19830716 TZHC Mbeya1

T 1 1i qi w.; L_i. - - cI-1I1,111: .P 36 Or i°io (oPlGIm.L cRI1IT:J 0 J o136 or 1980 OF TrB DIST-:t.. -U.:: 0]? hD]?L]?flI DIThIC2 j B1iFOR1• G. iL: ]IACISTRJOTE NORBERT Y IC]? ENGIi LTEC1 SO 0.0 0000 000 o.e.., I2PBLL1JT versus IDlE1hlPULIC 100000000 to 0O00O0O0oOQ ...° RESPONDENT J]?D1:]LIT Chargog is t caunti Being in possession of Government Trophy c/s 67(l),(2)(b) of the hilcilifo Conoorvition act 1 974- 2nd cuantg Fai1in. to recrt pDrsocsion of hoveriasent Trophy, to the nearest lIaise Officar, 68(1) •:.rid(2) of the Wiild life consorvatior not 174. - Xatiti I,ruod with avs:ce inforee rica mat, Rorber -b Yengayenga Lwangi the appellant horeir, was all ;cJlp in unlawful possession o C Goverrent trophies, whose cnii poososoica l's]? not been made known to the nearest Game 0ffice, PH B 1193 /St Ostack, : fl'12 Constable Efaune, and P13 Edward Jlau a C'-as:e Officer went to the house of the appellant, served him with a search order oipl]?t1ousiy, aid seho. the house and its premises. It was their evidoncej that, was rated credible, that from the house and behmnd the latrine, they recovered ,meat that :according to 1'J1 was identified as elephant reat. And as per testimony, only five paces from the appei1ant's1ouse 0IUVC?fl elephant tasks were un—eathed The T.1cat was teidered as Exhibit B, Elephant tasks as Lhth 0 C, and the certificate of\-Teiht and va1u — i.. .hat theo

elephant taok, weie 49 - hubs, valued ot shs, 25%Qpex,killo — hence the value of shs. 12,375/=,wnm tendered as Exh, 1?.. Despite thp,appellaAt 2 q denial of posSesslo2, he Wasinonvictef4s e ,rpcL, and se - rcd to fiv'e year's inprisonment on lot souhi, - seed cap year imarisonnent on 2nd count, sentences to ran concurrently. I ---Txh hne1iant has appealed against -conviction, but not sentence, arguing first, that he ws -denied the oportunity to call a addhoe'' witness, soc'd, that t ie prosootio, should ye culled his wife as •... __ ( -2 - their witness, and third, th:,t, the :,eat was as :i'ounc 1. in his house and fourth, that the elooant se2:s :iers sound antI ;usr; not oven owned by him. I shall hereafter, vi: i - tbe' aspects above ref ci, to see whore justice reidies. Was tim •'pollant do::iu'f opoori.uity to call a defence witness? It would indsod, b. s .:a':rdo.nable soatin of justice, if the accuod' s first aliegati"a sore true, I shall therefore :erocoed to make inquiry in the records, to see where the ticsth lies. dfter exa- reining the record, it does ao:e:r oven to the naked. eye, that indeed the appellant, expressed his wish coil one nisneSS on 15/11/1979, the sane dsp..r he gave his defence. Onportuizity was given, and the case adjour- ned ten times - up to 4/3/1980, zrl:cz: such defence witness had not appeared. It is when the trial siagis rato decided, to write

and deliver the juclpeent, that condo; med dl appellant to conviction. It is c1ea therefore, that, opportunity ',::s liberally offered to the appellant, to call his defence witness. I would accordingly condemn the accused's accusation coniemptously, so unfounded, and therefore empty of merits. For reasons, I do not easily comprehend the appellant is levying accusation, against tho :zro'sution as to why ii did not call his (arpellhzit's )'iifc, as it L;suiing'±hoe were no nrcbleu of compe1lP:ility, or alternatively, n:;ouuiny the case fell into the ainlsi -b of exceptions under' section l dç2) Ci the .Jvidence act,' and she ias' one of the listd; witnesses, P' asowoed's wife, if rolevaist, was obviously a potential wionee for the prosecution. And assuring she :. was such eitnc'ss, but left out, nid::out th:tifying, then the answer would boa: follcam;— WhiTh the soosecution must of course, have in court its witnesses, the said prosecution has wide dijcrbtion in the wrosecution of ito case, whether to sail -skein all, or ce11' 'some' bf them rod examine them, or cell thiefn, but tondek ssme of Thm for coss- examination by 'Ike defence, LthI :o urorsdcution has to exercise such discretiok, in a manner which is calcisleded, to uher the interest of justice and of course, at tic mu.'e time be fair to ffe defence, The Izoiding' in the ease of PBDULLLII hTLNbILiLJ sb0 ilDONGO (1936)

111' h'LCL 51, despite antiquitr in dates, bear: a princinle still relevant in the above direction. It so Held 6/5/1936 " That prosecutirg Coimsa is not bound to cell all the witnesses •,., .. i. e ...o......., he is 0. ni; :Lcder of oublic justice and is only called upon to lay before the Court such factsas he chini:s the interest of j'ubtice demands, its duty is atisfied .. -3- if he has in attendance such witnesses as he does not ca11 2 so that they can be called by the defence, if closired. 11 In this case, I had to 7o by an assumption to ferry myself to the above, and it is clear, the prosecution was not bound to call, or if having called, to use appellahits wife, as its witness., mod striped nal•:cd of the above assumptioc, the case obviouly falls, outside the excehiions in section 130(2) of the hvidence act 1967, and the appellant's wife, is not compellable. There was no need, on the part of the prose- cution, to aal:e use of such witness, and there was no error on its part. But, what sends shock—waves pervading in sic, is why, did the appellant himself, net make use of his wife, alien vis—a—vis him, there was no legal impeent. I am for reasons eupressed, compelled, to dismiss the complaint, as meritloos. And now, to the'iosue of moat, anCl elephant tasks. It is not denied nor subject to controversy, that the search was cbhiuc±od. While 1, PJ2, PW3 maintain, that, they

recovered meat, that was identified by :T3, to 10 eleehani coat, from ohs acused's house# and behind his latrine, the arpellant 'dud 000treTert,, that this, was not truci The trial sagistr.to, rated the :it:osos crcdibl and proceeded and landed on the conclusion that, the meet was eleehant moat. Having studied the case, I believe 'a did the irial'cout that the neat was found in the appellant's honor and behind the 'latrine. But I hIve cu1ti vated reservations, on and clout, the nhit iëntity aspbct, exhibit D, I shall presently show, why, P have deciddd to nurse 'reservations about the mcci identity. ' The trial nafietroJte' 'toes seam, to hove fallen headlong into the conclusion that, the meat found in the Isaac and behind the latrine was' eleothani neat, and thefeno a Government Trbphy. If there were evidence, that this was el'ohant moat, my ardty would hIve easily abated, for itCi'o the law 'under ilc hilulife Conservation dci 1974, herein to be refei'red as the dci, tsat, :saet cf'any ireriebrate animel, other than a daiotic animal, is a Government trophy. It fcll'ows thereforW,' that 'whore heat aIlecily o Goverriochi trophy is the ub'jebt mat'te 'of the c1:arge, the prosocuion must show, that, hush moat is from, or, is part cf a vertebrate anii'icI, other than a dues estic 'animal. That on record, poers"ic hc,ve e'eoa ci notice of the trial" magistrate, was the question

hhoihcr this sami, awe ol' a vertebrate animal, other than a domestic' nima1 i.., iii t:io coos an o1ephcitt, P 1,11 apaea:os to have been more shrewd aihL judicious, on this aspect Is adentfac'Laon of the C n ci, es an Cu ciave ih his ijind. He ••• I made no pretentions, as to his capac:Ly to identify the same, and hence his polio iing out, that PW3 identified the moat to be elephant meat. But, while PJ3 did acknowledge to have seen the neat, ho made no attempt at telling the Court, why they hicifed to call it elephant neat. Thus, nithou1-i the apuellant did deny oseessio of the said neat, but theuc is in n.y view credible bvideaoo -bhat, he was possoocion of the sane, the record docs not cloacly, and to the dcgToo reqjuircd, show that, the said meet was elephant ncrh. ike evidence, as to identifica- tion of the nest as elephant anat, was noticeable for its absence, and the apnellant cannot be call to ho cri:hinafly liable, for nossession of thesnne I shall now, purposefully and carefully, turn to the aspects of ten olcuhant tasks. . There to, as -the trial court rigtitiv found, agTeemer 4 between te prosecution and the dei'snco, blat only five races from the appellant's house, the ton ale abet inks uea'c un—earthed, I an also satisfiud that this was the ease. ?keroie no coninoveroy, as to what they wore, or, Put thi :::naflant un—leached a shoacu of objections, saying they

were flOt his, and ,are denied having hod ardor mouledge of thci unesonco thire lbs went f'o:nbi:.cn, in his némo of appeal, and asserted that tIIi fcro iP the bu..h, that hid not cull bobong to hL. Mr Kniapa, the loaruhi Ptahe tiouncy aicpbaTing for the kopublic,' easily bought the anpollant's defence, and:riihspacnaohy deeper, than Ccrutiny of the lncr sub;:! idol, that as nothing was found in the appellant's house - where was possession? He ldclined to support conviQ -tiDu Tide crucial question that now enoros, is .whether the appellat was in possession of those trouhies. Ii t0 the flashlight of the let itself, that coos resolve this esion. Ind I shall Cover distances not longer, than the imuidiate invocation, of the act's evidentiary provisIons, section 70(2) of the act, that pCvidCs than:- Where in any croceedingo, for a:a offence under . section 67, it is proved to the satibefaction of the court— . (a) . thot the Government trophy which j the subject matter of charge, was found In toe building, .preaiises, . . . or, ship or, any card of guy building, premises or ohio occupied by tile accuse, or . hio dependani whether or not, the accused was ahysioneTh - . present when the . trophy ann found, - . . the court shall presume that such t.ophy was in the :ossesso10 of the accused, unless tne accused oatifies the -ecu -ct tO the contrary. . . . 0 - - 5 Prom ajo aOOTO aoicd

.i::, .:. ..:T::. hi ot. a rpo. First, where the trial ceur; is .;i :;hi , at fcv.r::::;ont :.:u hp, the subject matter of -ha C a:':, -a- :e : hi ildiup, pa-a1c: or, ship, occupied by the acc-aaJ, or hi: h; ::hio, ha :acrsod i.. :a r.od to havo been in possession, unhia: 0 a; 'ifhi - .u:ct to the contrary. 2nd the presu:nrscn onas o:e a ca:: a ros a: cc occicri f Gcv-=cnt trophy attache;: ij the accused, - ;heha: orto oLd accused a-as physically pro;: ant, .acn irsahy a-n: :ha-: in his h;ildiap, shi' or uremises etc. in oith•,r ceso, tao.. cii acoucod a-ill have ratisfied the court to the ccntrary, oLd ta acaa-, ruoccois to make the court to entertain doubts, as to Pie pers:;:oia of ha c.hic Covorrnent trophy. In this c - a:, it i: conoodod ha ta-i hiophant hisko were not found in the -apellantt uihii hone in the pro-uhico? The tern mc'; -: eon Phil:: Pp the act, which hat, strengthens my conviction, that if a :. :a'i:y oLdfa:cnt from that, a-blob is in ordinary l;nfuaa nttacho t thi to:a-, or a-: ., a-ore meant,ho legislature wa-eli P so pa-chided. I a-:tia;npr icon: 'ioec" should meaai a builhi:c:, or ;aa, i:aILuhLnp :ua-:cnniing areas, ahiurtcnant to the same # plrp;.. o clove P. oh: once in oint, I isIl as mid the trial court, concluSo, PhP die -:..aa from tJ.:e appeilaatts house, and from which, the ton :llophcc'; tah na-c .:;oeaiiod, was a distance rithin the pre;:i:os

c. the amelia-at, Ph.: ammaliant was therefore rihtly presumed, to 1cvo Irs:: l pesco; sic:: cd a; Tb:; ;-o1cnt :1cc di;; - ca-of Pie helated corinint in court that, the t-s s ro hi a -a i I us , a ad by him. c is an n afterthought, that daa-uitnply portrays P.:: a chiaiW as unin—crehille character, for in his sworn hife:..:oe, ho haP Ph,: to cayg. They dug outside of rç houe cad found c-ia-chant tasks :rxd ?ros OOt000 0000000000.0000000000000 I hncw elophni Pa-ha. I dc not know who nut t1e Prh:c at my na-ca. From the above excorac, it is inocnoeivhbl:: that assertions in the mero of horeni, oLould be nanfer::ed Pc; hi ia-rca-P of the tstir:ony above. The dePart tamP: a-crc found in t:a appellants proni: on and he must have blown, of their pa-coerce, a: no Pods: could a:.vo done so without his notice close lb the house as tiny cane, I. on. lo't to a-Oiy en the unchallo- uped evicanco, nd equally believed hy the t:hal coma-I, that the ten owusiap:at inca-s were unearth-ca ca-a the cc:reant's praises, only acoud firs paces drois the an':olirnt's hence. . . I,- 0000*10. - I fl -6- It r-nainei to ti iO1 at to s iify the court to the contrary. The provision of section 70(2) of the dot, does aecunber the accused C with the burden of satisfpi1. uab, tht not rithstandind the fact, that, t:e overnaont trophy aes :hund in is I ao, prumises - ship, or, fron cay nart tehf, ne ncr not in

fact in no 'cession, The burden cast upon the accuecol, is not en hec.vy, as abet, which is nornaily on the side prosecution. Under the aenee provison, it is ry view, that the accuned will have, fr his nurnccs, at 1L'r.et satisfied the court, to the contrary if on the evidhaco wauther Pp prosecution, or, defence, or a combination of both, a reasonable doubt whether or not he was in possession of Gover ient trophy is octabliohed in the uLids of the court. In this eeoc, hevinf scanned the evidence fenorally, and the defence in partioualr, I are satisfied beyond paradvonture that the appellant was in law in ossossion of Governeent trophies - elephant tasks, as the contrary has not boon shown ncr i.ubts instilled. It stands iitably unshaken therefore, as was f saab said. concluded by abc trial court, that, the aupollant was, on the Cnh. eLipab in possession of Government Trophy, TJnc1r the law (see section 67(1) an1 (2) of the let) possession of Government Tronhy is unlawful. Thus where thL offence falls under the provisions ci section 7 of the dot, and the accused is cIiared ther under, abs burden to prove t. at fo s ossion of Goucranont troahy, as lawful lies upon the accused see ctiun 70(3)(a) of the dot, This buabon orcef is not a hoary •Jne s:d as, the court will nbt base a conviction on evidence sufi'enine; mew doubts, or roasonacle doubts, then I submit the accused nerson,

will heve iischrged that burden on him, if by CVtiCflCO who her personally adduced, or by his defence, a reasonable doubt is established. In this case, I daresay, bil we ha ive i s a bold denial, in the face of unciinLLle evidence. I would the fore safely and hastely ally icyccif, with the trial mas±ratets conclusion, that the appelleit was i.e unlawful possession, of the said Government Trophies. The sanviction on 1st count is therefore sustained. pain, the evidence, that the appellant had not reported his nossoscion of the said trophies, is tiu—toein for attention. I there- fore conclude, that, the two convictions reached by the tia1 nattO are unacilablu, and the appeal aajnst the sae is disaissed. As for the sentences, it does appea, that, the bzpellant did not appaI adainet sentences, nab as the sentence on 1st count, is above the N - 7 -, statutory inthuio of three years i11rionoen :bu within the 4srotionary T fl and, thOCd oi,. jood 3O I not o to ththrb th.. - sar2e. dnd twelve ronths L-.rpris orinent on 2nd count, out of the naxirJue of three years 9 is hnrcLly excessive to warrin interarrenco. / • The appeal is totally llsnis sod. '• Delivered this day of July 1983. :. h.ratLti - I I