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0 *-lc. • IN THE HIGH COURT OF TANZANIA AT MBEYA CRIMINAL AP?EAL NO.36:OF 1980 (ORIGINAL CRIMINAL CASE NO.136 OF 1979 OF TJDISTRtCT COURT 'OF,..MTJFIIID.L;D]STRICT.'AT' MAFi.NGA •:.' ' ,' ' t'.;, Before: G . Zar.ga Esci., District Ma.istxate)' 0• - NORBERT YENGAYENOA. LWANGI. • .•;.. .. • J0 O.APPEL1A1'T versus r TEE REPUBLIC . e •RESPONDENT CHJ4RGE: ist,'.'cOuri.t:: :Beng i..possssi.on f;.Goverrnient the Wildlife \0,. Oi1$Z'VtiQfl Act 1974c.: .. •" 2nd count: Failing to re )orb. psession of Govermnent Tro ,,4 bo the nears1 Game Officer:, V y s 68(.I and (2) .9.f.the 1 1,7i1d1if ConscrvationAct 1974, - ( JUl GME INT - Armed with advance infornatiOn that, Norbert Yengayenga Lwangi the npe11ant herein, vas alle3ed.ly 14 unlawful possession of Governnien-b trophies, vv'lase said posesion had not been made kriown to the nearest Gane' Oificer, PFJ1 B 1193 D/Sgt Ostack, PW2 Const able Mfaime, and F!'13 'Edward hau a Game Officer, went to the hoise of the apellant, served him with a $earch order expenditious1t, and searchc( tn house and i t s premises 0 It was their evidence, tba, ias rated cre.ib1e, that from the house and behind the at'rino, tiej :ocovered meat that according to PW1 was identified as elephant meat, Aid as pertestimony, only five paces from the rnje1lant 1 s flouse, eleven elephaflt tasks were un—earthod, Th'mbat was t'ôndcreda' Exhibifl, Elephant tasks as Exh'dC, and the •ce.rb.ifiQato of weight and value — i,e. that the elephant tasks', wéihed'49' - killos, valued at shs,250/ per killo hence the value of shs,12,375/, was tendered aExh. E. Despito the' appdllant!:s denial of possession he was .convictod. as pr;od, andsentonced to five • years imprisonment' oiistcouuit, and one yeà imprisonment on 2nd count sentences to r. concurrently 0 The appellant has a'pcalod açainst conviction, but not Se- ntence, aruing first, that, he was t,cniec1 the opportunity to call a defence vitness, second, that . th pros'ecution, sh ould::' have called his wife as thor w ttnoss,, ancthird, that, the' theat was not found. in his house, and fourth, tia't,: the elephant taCks were found in the bush flot ovea wnc. by hihi. , • 0 • I - ,-..(_.,-.-_- - . - . '.•• . .&:- ae... . There was no need, on the par.-of t1h-é- prosecution, to make use of sUch...wi s,- pi there was naerre -oriits:..par. Bit, what sends sthok—waves vd1nG Li. i why c3id the appellant- hir-ise1f r not m.1çe use of us. ifo, when him, there was no lpgal inpodimor. ari for reasons expressed, compelled, to disiis$ the cmp1aint,, as jneritless. And now, to the issue of iieat, and eepflant tasks. It is not' .enied, nor suba-ect to controvexsy 4 that the search was condUcted.. -Vhile PW1, PW2, PW3 maintain, that,i..they racovered meat, that, was identified by PW3 9 to b elshat- meatfrom - tb aouseã S house, and behind his latrine, the appellant did controVe'A_9 "that this, .was • not true. - The trial magistrate, ratd to vitnssës . credibly.,-. and.Iro,ce.p4o 1d lande.d bn the conclusion- that, the neat was elopiaitme.t. Having studied the case, I beliecro as da.d t1e trial court tPia,t the meat was found in the appellants house and behind the latrine. But I.,,have cul -ti),ated rese'vati - ns 9 on and about the moat identity aspect, e4thibit D. I shall p'esentl' show, why, I hve deoidad to nurse reservations about the meat identity. Tvial uagst'ai doos seam, .tp. have..fallen headlong into the cnciusion that, - he neat founL i -ithe house and behind- tho latrine was elephant meàt, .and"thC±efore a Government Trophyd1 If theLwoë. dnce- that this was elephant meat, my ety tu1i ht ;aa&iiy s-bated, for it is the law under the RiIallfoinsorVati- n Act 1974, herein to be referred as sLJthat, eat- of any vertebrate animal, other than a is: a Government -Trophy. It follows therefore, •fA whe tieat allegedly : Governmdn-t trophy is the subject f the . charge, thc prosecution must show, that, such meat is, from,- or,.-i•s. --part- of v te-brate animal, other than a :dor1istje animal. - •- .- ---- 'Wha-t ñ-iëcord app±s to. ?have escaped notice of the trial magistrate,vas.rthe question whotheithis neat, was of a vertebrate animal, other than a domest-Jc--anil. i.e., in this case an elephant. PW1 appcars to have been -noro snrowd and 3udiclous, on this a8po61 identification o hO sac1 izieat, was an espect alive in his mind, He made no pretantons as to capaêity to idcntfy i he ao, u and. hence his pointing out, that PW3 identified to oat to be olephait rt. But, 1 while PW3 did acknowledge to ha - ó been the neat, he cado no atte.tipt at telling the Courtyiny they decided to call it elephant meat. Thus, o.lthougli the apdllandid dens possession ofhe said meat, but thore ie in y vic credible evidence that, he was posesion of the saiile, th ±'ocord do5t clearly, and to the dcree rcquired, snow that, theraid no.tw?.s elephant ruieat, The --evidcnco as to. icidi;ificaticn o elephaiib --meat wtts ntible for'- i .bncand.. the' - ap.peIlant cannot be said to be Cr ii.àily\ii en ipsCeion .--o.f the same. ..-..: -L'. .......i - :..--.) ....................-. i.i1y ad co fully, turn 'to the I s]Jl flow, 1JUr)Os a s p e c t s of ton eleohant ad t 11b trial coui rightly foCthd a i defence, that onl y five m1 ae11ant 4 s house the ten -elepha t':taskv -. -s.m qllso Satiqfvied that - 5 or house, incIudng ououning ares apzrtenant to the same. Applying the abce to ih I woi)ld as dth tho trial cour, colud tat .'fve 'acesfroL1 he appeilnt 1 s house, nd om viob, thW'tefl olopLan tawre un.earheq., was a diaco withurl the rc'is of th pOLLant. P'{G appe- llaiTh wa Trfor. 'righ-tl psued;io iay been a possèon - of the sbie. 1' J , - he appellant iao' dirscocd hLI bela ted complaiiit in court . that the tasks were found in the bush uw'iod by him. This is an aftex'thoug1it, that damagingly portray the appellarias i'1—o'edible aharacter fom in. p.iz SNqX 4ofonpe 9 he) had - They dug outside of y puse aic1 ±ound elephant tasks ..• . .. . . b0y Prosg fr-c ir ' £ ' '. 00000 Oq O•0 5000000 • 00 SO 0 00 00 0 1j r I ktIE3W lOpnaflt b33 0 ' I dç iot Icnow iho 'pi11 the &ais at my area. - From thbo'e excopp't, it i incorcoiira ctiat assetin in the nero ofappal, should be p'ccrrd tO tho import of. the testimony above. The elephant tasks were f:)urld in the ...... appellants premises- and. he.must have kroa'i of their presence, as no body could have dono the hense.as they were, ,I am left to rely on the unchalleged evidence, and equall. believed by tI'O trial coirt,' that the ten elephant taskswö ithcarthod fro: the a)pollant's premises, only about f-iive paces frou the rppo11ants house. Itrmainç.d to th,e appellant to atisfy the cjurt to the contrary. The pro1èi'on of setion 7O('-2 vf th Ot does encumber the accused with the burden of sa'.isfyin the court, that notw±thstandin' the fact that, the g5voi'nment trophy was found hi-sh.,)use premises — shil, or frm any part thereof, hevasnot in fact in possession, The burden cast upon the accused, isnot as heavy, as that, which is normally on the side Drosecution. Under tie above provision, it is my view, that the accused will have, for his purooses, at least satisfied the court to the contra:'y if in the evidence whether by prosecution, or, defence, or a comhi:atian of both, a reasonable doubt whether or not ho was In poosession of overn- ment trophy is established in the minds of the court. In this case, having scanned the evidence generally, and the defence in particular, I am satisfied bey.nd'oaradvcntive that the appellant was in law in possession of vornmont trophies-- elephant tasks as the contrary has not coo sown nor doubts if instilted. It stands immutably un3aaken therefore, as was found and concluded by the trial eouI Ihat the appellant was, on the date charged in po 000ciu of Government Trophy0 Under the law (sec'secticn e7:i) and (2) of the Act) possession of Government Trophy iii unic:iful 0 Thus where the offence falls under the provitns f section 67 of the Act, and the accused is charged thoremJcr, the burden to prove that possession Govo'nmcnttrohy wa lawful lies upon the accused — see section 70(3)(a) tbc Act, This burden of