19741025 TZHC Arusha

IN THE -1IGH COURT OF TANZANIA AT ARUSHA I APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 225 OF 1974 ORIGINAL CRIMINAL CASE NO0 6 OF 1974 OF THE DIS'rRICT COURT OF ARUSHA MISTRICT AT RRUSHA Before J.A. MROSO Eq0, ------ ------------ *------ RESIDENT MAGISTRATE 1. HAPPY S/C MAEDA 2 MRSO LUNASIA MAPACHO -------------- -------------- APPELLANT - (Original Acusec5) versus THE REPU3LIC --------------------------- RESPONDENT (Original Prosecutor) J U D G E M E N T Makame, J. The first appellant, HAPPY MAEDA, was found Guilty on two counts: Being in unlawful possession of three elephants tusks, and Failure to report his possession of them0 On the first count he was sentenced to • fine of shs0 5000/- or 6 months in default0 On the second count he got • fine of shs0 1,000/- or 3 months imprisonment0 The motor vehicle he was found to be carrying the tusks in, a Renault van, Registration Number ARB 106, was also ordered to be forfeited to the U*jted Republic, He paid the fine and now he and another person called LUNASIA MAPACHO have appealed to this court against the foreiture order and Mr0 D'Souz, learned Counsel, advocatedfor both of them. When the appeal was ddmitted for hearing a Notice of Enhancement was also ordered to be served on Happy Maeda because it was found that he had rather recet previoü convic- tidns of a similar nature0 I shall start with their appeaL s It is true that Lunacia Mapacho was not one of the two accused persons in the lower court and it is also correct that Maeda was not 'afforded the opportunity to say anything against the proposed forfeiture0 However, apart from the fact that Maeda himself during the triaI referred to the motor vehicle as 'my Renault', having seen and heathe woman I4lnacia I am satisfied that the motor vehicle was indeed Mea's and the proceedings before this court have removed •whatever doubt there might have been in the matter0 It would however have been more proper to invite Meeda to advance any reasons, if he had any, against forfeiture. If he madethe claim then that the motor vehicle belonged to Mapacho things would have been more appropriately and conviniently investigated at that stze0 Mapacho's demeanour and performance in this court made me feel certain that she was merely draged in •-. buttress Maeda's false assertion and that the vehicle is.not h0 In her affidavit Mapacho said she bought hhe vehicle on 4/12/73 through ant. auctioneer and that she had the receipt at home 0 given time she failed to produce sucha receipt and I had to look at the duplicate in the •auctioneer's hook0 This revealed that the sale was on 1st December andiot on 4th December and that the receipt was made in the name of HAPPY J. MADA The practice would have been for Maeda to give the real buy0r's name as thiswould have been the first document to show Mapacho's interest in the vehicle0 It seems to me quite dlear that when in this court Mapacho said she had the receipt at home she was telling lies and knew it: If she still had the receipt atttht.tge she would have shown it to her lawyer when the latter drew up the affidavit for her, and he learned Counsel would have got the auction date right. Also • Mpacho would have been interested enough at least to know at which aictiofl 12 / p the motor vehicle was being sold and probably she would have gone there with Maeda. She also told lies that the 2500/- she gave to Maeda included the transfer fee. Obviously appreciating the implication of what she swore in the affidavit, at the heating she changed h•..r story and denied her earlier version that she had giventhe vehicle to Mae.as.'loTg before Maedats arrest as 22/12/73: Maeda was not arrested until -, 1/74 and Mapacho says Macda lives a mere 400 paces from her hous. The transfer forrn in the nameof Mapacho was not registered and it would apear that it was not even forwarded to the Licencing Authority0 I therefore respect- fully agree with Mr. Mwipopo that its authenticity is doubtful0 I am satisfied that the vehicle was Naeda's and that the forefeiture order was / not unjust even though the learned Resident Magistrate failed to follow the proper procedure0 I accordingly dismiss the appeal0 This court is talarmed by Maeda's persistence in this fieldof crime0 In Arusha Criminal Case No0 130/72 he was convicted of such offences and fined a total sum of shs. 2400/- which the High Court enhanced to 3,900/-. This did not succeed in dissuading him from continuing in his particular choice of crime for soon after that he was at it again. He seems intent on floiiñg; the law so the courts must continue to try to wean him off his anti-people propensity. If, as Mr. D'Souza says, Meeda has relatives from whom he can raise loans to pay fines the appellant should more properly approach such rich relatives for funds to conduct legitimate business with, in the first place, rather than break the law and then throw his relativele monies down the drain. I feel that the sentences imposed in the lower court were not salutary enough in the particu1ar..eieum /stan- Perhaps a prison sentence without the alternative of a fine will finally cese persuade Meeda to go straight, and this may well be what he will arn for himself in future. In the meantime I enhance the sentence on Couht 1 to a fine of shs. 7,000/- or one year imprisonment. On the second count the sentence is raised from 1000/- to shs. 2000/- or 9 moib±hs imprisonment In the event the appellant will have to cough up another shs. 3,000/- or go to jail. •D'Souza for Appellants. .wiopo for the Republic (L.M. MAKAME) J U D G E Delivered in open Court at Arusha this 25th day of October, 4974 /Kimathi,