19750609 TZHC Arusha

t.1CiJ G3ItT OF TL.NZiIIA

AT ARUSHA

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 2 OF 1975 ORIGINAL CRIMINLL cZSE'NO. 617 OF 174 OF THE DISTRICT COURT OF ARUSHA DISTiJCT AT ARUSHA BEFORE:— G. KAYAGA, Esq., Disrict Magistrate 1. AMINA D/O MOIAMED ) • 2. MOIIA1VIED s/o WARISAMA ) .......... ..... AIPELLANTS . (Original ccused) • •- versus •THERErUBLIC.............. ....... . ... RESPONDENT I (Original Proutor)

JU DGEMEN T 0 NYALALI,, AG. J. ••t.. • This isreai1y a consolidated apea1 •o.two appeals • bràught by two appellants, name1yAMThL D/O. MOHAMED, hereinafter called the First Appellant an 'MOHAMED s/o • WARISAMk, hereinafter called the Second Appellant. Both Appellants were chorged on two counts before the Court of the Resident Magistrate of Arusha Region at Arusha with Being in p-ossession of Governm?nt trophy c/s 49(l)(2) and • 53(1)(2à) of the Fauna ConserVationOrdinance in the first • Count and Failure to report the p.bssessir. of Government Trophy to the nearest licensing officer or officer of the • Game Department c/s 48(l)(2) and •53(1)(2a) of the same Ordinance in the second Count. When both Appellants appeared before the lower Court for the first time in the case ad the chrge was read and explained to them, the first Appellant pleaded to the • first Count as follows: "It is true but I do not know the owne±" e . The sesoni Appellant pleaded to the first count: "Not true". On the second count, the first Appellant i2leaded: "It is true". The second Jippellantalso pleaded: "It is true". Thereafter, the court entered a plea of. ndt guilty on the first count for each Appellant. Then the Prosecution adduced facts in resect of t.he second count. • The case was adjourned to 29/11/74 for the Prosecution to produce reltant. exIiibits.. . • • On the 29/11/74, the Prosecution

conduded adducing facts by producing the relevant exhibits. The facts were apparently put to the Appellants who gave their replies to the facts. •........... ./2 4. . . The court ther cenvictoc1 both Lipel1ants on their pleas on the Second countä.nd, after hearng the Appellants in mitigatitn, •sentenced, ebh to.a f i n e of shs.1COOA_ 6 months imprisonment in defu1t. The fine.was paid on the same The case was then fixed for hearing on the 16th December 1974 in respect,, of the first. count but was subsequently adjourned to 20th December 1974 when the Iros'ecutin withdrew the charge and substituted a fresh charge. 'The fresh charge does not appear in the record of the case but it was read and explained to the Appellants. No plea was howevor taken to the fresh charge as the trial mgistrsto then realized that the Prosecution could not withrawa1 the charges on both counts, one of which 'vs already finalized at that stage. The learnecT trial District Maistrte rl1recter that only the first count be withdriwn and that the. prosecution coul.d instittte separate proceedings in respect of the charge wit.hdravm. . . The Appellants felt aggrieved by the conviction and sentence on the second count, hence this appeal.. In arguingthis apeal, Mr.. Mahatane, learned Advocate fox' the Appellants .submitted.tht the i'lea made by the Appellants in respeCt of the 2nd öount was equivocal, since the

Appellants could not possibly have pleadd not guilty tc, the first count if they intended to plead guilty to the second count. A plea of not gu±ltr ta charge of being in unlawful possessin of Gve'nmont trophr cannot be.reconciled with a plea of guilty to C charge of failure to report possession of the same government trophy. Mr. Mahatane contends that the equivocal pleas made by the .AppeUants were a result of their failure to understand the charges against them as 'the veharges were read and explained to the Appellants in Swahili, a language which was not rery faailiar to the Appellants. He submits therefore that the appeal should' be allowed by quashing the convictions and setting aside the sentences and 'rdering a new trial. Mr. Osinde, Learned StateAttornoyfor the Republic opposes this appeal. He argues that the ileas made by the Appellants on the second count were very. clar since both Appellarts admitted the facts adduced by the Prosecution in support of the charge and that any inadequacy in the facts so adduced was made good by the part icula.rs of the offence charged and. the pleas made by the Appellants. deal with the merits of the arguments given by both sides, one has to consider the relevant provisions of the law concez'ning this case. To start with section 49(l)(2). This prövides: - . . Any pron who is unlawfully in pos.session of or deals in any Government trophy

shall be ilty of an offence against this Or dinance. . . --3- I (2)In any proceedings against any'pe'son for an offence, under :- his section the onus of 'proving lawftJ.possessior or dealing shall be ipon such person It• According to this prevision, it would appear clear that the offence charged in the firt count in this case has two main ingredients and these are: i) Pdssossion 'of Government trophy (ii) Unlawfulness of such posscssion An accused IJersor can thus plea° not guilty to such a charge either by denying Iossession or by denying unlewfulnessL If he denies poses'sion then obviously he cannot conceivably .loEd guilty to another charge of failure to report'possessi.n of the came trophy., If he does then the court must take it thot the 'ccused has not understood the Zof c1arges arrl. the plea/guilty should be considered equivocal or ambiguusand a plea of no guilty should be entered instead and the case should procod to a full trial. But if the Accused pleads guilty by denying only the unlawfulnss aspoct of th2'offencci then I think it would be open for the Accusod to plad guilty to a charge of failure to report possessin cf the same trophy. Lt first I had thought in the course )f hearig arguments in this ppeal' that tho.obligation to report possession under section 48 of the Ordinance does not arise when the Accused claims to hem lawful possession of the

trophy concerned. But a further scrutiny of the provisions of Section 48(l)(2) convinco me to the contrary, The Provisions state:- H (1) Any person who by any 'means obtains possession of a. gdvernmcrt trophy shall forthwith make a report thereof to the nearest licensing officer or o2ficer of the Game Division and shall, if so r'quirod hand the trophy over to bin". "'(2) Any person who obtains possesion of a Govornment't'rohy and who fails to make a report thereof forthwith in accordance with the 1:'rov,iiono df this section shall be guilty of an offence against this Ordinance 11 • The use of the words bya scans in Section 48(1) in obtaining possession seems to rñe to embrace possession obtained either lawfully or unlawfully. It would appear that the low requires lnwful possessin to be reported under the provisions of this soctin for purposes of enabling officers of the Game Division or a licensing officer to issue a certificate of Ownership to lawful owners of Government trophy under SGOO.)flS 40(1) of the 0rdinanc. That. secticn reads: , "(1) Any officer of the Game Divisin or licensing officer or the Commissioner • su'joct t: such conditions a.s may be prescribed, on presentation of a trophy, issue a certificate of ownership in the form shown in the Sixteenth Schedule to any person who is in lawful • posse ssicn of that trophy'. ....... So a person who cirims lawful

possession of a Govern nt trophy is uner an obligation to report such possession and failure to d so is an offence under Section 48. of the Ordinance for whicb he can plead gIilty irispite of his claim to lawful Aos8bssiOn. : What is iportanttherafore to knoi in this case is whether the Appc-llants were denying possession of the trophy or whether the wdre denying only the unlawfulness on the first court. This jioint can only be, resolved, if at all by the facts adduced by the prosecution in support of the charge. The facts given were: "On the 2nd count the accused are. peasants of Karangai.. The complainants 1To.3452 Sergeant Zakayo and Meshald of Tenreru.• Op 25th Nobember 1974 tho police inspected, the houses o.f the y Accused. Thesearched that of 'the two,aecused and. found 3 skins of leopard. The skins were seized and taken to Police and charge them for the failing to report the mattor.to the Game Deartrnont ........ The reply of the First Appellant to these facts when pt to him on the 29/11/74 after the skins were'pro'uced as exhibits was: "The fcts ai,.. true I diii not report tht I had -leopard skins to the Game Officer".. The Second Appellant replied: "The facts are true I diii not report that' 1 had leopard skins to the Game Officer". It canbe seen that the faCts adduced by the Prosecution diii. not iiCciose whether the Appellants were in :posses s i e n of the leopard

skins. The mere presence of 1eoard skins in the huses of the Appellants does not mean that the Appellants were in possession of the skins unless facts are given that the Appellants had brought the skins -r there or alternatively that the Appellants were the only occupants of the house or houses concerned'. Furthermore the facts adduced b the Prosecution do not even allege that the Appellants had failed to report possession of the trophy as charged in the second count. There Ws only an allegation that the Appellant were charged for the offence of failing to report to the Game Departments The facts upon which such a charge was based were not adduced at all It seems to me that the facts adduced by the . Prosecution did not disclose the.'offence charged against the Appellants in the Cecond count. With due respe.ctI do not agree with the view held by Ledrned State Attorney that the particulars of the offence stated in the charge sheet and the replies made by the Appellants to the facts put to them, made good the inadequacy of the f,cts. There are two main reasons for disagreeing with such a view. • •I , ..... • . . . . •___._ j -5- • Firstly, it is a well established, principle of Criminal Law that the buxden of proving a criminal case lies always throu€hout the proceedings with the Prosecution. If . the prosecution cas& is weak, nothing that the Accused may say can be used to

strengthen the prosecution case in order to get a conviction. Secondly, if the view given by learned State Attorney is correct, then there is no purpose for the practice requiring the prosecution to 'adduce facts after an Accused has apparently pleaded guilty .to a charge read and explained to hirn. The purpose of this practice is to ensure that an Accused person who pleads guilty does so after clearly understanding the ingredients of the offence from the facts which constitute the offence charged against him. If the facts adduced by the Prosecution do not disclose the offence charged, the Accused cannot be said to have understood the ingredients of the offence when he purports to plead guilty. This is what happened in this case. The Appellant cannot be said t have understood the ingredients of the offence charged from facts which did not disclose the offence. The plea of the Appellant was therefore equivocal or ambiguous and a plea of not guilty should have been ente'ed by the trial court which should then have proceeded to hear the case on merit. It follows that the plea of guilty entered by the trial court was a nullity. Eroceedings are therefore hereby quashed and a new trial before a different magistrate is hereby directed. F. L. NYALALI) ACTING JUDGE, 9/6/75 Judgement delivered in open Court in the presence of Mr. Osincie, learned State Attorney for Republic and Mr. D'Souza, holding the brief of Mr. Mahatane. F. L. ALALI) .ACTIIG JUDGED /MT:M. 9/6/75