Court name
High Court of Tanzania

Michael R. Kabongo vs Republic () [1989] TZHC 9 (21 March 1989);

Law report citations
1989 TLR 31 (TZHC)
Media neutral citation
[1989] TZHC 9

Mwaikasu, J.: Before the lower court, (Kapaya, RM Esq.), the appellant, Michael Z. Kabogo, was convicted upon his own plea of guilty to the charge of failing to take proper precaution for safe custody of a firearm c/s 13(1) and 31(1) of the Arms and B Ammunition Ordinance Cap.223.
He was then sentenced to a fine of shs.2000/= or six months of imprisonment in default thereof. He paid the fine. No order of forfeiture of the firearms, which were two rifle guns or suspension of the licences in respect of such guns was made by the lower court C when such sentence was passed, which was on 18/8/80.
It was then seven years later and upon being urged to do so by the DPP, vide his letter Ref. No. J/C.ll0/l8/l49 of 9th September l987, that on 21/l0/87, and without notice to and in the absence of the appellant, the owner of the two guns, the lower court made the D forfeiture order.
That then is the subject of this appeal on the grounds that such orders was made seven years after sentence had been passed and without notice to the appellant, or any application for that order from the prosecution, and that the lower court erred in law in E making such forfeiture order without hearing the appellant first.
The appellant was represented by Mr. Mwakasungula, learned counsel and Mr. Naali learned State Attorney appeared for the Republic.
Arguing the appeal Mr Mwakasungula, learned counsel for the appellant contended F inter alia, that when the lower court sentenced the appellant on 18/8/80, without making the forfeiture order, it was thereby functus officio, as regards the order of forfeiture. It had therefore no power to make any order subsequently. Thus the order made on 21/l0/87 to forfeit the appellant's two guns seven years later was wrong in three G respects: first, there was no applicant for such order as no prosecutor appeared when the order was so made; secondly, the appellant himself was not present nor informed of such application if any. It was therefore prayed that the order should be quashed with an H order restoring the two guns to the appellant.
Mr. Naali, learned State Attorney declined to support the order of forfeiture so made upon finding that there was a clear irregularity on the face of the record. For the order having been made seven years after the sentence was passed was itself irregular. Then I considering the fact of the case the appellant ought to have at least

been called upon to show cause as to why the order should not be so made. He A therefore also conceded that the appeal should be allowed.
I allowed the appeal when it came up for hearing on 17/3/89, reserving my judgment which I now proceed to give.
Briefly the facts show that the appellant was at the material time of the incident the holder B of two firearms licences for two rifle guns.
Then on 2/3/80 the appellant left the two guns with Erasto Asheri Sanga who was not authorized to possess any firearm. On the same day at about l0 p.m., such firearms were C found with the said Sanga but it is not clear under what circumstances the guns were so found, and whether the same were found at the said Sanga's home or not.
Consequently both the said Sanga and the appellant got charged with the appropriate D offences under the Firearms and Ammunition Order, Cap. 223 and sentenced accordingly.
In terms of s.31(4) of the Firearms and Ammunition Ord. upon conviction of the appellant for contravening the provisions of the Ordinance, the firearm was liable to be E forfeited or to have the licences suspended for a specific period. That was not, however, so ordered by the learned trial magistrate and the record remained thus silent for a period of seven years until the lower court was subsequently moved by the D.P.P. as stated above. Then the learned trial magistrate proceeded - making the forfeiture order F without notice both to the prosecutor who was to represent the Republic and the appellant who had to be heard why such guns should not be so forfeited. Hence this appeal. In the first place I totally agree with both learned counsel that the procedure adopted by the learned trial magistrate was grossly irregular, in that by denying the G parties the opportunity to be heard, particularly the appellant, he thereby offended one of the cornerstones of justice, which is one of the principal arms of the principle of natural justice that no one should be condemned guilty or have his property confiscated, without being given the opportunity to be heard.
The other aspect of the appeal is that the order was irregular for being made several H years after the date when the sentence was passed, and that by then the trial magistrate was functus officio.
Admittedly, the order for forfeiture ought ordinarily to have been made soon after passing the sentence. That is why in terms of s. 351(4) of the C.P.A., when a forfeiture I order is so made in which an appeal lies, it shall not, except when the property is livestock or

is subject to speedy and natural decay, be carried out until the period for presenting the A appeal has passed or when such appeal is entered until the disposal of such appeal.
But one interesting question is whether where the trial magistrate has passed a sentence but omits to make any other order such as forfeiture or compensation as required under the law, he thereby becomes functus officio in respect of such forfeiture or B compensation order, and therefore incompetent to make it subsequently.
In my judgment I would not subscribe to such view. For it appears clear to me that the authorities so far available on the point do relate to the powers of the trial magistrate or C judge to the stage of sentencing, or some other order of the court finally determining the trial of the case such as an order for no case to answer. Yet an order for forfeiture that is to be made after the conviction and sentence of an accused person, is a separate exercise of judicial discretion over and above the sentence passed. It is in effect a D separate legal duty imposed upon the trial court that has to be exercised after the conviction and sentence have been passed. Though hinging upon an accused's conviction, it is a separate exercise of judicial powers over and above the power of sentencing. E
Thus where it has inadvertently been omitted, it could, in my view, be properly considered and made at a later stage after sentencing, provided that all parties concerned - the Republic and the accused person have been given notice and an opportunity to be heard. F
In such situation the court need not wait until the prosecution applies for such an order. It would, in fact, be its duty to move for such an order. For in terms of s.31(4) of the Firearms and Ammunition Ordinance as amended by Act No. 50 of 1964, it is there provided, thus: G
(4) All arms or ammunition and any equipment or tools used in the manufacture and assembling of such arms or ammunition, and any vessel, in respect of which an offence is committed is liable to be forfeited to Government. H
That then imposes a duty upon the trial court to consider making the order for forfeiture of the firearms or ammunition in respect of which an offence has been committed in contravention of the provisions of the Ordinance. There is, in fact, another duty imposed I on the trial court to the like effect as provided for under

sub-s.(3) of the same section which provides thus: A
(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. B
In this regard comparison can be made with the provision under s.7(2) of the Minimum Sentence Act 1972, relating to the making of orders for compensation. It is there provided thus: C
(2) An order under this section may be made at anytime after the sentence has been passed, and where it has not been made immediately after the sentence has been passed, the court which passed the sentence or any court having revisional jurisdiction over it, may make such D order at any subsequent time on the application of the owner of the property or on its own notice.
However, in considering whether orders of forfeiture provided for above should be E made, it is imperative, as a matter of justice that opportunity to be heard should be given to all the parties concerned.
In this case this court was inclined to make an order for the suspension of appellant's licences in respect of the two guns.
However, upon considering the circumstances of the offence of which the appellant was F convicted, and that seven years had elapsed during which the appellant was deprived of the use of his firearms as they remained in the custody of the police, it was found that such period was already more than enough in denying the appellant the use of such G firearms as a lesson for him to exercise greater care of the same.
Accordingly the appeal had to be allowed setting aside the lower court's order for forfeiture with an order that the two guns should be restored to the appellant.
H Appeal allowed.