Rowland v Dale

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Malone, C.J.
• Judgment Date: 05 January 1979
• Neutral Citation: BZ 1979 CA 1
• Docket Number: Action No. 16 of 1978
• Date: 05 January 1979

Supreme Court

Malone, C.J.

Action No. 16 of 1978

Rowland

and

Dale

Appearances:

Mr. G.C. Gandhi for the Appellant

Mr. B.Q.A Pitts for the Respondent

Jurisdiction - Magistrate — Power to order a forfeiture under Dangerous Drugs Ordinance of aircraft or other vessel used by a person convicted under the Ordinance.

1 This appeal concerns the discretionary power of a magistrate to order a forfeiture under section 19A of the Dangerous Drugs Ordinance, Chapter 85 (hereinafter referred to as “the Ordinance”) of any aircraft, vessel or vehicle used or employed by a person convicted of an offence under that Ordinance.

2 The respondent was on the 12th July, 1978, convicted of being in possession of about 1,500 lbs. of cannabis. In a judgment which, if I may say so, is worthy of commendation for the obvious care and consideration given to it, the acting Chief Magistrate stated that before deciding whether to exercise his discretion to forfeit or not, he had to be satisfied that:

• 1. “the aircraft was being used in the commission of the offence;

• 2. the owner, his agent or servant was unaware of such use, or, if aware,

• 3. the owner, his servant or agent used all reasonable diligence to prevent the aircraft being so used.”

3 The criteria the acting Chief Magistrate spelled out of the relevant provisions of section 19A of the Ordinance are as follows:

• “19A(1).- Where any person is convicted of an offence under this Ordinance, and the court by which such person is convicted finds that any aircraft was used or employed by such person in the commission or to facilitate the commission of the offence of which he is convicted, such aircraft, vessel or vehicle may be forfeited.

• (2) ……… Provided that no forfeiture of any such aircraft … … … shall take place if, on the trial of any person mentioned in subsection (1) of this section the court finds that neither the owner nor any of his agents or servants was aware that such aircraft ………….. was being so used or employed, or, if it was that he used all reasonable diligence to prevent it being so used or employed.” There was no evidence as regards the third of the criteria I have mentioned. As regards the first and second, the acting Chief Magistrate respectively found that the aircraft had been used in the commission of the offence charged and that the respondent was not its owner, or the agent or servant of the owner, nor was it known who was the owner of the aircraft, or the agent or servant of the owner. On the ground that he: “considered it unsafe to order forfeiture of an aircraft of which the ownership was not established”,

4 The acting Chief Magistrate rejected the prosecutor's application for forfeiture. This appeal is against that rejection.

5 In deciding against a forfeiture, the acting Chief Magistrate posed to himself two questions in relation to the second of the criteria. These he expressed as follows: “1. Is the defendant the owner of the aircraft or the owner's servant or agent? 2. If neither, was such servant or agent aware of the use to...