19761025 TZHC Tabora

41- IN THE HIGH CQURT OFTANZANIA AT TABORA. kPPLLATE JURISDICTIN . (Tabora Registry) dIMTNAri APPEAL NO0 141 OF -- 1976 (Origihal Crimint' No.17G of 1975 of th District Court of KibondODistrict at Icihondo - before n. B. Kajuna, D.M.) RASHIDI FIA.1s41S1 . . a a a a a a a a a a a a a a a a a a a a o a a a a a a a a • a a a APPELa.j1'?I' veru ................... • . :. •• THEREPUBL;rC ooaoaaaaaaaaoaaooaoaoaao.a RESPONDENT CHARGE: Unlawful p sesiàn ovrnment Trophyd/s 67(1) (2) (b) of the Wildlife Conservation Adt No.'12 of 1974. It JUDGMENT . •. MAPIGANO, ......................... ..... . .. .... . .... ............ • The.Appeflan. R4SHID HANISIl was coiivictedin the district courtor unlawful possession of Government trophy under sction of the Wildlife Coservation Act, 1974 and in consequencesentenced to three years imprisonment. He has - appealed against. the.conviction the sentence and the Ittpublic suppted the decision of..the iowercóurt In 1rge part, the material facts of this case were not in dispute. It was common ground that on 6/12/75 at Kankoko Minor Settlejnent in Kigomadist.r.ict., 8 Datsun. pick-up heldnging to one Gizele,. a..anpprter., and driver.by the appellant, apparently his employee, was searched by the police and one skii' leopard found on it. The leopard skin was wrapped and bound up with othr goods. It w1as 4bing sent to a place called Muhange. The appellant was of course, questioned about it and his explanation was that it belonsed to one Mohamed Ngarama, a co-accused, who had hired th vehicle. -He repeated that explanation in court and the evtdence of his witness, D.W.2 Hamisi, supported his contention. He also contended that he did not, prior to the search, know the contents of the luggage in which the skin was discovered. A it were, Mohamed Ngaama was acquitted in the course of the hearing and did not ive evidence to deny or acknowledge the appellant's account.-... . ..,•,. . . The learned magistrate found that the appellant was the driver and incharge of the Datsun pick-up. He also found that the appellant was present at the time when th luggage was being loaded into the vehicle. These matters were no in dispute and • are *ot issues before this dourt. The learned magistrate then went on and held that the appellant was n lth guilty of the offence • because, he said, the appellant knew or ought to have known that the skin had been loaded in the rn/v. The.appeal from the conviction is directed Qthat decision. - ...,./2 Three — 2 — Three main grounds have been. advanced-in support of the appeal. First, that the learned magsitrate erred in holding that the appellant knew or ou ttd"have known what was wrapped up in the baggae and, secondly;, that the learned magistrate erred in law in shifting the burden of proof on the question of possession to the appellant, and, thirdly, that in any event the explanation affered by the appellant ought to have raised a reasonable doubt as to his guilt, in the circumstances of this case. -I have carefully reviewed and assessed the evidence and I respectfully think that there Is sufficient force inthese ärgLlments. There was simply no sufficient .evidexce,.as matter of fact, that the accused knew that there was such a skin in the vehicle. The question then is whether he ought to have known the presence of thattrQphy. Possessions has been defIned by the court of appeal in the unreported case. of Hassãn.. Abdulla V. R. (Cr. App. No.14/75), means custody, physical control and knowledge of the thIng: .Now,:my . attention hasbeen drawn tO the provision of section 70 (2) (b) of the Act, whLch ,1h.) o r- LJLL. 4c L the ecused has control at the time the trophy is found, then the court is to presume that the trophy was found in the possession of the accused. It would seem, therefore, that as a matter of la the .lthhénts which constitutes...poss.ession a per Hassan Abdulla abo.ve, ..that is inc1uding knowledge,, have to'be ..presumd by the trial court against the accused. However, that presumption, as is clear from the wording of the provision, can be rebutted by the accused, if he adduces- evince which ;satisifis' the court of the c9ntr4rYa. The question which follows is whether the.'appellant 1 s explanation can reasonably be said to have been sufficient to negative possession. • I strongly feel that it did. As pointed above, his account was to the effect that he was a mere driver and that the luggage containing the trophy belonged to Ngararna, the hirer of the vehicle, and that he did not know, and had 4 reason to suspect that the said luggage contained such a thing. H*s account, in effect, stood unchallenged and I think it sufficiently displaced the presumption that he was in the know about the trophy. As has been submitted on this appeal, the appellant was a mere driver and it cannot be said that he was under any • •r obligation, annot be read into. section 70 (2) (b) above. do I think that it is desirable. The majority ofthe people would simply not-accept or approve of that. . •.,. H .... ..../3 ?or I .1 - 3 - For what I have said, I think that the conviction Is bad and the appeal from the conviction will be allowed. There has been a complaint that the sentende is excessive but it is now not necessary for me to consider that. In the result, the conviction and the sentence are set aside and the appellant is to be set free forthwith, unless he is otherwise lawfully held. TABORA.. D. P. MAPIGANO, 25/10/76 JUDGE 1. IN THE HIGH COURT OF TANZANIA ..,AT TABOR.A.. .... .. 1..;:APPELLATE JURiSDICTION (Tabora Registry) -' CRMINAL APPEAL NO.143 OF 1976 / (Crig.nal crirn&.na1 Cae .No.j4,7.o., 1976 :of'.the Distr&ci.cTourt of Kigómà Dis€ic.t RigomáL 86f dre J. E. C. MASANCHE, R.M.). HENRY KANA -- versus . . .. THE REUPTJBLIO• ..o. o ..o......;..;..... RSIONDENT r CH7RG Seling by person employed inPub1icService c/s 211 265of thè$Pëna1 Codè Ca.16 &E theLaws. - r - •- ••.- - ' J U- D GLE ME N'T" MAPI6ANO, 1 J. 4 6 .. ..• . TheappeanHENRYK4N1w.sconvicted of..'stelingby.pub1ic servanturderectidfl'271 and 065 6the Penl Codea'n'stn.ed; .tthre-y.a.rs imrisonrnént Thethe perri'with whom he was + jontlyjchargedard tried-wezé adqüitd. 'He has'àppealed from ... the.canviction.a'7the sctén&i. Obvi,ous1'y th4aeaed thégisrte drd 'n 'c6h1ètii him under sec.tion27i'.i'hstead etion' 27O,'s he apellabt was a pub1ic se'-vant and the thihgs h' a1legd1y' stole evideit1y belonged to the Republic. The facts . show ttat .the appellant was at' the material time . ) employed by . the Fisheries Department at K.goma asa mechanic. On 20/]1/75. two, fYh nets. "re discovered inis'officé; . Nobody ., seemed to know how they were brought intQ there. Forreasons which are diffiçult to ynderstnd,,.the :.twp nets were . left•.,inthst office ...-... ' - - , 't. •': ' •. .. . and no p..ompt steps were taken to check the adjacntistore.-ir ............................. which several such nets were .heing..kept. ... in due-.coutse, these two ..r' nets.disappeared and at.. that stage •the.store was cheked in order to -:'.' ,.. r . ..-.........- ascertain if anynetsere missing from there. It was discovered that 2.1 -fIts and, 2 press.ure 1ampshad- diappered.. Th -L-kie was no .':iñd1catjon that the store had.. been brOken into. -..........-. .-... -, .1', • - .• ... On suspicion, the police interEogated the appellant! and several other people. What theappellantirep1Ied amounted to 8 halting confessiQn 4 to an offence. Therlearned magistrate virtually convicted the appellant.on the strength of thatfconfession and on the evidence of the co..-accused persons. The evidence of the co—accused related to his demeanour subsequent to. the finding of the two nets in..his ffice. The appellant repudiated the confession and denied ...the a11eations advanced by the co—accused. ,...../2 It 4' - 2 - It is submitted that the coniction was bad in law, in that it was substantiallyased on a confession to a police officer, contrary to the ,''pf section 27 of the Evidence Act, 1967, which n.joins tat no. confession. made to a police officer shall be proved as aganst a person accused o.f'.n' offence. The Republic concedes that the statemnt of the 'apéllntto P.W.I. Corporal Peter amounted to a confession to ..: an offerde, arid agrees that in'so far as the'conviçtion was to , great extent founded "ofl that' confession, it was bath Iwould respectfully agrêe'wi'th tht'iiew. The s.atement of the ,.aje1Iant' to ihe palice'dfficer was wongly received in evidence, and there is no doubt that it had a considerable bearing on the ccnclusio.-arrived at"-by the learned magistrate. It seems to me that apart from that statement, there 'were oñI' two other pieces of evidence which teflded to implicate the appellant in"theoff'érc'e. BtI'ththk' that these t strnds of evidence were themselves weak a)d insUf'?icient to sustain the charge. The first piece w the vidence of the ccx—ac'cused which, as pointed out above, related to his demeanour as from the tiin the two nets were discovered in his office. ' However, these' —accus 5ed were themselves deeply implicted in the theft.'. Indeed., ;two of thm were., unlike the appel]an, the holders of, the keys to the store. No court, would hayé coricted on their suspect ccompli evidence alone. -. The second piece was the evidence of P.W.4 Shemu, a ti driver, ' the effeët that the :appllant had hired his taxi fetch - .- a bulging backfrdrt his orfice on or about 30/11/75. Sh'emu would j rt kncw'.the contbtf :t.-eack- Th.appe'lant..did1'n.t.cross- Lbut he dniedthe..11egati'oñ' zbn T ttEjed..tn his: defence... . 'The' prseáution were seeking to prove that the s8ck in 4uestion contained the two nets which vanished from the office of 'the apeant'añd the learned magistrate accepted th'af propGsition. ' But.'in this dourt,.' ir has' been streneously '.•_,. ';•, • '.,.' . . 'contend d on beha.f of the appellant,' that the two nets wer too bulky to fit in a sack of that size and the Repub1i seemed tc acknowledge that imposibility. I would, for these reasons, a]low the appeal. The-conviction and sentende*, ar6set aside and the appellant is to be discharged from custody unless he is otherwise lawfully held. - TABORA. ..•' • . ' ' D. P. APIGANO, - 25/10/76 , . 'JUDGE.- '4 . .