19870505 TZHC Mbeya3

IN TH COURT OF APPEAL OF TANZANIA AT iYA CORAMs MUSTAFA AG. CRIMINAL APPEAL NO. 16 OF 1987 * THE-DIRECTOR-OPY PUBLIC PROSECUTIONS •.•,• APELLArT: And MASAIA ,. ... .. ,. . RESPONDENT (Appeal from the co.viction and sentence of The High (;ourt of Tanzania at Stuba- wanga)(L'itenga, J.) dated 19th May, 1986 in Eo.uomic Crimes Case No. I of 1986 JUDGEMENT OF THE COURT MUST AFA , Five persons were charged jointly with unlawful possession of Government trophies i.e. elephant tusks under the Economic and Organised Crime Control Act 1984 read together with the Wild life Conervation Act of 1974.. Three persons i • e • Al, the man in charge of the motor vehicle UJ 1178 7 A2 2 the motor vehicl&s driver and A3, the turnboy were convicted as charged and were sentenced to 5 years imprionment respectively. Two other persons 7 A4 and A5 at the tnia1 were a cqui. t ted.. After having passed sentence the trial judge (Mtenga, J) made an order, forfeiting to the Government the elephant tusks. However.he sta- ed in the order "wider the provisions of Section 44(2) of the Economic and Organised Crime Act, 1984, the Landrover Exh. P2 which was ou.nd carrying the said elephant tusks should be handed over to owner Mshindo Diwani (DW2) for it has been established in evidence by him which evidence vise not challenged by the learned State Attorney that the Laridrover Exh P2 belong to him and he tendered his registration card Exh DI in respect thereof, • Mshindo Diwani (Dv12) never instructed the 1st, 2nd. and 3rd accused to use his land rover to carry these elephant tusks Exh P1 and that is why he e -2-- not jointly char'ged with the rest of the accused y4ith the offence. It will t.b.erere be extremely unjust to penalise Mshindo Diwani, the owner of the motor vehicle for an offence committed by others without his kaakv- ledge. This Court therefore orders that the mor vehicle Exh P2 together with the Registration Card Exh DI should be returned to Mshindo Diwani, the owner of the properties immad.iately. It is against the order of the judge returning the motor vehicle to Mahindo Diwani that the Republic is apealing to this Cour 0 Mr. Lundu, with Mr. Teemba, appeed for the Republic. He ferred to Sec. 44(2) of the 1 onomic aod Orani..sed Crime Control Uorsevat1on A9t 1984 and to Sec 78(2) of the WildlifeLAct 1974. He sujttd that it was indisputable that the tusks were carried in the motor vehiUe under the control of Al. Sec. 44(2) of the Economic and Orenised Crime Control Aet S rea.s V(2) Notwithstanding the generality of sub section (I), the Court shall not make an order for the forfeiture of the property of any person convicted cfan economic offence if the property in question or any part of tt is not proved to have been involved at all in the commission or facilitation of the offence; section 78 of the Wildlife Conservation Act reads: (I) Where any person is convicted of an offence under this Act the Court shall order forfeiture to the Government of - (a) ......... ...... •O•• •000 0000000 ............... (\ r p. '. / • 0.,.00•0*000 (e) in the case of a conviction for an offence relating to a Government trophy, any vehic.1 vessel or aircraft in which the Government trophy was found. •05 ' O . I -'- ,0 - -- .- 3 (2) The Court snail aiei fo'i'féiture in ora1 with the provisions of sub—seotoxi (I) ntwith- standing that the vhicle, vessel, aircraft, weapon article or thing to be forfeited was owned by a person other than the accused, 11 Provided that where on the apolication of the owner of a vehi.le, vessel or aircraft the Court is satisfied - (a) that the owner did not know or could not by reas.on&1e diligence have known, that the vehLJ..a iritecle4 by the accused to be used or employed for any of the purposes which has rnderd tha same Ule for forfeiture0 ( b) •......,,,...,. (c) that having regard to all the circumstances it is jilatl - and equitable that the vehicle not he forfeited, the Court may make no order for the forfeiture of the vehicle .' Mr. Lundu submitted that the trial judge ordered the return, of he mo'tô.vehicle to Diwani without giving the Republic an opportu njty 'to oppose such an order, and without Diwani making an applica- tjon for it to be returned to him. Mr. Lundu contended that the evidence at the trial would establish that Diwani knew o.r could, haye 1cnwn of the use to which his vehicle was being put. Mx 4 Tukunjoba for the respondent sb:itted that a Court has a sretibn to order a forfeiture or otherwise, depending on circum- noes, However it seems to us that the trial judg.: had porasiappre- iaed. the meaning of Section 44(2) of the Economic and Organised Itorol he referred, If ho hJ read that sub section with Sec. 78(2) of the 7ildlife Conservation Act, he would have Qrited the motor vehicle 2 leaving the o;ner Diwani to make apiation for its return should Diwani had so wished, in compliance with the requirements of the Provisio to the said Section At tne very least the order :?aacie Ib Ir the trial judge was i,reguJar, and in the circuhstances, inappropriate1 'S • - - - - - - We aI10 the appeal of the Republid 'quash the order of the trial judge to return tJJ 1178 to the ownè' M&ith-o D.iiaJ.- arid order the said velücle to be .saized Qnd forfeited to the Government, DATED at 11BEYA this 5th day of Iviay, 19874 A. IffUSTAPA A. CHIEF JUSTICE L.M. MAKAI JUSTICE OF APPEAL A.I:.A. OJAR I' -: • JUSTICE OF APPEAL '••;:;; s ,,J "- I certify that this is a time copy of the (J.H. Msoffe) DEPUTY_REGI STRAR