Hadju v. R. Crim. App. 704-M-71; 28/1/72; Makame, J.

 

Hadju v. R. Crim. App. 704-M-71; 28/1/72; Makame, J.

The appellant was convicted on his own plea of failing to record game killed c/ss 23 (1)(b) and 53 (1) (b) (ii) of the Fauna Conservation Ordinance. He was sentenced to a fine of Shs. 1,000/= or one month’s imprisonment in default. The two guns and zebra skin found in his possession were ordered to be forfeited to the United Republic. It was argued on behalf of the appellant that, first the fine imposed was excessive; second, the guns and zebra skin were not found in his possession but in the vehicle he was driving; and lastly, that the order for feature was wrong in law.

            Held: (1)“The suggestion that the guns were not in the appellant’s possession but rather in his motor vehicle I find ridiculous and cannot take it seriously. The appellant had killed the animals and he said it was correct that the vehicle was his. It was eminently reasonable to hold that the firearms found in the vehicle were in his ‘possession’, and it certainly would be wrong and awkward to hold that one is not in possession of a gun unless one is found actually cuddling it.” (2) “As to the appellant’s ability to pay he fine, a person who can afford to pay several thousands of French Francs on one gun cannot be heard to complain that he sis unable to caught up Shs. 1,000/- as a fine. The offence was a serious one, especially as it was committed by a person with the responsible and high post of Regional Tsetse Fly Officer. I am not disposed to interfere with the fine, especially as the maximum which could be imposed for such an offence is Shs. 10.000/- and the appellant’s monthly salary is over Shs. 4,000/-. (3) “Subsection (2B) of section 53 of the Fauna Conservation Ordinance empowers a court to forfeit any weapon used in the commission of an offence, but he same subsection specifically lists all the offences for which forfeiture may be ordered, and failing to record animals killed contrary to section 23(1)(b) is not one of them, so that the learned trial magistrate could not have acted under that. Subsection (2A) under which the trial magistrate purported to act provides:- ‘(2A)When any person is convicted of an offence against this Ordinance the court may order that any animal, mea or trophy and any poison, poisoned bait, poisoned weapon, stakes, net, gin, trap, set gun, missile containing explosives, share, hide or fence, in respect of which or with which the offence was committed or which was in the possession of the accused at the time of the offence shall be forfeited to the Government’. There is no forfeiture of any weapon

In this subsection as there is in subsection (2B). Therefore to decide whether the present order for forfeiture has any legal basis it is necessary to consider if the guns ordered to be forfeited come under any of the items listed. The nearest that the guns would come to is a ‘set gun’. The question to be answered is therefore, what is a set gun? A set gun is not defined anywhere in the Ordinance. No dictionary I have been able to lay my hands on defines a set gun either, except Webster’s Dictionary clearly indicates that a set gun is the same as a spring gun. The shorter Oxford English Dictionary is clear as to the meaning of a spring gun. It defines it as ‘a gun capable of being discharged by one coming into contact with it or with a wire or the like attached to the trigger (formerly used as a guard against trespassers or poachers and placed in concealment for this purpose)’ I am clear in my mind what such a contraption is and that a gun, per se, does not constitute such a device. It has to be set as part of some form of a trap to become a spring gun. In other words it has to be a set gun to be forfeited under subsection (2A). The following considerations buttress this in my view. Section 53 was amended by Ordinance No. 8 of 1961 which, if I am not wrong, was at least partly, a result of the legal controversy that followed the decision of Law, J., as he then was, in the case of R. vs. Omari Kindamba (1960) E.A.L.R. 407. Before that the law was simple as far as such a present issue was concerned; for it was: ‘When any person is convicted of an offence against this Ordinance the court may order that any animal, meat, trophy, trap, weapon, poison, vehicle or instrument in respect of which the offence has been committed shall be forfeited to the Government’. (The only problem raised by the learned judge then being the meaning of ‘in respect of which’) The splitting and classification of the offences the following year could not have been done without case. Parliament must have intended that not every weapon should be forfeited each time any provision of the Ordinance is offended. The second consideration is that when one looks at the items set out in subsection (2A), one finds that apart from an animal or its parts all the things mentioned have one thing in common, namely the illegal or inhuman capture of animals. The ordinary use of a gun of the type ordered to be forfeited in this case does not involve such capture, no does the failure to record with indelible ink animals killed.” (4) Order forfeiting guns set aside (but not in respect of zebra skin).