Chisimba v the People (HNA/562/1975) [1976] ZMHC 2 (6 February 1976)

■ CHISIMBA v THE PEOPLE (1976) ZR 17 (HC) HIGH COURT MOODLEY J 6th FEBRUARY 1976 No. HNA/562/1975 Flynote Firearms - 20 Forfeiture - When mandatory under s. 145 (1) of the National Parks and Wildlife Act, Cap. 316 - Whether there is a conflict between s. 145 (1) of the National Parks and Wildlife Act, Cap. 316, and s. 54 of the Firearms Act, Cap. 111 - Discretionary power to order forfeiture under s. 54 of Firearms Act - Applicability to convictions under the 25 National Parks and Wildlife Act. Headnote The appellant appealed against a sentence of forfeiture of the appellant's firearm made by a magistrate of the second class sitting at Kasempa. The appellant had been convicted on his own confession of unlawful possession of Government trophy and sentenced to a fine of 30 K100.00, in default two months' imprisonment with hard labour. The magistrate further ordered that the two firearms found to be in possession of the appellant be forfeited to the State after an application duly made by the prosecution in I terms of section 145 (1) of the National Parks and Wildlife Act, Cap. 316. 35 Counsel for the appellant submitted that there was a conflict between the forfeiture provisions under section 145 (1) and section 54 (1) of the Firearms Act, Cap. 111. He argued that the benefit of that conflict should be accorded to the appellant because the provisions of the Firearms Act must override the provisions of the National Parks and Wildlife Act, 40 Cap. 316. ■ ■ ■ 1976 ZR p18 MOODLEY J Held: (i) Section 145 (1) of the National Parks and Wildlife Act, Cap 316, which provides for an order of forfeiture is mandatory; subject, of course, to an application by a prosecutor for such 5 an order. I (ii) There is no conflict between the provisions of section 145 (1) of the National Parks and Wildlife Act, Cap. 316, and that of section 54 of the Firearms Act, Cap. 111. (iii) The discretionary powers to order forfeiture under section 54 10 of the Firearms Act, Cap. ■ 111, do not apply to convictions under the National Parks and Wildlife Act, Cap. 316, and there is no question of the Firearms Act overriding the National Parks and Wildlife Act. I Legislation referred to: 15 National Parks and Wildlife Act, Cap. 316, s. 145 (1). Firearms Act, Cap. 111, s. 54 (1). HE Coovadia, Esq., Stephen Howes and Co., for the appellant. DK Chirwa, Senior Advocate, for the respondent. Judgment Moodley J: This is an appeal against sentence in so far as it 20 relates to an order of forfeiture of the appellant's firearm made by a magistrate of the second class sitting at Kasempa. The appellant had been convicted on his own confession of unlawful possession of Government trophy and sentenced to a fine of K100.00; in default, two months' imprisonment with hard labour. The learned magistrate further ordered 25 that ■ the two firearms found to be in possession of the appellant were to be forfeited to the State after the prosecution had duly applied for the said forfeiture in terms of section 145 (1) of the National Parks and Wildlife Act, Cap. 316. Mr Coovadia who appears for the appellant submits that there is 30 a conflict between the forfeiture provisions under section 145 (1) of the National Parks and Wildlife Act, Cap. 316, and section 54 (1) of the Firearms Act, Cap. 111. He submits that section 54 (1) of the firearms Act, Cap. 111, gives the court a discretionary power to make an order of forfeiture. Section 54 (2) (a) provides, inter alia, that where a person is 35 convicted of ■ ■ ■ an offence under the Firearms Act or is convicted of any offence for which he is sentenced to imprisonment, then the court by which he was convicted or by which the order was made, may order the forfeiture or disposal of the firearm or ammunition found in his possession. On the other hand, section 145 (1) of the National Parks and Wildlife 40 Act, Cap. 316, makes it mandatory for a court to order forfeiture on the application by the prosecutor for an order of forfeiture. The court therefore had no discretionary power to order a firearm to be forfeited under ■ 1976 ZR p19 I ■ MOODLEY J Cap. 316 if the prosecutor applied for such forfeiture. In the light of the conflict between the mandatory provisions of section 145 (1) of the National Parks and Wildlife Act, Cap. 316, and the discretionary provisions under section 54 of the Firearms Act, Cap. 111, Mr Coovadia argues that the benefit of that conflict should be accorded to the appellant because 5 the provisions of the Firearms Act, Cap. 111, must override the provisions of the National Parks and Wildlife Act, Cap. 316. A further point in the appellant's favour was that he had been sentenced to a fine and not to a term of imprisonment and in those circumstances he would not be covered by the provisions of section 54 (2) of the Firearms Act, where 10 court had a discretion to make an order of forfeiture in respect of ■ a person convicted of an offence under the Firearms Act or is convicted of any offence for which he is sentenced to imprisonment. Mr Chirwa for the State submits in support of the forfeiture order that the provisions regarding forfeiture under section 145 of the National 15 Parks and Wildlife Act, Cap. 316, are mandatory and therefore override any discretionary powers that might have been vested in a court under the provisions of section 54 of the Firearms Act, Cap. 111. But for the mandatory provisions of sections 145 (1) of Cap. 316, Mr Chirwa submits he would have been inclined to support Mr Coovadia's submission in this 20 regard. The provisions of section 54 of the Firearms Act, Cap. 111, cover both the forfeiture of a firearm and the revocation of a firearm's licence. The powers of the court to order forfeiture or to revoke a firearm's licence upon a conviction of an offence under that Act or convicted of 25 any other offence which results in a sentence of imprisonment are discretionary. On the other hand, section 145 (1) of the National Parks and Wildlife Act, Cap. 316, which provides for an order of forfeiture is mandatory, subject, of course, to an application by a prosecutor for such an order. I see no conflict between the provisions of section 145 (1) of 30 Cap. 316 and that of section 54 of Cap ill. The mandatory provisions for forfeiture apply only to the National Parks and Wildlife Act, Cap. 316 and should on no account be read together with the discretionary powers of the court to order forfeiture under section 64 of the Firearms Act, Cap. 111. The discretionary powers to order forfeiture under section 54 of the Firearms Act, Cap. 111, do not apply to convictions under the National 35 Parks and Wildlife Act, Cap. 316, and there is no question of the Firearms Act overriding the National Parks and Wildlife Act. A court may order forfeiture in the case of a person is who convicted under the Firearms Act, Cap. 111, or is convicted of any offence resulting in a sentence of imprisonment but where a person is convicted under the National Parks and Wildlife Act, Cap. 316, then the court must order forfeiture provided the prosecutor applies for such an order. There is neither ambiguity nor conflict in these provisions. The order of forfeiture was properly I made in the circumstances. The appeal is dismissed. 45 Appeal dismissed ■ ■ ■ ■