19780120 TZHC Mbeya

r is (4-iC4 C4U(L \' IN THE HIGH COURT OF Th:SZANIA AT DODO1!IA APPELLATE JURISDICTION CRIMINAL APPEAL NO 225 OF 1977 CF. CRIMINAL APPLICATION NO.12 OF 1977 (ORIGINAL CRIMINAL CASE NO. 330 OF 1975 OP THE DISTRICT COURT OF IRINGA DISTRICT AT IRINGA BEFOREg J. L • MHALUSANYA_ESQ -- ------ RESIDENT MAGISTRATE BENEDICT SANBANGA ................ .... .. APPELLANT versus THE REPUBLIC • • . , . • • , • • . . . , . . . . . • . RESFONDEMT CHARGE: Unlawful possession of Government Trophy c/ss, 67(1)(2)(b) and 78(1)(a) of the wildlife conservation Act No.12/74 and G.N. 265/74. 2nd. count: .Sscaping from Lawful custody c/s 116 of the Penal Code. Jlll)Gl'LINT 1YMAIaBrE, J.:, Before tie district court of Iringa the appellant - and another1q,erevri who was acquitted - was convicted on two ceunts - namely - being in unlawful possession of Government Trophy c/os 67(1) (2)(b) and 73(1)(a) of the wildlife conservation Act No.12/74 and G.N. 265/74— and escaping from lawful custody c/s 116 of the Penal Code'. He Is sentenced to three years imprisonment for the 1st count and three mDnths imprisonment' for the 2nd - the sentence being ordered to run conjrrently. The 112ticulars of the lot count alleged that on 13th August 1975 at Izazi Village within Iringa District - the two were found in unlawful p oession of Government Trophy to wit 12 elephant tusks weighing 613 kilo,rams valued at shs.15,3 2 5/= the property of the Republic o Tanzania. is for the 2nd count, it was allegcd that 'the ' in two having arrestel on the same date and time —/c nnection with the 1st it - and wh5je in lwfu1 custody of D/Sgt. George and D/'C Asulunenyo - escacd from such custody. -2- Having gone through the facts of the case and the memorandum of appeal I am quite satisfied apel1ant had boon properly convicted. been Had the other accusedLconvicted and appealLI would undoubtedly have upheld his conviction as well. As properly observed by the trial court the whole case turned on the issue of identification. The facts were briefly that the two police officers had gone to Ruaha for a special uission This was to identify and arrest the persons reported to have been engaged in an unlawful trade. At Ruaha they met the appellant who confirmed to them that he was indeed the one who was selling elephant tusks. After some discussion it was agreed that he took them to Izazi village some 20 miles away - where he had kept the tusks. They drove 'the whole way to Izazi village - while talking to each other. It was day time. All along the Policemen talked to appellant with a view to master his iientiy fully while at the same time bracing themselves to effect his arrest at the appropriate time. At Izazi village they found the other accused who was acquitted. The accused )orsons led the Police officers to the point they had hidden the elethant tusks. They negotiated about the srice and helped load the tusks in the Police motor vehicle. The Policemen observed them closely. Then when all the tusks had been loaded the policemen moved to effect the arrest. There was, in my view, adequate opportunity to ideotify both the accused persons properly. In the case of the appellant - there was more than ample time to identify him fullT'i. According to the record appellant had been with the policemen for over an hour. As observed by the learned, magistrate there could he no question of honest but mistaken identity under the prevailio conditions. Accordingly I would dismiss the appeal aainst conviciian in both counts. The sentenc imposet cn count one ic the minimum prescribed by law for this type of offencc !where the value of the trophy is over shs.15,000/=. It cannot be said that a three month prison sentence in count two was essive. Th appeal aminst sentence is also dismissed. Dated at Mbeya this 20th day of January, 1978 . li( ( ) H. J. i'l/AXI}3hTJ JTJIGJ