19780417 TZHC Mwanza

IN THE HIGH COURT OF TAI!ZANIA AT MWAtNZA C APPELLATE J1JRI SDICTION HIGH COURT CRIMIHAL APPEAL NO, 338 OF 1977. (Original Criminal Case No. 148 of 1977 of the District Court of Karagwe District at Kragwe Before N. H. Bideberi, Esq., District Magistrate) (i ABDUL S/O TENGENEZA FRED S/O LENA JACKSON S/o MADIALO 0 aa 0 0 0 0 00 o e a a a a a a a • • a a . a o a .. a a .APPELLANTS JAMES S/O L RIMO - versus THEREPUBLIC................ o ...... a 0 aa 000 •• 0 0 • • • RESPONDENT JUDGMENT MFALILiL Ja The four appellants were charged with and convicted of two vounts in the district court of Karagwe district at Kayariga. In count I they were charged with being in unlawful possession of Government trophy contrary to section 67(1)(2) of the Wild Life Conservation Act for which they were sentenced to a fine of shs. 10001= or 6 months imprisonment in default. In count 2 they were charged with being in unlawful ,- possession of fire arms contrary to section 13(1) and 31(1) of the Arms and Ammunition Ordinance Cap 223, for which they were sentenced to a ' fine of shs. 500/= or two months imprisonment in default. Th.s is a joint appeal, the appellants arguing in the main that the trial magistrate erred in convicting them after failing to draw proper conclusions from c the evidence. In his judgment the learned district magistrate called the prosecution case against the appellants as simple as ABC". I have had the misfortune of not sharing such a rosy picture of the prosecution case. The salient facts of the case were not in dispute. Witli regard to the charge in the first count, the appellants admitted being in joint possession of the carcass of a waterbuck, but they thnied that their possession was unlawful. On the day in question the Landrover in which they were travelling back home from a trip to the Game Reserve was stopped by two police officers Dt,/Copl. Mashoko (P.W.1) and Dt./Constable Ignatus (P.W.2) and searched. It was in the course of this search that the carcass of a waterbuck was found in the vehicle. When questioned about the presence of the carcass in the vehicle, the appellants who incidentally are all officials in the Ministry of Natural Resources and Tourism, explained that they had taken it after it was ahandric-d by (. poacherswhom they surprised while patrolling the Burigi Game Reserve ' that day and that at that very moment they were on their way to the police station to report the incident and their possession of the Waterbuck carcass. The two detectives rejected this explanation and took the appellants to the police station where they were charged. In court they repeated the same story which yet again was rejected by the trial magistrate who found first that if anything they were offici;.uls — cum — /the poachers themselves and secondly that as they had killedLWaterhuC]C without a permit, their possession of it was unlawful. He convicted them and sentenced them as indicated. First of all I think there is no doubt but that the aterbuck was a Government trophy for it surely had been killed by somecAc unauthorised and this brought it within the ambit of :3ection 66(1)(a) of the Wild Life Conservation Act. The next qu.±stion is who killed it? As remarked the appellants stated that the Waterbuck was killed by poachers and that they had merely collected it from the scene where it had been abandoned and that they had taken it intheir capacity as officials of the Game Department. On the other hand the prosucution case was that the appellants had themselves gone hunting in the Game Reserve and killed the Waterbuck and that as they had no Dermit to do so their possession of it was unlawful. The trial magistrate based his finding on his view that if there had b en any poachers, the appellants could not hav fni.lud to apprehend them considering the. fact that the scene was onn country and th v n o with firervs. This may be so, butldo 1 'ik it fa —.3-- such arms licensd during a n.riod nbt exceeding six months 0 Such period may be extended at the discretion of the / authorised officer by poribds of three months but shall not exceed the duration of the i.rrns license.' And Regulation (3) defines "authorisod officer" as in every district or division of a district the senior gazzetted officer for the time being at the headquarters of the Police Force to such district or division etc 0 - this clearly Mr. Bruno was In the circumstances it was on th prosecution to prove that Mr0 Bruno 1 .s transfer of this shortgun to the appellants was not valid under this Regulation. Not only did they fail to do this, but they did not even attempt to do so. There was therefore no ground for holding that the appeliants possession of the shortgun was unlawful. With regard to the rifle, the prosecution merely asserted that the appellants' story about poachers ws untrue. But this was et enough and it is surprising that the magistrate went along so easily with this argument. I still do not understand why the pro::;ecuti on did not attempt to disprove the appelJnts' story by checking the records at the Central irms Office in Dar es Saleam wha at they would honre been able to trace the owner. This was the only way to prove ownership of the gun. As nothing of the sort was done, it is impossible to say with certainty that this gun was not abandoned by poachers as claimed by the appellants. For these reasons I do not think the prosdcution :..roved that the appellants' possession of the rifle was unlawful. Accordingly the appeal against conviction in the sacod count also succeeds. The appeals are allowed, the convictions quashed end the s ..ences set aside, The fines which were paid in respect o this count should also be refunded. Delivered in court at Mwana this 17th day of April, 1978. \ MiANZA L., MFALILA Ak 17 TH AP RIL 1978 JU DGE..-