19781127 TZHC Dodoma

IN THE HIGH COUR' QF •TANZANIA AT D'DOMA APPELLATE. JURISDICTION CRIMINAL APPEAL NO. 49 1978 (ORIGINAL CRIMINAL CASE NP, 797 OF 197& - OF THE DISTRICT COURT OF DnD( . MA) MARIAN KITAMBALA. o , . . .. .• .. . .. . . • Appellant - (original Accused) Versus THE REPUBLIC. ... • • • • ,. • • . Respc'ndent (original -prosecutor) ciarge: Unlawful posSesSion of governmnt trophy arid failing to report possession of government trophy c/ss 67(1)(2)(b), 78 end 68(1)(2) of Act Nc0 12 of 1974. JUD G M E N T CHIPETA, J . The appellant, Maria d/o Kitambala, was jointly cherçed with three uth :rs, who were acquitted, with the (.ffances of unlawful possssicn of Government Trophy, and failing to report PoSSession of Government Trophy c/ss 67(1)(2)(b) and 68(1)(2) of the Wildlife Conservati.n Act, respectively, On convic€i on, she was seritonced to cncurrent terms of three ye ers and two y ars imprisonment, resp..ctively. She now appeals0 In brief, the prosecution's evidence was thet in Novemb..r, 1976, one Rocky Mligwa (P.W.2), who was a villje chairmen of Mbalawala Ujamea. village, h -id notied that cars were often coming to the village in the night0 That arc.used his suspicion. On 20th November, 1976, P.W.2 saw a car cLming to the village from DodLrna town. It was then at about P. Q0 p.m. He then ca1ld some Y'.uth L'-ague members to assist him in investigating what was g ing n. They sew th car parked n ar the app e ll ants ,hous, and as they moved towards it, the car ws driven away. They went to the appllent's house and entered the house. In one of the ms, they saw a hap of elephant tusks on the floor and a bag centaining rhino horns.: When P O W.2 asked the app ilant as to the ownership of thcse trophies, the eppll int said that they h Ad b.en ldft there by cno- Oman because the vehicle in which he had brought them was defective en-I th,et...the..owners w.uld come to ecc,lLect them lat.r. —2—.: The next day P..W.2 sent a report to police, and on the sam.. day police c:'f'fiors weixi: tc the village' where they arrested the appellant and sized thtroh.ia. Ph' tre hio s Were valued at shs. 1I7.I5/r16 , In h.2r defonc; the ppe1l:mt said thit the trophies were br.ught to her 'houso by one Nizaro Moharned (who was the f..urth accusd dt the trial) at :Ib Ut 8.0 pm. Sh a:1do] thet tb? siid Nizar Mcharned carr.i'd the trophies into' h •r house and told her La car ic't they cutside the h use w is/with s mc p p1 in it, but she did not recognize.', thc,sc p:o pie. She did not report to any rs n in the village and the car then :1ft. I respectfully agr.e with the l.earnod state attorney LThe thet the appellant wcP'4-n.innocent possession of the trophiusL trohis tie w r br ught t h r it night by pc pl. wh m sh app r ntly werein large barely knew. When cunfrnted by the village chairmen, she was quantit.es naive en.ughttc say that the trcphi.s had ben left there because LI'l. vehicle in which they had b en br ught w s LI foctiv. wh.n sh.. had seen the vohicle move away.. Under.the pr,visicnsc:f section 70 of, the Wildlife C. nservatir Act, the hurden : was on the appllint. to prove, on a bclane of pr.babiliti?s, that she was not in possession of the or that her possession of them was lawful. She miserably failed t.. disch. ge that burden. .0. In those circumstances, threfore, I can ,e no ground for disturbing the convictions. . . AS to the sentences, th sentence in rasp ?ct of the first count was th?± statut ry iiinum. Ind ed, in view of the colossal valu. of the trcphes, th t sentence, i anythirg, erred on the side of leniency. The app liant deserved a more severe sentence. But as the loarnel senior resident mauistrate (as ho then was) gave good .reas ns f r imposing those sent',nces, I h -?VC reluctantly r.freined from unhouaci'hg the same. e the appal is dismissed in its entirety. In fin, c4l. DO NA B. D. CHIPETA 27th November, 1978 JUDGE" ,1