDAD? CJ., said in R. v London Qurter Sessions 9573 All E.L 28 at p.31: 'ow can .aperson. who pleads guilty deliberately be aggrieved by a conviction? It is idle to say that a person can put himself before /' court as a person who thinks himsclf aggrieved if he has no reasonable ground for thinking himself aggrieved". In any case, S,313 (i) of our Criminal Procedure Code stands as an insurmountable obstacle in the appellant's path. The subsection rceds: No appeal shall he al1oved in the case of any accused person who has pleaded guilty- and hs been convicted on such a plea by a subordinate cou't, except as to the extent or legality of the sentence". The appeal against conviction must he, and is -struck out. I turn to the ap5ea1 against santence, The appellant'was sentenced to a fine of Shs.2,500/± or six months' imprisonment in default, I think it is noe well-established that an appellate court (4) will only alter a sentence imposed by the trial court if it is evident that it has acted on a wrong principle or overlocked some material factor or if the sentence is so excessive that it induces a sense of shock. I cannot see howany of those things can be said to exist in the case now at the Bar. I agree that a fine of Shs.2,500/= for a first offence is. rather on the high side, but I am far from being persuaded, even after taking into consideration that the appellant pleaded guilty, that that fine is so excessive as to warrant this court reducing it As a general rule, the law will not smile upon those who deliberately flout it. The appellant, for reasons which perhaps are not difficult to understnd, argued strenuously against the oxder for forfeiture. The question whether or not an order for forfeiture should be made under paragraph 7 of the National Milling Corporation (Specified Agricultural Products) (Control of Transport) Order, 1976 9 is a discretionary one, but, like other judicial discretions, it must be determined judicially, that is to say, according to coion sense and according to justice. I think in the case now underconsideration the learned trial magistrate did so determine the question. ??hen viewed in the light of the fact that, as was observed by the learned magistrate, the offence of unlawful transportation of specified agricultural produce was prevalent in that part of the country, and when considered in the light of the fact that the pp11ants venture into crime was a Qalculated one, I venture to think that the fact that the appellant pleaded guilty to the charge and was sentenced to a fine of Shs.2,500/= should not have militated against the making of an order for forfeiture. I am unable to say that there are reasons in this case which entitle me to interfere with the manner the learned magit'ute excercised his discretion. On the contrary ? I.think that the learned magistrate excercised his direction properly. The appellant told this court during the hearing of the appeal that he was aware, on April 4 9 1981, that he required a permit issued by the N a tioI1 Milling Corporation to transport the eighty bags lawfully. That being so, the appellant has no one to blame but himself for what the law has done to his finger millet The appeal againLt sentence, a term I use here to include order for forfeiture, is dismissed. - (Sgd0) B. A. Samatta, JuDcE, (5) Delivered at Mbeya this 11th day of iebruary, 19829 in the presence of the appellant and Mr. Teeriba., Counsel for the Republic. B. i SAMATTA JUDGE.