Court name
High Court of Tanzania

Samson Kayora & Leonard Msimba vs Republic () [1986] TZHC 7 (23 April 1986);

Law report citations
1985 TLR 158 (TZHC)
Media neutral citation
[1986] TZHC 7

Maina, J.:  These two appeals are consolidated.  The first appellant F Samson Kayora was charged with, and convicted of, exporting restricted goods contrary to section 146(c) and 155(a) of the East African Customs Management Act.  He was sentenced to a fine of Shs.3,000/= or twelve months imprisonment in default.  The vehicle in which the goods were being carried was forfeited to the Government. G The second appellant, Leonard Msimba, is the registered owner of the motor vehicle, and he is appealing against the order of forfeiture.
The first appellant was jointly charged with twenty-six others.  He was the fourteenth accused in the charge sheet.  The particulars of the charge allege, inter alia, that the H appellant was found at Migongo village, Kasulu district, exporting to Burundi restricted goods, to wit, three tins of maize flour, two tins of beans and one quarter of a tin of maize.  When the charge was read over to the appellant he is recorded as saying  "It is true I exported the crops to Burundi from Tanzania without a permit."  The prosecutor I then outlined the facts.  In so far as the first appellant is concerned, the facts allege that at the time of his arrest the appellant

"used his motor vehicle Reg. No. UJ 945 to export the crops".  The appellant is A recorded as admitting the facts as correct.  He was accordingly convicted on his own plea of guilty and sentenced as above.  The orders of forfeiture of the goods and the motor vehicle were then made.
Mr. Kwikima, learned counsel for the appellants, submitted first of all, that the plea by the first appellant was equivocal.  He said that the first appellant could not have pleaded B guilty to the offence in all its ingredients.  Learned Counsel further said that the goods found with the first appellant were of small quantities and some are perishable so that they were not for export.  Mr Kwikima added that there was no Government Notice brought to the attention of the Court to show that those goods were restricted goods. C Finally, he said that the first appellant was found in Migongo village in Kasulu district within Tanzania and so he could not have said that he exported the goods.  Mr. Mussa learned State Attorney conceded and said that the Republic did not support the conviction.
I think there is force in what Mr. Kwikima has said.  The first appellant could not have D told the court that he exported the goods to Burundi while the particulars of the offence and the facts given by the prosecutor clearly show that the first appellant was arrested in  Migongo village within Kasulu district in Tanzania, with those goods.  The plea is inconsistent with the facts.  Since the first appellant, like the other accused who were E jointly charged with him, was arrested in Tanzania with those goods, I do not see how he could be said to have exported the goods "to Burundi from Tanzania".  He could not possibly have said that he exported them to Burundi.
Section 2 of the E.A. Customs and Transfer Tax Management Act gives the  following F definition of the  term "export":
   export with its grammatical variations and cognate expressions means to take or cause to be taken out of the Partner States. G
For the purpose of the Act, it is provided in section 2(2)(c) that "in the case of goods exported overland, the time of exportation shall be deemed to be the time at which such goods pass across the boundaries of the Partner States".  When the first appellant was arrested on 13.10.1985 at 5.00 a.m., he had not taken those goods out of the country. H In the circumstances, the first appellant's conviction cannot stand.
I may also add for the benefit of the learned trial magistrate that since the charge and the facts did not disclose under which legislation, principal or subsidiary, those goods were declared to be "restricted goods" for the purpose of the Act, the first appellant's conviction cannot be I

sustained.  It was necessary for the prosecution to establish that the goods were A declared restricted goods.
As regards the second appellant, I agree with Mr. Kwikima that the forfeiture of the motor vehicle cannot stand.  Since the first appellant's conviction cannot be sustained, it follows that the sentence and order of forfeiture must be set aside.  It is noted that the B order of forfeiture was made even without giving an opportunity to the owner of the motor vehicle to oppose the order.  However, since the conviction is not sustained, I do not wish to consider that aspect of the case.
These appeals are allowed.  The conviction of the first appellant is quashed and the C sentence and order of forfeiture are set aside.  If the first appellant has paid the fine, it should be refunded to him in full.
For the avoidance of doubt, the second appellant's motor vehicle Reg. No. UJ945 should be returned to him.
In exercise of revisional jurisdiction, I quash the convictions of the twenty-six accused D persons who were jointly charged with the first appellant, as the pleas and facts were similar.  The sentences and order of  forfeiture of their properties are set aside.  The fines, if paid, should be refunded to them in full.
E Appeal allowed.

F