19741206 TZHC Dodoma

IN 'TH.E HIGH COURT CF TANZANIA

AT DODOMA

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.74 OF 1974 ORIGINAL CRIMINAL CASE NO0 738 OF 1973

OF THE DISTRICT COURT OF MBEYA DISTRICT AT MBEYA Before A.S. Semzaba Esq. 0 ... ...... •.•.... ......Resident Magistrate SHOMARI CHEKECHEKE O .... ......... 0 .Appellant 0 00 0 0 *0 060 0 00 0 0......... (Original Accused) Versus THE REPUBLIC0 o0•0000000. 000000000 .o.00 0*0 00 00006000 S 00 00 0.Respondent (Original Prosecutor) Charge: Trarisfering his firearm without permit signed by an authorizing officer c/s 15 and 31 (1) (4) of the Arms and Ammunition Ordinance, Cap 22,

J U D G M E N T MNZAVAS J. The appellant was, on his own pla of guilty convicted of transfering his firearm without permit signed by an authorizing officer c/s 15 and 31 (1) (4) of the Arms and Ammunition Ordinance, Cap. 223 and sentenced to a fine of shs. 8 0 01= or six months imprisonment in default. He is appealing against the conviction and sentence 0 The appeal was admitted for argument as to whether the facts as narrated to the court amounted to an offence u/s 15 of the Arms and Ammunitions Ordinance. Mr. Alimwike for the Republic argued that the facts did not disclose an offence u/s 15 of the Ordinance and referred this court to the decision in R.V. IGNATUS KAWALA (1972) H.C,D. 210 With respect I agree .with the learned state attorney's submission that the facts did not disclose an offence u/s 15 of the Arms and Ammunitions Ordinance. This court and the Court of Appeal have, times without number, held that for a person to be found guilty of transferring a firearm without permit it must be proved that the transfer was ejusdem generis with a sale or purchase. If, as it was found from the facts in this case, the appellant had only lent his gun to Yusufu Nwendakai he cannot be said to have committed an offence u/s 15 of the Ordinance. The facts leading to the conviction of the appellant were far from being complete as they did not state whether the transfer was by way of

gift or whether it was for a consideration. Nor did the particulars of the charge say so. As it was held in the case quotted by the learned state attorney, for an offence under section .15 of the Arms and Ammunitions Ordinance e ttn er must beejusdem géneris with a sale or purchase or it must be shown that the firearm was transfered as a gift to the receiver. This being the position the conviction of the appellant cannot be allowed to stand. The conviction which is apparently not supported by the Republic is accordingly quashed, and the sentence is set aside. As the appellant has already paid the fine of shs. 800/= vide Ex. Receipt No. D .189129 of 20/11/73 it is hereby ordered that the money be refunded to him without undue delay. The confiscation Order of his firearm is also set aide The firearm should be returned to him immediately DODOM1 N.S. MNZA 6/12/74 JunG: Appellant - absent and unrepresented Alimwike for the Rep/Resp.