Sisya, J.: This appellant was charged with and he was, on his own plea, convicted of the offence of failing to observe safe custody of arms and ammunition D contrary to sections 29(1) and 31 of the Arms and Ammunition Ordinance, Cap. 223, and he was sentenced by the learned Resident Magistrate, Tanga, to pay a fine of Shs.500/= or, in default of payment thereof, to go to jail for a period of one month. The learned Resident Magistrate also suspended his, i.e. appellant's, licence, indefinitely and E ordered forfeiture of his pistol, its magazine and eight round of ammunition which, incidentally, were the offending objects in the case.
The appellant paid the fine. This appeal is against the order of forfeiture only. F
The established facts of the case show that the appellant was, prior to his conviction in this matter, holder of a pistol (Exh. P1) which was legally issued out to him as per Exhibit P3. On 21/1/82 he came to Tanga from Arusha on business. He had his pistol with him and its magazine which carried eight rounds of ammunition. On his arrival in Tanga he G secured a room at Unguja Lodging. Later at about 9.00 p.m. before he retired to bed he requested the guest house's care taker then on duty, one Saidi Ali to keep the pistol for him in safe custody. The appellant, however, retained the magazine and the rounds of ammunition. The handing over was in writing but the relevant piece of paper was not, H as it ought to have been, tendered by the Public Prosecutor who prosecuted the case in the Court below. Thereafter Said Ali went and reported the matter to the Police. Eventually the appellant was arrested and subsequently brought to justice.
In making the orders against which the appellant is now appealing I
the learned Resident Magistrate observed that the appellant ought to have deposited the A pistol at the Police Station; that it becomes particularly dangerous when firearms fall into the hands of unauthorised persons; and that observance of regulations, safeguards against increasing armed robberies.
In his petition of appeal which is home made the appellant avers that the learned B Resident Magistrate erred in making the orders of suspension and forfeiture by not taking into account the following factors, that is to say, he was holding the pistol lawfully; that he has held the said pistol since 1974 without breaching any regulation; that as a businessman he needs the firearm for his own protection as well as for the protection of C "tourists" whom he deals with in the course of his business; that he put up at Unguja Lodging after failing to secure accommodation at any one of the big hotels in Tanga; that he was new in Tanga; that he felt insecure at the said Unguja Lodging, that the course of action which he pursued was the best that he could in the circumstances, and that the D offence which he committed was more technical then anything else.
The learned Resident Magistrate derived his powers of suspension from subsection (3) of section 31, Cap. 223, which lays down thus, and I quote: E
(3) Any person so convicted who holds a licence or permit under this Ordinance shall be further liable to forfeiture of his licence or permit or to suspension thereof for such period as the Court thinks fit. F
As can easily be observed this provision of the law is couched in mandatory language. The only option left upon to the Court is to either order forfeiture of a licence or permit, whichever may be the case, or to order suspension thereof. In the instant matter the learned Resident Magistrate opted, as he was perfectly entitled to do, to order G suspension of the appellant's licence.
The law, however, requires that the period of suspension be specified. The learned Resident Magistrate did not do so. By failing to specify the period of suspension the learned Resident Magistrate, therefore, erred. This error, however, is to my mind, H curable on appeal. It is my considered opinion that the period between the date of conviction and order, i.e. 28/1/82, to date is enough to meet the justice of the case.
I now move to the order of forfeiture of the firearms. The relevant provision of the law here is s.31 (4) Cap.223, as amended by Act No. 50 of 1964. It reads: I
(4) All arms or ammunition and any equipment or tool used in the manufacture and A assembling of such arms or ammunition, and any vessel, in respect of which an offence is committed, is liable to be forfeited to Government.
The power to order forfeiture under this provision of the law is discretionary. Needless B to say, such discretion must be exercised judicially.
As can be gleaned from the record of proceedings of the instant matter it becomes apparent that the appellant was not called upon to advance reasons why his pistol, magazine and round of ammunition should not be forfeited to the Government. Such a C move is very important because failing which may be tantamount to denying the appellant his right of being heard on this particular point and consequently resulting in the breach of natural justice. Had the learned Resident Magistrate called upon the appellant to address him on the question of forfeiture I am minded to believe that the latter would D have advanced the reasons which he has now done in his petition of appeal. And had the learned Resident Magistrate heard and considered these reasons it is doubtful if he still would have made the order of forfeiture. This doubt, as the law requires, must be resolved in favour of the appellant. E
I have myself considered the reasons advanced by the appellant as conscientiously as I could and, in all the circumstances of the case, I find them plausible. The appellant has a clean record and he, readily, pleaded guilty when the charge was read out to him. I take this as a sign of contrition. I see no sign of mala fides in his act of surrendering his pistol to the guest house attendant for safe custody, the inherent dangers that exist in such a F move notwithstanding. To my mind it was more of a tactical error than anything else.
All in all, for the reasons given I am satisfied that this appeal has merit and it is hereby allowed. The order of forfeiture is quashed and set aside. It is further directed that subject to licensing regulations the pistol (Exh. P.1), the magazine and eight bullets G (Exh.P3) shall now be restored back to the appellant.
Appeal Allowed
A