19710821 TZHC Arusha

p / I. T iJI. C LT ZAIIA AT ARUSHA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 96 OF 1971 , ORIGINAL CRIMThAL CASE NO. 990 OF 1970 OF THB DISTRICT COURT OF ARUSHA DISTRICT AT ARUSHA, Before M.E.0 Mhano Esq., .Resident Magistrate . PETER BYABATO .......,, , ,,,.. APPELLM::T (Original Accused) versus THE REPUBLIC ....... . ..... Respondent (Original Prosecutor) 1-t' 7! fcj) J U D G E M E N T BRAMBLE, J. The appellant was convicted on four counts of being in unlawful possession of Government Trohy contrary to section 549 (1) and 53 (1) (a) (ii) of the Penal Code and fined sums varying from shs. 400/— to shs. 750/— These are appeals against conviction and sentence on each count. The first offence was alleged to have taken place on the 13th January, 1970. The evidence was that the appellant was in possession of a General Game Licence and a Supplementary Game Licence No, 22170 issued on the 23rd September, 1969 by which he was entitled to hunt two Zebras one on each licence. The general licence (Exh. D) showed that one zebra was hunted on the 28th September, 1969 and a certificate of ownership No. 57082 was secured for this. There was also a certificate of ownership No. 48560 dated 3rd January, 1970 issued at Singida showing that a zebra was hunted on the Supplementary licence. otween the 23rd September, 1969 and the 23rd December, 1969 the appellant was shown to have hunted two Zebras on the same General Licence. On the 13th January, 1970 he obtained a certificate No. 57081 for another purporting to be on the basis of the supplementary licence on which the Zebra was hunted on the 8th January, 1970. These was proof by the prosecution that the appellant sold two zebra skins. lt is clear that this date was surimposed on another in the lience. The appellant said that on the 28th October, 1969 he obtained two certificates of ownership at Arusha for two zebras and on the 19th December, 1969 they were sto]en.together with his official Cash. 1 I -2 - On the 13th Januar', he was given two replacement certificates at Singida. There was no direct, proof of physical possession of the skins in question and it was sought to deduce this from different documents. The Revenue Officer at Singida said that he appellant had not asked for any repladement and that before the issue óf certificates of ownership the relevant licences are surrendered; they were surrendered to him and the question would be how was the appellant in possession when he had already obtained certificates. He gave no explaination on this pint. All these circumstance are suspicious but they dd not prove beyond doubt that the appellant possessed three skins instead of two. 1 will be convenient to deal next with the secon.d and fourth counts which are as follows between the 23rd December, 1969 and 29th January, 1970 the appellant was unlawful possession of two zebra skins; between the 31st January, 1970 and 26th March, 1970 the appellant wasin ulawful possession of two zebra skins. Certificates of ownersjeip Nos. 55732 nd 64766 were shown to save been obtained on general licence No. 17329 while it was proved that one had been already secured. The appellant's explaination was that he had authority on Exh. Ii to shoot three Zebras and when he went to his office for the certificate of ownership for one the person to issue it wa.s out. He then went to the Revenue Officer on the 29th January, 1970 we who said that he could not isaue it without quoting a license number. General licence No. 17329 was produced and the appellant got the certificate. This may have been contrary to regular procedure but it did not show that the appellants possession of that zebra skin was unlawful. This relates to certificate No. 64766. There was no eplaination for certificate No. 55732 dated 23rd December, 1969 and a conviction for unlawful possession of a Zebra on that date can be supported. We came now the ch rre fro the period 31st January, 1970 to March, 1970. On the 31st January, 1970 the appellaht obtained • certificate of ownership fc.r one zebra skin on the basis of • su4plementary licence 22216. This licence was, however, in the name of Pius Paul (FW 4) who said that on the date he had already shot the zebra t) which he was entitled and did not gave the appellant his l:cence to shoot one, •"• :1;'' I .•. '4. 3-.---- The appellants explaination was that Pius Paul hE:d sent him to sell skins but the customeis refused to accept the cert- ificate of ownership because they were full and asked him to collect another; he went to the Permit Officer and explained the matter and as the owner was far away,' the appellant had to sign as holder. Pius Paul had first transgered the skin o him as shown in certificate No. 55886. Pius Paul admitted that he had o2ke gii the appellant a certificate of owner- hip in his own neme to sell one of his skins. The circumst- ances are such as would raise reasonable doubt. On the 26th March, 1970the appellant obtained certificate of ownership, (Exh. K2) on a supplementary licence No. 2216 for a zebra skin. He signed it as issuing officer and holder. The appellant said thet the skin belonged to Pius Paul, but his evidence was conflicting when he said that Pius Paul gave him one skib and then two; that both certificates were issued on the same dated when in fact, they were not; that he obtained a cert - f'icate from another officer when in the latter case he himself issue it. He did not disch rge the burden cost on him and the ridence supports a conviction for unlawful possession of one I' zebra skin on the 26th March, 1970. The learned Magistrate made a detailed ana.ysis of the evidence but went wrong when he lumped together all the charges relating to zebras and said:- r am satisfied from the evidence thet the accused had a total of nine zebras skins during the period covered by the charge sheet. ...............Out of nine therefore, he was not entitled to shoot the other four. He should made a find ng on each charge and say on what dates appellant was in ulawful possessi'bn.:.l The, misdirection is not, however, fatal. The final charge was for unlawful possession of two a .9 ostrich skins on the 2nd Febraury, 1970. The appellant had a supplementary licence No. 22246 dated 10th December, 1969 for one ostrich. He shot one on the 13th December, 196' and obtained N a certificate of ownership No. '485 in the 13th January., 1970 at Singida. On the 18th January, 1970 he obtained another No. 55727, at Arusha onje basis f thsarne nem.ntprv 1 •. ft I - 4-j- The appellant gave evidence that the first certificate was for skin and feathers and as the purchaser. did not want the feathers he had to get a separate certificate of owner- ship for the feathers. He ws giren No. 55727. His story is supported by certificate No. 48559 and the only point against him is that the second cerfifi ate was issued for skin and not feathers. He polinted out that there was: no evidence of sale nor finding a skin in his possessiQn and there is cons- iderable oom for doubt. The appellant procured a certificate of ownership No. 55441 at Arusha on the 2nd Febraury, 1970 on the loss of a supplementary licence No. 22272 for one ostrich skin. The licence was on the name of Zaaria Zoma (pw 3) who testified that he did not give it to the appellant and that he had him- self shot and sold the bird permitted by it The appellant did not show that certificate Io. 55441 was legally obtained and the evidence disclosed the unlawful. possession of one ostrich skin. For the, e reasons 1 will allow the appeal on the first count and disiss the appeals against conviction on the other three counts. Since the number of animals prov(are lOSS than on the ch:;rge sheet 1 will vary the sentences on counts 3 and 4 as they appear in the record as follows: Count: 3 shs. 400/- in default 4 months imp.risonent Count: 4 ss. 300/- in default 3 months imprisnment The sentencea. on Count 5 will stand. Delivered in Court at Arusha the 21st day ol August 1971. .f. (C'.E. Brsible) J U B ( E /GKKimati.