N

;t Ill THE HIGH COURT OF TL1hiduiIA LT FYA A?P.1LTE JURIDICTIOH HIGH COURT CRLfEiT!J Li'BL NO. 3611982 ORIGINAL CRINIBIiL C.E BO. 2.61 OF 1981 OF THE DISTRICT COURT 01' ILB. YA DISTRICT AT M"YA Before i. IQJJ e JBREMIAH ISSA LUFENZA ..,.. APPELLANT versus THE REPuBLIC . . . , . . . . . . . . . . .. RJBSPONDENT JuDia\1T Chares 1stcount Being in unlawful possession of Government Thophy c/s 67(1) and (2) of the Wild Life Conservation Act No v .12 of 1974. 2ndcount Failing to report possession of Governnent Trophy to the nearest Game Officer c/s 68(1)(2) of the Wildlife Conservation Act 1974 , The DIstrict Cout of iTheya \ias witness to the indictment of one Jeremiah Issa Lupenza, who shall herein be ref.rred to as the appe11ant The convictions, on the above two preferred counts, were on. heels followe. by an imposition of sentence of five years, and six months Iirisoent on counts No.. 1 and 2 respectively, and sentences to ran concurrently. Aggrieved, the ape11ant is through the services of Mr Mwakilasa, a Nbeya based advocate, appealirC against convictions and sentences. The facts, that s -toad immutely defyin oon+roversy, were that PW1 Said Ali Mwambola, Fy12 Frank Dudu, and R13 B 2435 D/Sgt Laudan armed with. both information that the anpellant was in unlawful possession of Goveren-t trophies, and a search order, ient to the home of the appellanti And it is undenied that from the store adjoining and conti- guous to the kitchen, and in sofar as this is iatcrial to the case in point, the said witnesses, in the presence of .. To ciyilian neighbour witnesses, recovered twelve elephanb tasks. It :ias P1 ,11's discovery,- and evidence to the effect, that, the anpellant had no "permit" to have them was given 4 11nd1 the said aprellant had not reported his possession of the same to the Game Officer did not witness challenge. As the administration of section 206 of the Criminal Procedure Code Cap. 20 .12 -- - ,1 —2 - - attracted silence and indication of desire not to call witnesses from the appellant, the trial magistrate fincUng the presecution, undisputab credible, convicted the appellant and hence the sentences awarded, and the accompanying or attendant orders. Mr Nwakilasa did attack the trial maiistratc from several fronts, which I shall herein sequentially visit, it was :tir Nwakilasa's submission, founded on the first ground of appeal, that the trial ma,stra- te failed to consider the possibility of the alleged elephant tasks, bein4 planted in the place they were found by person, or, persons unimom, Mr Teemba, the learned State ttornoy appearing for the Republic could not countenance, nor associate himself with tho posed submission. Mr Teemba argued, that, the courts are not in the face of the law, there to evaluate possibilities, but the evidence, and apply the law. I think I verly agree with Mr Teenba, that r.iy mandate does not enable me to consider possibilities, that are by their very nature wild, eratic variable and logically untaie. But I M. anxious to avoid trave- lling un necessary,distances, as the law, doo: this aspect speak louder on what posession and the burden of p1cof saving thereby the courts, any inconvinience of looking into poihilities, even if such course were otherwise tenable. Section 70(2'. of the Wildlife Conseatic Act 1974, has this, unequivocally said- Section 70(2) Where in any proceedings for an oñenoe under section 67 it is :roved to the satisfaction of the courts- (a) that the Geverunient trophy which is the subject matter of the charge was founL in any building premises, or ship, or any part of any building, premises, or ship occupied by the accused, or his dependant, ,zhether or not, the accused was physically present whcn. the trophy in.s found, the court shall presume th:t such trphy was in the possession of the accused unle:s the accused satisfied the court to the contrary Applying the above to t ic naccort case, even a naked eye, will obse" that, in this case, the Gov rracnt rophy was found in the appellant's building. The presumption robuttabic though permitted by the law is therefore that, the apDella: t was in osi3sion of the same unless he satisfied the court to the contrary. In this case, the appellant, net withstanding that, that, the Government trophy were found i:: his building and in his presence 9 elected to deep quiet. In circumstances such, as generated by the appellant, the trial court was entitled and enjoincci to urocurco that the appellant -3 - was in possessof Government trophiyies as silence did not functionally satisfy the court to the contrary. I shall now pay careful heed, to the question whether such possession was lawful. Again the provisions of section 70(3)(a) of the Wildlife conservation Act 1974 do unecLuivocally say, and I quotes- Sect. 7 0 (3)() In any proceeding for an offence under section 67 of the burden to 1Jroe - (a) that the possession of the Goverprnent Trophy was lawful •.............. shall lie on the person charged. Again, while the burden cast upon the appellant by the subsection is lighter, than that that generally obtains, on the part of the prosecution - i.e. to prove beyond reasonable doubt, the appellant decided to kept quiet. From the àbove o I would liastely say that, the trial magistrate was entitled to oonalude, that, the appellant was in unlawful possession, and therefore corivict as he did on the first count. The provisions of section 70(3) above, and the attendant analysis of evidence do easily dispose of grounds of appeal no. (2) and (3). The grounds of appeal generally seem to be omnibus in so far as the counts charged are concerned, for there is no any ground of appeal that mentions any court in particular or specifically. Perhaps, this could be explained by the obvious ambitions assumption, that optimistically saught ground of appeal No.1 to carry the day. But as I have above indicated, the law above cited allows no delving into possibilities, once possession was proved, by application of the provisions of section 70(3) of the Act, and, as no attempt was made by the appellant to show that, the same trophies werelawi'uly accuired. I have 1so anxiously left no evidence unanalysed, and I have consequently and easily come to a sober conclusion, that,. the appellant had not reported his possession of the trophies to the nearest Game Officer, The in—evitability of conviction on the evidence on 2nd count, is staring for the attention, of everybody. The trial magistrate was therefore entitled to ',onvict. In exemplifying the 4th ground of ojiseal, Mr Mwakilaa was even more forceful in submitting, that the sentence of five years Imprisonment on first count, was on the exoesseve siJe. lir Toemba did for reasons that I shall hereafter revisit 9 aesocioicd himself with Mr Mwakilasa's submissions. Before the re—exoninatiola of the trial magistrate's sente 'N ncing process, hereunder exhibited, was the trial magistrate's direction on sentence- S C • 0 .14 /.. -4- Offonces against the act under which the accused is charged are easy to commit, but difficult to detect, as such exemplary sentence is called for, which will act as a lesson to the accused. I will teach hiri that crime does not pray. He is sentenced as follows:- 1st count: To go to jail for five years. 2nd count: To go to jail for six months. gd. R .110 I do not have the authority to challenge, or controvert, the contents of the above excerpt, as a general observation by the trial magistrate. I can not challenge his education on the, same, if perhaps derived from experience. Again while it is not my wish, to extinguish the trial magistrate's enthusiasm, to teach the accused, that crime does not pay, I am duty bound to point out, that such enthusiasm would be welcome, if it were not b1ily adventurous and if it were guided by the flash light of the law. I am not enthasiastic to cay, though I am compelled to say, that, in this case whether by accident, or ignorance, the trial maJstrate avoided being guided by the law. It is on my part imperative, and duty demads of me, to say that under the provisions of section 67(2) of the Act, the value of the Government Trophy, that is the subject matter of the charge, is the detenmining factor in the assessment of sentence, oven if the drive is generated by the desire to teach the accused, that crime does not pay. And it is not without significance, to point out, that, the value of the relevant trophy, for the purposes of sentencing, is not that as given in the charge sheet, as every allegation in the charge sheet, should at this time be provedi but the one evidenced by a certificate stating the value of trophy involved, and signed by the Director of Game, and tendered as evidence thereof. In this case there was no certificate as to value from the Director of Game. ividontially, there was no evidence as to the value of the trophies in question, and as such, the trial magistrate had no legal asaterial, upon which to base his assessment of sentence on 1st count, with due resnect. I shall therefore give the appellant the benefit of doubt, and assign a value that is not above five thousand shillings, and reduce the sentence to two years Imprisonment. It is accordingly ordered. As regards the second count, where the sentence of six months was atiarded, I am only cforted by 0 0 .