francis so tumsime vs republic 2005 tzhc 261 30 august 2005

IN THE HIGH COURT OFTANZANIA AT BUKOBA CRIMINAL APPEAL NO. 24/2005 (Original from Criminal Case No. 45/2005 Bukoha District Court) BEFORE: M.G. MZUNA - SRM FRANCIS S/O TUMSIME= -~ :----- — — — ------------ — APPELLANT VERSUS THE REPUBLIC= = = = ™ = — = --------------- RESPONDENT JUDGMENT LUANDA, J Basically - there are a number of misquotations in the charge sheet - the appellant in this appeal one FRANCIS S/O TUM SIM E, who is a Ugandan Citizen, was charged in the district Court of Bukoba with two Counts under the Fisheries Act (Cap. 279 Principal Legislation.) In the first count he was charged with unlawful exporting fish maw without export licence C/S 7( 1) and (2) of the said Act read together with para 13(1X2), 42 and 43 (a) of the fisheries regulations vide GN 624/1998 which is now Cap. 279 - subsidiary legislation. The second count is being unlawfully found engaging in fish maws collection without licence C/S 7(1 )(b) of the Fisheries Act, (Cap 279 Principal legislation) read together with para 13(1), 7(a) and 42(a) of its subsidiary legislation (Cap. 279). The appellant pleaded guilty to the charge. He was convicted and sentenced as follows:- l s t Count: A fine o f Tshs:250,000/= and a jail term of 12 months. 2ndCount: A fine o f Tshs;300,000/- and a jail term of 12 months. The sentences were ordered to run concurrently. The fish maws were forfeited to the Government of the United Republic o f Tanzania as mandated by law vide S. 11(1) of the Fisheries Act (Cap. 279 - Principal Legislation.) The appellant was aggrieved by the Sentences, he lodged this appeal. When the appeal was placed before me for admission or otherwise, I minuted thus:- “DR. - Admit. To consider, inter alia, whether there is such an offence in the cited law”. And when the appeal came for hearing, Mr. Ndjike learned State Attorney for the Republic supported the sentences. He said it is a court discretion as is provided for under S. 29(b) of the Penal Code. He also said the trial Court took the demeanour of the appellant into consideration. He cited Dickson Mbevela & Another VR: (1981) TLR 2 whose facts are not relevant with our case at hand. Since I am going to dispose of this matter basing on the question posed, I will not bother myself to give the facts and distinguish it with this case. I proceed now to discuss the question. I start with the 1st Count. S. 7(1) of the Fisheries Act (Cap 279 Principal Legislation) empowers the Minister, which is defined as the Minister responsible for fisheries (See S.2 of the Act) to make regulations for the better carrying out of the objects and purposes of the Act. It reads: 7( 1) The Minister may make regulations for the better carrying out of the objects and purposes of this Act and may, by such regulations, make provisions which, are necessary or expedient for the purpose of protecting, conserving, developing, regulating or controlling the capture, collection, gathering, manufacture, storage or marketing of fish, fish products, aquatic flora or products of aquatic flora. And sub-section 2 of S. 7 anumerates the areas where the Minister is empowered to do so. It enumerates 25 areas itemized in paragraphs. It is from 2(a) to 2(y). In our case it is not shown or indicated the relevant paragraph. That is one. Two, the paragraphs cited and which is the crux of the problem that is para 13(1) and (2) of the subsidiary Legislation Cap. 279 and which appear to create offences leaves much to be desired. I will demonstrate. I start with sub-paragraph (1) of paragraph 13 It reads:- 13(1) No person shall engage in fishing, collecting or export of any of the fish or fish products enumerated in Part B of the Third Schedule of these Regulations unless he is the holder of a valid licence permitting him to engage in fishing or collecting or export o f the type of fish products specified on the licence. (Emphasise added) But Part B of the Third Schedule does not enumerate the list of the fish and fish products. It enumerate fishing vessels licence. Fish and fish products are not one and the same thing as fishing vessels licence. The authority concerned should do something to rectify this anomaly. Since there is no list o f fish and fish products, there is no offence known in law committed, hence the Latin maxim - nullum crimen nulla poena sine lege i.e. there is no crime nor punishment except in accordance with law. So the first count cannot stand. And this also disposes of the second count as sub-paragraph 2 of paragraph 13 of the Regulation depend on the list of fish and fish products which is non existent. The sub-paragraph provides. 13(2) No person shall employ, cause or permit any other person to engage in fishing, collecting or export any type of fish or fish products which such first mentioned person is prohibited from fishing collecting or export by the provisions of sub-regulation (1) of this Regulation. Assuming for the sake of argument that sub-paragraph (2) of paragraph 13 is proper; were the facts adduced established the offence? Did the appellant employ or cause or permit any person to engage in fishing, collecting or exporting any fish or fish products? The facts do not disclose that. The appellant was arrested at the Mutukula Border in possession with 90 Kgs of fish maws and no more. In view o f the foregoing, the conviction cannot stand. The same is quashed. As the appellant was set free on the day I heard this appeal I make no Order for his release. These are the reasons for his release. AT BUKOBA 30/8/2005