20151027 TZHC Dar es Salaam2

1 IN THE HIGH COURT OF T·ANZANIA (DAR ES SALAAM DISTRICT REGISTRY) ., AT DAR ES SALAAM CRIMINAL APPEAL NO 14 OF 20lf NAYAZ HASSAN KAN alias SUPER NAJUMNISA BUS SERVICE .................... APPELLANT v. THE SURFACE & MARINE TRANSPORT REGULATORY AUTHORITY (SUMATRA) .................... RESPONDENT JUDGMENT Date of last Order 12 I 10; 2015 Date of Judgment 27/10/2015 Shangwa, J. The appellant Nayaz Hassan Kan @ Super Najumnisa Bus service was not satisfied with the decision of the Surface and Marine Transport Regulatory Authority (Sumatra) dated 5 th January, 2014. Hence this appeal. ·'I 2 In his petition of appeal, the Appellant raised three grounds of appeal namely:- 1. That the Respondent erred in law and in fact to order the Appellant to pay fine without specifying the offence committed by the Appellant. 2. That the Respondent erred in law and in fact by ordering the Appellant to pay fine of Tshs 250,000/= under Regulation 4(3) of the Transport Licensing (Road passenger vehicles) . 3 Regulations} 2007 (GN 218 of 2007) while the corresponding maximum fine stated by the Transport Licensing Act} chapter317 of Revised Edition 2002 under which GN NO 218 of 2007 was made is Tshs 25) 000/=. 3. That the Respondent erred in law and infact by charging and punishing the Appellant for offences and punishments under the Transport Licensing (Road passenger vehicles) 4 Regulations, 2007 (GN 2 ! 8 of 2007) particularly Regulations 32 ad 33 while the · responsibility for creating offences and corresponding punishments was assumed by the parent Act - the Transport Licensing Act cap 31 7 which legislated differently on the subject and which did not leave any specific power on a Subsidiary Legislation to modify it. Upon those grounds, the Appellant inter- alia prayed for an order quashing the order of the 5 Respondent dated 5 th January, 2014 requ1r1ng the Appellant to pay fine of Tshs 250, 000/=. This appeal was argued by way of written submissions. In his written submissions on behalf of the Appellant, Mr. Audax Kahendaguza Vedasto abandoned the 1st and 3rd grounds of appeal. Thus, the Appellant's appeal remain to be based on one ground of appeal only. That is the second ground of appeal. On this ground of appeal, Mr. Audax K. Vedasto submitted that under S. 35 (1) of the Transport Licensing Act, Cap 317 R.E 2002, non compliance with conditions of transportation licence or failure to comply with conditions of transportation licence, 6 1n Kiswahili 'kushindwa kufuata masharti ya leseni ya usafirishaji' an offence with which the Appellant was charged with and convicted of by the Respondent is punishable by a fine of Tshs 10,000/= as a maximum penalty against the first offender and Tshs 20,000/= against the second offender. He cited S. 35 (1) of the Act which provides as follows:- "S. 35 (1) subject to the provisions of this section any person who fails to comply with any condition of a licence held by him commits an offence and is liable on conviction in the case offirst offence to a fine not • 7 exceeding ten thousand shillings and in the case of a second or any subsequent conviction for similar offence to a fine not exceeding twenty thousand shillings and in addition thereto the Court may, in the case of a third or subsequent conviction for such similar offence, order the . forfeiture of the vehicle in relation to which the offence is committed whether or not the . previous offences were •. 8 committed in relation to the same vehicle" In reply, counsel for the Respondent Mrs. Letisia Mtaki submitted that the Appellant was charged with failure to comply with the licensing conditions contrary to Regulation 4(3) of the Transport Licensing (Road Passenger Vehicles) Regulations, 2007 (GN NO 218 of2007) an offence to which he admitted and that upon admission, the offence with which he was charged was compounded and that thereafter he was ordered to pay a fine of Tshs 250, 000/=. She contended that in terms of Regulation 4(3) of the aforesaid Regulations, the penalty for the offence charged 9 is between Tshs 300,000/= and Tshs 500,000/= which means that the Appellant was fined a half of the maximum penalty which 1s Tshs 250,000/=. She cited the said provision which reads as follows and I quote:- "Reg. 4(3) any person who contravenes the provisions of sub regulation (1) and (2) commits an offence and shall on conviction be liable to a fine of not less than three hundred thousand shillings and not exceeding five hundred thousand shillings or imprisonment of not less than ,, ' 10 one year and not exceeding two years or to both fine and imprisonment~'. She contended that under the said provisions, ~the Respondent did not err either in law or fact by ordering the Appellant to pay fine of Tshs 250, 000/= for the offence with which he was charged. She submitted that the power to make Regulations is vested with the Minister responsible for the Authority and not the Respondent. She said, as the Respondent is not responsible for making the Regulations, the question of legality or otherwise of the provisions of Reg. 4(3) of the Transport Licensing (Road Passenger Vehicles) Regulations, 2008 cannot be 11 challenged and that the appeal is in respect of the legality of the sentence (severity of the sentence) and not the legality of the provision itself. In rejoinder, Mr. Aut;dax K. Vedasto for the Appellant submitted that the punishment to be imposed under the provisions of the Transport Licensing (Road Passenger Vehicles) Regulations, 2007 (GN NO 218 of 2007) for non compliance with conditions of the transportation licence is in conflict with the punishment to be imposed under the provisions of the Transport Licensing Act Cap 312 R.E 2002 (S. 35) for a similar offence. Mr. Audax K. Vedasto contended that under S. 36 of the Interpretation of Laws Act, Cap 1 R.E 12 2002, it is provided that 1n cases where the subsidiary legislation is in conflict with the provision of law under which it is made, such subsidiary legislation has to be avoided to the extent of any such conflict. He cited S.36 (1) of the aforesaid Act which provides as follows and I quote:- "S. 36 (1) subsidiary legislation shall not be inconsistent with the provisions of the written law under which it is made, or of any Act, and subsidiary legislation shall be void to the extent of such inconsistency". 13 In this case, I do not agree with counsel for the Respondent Mrs. Letisia Mtaki that the appeal before this Court is not against the legality of the provision of the Regulations under which the Appellant was punished i.e. Reg 4 (3). In fact, the appeal is against the applicability of Reg 4 (3) of the Regulations. It raises a very important point of law to be canvassed by this Court on the inconsistency of Reg. 4 (3) of the Transport Licensing (Road Passenger Vehicles) Regulations, 2007 GN 218 of 2007 and S.35 (1) of the Transport Licensing Act, Cap 317 R.E 2002 which provide for different punishment for the same offence of failure to comply with any condition of a transport licence. .. .. f,, ,. 14 It is not in dispute that the Transport Licensing (Road Passenger Vehicles) Regulations, 2007 GN 218 of 2007 were made by the Minister under S. 45 of the Transport Licensing Act, Cap 317 R.E. 2002. Therefore, they are in a form of subsidiary legislation. It is incontrovertible that under S. 36 (1) of the Interpretation of Laws Act, Cap 1 R.E. 2002, subsidiary legislation shall not be inconsistent with the provisions of the written law under which it is made, or of any Act, and that subsidiary legislation shall be void to the extent of any such inconsistency. Now under Reg. 4 (3) of the Transport Licensing (Road Passenger Vehicles) Regulations, 2007, the punishment which is provided for the offence of 15 failure to comply with the licensing conditions is a fine of not less than three hundred thousand and not exceeding five hundred thousand shillings or imprisonment of not less than one year and not exceeding two years or to both fine and imprisonment. Under S. 35 (1) of the Transport Licensing Act Cap 317 R.E 2002, the punishment which is provided for the offence of failure to comply with the licensing conditions (s) is on conviction in the case of first offence, a fine not exceeding ten thousand shillings and in the case of a second or any subsequent conviction for such or similar offence is a fine not exceeding twenty thousand shillings and in addition thereto the Court may in '.l 16 the case of a third or subsequent conviction for such or similar offence, order the motor Vehicle in relation to which the offence is committed to be forfeited. As it can be seen, there is clear inconsistency 1n the provisions for punishment of a similar offence in the Regulations and in the Act under which the Regulations were made. In the light of S. 36 (1) of the Interpretation of Laws Act Cap 1 R.E 2002, I declare that Reg 4 (3) of the Transport Licensing (Road Passenger Vehicles) Regulations, 2007 is void. Therefore, the enforcing organs of the law on Transport licensing including the Respondent SUMATRA are enjoined from applying Reg 4 (3) of the Transport licensing " I: I J 17 (Road Passenger Vehicles) Regulations, 2007 GN 218 of 2007 in punishing any person who fails to comply with licensing conditions such as failure to maintain a licenced passenger vehicle in a fit and serviceable condition or failure to observe limits of speed or carrying passengers than those allowed to be carried in a licensed passenger vehicle. Instead, the enforcing organs of the law on Transport licensing are all enjoined to apply S. 35 (I) of the Transport licensing Act, Cap 31 7 R.E. 2002. Therefore, I quash the order of the Respondent dated 5 th January, 2014 requiring the Appellant to pay fine of Tshs 250, 000 / = and I substitute it with the order of fine of Tshs 18 10,000/=. Ther~fore, the Appellant has to be refunded the difference of Tshs 240, 000 / =. Finally, I accordingly allow this appeal. ~~ A.Shangwa JUDGE 27/10/2015 2015 in the presence of Mr. George Vedasto for Mr. Audax K. Vedasto and in the absence of counsel for the Respondent. ~ A.Shangwa, JUDGE 27/10/2015