19890323 TZCA Dar es Salaam3

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MAl(AME, JoA., -~ISANGA, .. J.A., And OMAR, J.A.) :cRIMINAL APPEAL NOo 59 OF 1988 ABDURABI ALLY YUSUFU @ ALLY YUSUFU i\BDURABI. . ,, . APPELLANT VERSUS THE REPUBLICo • • • • o 0 0 • • • • • 0 • ,, .. •· RESPONDENT (Appeal from the conviction of the High .,,~t of Tanzania at Songea) dated the 21st day Of April, 1988 in Economic Crime Case No. 1 of 1988 JUDGMENT OF THE COURT 1'iAKAME, J. Ae : In the Economic Crimes Court the appellant and another person, out of five accused persons, were found guilty~ a count of Bein'] In Unlawful P•s.session •f,-Government Trophies, one hundred and five elephant tusks, wor•h,,•v:er shs •. 2.4 millio::,. Each wass sentenced t• J.mprls•,nuient for nine years and the tusks were forfeited to the United Republic. No <'·rder was made with regard to the mot•~ vehicle found to be carrying the tusks as it was Government prOJ;?erty, Land Rover STG 8675 allocated t• the appellant in his capacity as Member •f Parliament f•r:,. Songea Urban which is what the appellant was bef•re he got convicted. The appellant submitted a Mem•randum •f.Appeal containing six grounds of complaint but he did n•:t;.wish to be present at the hearing of this appeal.- _ .Mr. _Mwar1yika learned Principal State Attorney who resisted the appeal on behalf cf the respondent Republic submitted that that the evidence against the appP.llant was simply over-whelming •. • ••••• /2. 2 'Inere was a large mass of evidence at the trial and what with legal argl!ments and rulings the record ran in·t• more than two hundred pages of typescript. At the end of the day, however, the issue was narrow and simple. In effect the question was, what was the Honourable Member of Parliament ctoing with such a large number of elephant tusks in his official vehicle ·s--;)me four hours past midnight? The appellant furnished the trial court with a long story regarding his grave concern for the country's wildiife in his capacity as the local Member ~f Parliament and hi~- various other roles virtuti Qficii. When his official driver told him that YUSUF MOHAMED, Accused 4, wanted to hire his official Land Rover to carry elephant tusks he decided to play ball so as to qet Mohamed arrested. That was on 3rd January, 1988 and he accordingly informed the Police Officer Commanding District, P.W.2 SINON DAU. The intended trip to Lusewa somehow aborted allegedly because the Police had tipped Yusuf Moham~.rl so it was not until four days later that M~hamed wanted the services of the Member of Parliament's Land Rover again. On the appointed day the appellant paid•his •wn shs. s,sOO/- cash for petrol as the vehicle had only forty litres in the tank. The trip was now to Ligunga and not t~ Lusewa as had first been intended,. They made the trip and in short ev~ntually he found himself against a road block at Namabengo as alleged by the Pr~secution. His vehicle was found with the elephant tusks but he:. was not w-.rri-=d by· hi•s arrest as he was doing all that f•r public benefit an0 he knew the P<>lice ha,d acted on the inf•.rmation he had ~-iven to themo The trial· -court was not at all in;pressed by all this and its unanimous finding was that the appellant was guilty. We only wish to say that one needed to be very guLl.tble indeed to swallow this fantastic spin. Supt. Dau deniRd that the appellant gave him I any information that tusks would be ferried. Hie.. •wn informer, rather, had tipped him that the MoPo' s Land Rover was being used to carry elephant tusks, that much he was informed, but he had no idea that the appellant himself would be caught in the net. Had it been the •oo•oon/3 J ' t.r appellant himself who ga_ve hi1Ti" the tip he would not have allowed the appellant to risk his personal safety by getting involve.,d in the journey, in view of his public status. The appellant's first co-accused, ALLY B0IIJJANDA, gave a detailed account of his movements on 3rd January, 1988 which ended with a party after the C.C.M. Secretary-General had taken off from the airport; and right up to 3 .. 45 p.m. on 7th January when the cppellant abruptly told him that there would_· be a trip to Ligunga. He told his master that he could not get petrol for the journey at that late hour but the boss gave him money to purchase 200 litres of petrol. He completely , denied telling the appellant, on 3rd January, or on any day,_ th~t someone wanted to hire his Land Rover. It is difficult enough for a person to imagine someone having the audacity to want to hire a Member of Parliament's vehicle to carry illegally possessed elephant tusks. It is beyond sober imagination to think of a person with such brazen rashta•"ss and rascality as to ride with his local Member of Parliament in the \ latter's official vehicle loaded with illegally obtained elephant tusks without the Honourable Member being also criminally involved. Like the trial court we do not believe that the appella~t- was on an innocent mission. It would have been impossible for him to fail to get somebody else in authority, like the R.C. o~ RoP.Co, during the .four days after the first abortive trip. to convey th~ news about the impending crime. It also has not escaped our attention the fact that both Ligunga and Lusowa are ♦-, on the evidence, in another district, Tunduru, away from the appellant_' s Parliamentary territory. There would be another Member of Parliament to look after the welfare of the elephants there. The Memorandum rai:ses no ground of subs_tance. WP. are satisfied that the appellant. was in Unlawful Possession of the tusk.s as fouad. by the Economic Crimes Court. We have to go farther however. The " ., ••o•oe/4. ccntroversy as to whether or not Unlawful Possession of Government trophies, per se, is an economic offence, whith came up also during the trial of this case, was finally laid to rest by the decision of the Court of Appeal in D.P.P., Vo BERNARD NJAVIKE (Cr. A:,peal No. 32 of 1987). In the present case, however, the appellant was also charged with Unlawful Dealing In Trophies·, in the alternative .. It was therefore open to th_e trial court to convict on this alternative charge'if there was sufficient evidence to support this. Mr. Mwanyik 9 has urged that there was in this case such evidence. We think in such a situation as this one, the court has t0 look at the facts and consider them carefully to see if they can sustain the charge of Unlawfult Dealing which is the more serious of the two, and attracting a stiffer penalty. In the present case we 1OOk at the huge number of tusks, the place where they were fetched from and the time and the circumstances in which they were found in the appellant's possession - being transported from one place to another. we conclude on the facts of this case that the appellant was pealing in trophies and this does not contradict or offend this court's view in NJAVIKE wherein the only charge was Unlawful. Possessiono Consequently we set aside the conviction for Unlawful Possession and in its place we convict the appellant on the alternative count of Unlawful Dealing. This offence attracts a maximum jail term of fifteen years. When the trial court sentenced the appellant it was of the ~t-.roti.co1.u--·•J~ view that the offence· committed was the le~s serious one of Unlawful Possession and yet, significantly, it imposed as much as nine years. Now that the appellant stands convicted for the more serious offence of Unlawful Dealing and in view of the circumstances of this case, including the number of tusks involved, the appellant's abuse of his position and the betrayal of the trust and confidence reposed on him we are of the view that a more condign sentence reflective of ,.. ' 5 -·, the gravity of the crime is callPd for. Accordingly we set ~side the sentence of nine years and impose in its place one df twelve years. We wish to add that if we foond only Unlawful Possession pr·o!'ed we would havP. had no choice butt'., reduce the sentence as the one of nine years is above the ma"ximum possible, which is seven years. · DATED at !JAR ES SALAAM this 23rd day of March, 1989. i l L., Mo HA.KAME JUSTICE OF APPEAL t' Ro Ho KISANGA JUSTICE Op APPEAL JUSTICE OF APPEAL I certify that this is a: ,t,.rue copy of the original ( J,. Ho MS0FFE SENIOR DEPUTY REGISTRAR ..