Ngadi and Another v Queen (Criminal Appeals Nos. 456 and 457 of 1954) [1955] EACA 258 (1 January 1955)

## APPELLATE CRIMINAL

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Before Hooper, $\mathbf{J}^{\star}$ $\mathcal{L} \leftarrow \mathcal{L}$

## cacter and the count $\mathcal{L} \subset \mathbb{C}$ ANYUL NGADI AND ANOTHER, Appellants

## THE QUEEN, Respondent

## Criminal Appeals Nos. 456 and 457 of 1954

Criminal Law-Criminal Practice and Procedure-Lake Victoria Fisheries Act, 1950, Cap. 6-Section 8 (1)-Lake Victoria Fisheries Regulations-Regulation 3—Conviction for illegal seine net fishing and use of unregistered boats -Fines imposed-Section 17-Forfeiture of nets and dhow ordered-Whether vessel "article"—Criminal Procedure Code, section 347—Whether appeal lies to Supreme Court—Section 348 (1)—Conviction on plea of guilty -Whether "extent" means "severity of sentence"-Petty sentence-Whether forfeiture part of sentence for purposes of appeal.

The two accused were charged before a first class magistrate, at Kisumu, with taking fish from Lake Victoria by prohibited seine nets contrary to section 8 (1) of the Lake Victoria Fisheries Act, 1950, Cap. 6, Laws of the High Commission and also with using unregistered boats for fishing contrary to regulation 3 of the Lake Victoria Fishing Regulations. The first accused pleaded guilty to both counts and the second accused to the first count, the second being withdrawn by the prosecution. The magistrate imposed petty fines and in case of both accused ordered forfeiture of their nets and dhows, purporting to act under the provisions of section 17 of the Act. Both convicts appealed on ground of severity of sentence, not because of the fines imposed, but because of the forfeitures, which they alleged had cost them their livelihood. At the hearing Crown Counsel submitted that by reason of the restrictive provisions of section 348 (2) of the Criminal Procedure Code, forfeiture not being part of the substantive penalty no appeal would lie but at the resumed hearing he conceded that the word "extent" in section 348 (1) must be taken to include the punishment of forfeiture. He submitted also that the word "article" contained in section 17 of the Act ought to be interpreted to include a "vessel" the same words being used in section 15 of the Act synonymously.

Held (14-2-55).-(1) The word "extent" contained in section 348 (1) of the Criminal Procedure Code means severity of sentence. Forfeiture is a punishment or sentence which may be combined with any other lawful punishment to form part of a sentence. The value of the property forfeited being in excess of the restriction on appeal contained in section 348 (2) an appeal lay to the extent of the sentence.

(2) The forfeiture of the dhows depriving the appellants, who were first offenders, of their means of livelihood, this part of the order was set aside.

Semble: (1) The word "article" in section 17 of the Act comprehends a vessel.

(2) An appeal lay to the Supreme Court from a conviction by a subordinate court<br>in the Colony from a charge laid under a High Commission Act.

Sentence reduced.

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Ross for the appellants.

Havers, Crown Counsel, for the Crown.

ν.

JUDGMENT.—This is an appeal by Anyul Ngadi and Awino s/o Oguok against the severity of the sentences inflicted upon them by the First Class Magistrate's Court, at Kisumu, on 24th July, 1954: They were charged with taking fish from Lake Victoria by seine nets, being prohibited nets, and on using an unregistered boat for fishing. The first accused pleaded guilty to counts one and two, accused No. 2 pleaded guilty to count one, but not to count two. The learned magistrate -convicted them on their own pleas and sentenced accused No. 1 to a fine of Sh. 10 on each count, or in default one week's imprisonment on each count, and ordered the forfeiture of his nets and dhow. He sentenced accused No. 2 to a fine of Sh. 20 in respect to count one or two weeks imprisonment in default, and also ordered the forfeiture of his nets and dhow.

Before entering upon his argument Mr. Ross, for both appellants, applied to have the appeal admitted to hearing although it was out of time by some two months. On the Court file of the appeal I find a certificate by Mr. Browning. the first class magistrate of Kisumu who tried the case, that there was a delay in supplying an advocate with the certified copy of the judgment and the proceedings in the case, as the magistrate who tried the case was on leave and no first class magistrate was available to certify the judgment. I therefore admitted the case to appeal. $\mathcal{L}(\mathcal{L})$ $\mathcal{L} \mathcal{L}$ $\cdot\cdot$ $\mathcal{L}_{\mathcal{A}} = \mathcal{L}$ $\cdot\cdot$

Opening, Mr. Ross stated that the appeal was limited to an appeal against the severity of the sentence. There was no complaint about the fine, but the emagistrate had ordered the confiscation of nets, and not only of the nets, but also of the boats belonging to the appellants. There was no record of any previous convictions against the appellants and the accused were not asked whether they had anything to say in mitigation of sentence. Mr. Ross stated that it might well be that the order for confiscation was part of a plan to stamp out breaches of the law against illegal fishing by means of extremely severe penalties. In any case, this was extremely harsh on individuals, and in this particular case meant that the two appellants were condemned to practical destitution, since they had lost their means of livelihood.

Mr. Havers, in reply, submitted that under section 348 of the Criminal Procedure Code, sub-section (2), no appeal would lie, owing to the fact that the magistrate had inflicted a fine only of less than Sh. 100. Mr. Havers further submitted that an order as to forfeiture was not part of the substantive penalty imposed by the magistrate in the case of the two appellants, and consequently could not be brought within the four corners of the provisions to section 348. The magistrate had ordered the forfeiture of the nets and dhows under the provisions of section 17 of the Lake Victoria Fisheries Act, 1950, an enactment made by the East Africa High Commission. The order for forfeiture, Mr. Havers submitted, was something entirely different from the sentence. Mr. Havers referred to section 25 of the Penal Code, item 6 of which declares forfeiture to be a punishment which may be inflicted by a court. It is preceded by item 5 which makes a fine a punishment, and item 10 of section 25 refers to any other punishment provided for by the Penal Code or "by any other Ordinance".

This seems to me to make it clear that the draftsmen of the Code contemplated forfeiture as being just as much a punishment as a fine, imprisonment, finding security to keep the peace, or corporal punishment, and the other forms of punishment mentioned in section 25. Section 30 of the Code refers to certain specific cases of forfeiture, and provides that they may be "in addition to or in lieu of" any other penalty. Unless there is some express legislative provision whereby the right of appeal against any punishment is taken away, it appears to me to be unreasonable to hold that an order for forfeiture is not appealable, whereas the other punishments are, subject of course to any limits prescribed.

Section 11, sub-section (1), of the Criminal Procedure Code deals with a combination of sentences, and while it does not mention forfeiture as being a punishment or sentence which may be combined with any other sentence, it makes it quite clear in the proviso that corporal punishment can be so combined. Corporal punishment is one of the punishments or sentences which may be imposed, either singly or in addition to, any other punishment or sentence. Why then should an order for forfeiture be deemed to be not a punishment or sentence which may be combined with any other sentence?

Section 347 of the Criminal Procedure Code lays down the general principle (subject to the limitations prescribed) that "any person convicted on a trial held by any subordinate court may appeal to the Supreme Court", and while section 348 limits or prescribes that there shall be no appeal from a plea of guilty nor in certain petty cases, I can find nothing said to the effect that an order of forfeiture is not appealable, or anything from which such a conclusion might be drawn. On the contrary, it seems to me to be a punishment or sentence which can be lawfully imposed and lawfully combined with any other sentence, and therefore appealable. What is to be the position of the subject fined such a small amount that he loses his right of appeal under section 348, who finds himself faced with a sentence of forfeiture of property which may be worth many thousands of pounds, but cannot appeal? If that were the law he would surely be the victim of grave injustice, as he might have a genuine grievance to ventilate.

There is one point to which I would like to refer, and that is the meaning of the word "extent" of the sentence referred to in sub-section (1) of section 348. This sub-section deals with cases in which an accused person has pleaded guilty. I am inclined to think the word "extent" here means the severity of the sentence, and if it be admitted that an order for forfeiture is a punishment or sentence which may be combined with any other sentence, then it seems to me that this case is appealable. As some of the points I have mentioned have not been argued before me. I have decided to adjourn my decision on this point, in order to give learned counsel a further opportunity of addressing me should they wish to do so. I should also be grateful if they could agree upon a figure showing the approximate value of the seine nets and the dhows which have been ordered to be forfeited, in relation to the amount of the fine, in order that I may be in a position to know what is the extent of the real punishment in terms of money inflicted on the appellants.

A final point on which possibly learned counsel for the Crown can enlighten me, is the enactment under which Ordinances made by the East Africa High Commission prescribing punishments for infractions of such Ordinances are appealable in the local courts of the territories under the jurisdiction of the East Africa High Commission. There is nothing in the Lake Victoria Fisheries Act, 1950, itself which provides expressly for any appeal to the local courts of Kenya. Further, article 17 refers to "any article in respect of which the offence was committed". I am concerned to know what is the precise meaning of the word "article". It seems to me to be difficult to envisage the draftsman of the section as contemplating a sailing dhow, much less a steam trawler as being an article. Does a reasonable construction of this section really mean that the legislator intended to confer powers to confiscate such articles connected with illegal fishing as lines, nets, catch of fish, explosives, lamps and so on, rather than a whole ship? I would be grateful to learned counsel for any enlightenment on this point they may be able to place before me.

This appeal is to be set down for mention on Saturday next, the 12th instant, A copy of these deliberations to be placed at the disposal of the counsel by the Registrar. $\mathcal{L} = \mathcal{L}$ $\mathcal{A} = \mathcal{A}$

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Having heard counsel for the appellants and the respondent, I maintain the order for forfeiture in so far as it applies to the nets, but set aside the order as to<br>forfeiture of the vessels, since they are the means of livelihood of the appellants.

٠.

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