19771124 TZHC Mbeya 1

I IN THE HIGH COURT OF TIdiZANIA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 72 OP 1977 ORIGINAL CRIMINAL CASE NO. 89 OF 1977 OF TEE DISThICT COURT OF 11BYA DISTRICT AT iEYA BEFORE J. N. MACKANJA, Esq., RESIDENT MAGISTRATE JOSEPH S/O LA .. •. •• •• •• •. .• .. APELLANT (Original Accused) Versus TIiZ REPUBlIC •. .. .. .. .. .. .. ,. RESPONDENT (Orina1 Prosecutor) CHARGUh Transporting specified agricultural products without a valid permit c/p 3 and 7 of the N.M.C. (specified agricultural products) (control of products) Order G.N. 80 of 197 6 . JUDGMJITT - NWAKIBETE, J. - The appellant in this case, JOSEPH LENA, was convicted on his owrI plea of guilty of the offence of transporting specified agricultural products - to wit 80 bags of finger millet - without a valid permit contrary to paras 3 and 7 of the National Milling Corporation (Specified Products) (Control of products) Order, 1976 and was sentenced to pay a fire of one thousand five hundred shillings (s1.1,50 0 1—) or two months imprisonment in defau1t It was further ordered that the 80 bags of finger nillet in respect of the charge be forfeited to the United Republic. The appellant: 'pad the fine. The appeal is against the order of forfeiture only. It was argued on behalf of the appellant that although to order forfeituie was discretionary - the descration ought to have been exercised judicially. According to Chambakare - for the appellant - the order was made unjudicially in that • all the surrounding circumstances of the case were not taken into account. He said it was common knowledge that there was a shortage of food in the Country at the time andthat appellant's area was hard hit by drought. In addition, he went on, appellant had a pombe shop so that he badly needed finger millet for the business. ,. 2 -2- In the view of the Learned Counsel, these facts militated against an order of forfeiture. In support of his arguments he cited CHRISTIAN NUSHI v, B. - Dodoma High Court Criminal Appeal No. 141 of 1976 (unreported). It is on record that when appellant was asked to show cause why the 80 bags of finger millet should not be forfeited, he had this to say:- "The bags of finger millet are the only capital I have and they are meant for food by family. I have four children and the family has 7 people." whereupon the trial court commented thus:- "It is unthinkable that seven peope should have a consigument of 80 bags of finger millet for food at any one time. even though it is discre- tionary to order forfeiture, I have no doubt that this incident, as I noted in the remarks while passing sentence 9 the finger millet is for a lucrative business. Otherwise these is no reason why so many offences should have been committed in any one week. In that context I order that all the 80 bags of finger millet are forfeited to the Government." From the above it is clear that the appellant pleaded against forfeiture on the grounds that the finger millet was the appellant's only capital and that the same was meant for food for his family of 7. For reasons outlined the trial court dismissed the grounds advanced as not gunumne. He therefore held that no good cause had been shown against :'3rfeiture. On the facts on record I am unable to say, the Leerned Nagistrate was wrong in so holding. On the other hand, the claim that the finger millet - the subject of the charge was intended for brewing "mbege" for sale cannot be justification for flouting the law. The Learned Na4strate did direct his mind, to the issue of judicial approach in the exercise of discretion, whether or not to order forfeiture, when he ultimately decided for forfeiture:. One of the compellinR' reasons for the order was that so many of such offences had been committed in one week,. It was not rebutted that many such offences had been committed within a single week. ...13 p . 3... It would appear therefore that the trend had been such that the offencos of this nature were on the increase. The case citea by the Learned Counsel for the appellant appears to confirm this observation. . In all the circumstances 9 therefore, I am not persuaded that the Learned Thial Magistrate exercithed his discretion unjudicially. The order, in my view, was fully justified by the circumstances of tho case. I would, accordingly, dismiss the appeal. It is so ordered. Dated at Mbeya this 24th day of November, 1977. (N. J. IMAKIBETE) JUDGE I03YA HIGH COURT: I. • d • ;• I -. - - •