19770811 TZHC Tanga1

IN THE HIGI-i COURT 0FTANZANIA AT TANGA • APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 209 OF 1975 (c0f 0 High Court Criminal Appeals No.s 239 and 240 of 1975) Original Criminal Case No. 741 of 1974 of the District Court of Tanga District at Tanga BEFORE: J. L. LIPIKI, ESQO, Principal Resident Magistrate * RAPHAEL S.P. KAMBANGA •.::::: : : : : : : APPELLANT (Original Accused) versus S THEREPUBLIC: : : : : : : : : : : ::RESPONDENT (Original Prosecutor) CHARGE: Unlawful possession of Government Tr"phy - Contrary to sections 49(1) and 53 of the Fauna Conservation Ordinance, Cap0 302 J U D G M E N T NYALALI, C.J. - In this appeal, which I heard yesterday, the appellant, namely, Raphael S.P. Kambanga was jointly charged with five (5) others with the offence of Unlawful possession of Government Trophy, contrary to sections 49(1) and 53 of the Fauna Conservation Ordinance, Cap. 302. He and his co-accused pleaded not guilty but he alone was convicted as charged and sentenced to five (5) years imprisonment and ordered to pay a fine of shs. 20,000/-. The other accused persons were acquitted. The appellant, who was the first accused in the lower court, was aggrieved by the conviction, sentence and order; and he is now appealing to this Court. The Director of Public Prosecutions was also aggrieved by the acquittals in respect of two other persons jointly charged with the appellant, and he has also appealed against the acquittals to this Court 0 All the appeals were consolidated but the other two accused persons who were acquitted by the trial court could not be easily traced within . 0 0 0 - f - 2 - a reasonable time and so, in the interests of justice, I directed 'that the appeal of the appellant proceeds for hearing separately. The Director of Public Prosecutions appeals will, therefore, have to be heard separately from the present appeal. In the present appeal the appellant appeared in person, having failed to secure the services of an advocate as he originally intended to have, and the Director of Public Prosecutions was represented by Mr. Kinabo, learned State Attorney. I have examined carefully the evidence adduced by both sides in the trial District Court of Tariga District, and considered also very carefully the submissions made by the learned advocate who appeared for the appellant in the District Court, as well as the submissions made by Mr. Adoko, learned advocate who conducted the prosecution in the District Court, together with the lengthy memorandum of appeal submitted by the appellant in this appeal, and the additional memoranda subsequently made by the appellant as well as the submissions which he read to this Court yesterday. I have also considered very carefully the submissions made by Mr. Kinaho, learned State .Attorney for the Director of Public Prosecutions, in the course of this appeal, and it would appear that on the evidence there is agreement that the appellant was at all material times employed by the Tanzania Government as a Regional Game Officer, in charge of Tanga Region, and based at Tanga; and that, while so employed P,W,, namely, Raphael Mtayaye, a Game Assistant; P,W.2 - namely - Wazirj Saidi, a ton-boy; and POW.3 - namely - Abedi Juma, a driver; were also employed by the Tanzania Government working under the appellant in Tanga Region. The evidence of both sides is also in agreement that on the 5th September, 1974, P.W.1, P.W.2 and P.W,3 left Tanga for Micomazi Game Reserve with instructions from the appellant, and they left in a Government motor vehicle - make Land Rover, Registration Number ST 881. -3- There is also agreementon the evidence that on the 7th September, 1974, P.WO1, P.W.2 and P.W.3 returned to Tanga to see the appellaht whom they found at Mashati Beer Store, and the appellant instructed them to drive to, and park, the Land Rover at the appellant's residence in Tanga. There is also agreement on the evidence of both sides that the Land Rover arrived at the said residence of the appellant carrying a load of elephant tusks0 The evidence is also in agreement that the Land Rover together with this luggage of elephant tusks stayed oveenight at the appellant's residence guarded by P,W.1 and P.W,2. And on the following day the Land Rover carrying the elephant tusks was driven by POW.3 accompanied by P.W.1 and P.W.2 to P.W,4 1 s residence in Amboni, some miles outside Tanga township0 The evidence is also in agreement that this was clone upon the instructions of the appellant himself; and the appellant drove to P,We4 1 s residence in another motor vehicle0 And there the load of elephant tusks was unloaded. Thereafter, P.W.1, P.W.2, P.W,3 and the appellant left P.W.4's residence without the elephant tusks. With regard to matters in dispute, it was the prosecution's case as submitted by Mr. Adoko in the District Court, that the appellant, using his official capacity as Regional Game Officer, instructed P.W.1 to go with POWO2 and P.W03 to Mkomazi Game Reserve and contact certain Masai tribesmen who would provide them with elephant tusks to bring to the appellant. It was part of the prosecution's case that those elephant tusks were required by the appellant for illegal business dealing involving him and many others; and that P.W.1, P.W.2 and P.W,3 without suspecting the true nature of the appellant's conduct, acted innocently in carrying out the appellant's instructions. .00.14 04- On the other hand, it was the appellant's case in the District Court that he had not instructed P,W.1 to go and collect any elephant tusks from anywhere, but had instructed them to go to Mkomazi Game Reserve to establish a boundary of the Game Reserve; and that he, the appellant, did not know that P.W.1 had returned to Tanga carrying elephant tusks until he was informed by P.W.3 as they approached the appellant's residence from Mashati Beer Store. Suspecting that P.W.1 was involved in an illegal trophy racket with P.W.4, he decided to lay a trap to catch both P.W.1 and P.W.4. The trap consisted of taking the elephant tusks to P,W.4 1 s residence, leaving them there and then posting two Game Officials to keep S an eye on P,W,4' s residence in readiness to catch anyone attempting to collect or remove the elephant tusks from P.W.4's residence. The appellant then left for Dar es Salaam where he was required officially, and then a little later learned that the police had intervened and frustrated his trap. The first point for consideration in this case since the accused was charged with unlawful possession of Government Trophy, is whether he was cver in pOSSE:SSiOfl of the elephant tusks. To he able to answer this question, one has got to consider whether possession, for purposes of the Fauna Conservation Ordinance, is limited to physical custody of the trophy or extends to overall effective control of the trophy. Unfortunately, the Fauna Conservation Ordinance does not specifically define what possession of trophy means. However, I am of the view that possession of Government. Trophy is not limited to actual physical custody of such trophy. I am also of the view that possession of Government Trophy includes effective control of such trophy, such as where a passenger.-bus happens to be carrying a passenger with his luggage of Government trophy placed in the bus' luggage carrier. In such a situation, although the passenger ceases to be in physical custody of his luggage of Government trophy, he remains in effective control of it, 0 0 0 0 0/5 -5- and, therefore, in possession of it0 However, I would say that mere remote control of Government trophy exercised through an intermediate person is not sufficient possession for purposes of the Fauna Conservation Ordinance0 In other words, if the prosecution's allegation is true, that the appellant had instructed P0W01 to go and collect the elephant tusks in Mkomazi Game Reserve, the appellant would have remote control over the elephant tusks while still under the custody of PW01 before POWOI arrived to see the appellant at Nashati Beer. Store in Tanga. Thereafter, however, the appellant was in effective % control of the elephant tusks until they were deposited at P.W04's residence because P0W01 could not deal with the elephant tusks in any manner he liked without the appellant's instructions0 This means the appellant was not in possession of the elephant tusks before the Land Rover arrived at Mashati Beer Store in Tanga, but was in possession of the elephant tusks thereafter, and I find it so to be a fact0 The next point for consideration in this case, by virtue of the nature of the charge which faced the appellant in the lower court, is whether the appellant was in unlawful possession of the elephant tusks0 It was argued in the lower court, and the appellant strongly repeated his arguments before this eourt yesterday, that as a Regional Game Officer he was authorised to take custody of Government trophy in the course of his duties in Tanga Region0 The question, therefore, arises whether the appellant was acting in the course of his duties when he took custody of the elephant tusks from Mashati Beer Store to his residence; and thereafter to P0W04's residence in Amboni0 If the appellant's explanation is sound or probable that he was using the elephant tusks for the purpose of laying a trap to catch P0W01 and P0W04, then, clearly, he would have been acting in the course of his duties0 But, does the evidence suggest that this was probable? 0 0 0 0/6 - 6- The appellant gave evidence on oath and he called two defence witnesses, namely, William Mussa and John Sketi. Neither William Mussa (D.W.2). nor John Sketi (D.W.3) testified about such a trap. Moreover, John Sketi, under cross-examination by Mr. Adoko, admitted that before coming to court he had been cojched by the appellant what to say in court. The appellant complained before me that the testimony of his witnesses was incorrectly recorded, or must have been deliberately distorted to implicate him. But I notice that the trial magistrate was not resident in Tanga, but resident in Dar es Salaam, and appears to have been assigned specifically to come from Dar es Saleam and try this case at Tanga, presumably because the case appeared to be sensitive and there was need to avoid complaints about a Tanga magistrate being biased. So, I fail to see how the trial magistrate in this case could have decided to distort the evidence of the defence witnesses! Furthermore, even if the two defence witnesses had testified about the existence of such a trap as stated by the appellant, I think the trial court would have found these witnesses to be lying. I say so because the trap itself is so strange and improbablc If the appellant intended to catch P.W.1 and P,W.4 how could he have done so after he went to deposit the trophies at P,W.4's residence in the company of P.W,1? Clearly, P.W01 would have had good reason to suspect that the appellant was upto something0 Moreover, how would two Game Officials posted to watch P,W,4's residence suffice to guarantee that the elephant tusks would not be spirited away from P.,W,4's residence during the night? And again, if the appellant was completely innocent and only P,W.1 and POWO4, and possibly others, were involved in the illegallity, how could P.W.1 dare to come with the illegal elephant tusks right up to the appellant - his boss? To do so would be sheer madness and there was nothing to suggest that P.W.1 was of unsound mind, 0 0 0 0 0 0/7 - This means the story about this kind of trap could only be a figment of the imagination, and any person testifying about its existence would have beenfound by any reasonable court to have been lying0 Since there was no such trap as claimed by the appellant, it can only mean, under the circumstances of this case, that the appellant was acting outside his duties when he took custody of the elephant tusks from Mashati Beer Store to his residence, and later to P.W04's residence in Amboni. This finding is supported by the fact that the appellant, if innocent, could easily have deposited the valuable elephant tusks at the police station for safe custody in Tanga, instead of keeping them overnight at his residence0 It is also supported by the evidence of P.W011, namely, Hatibu Hamza who testified that there is a register kept at Tanga for the purposes of recording Government trophy which comes into official possession0 So, if the appellant was really intent on using the elephant tusks for laying a trap, he would first have had the elephant tusks entered into the proper register as submitted by Mr 0 Kinabo, learned State Attorney. So, I fail to arrive at any other conclusion on the f&cts except that the appellant was in unlawful possession of the Government trophy from the time he took custody of the elephant tusks at Mashati Beer Store at Tanga. But even if one supposes that I am wrong on this point, the question arises - Whether the appellant would not have been convicted for unlawful dealing with the Government trophy under the same section for which he was charged? This possibility was the subject of submissions made by learned State Attorney who appeared on behalf of the Director of Public Prosecutions in this appeal. The appellant, however, replied that he could not have been convicted for unlawful dealing with Government trophy since he was not charged with such conduct; but was charged with unlawful.possession, and the case was conducted on that basis. -8- Section 49(1) of the Fauna Conservation Ordinance under which the appellant was charged states, and I quote:.- "Any person who is unlawfully in possession of or deals in Government trophy, shall be guilty of an offence against this ordinance." The question to ask hre is whether this provision creates two separate offences or a single offence0 Usually, different offences in a Statute are created in different sections or subsections; but not under a single section or single sub-section. The offence for which the appellant was charged is created in a single sub-section, that is, sub-section (1) of section 49. So it can only mean that unlawful possession or unlawful dealing in Government trophy are only two different ways of committing the same offence0 In other words, the offence created under section 49(1) is a composite offence which can he committed in two different ways0 This means an accused person can he convicted under this section, depending on the particulars of the charge, the evidence adduced and the thrust of the prosecution case0 Unfortunately, the charge sheet filed against the appellant jfrA( is not here in the record0 However, the prosecution case as laid down by the Republic in their opening speech and in their closing speech in the trial court makes it quite clear that the prosecution was alleging that the appellant was involved in an unlawful dealing with Government trophy0 All the prosecution evidence supports such allegation0 That being the case, even if the particulars of the charge had stated that he was in unlawful possession of Government trophy, he could still be convicted of the offence created under section 49(1) of the Ordinance, since the appellant must have known about the true allegations made against him right from the beginning of the trial. The next point for considerationis whether there was sufficient evidence to support the conviction against the appellant. 0 0 0 0 0/9 -9- The appellant has complained at length that POWO1 was an accomplice and that his evidence ought not to be relied upon without being corroborated by independent evidence. I agree with the appellant that P.W.1's conduct leaves no doubt that he was a party to the crime. Since, on the evidence of POWOB (a Natural Resources Officer) P.W.1 when asked by P.W.8 whether he was carrying anything to Tanga, POWO1 denied carrying anything, though he knew very well that he was carryinq a load of elephant tusks. His deliberate lie can only mean that he was covering up the offence in which he was involved. But nevertheless, the evidence of POWO2 and P.W.3 % corroborates P.W,l's evidence about the collection of the elephant tusks in Nkomazi Game Reserve,and transportation of the elephant tusks to the appellant. And this is sufficient corroboration; since in law corroborative evidence need not corroborate in all particulars, but only needs to corroborate in a material particular. Furthermore, I would say that even if there was no evidence to corroborate P.W.l's evidence, the conduct of the appellant from the arrival of the Land Rover at Mashati Beer Store to the time the elephant tusks were deposited at P.W.4's residence, is consistent with P.W,l's testimony that he had been instructed to fetch the elephant tusks by the appellant and deliver them to him. Since corroboration of accomplice evidence is only a matter of practice and not a matter of law, under these circumstances the uncorroborated evidence of P.W,1 could be safely relied upon. But since the evidence concerning the conduct of the appellant from the time he received the elephant tusks upto the time he deposited the elephant tusks in P,W.4.s home is not in dispute, I would say that the evidence adduced by the prosecution proves the case against the appellant beyond reasonable doubt. It follows, therefore, that the appellant was properly convicted by the trial court and the appeal against the conviction cannot succeed. 000 ./1O - 10 - With regard to the sentence, the appellant complains that the sentence of fjve years was excessive, and that the fine of shs0 20,000/- ought not to have been imposed on him in addition to the sentence of imprisonment0 But I note that the sentencing magistrate took into' account the fact the appellant was a Regional. Game Officer, and was entrusted with the duty of protecting our wildlife instead of taking part in its destruction; and the fact that the maximum sentence to this kind of offence is seven (7) years with a minimum of three (3) years0 In those circumstances, I would not say that a sentence of five (5) years imprisonment % is excessive0 With regard to the fine of shs0 20,000/-, clearly under section 67(2)(b)of the Wildlife Conservation Act (No0 12) of 1974, the maximum fine is shs0 10.0,000/- or ten times the value of the trophy 0 Since value of elephant tusks involved in this case was shs0 55,000/- as per P0W013's evidence, the maximum fine was shs0 550,000/-, that is, practically half-a-million shillings0 So under those circumstances, the fine of shs020,000/- cannot be said to be excessive0 However, the trial court should have indicated what was to happen in default of payment of fIne 0 I will rectify this omission0 Finally, the appellant argued that the trial court erred in sentencing him under the new Act, that is, Wildlife Conservation Act (No0 12) of 1974, instead of sentencing him under the old Ordinance under which he was charged, that is, the Fauna Conservation Ordinance, Cap0302 0 The answer to this is contained under the section cited by the sentencing magistrate, that is, section 85(2) of Act No 0 12 of 1974, which clearly provides that:- "Where a person is convicted when the new Act has already come into operation, such a person is to be sentenced as if charged under the new Act0" o - 11- I now rectify the trial court's omission by directing that appellant is to go to jail for two (2) years in default of payment of the fine of shs0 20 1 000/- This appeal, therefore, is dismissed in its entirety0 F. L. NYALALSI ) CHIEF JUSTICE Delivered in open Court at Tanga this day of the 11th day of Jugust, 1977, in the presence of Mr0 Kinabo, learned advocate for the Republic; and the appellant present in person0 F. L. --i4YILALI CHIEF JUSTICE