20041220 TZHC Dr es Salaam

. f . ~ • i IN' 1:HEfHIGH COURT OF TANZANIA· I• ' • (DAR ES SALAAM DISTRI-GT RJroISTin") AT DAR ES S11.LAAM ...

CRIMINAL . l\.PPEI\.L N~o 35 OF' 2001 . MORRIS R.\MADH.'\.NI MARJ.I.NGE,, o doc, o o "o o o oAP.PELLA,N,r; 'I - versus - . r • ~ • I REPrJBLI Co o o o o e o o ei o o o o o ,O\ o o o o o o o • $ o o o RESPONDENT- • .. I • . J. U D G M "E 'N T1 . . .• •• ,, • This appeal ~itas present~d for filing .on 12,.4-2001,. It was brougbt under . Se82 (5) of th~ . . Mild.life Conser- . . vation Act, 1974. It is a-gains~ two orders of the Northern Zonal Game Officer of Mata:i;nbwe area in. Morogoro .:pistricto , The two· orders were made o~ 27.2.1999. They are as•follows:- 1. Payment of a fine o;t· shs.,20 9,000/- • 2. . . . Forfeiture of the appella~t's shot gun No 70/21042 make •.F.• N .F 1? Bore These erders were made after compounding the offence • chargeable under So71 of the Wildlife conservation ' Act, 1974. ... J 2 -·-, raised on behalf of the· appellant by M/S Massati & -<;o.•. Aa,v,,oate;s. The,- are as follows:- 1. That the compounding officer :erred in law in seeking the appellant to sign the composition form by use of force.

2. That the compounding ot"!:icer wrongly seized and forfeited the appellant's gun which is not a weapon contemplated under So71 -of the Wildlife Conservation Act, 1974-~ It appears to me that the appellant's complaint on the first ground of appeal is that he did not admit in writing that he has committed the offence charged against him, and that he did not agree to the offence being compounded by the Nerthern Zonal Game Officer of Matambwe area.· It was submitted ·on his behalf by M/S Massati & Coo Advocates that he was forced to sign the composition. formo ·• e c •-e3/- '- - :- 3 • -0 For me, I do not thing tMt the appellant was !-creed to sign the composition fo+ in which he. admits in writing that he committed the offence chargedo I do not think so because this form bears the signature of his witness one £.\thuman Bundileo Had ~ appellant been forced to sign on this form, his witness would not have signed it as wello I hold therefore that the first ground of appeal h~s no merit and it failso The pertinent question to be considered is whether or not the offence ch~rged, ~dmitted and compounded is backed by facts and lawo This question is embodied in the second ground of appeal which I now embark upono The crucial fact.in this case is that the appellant was found in possession of a shot gun and then charged under So71 of the Wildlife conservation Act, 1984., Actually, the

fact that he was found in possession of a shot gun is not in d.ispute6 One of the notable problems in this case is that the circumstances under which he was found irt its possession are not disclosed on the composition formo What is discloc2d Rre certain particulars 4 which do not relate to an offence chargeable under S'.71 of the Wildlife Conservation Act, 19840 Such words as 1 KUAZIMA NA KUTUMIII. SILAHA 1 to lend and use a weap~n have no relevance to an offence chargeable under So71 of the said Acto. This section provides as follows and I quote: "Any person who is found in possession of any ball ammunition, poison, snare or trap in circum- stances which raise a reasonable presumption that he has used or intends or is about to use the same for the purpose of the commission of an offence under this A'ct shall, unless he shows lawful cause for such possession, be guilty of an of.fence, and shall be liable on conviction to imprisonment for a term not exceeding three yearsn. As it can be seen from the above quoted section, there is nothing in it which talks about 'lending and using a weapon.~ o The words used in it are specific,.. They concern being found in po~.ai=-qsion cf iertain weapons, under certain circumstances and without lawful ce,use" e o 005/- . 5 -: Learned counsel for the appellant contended that a gun is not a weapon which i$ contemplated in · So 71 of the Act.. I

agree with their contentiono There are many types of weapons that a person may be found in possession such as a fire arm, knife, spear,bow and arrows e~c$ which are not covered under So71 of the Acto This section only covers cer~ain weapons which are mentioned therein namely ball ammunition, poison,. snare or trapo Strictly speaking, a shot gun is one of those weapons which are not t-overed any way. But even if a shot gun were to be covered, ·_as I have already mentioned, the circumstances under which the appellant was found in its possession such as those mentioned in So71 of the Act are not disclosed on the composition form·_, For instance, it is not disclosed that he had used it or was about to . use it in the commission of an offence under the Act. Even the place· from where he was found with it be it at home or in a game controlled area is not disclosedo At any rate, I think the appellant wrongly admitted in writing that he haa committed an offence :- 6 chargeable under s~71 of the Act lll!ld wrl:ngly agreed to the offence being compounded which offence is not supported by facts and law~ From the faots of this case, it is plain that the Northern Zonal $ Grune Officer ofMa.tambwe wrongly compunded an offence which had no legal basis to stando Moreover, the Zonal Game Officer is not a Director of Game by designation who is legally empowered una.er section 82 (2) of the Act

to compotmd offences under the , Act. For these reasons, the second ground of appeal tas merit and I uphold it~ Finally, I allow this appeal and set aside the order of payment of a fine of shso20,000/= and the order of forfeiture of the appellant's shot gunc The amount of fine-imposed on him should be refunded to him and his shot gun should be restored \to him hencefortho ~._,,._.--- ' Ao SHf.NGWA •

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JUDGE 20 o l&l. 2004- •