Court name
High Court of Tanzania

Saidi Kika vs Republic () [1983] TZHC 39 (23 September 1983);

Law report citations
1985 TLR 236 (TZHC)
Media neutral citation
[1983] TZHC 39

Sisya, J.:  This appellant was convicted, on his own plea, of the B offence of transporting agricultural products without a valid permit contrary to sections 3 and 7 of the National Milling Corporation (Specified Agricultural Products) ( Control of Transport) Order, 1976.  He was sentenced to pay a fine of shs. 800/=, or in default of payment of the fine, to go to jail for four months.  He paid the fine.  The offending Cobjects, i.e. paddy and rice, were ordered forfeited to the government.  This appeal is against sentence and the order of forfeiture only.
Upon going through the record of proceedings it was observed that there were some other unsatisfactory aspects of the case which were not raised by the appellant in his D petition of appeal. I, nevertheless, propose to deal with these all the same.  This is so because the appellant was not represented by learned counsel at the hearing of the case in the Court below.  Had he availed himself of such services then, perhaps, the position would have been different from what it now is.  Further, it is because the appellant is a E raw citizen - at least that is the impression I got when I saw him at the hearing of this appeal.  The said features under querry stem from the charge it speaks and I quote:
   Offence Section and law:
      Transporting Agricultural products without a valid permit c/s 3 and 7 of the National F Milling Control of Transport Order (sic) GN 80/176 made under Section 12 and 17 of NMC Act. No. 11/1975.
   Particulars of Offence: G
      Saidi Kika charged on  or about the 26th day of June, 1982 at about 11.30 hours at Makorora within the District and Region of Tanga being not holder of valid permit or authorised person or agent of National Milling Corporation did transport 3 bags of paddy and 3 bags of rice from Kitivo Lushoto District to Tanga without permit from H N.M.C.
The proper citation of the order quoted in the statement of offence is as cited in the opening paragraph of this judgment.  According to an endorsement on the relevant I charge sheet it becomes crystal clear that the same passed through the hands of the learned trial Magistrate, at

least, before it was "read over and explained"  to the appellant.  This exercise, that is of A Magistrates going through charge sheets before the same are "admitted" and/or read over to accused persons is commendable and desirable and this Court will be all out in support of it.  The said exercise will, however, have no meaning at all if it is done perfunctorily.  In this connection Magistrates are, once again, called upon to be B meticulous in whatever exercise they engage themselves in whilst in office.  The Magistrate here did not bother about the error in the statement of offence.  So much for that.
Section 3 of G.N. 80 of 1976 under which the appellant was charged and convicted and the schedule thereto impose an absolute restriction on the transportation of paddy and/or C rice 'exceeding thirty kilograms at any one time' without a permit issued by the National Milling Corporation.  It is manifest, upon reading the provision of the law in point, that the weight of the agricultural product involved is an essential ingredient of the offence.  Upon a proper interpretation and construction of s.3 of G.N.80 of 1976 and D by necessary implication the transportation of rice and/or paddy, or any of the other products specified in the schedule for that matter, of or below the weight of thirty kilograms is not an offence at all under that piece of legislation.
In short, by failing to show the weight of the 'three bags of paddy and three bags of rice,' E a material factor and/or essential element, the charge, simply, did not disclose any offence.
Not only that.  The statement of the facts of the case as presented by the learned Public Prosecutor which is remarkable for its brevity may, conveniently, be quoted in full.  It reads: F
   P.1
   Facts are that on 26/6/82 at about 11.30 a.m. at Makorora No. 5428 P.C. Hamidu of Police, Tanga, was on duty.  He came across accused carrying three sacks of rice.  Accused said he G had brought then from Kitivo, Lushoto, without a permit from N.M.C.  Accused said he brought the rice for his children in town."
The weight of the offending object was, again not given in the statement of facts.  As a matter of fact even the said offending object had been 'reduced' 'from three bags of H paddy and three bags of rice' to three bags of rice only.  As the position stands it is not clear whether the appellant had, in all six bags; three of paddy and another three containing rice as alleged in the charge or if he had only three bags of rice as stated by the learned Public Prosecutor to the learned trial Magistrate.  Be it as I

it may, the fact of the matter is that even the statement of facts discloses no offence A under s.3 of G.N. 80 of 1976.
In view of the aforegoing one wonders to what offence the appellant pleaded when he is recorded to have said, "It is true", and a plea of guilty entered.  On my part in so far as both the charge as laid and the statement of facts of the case as presented disclose no B offence the appellant's plaint cannot be said to be unequivocal.  The proceeding was thus, a nullity ab initio and it is so declared.
In the final result the conviction, sentence and order of forfeiture cannot be allowed to stand and the same are, consequently, avoided.  It is further ordered that the fine which C the appellant paid should now be refunded to him and the rice, Exh. P.1, restored to him.  In the likely event of the rice having been disposed of then the appellant should be paid its equivalent monetary value.  In other words this appeal is allowed.
D Appeal allowed.

E