19990531 TZHC Mtwara

IN THE HIGH COURI' OF TANZANIA ---- . AT MTWARA (MTWARA REGISTRY) APPELLATE JURISDICTION ECONOMIC CRIME APPEAL NO. 13 OF 1997 (CONS. ECONOMIC CRIMES APPEALS NOSo 14 & 15/97) ORIGINAL ECONOMIC CR. CASE NO. 8 OF 1996 OF THE DISTRICT COURT OF LIWALE AT LIWALE BEFORE: A.A. RUTECHURA, ESQ., s.n. MAGISTRATE RhSHIDI OMARI CHIMOKA •••••••• APPELLANT versus: : .. ,_. THE REPUBLIC ••••••••••••••••• RESPQW)ENT JUDGMENT i !' KAJI., J • . The a~pellants MOHAMED OMARI CHIMOKA and HAMISI MTALIMBO were jointly charged with being in unlawful possession of Government Trophy c/s 67(1)(2)(C) of the Wildlife Conservation Act No. 12 of 1974, read xogether with s. 56(:l) and 59(2) and paragraph 16 of the Economic and Organized Crimes Control Act No. 13 of 19840 They denied the cl:)._arge. However at the end of the trial they were found ~ilty as charged and were convicted accordingly. They were each sentenced to 20·(twenty) years imprisonment. They were aggrievedo At the trial the prosecution adduced evidence to the effect that on 28th ·August, 1996, between 3pm and 5pm while PW1 RAYMOND NAKAMBALE a Game Office:i:-; ·and PW? HASSAN LIHINDI, a Game Assistant were on patrol in the Selous Grune Reserve when they came to Nakihu River, they saw a cainp. When they went there they found the appellants therein with snar!=ls, wire traps, pangas, arrows, knives and nets. When .. they asked them as to what they were doing there they replied they were huntingo When they asked them as to whether they had any licence or permit they denied. In looking around PW1 and PW2 saw a carcass of an elephant trapped with wire traps around its neck. In asking them as to who had killed it they said they were the ones. Since the appellants had no licence or permit authorizing them to :possess the carcass of that elepha~t, they were arrested and charged with being in unlawful possession of government trophy. In their defence the appellants admitted to have camped at Nakihu River where they were found with the above mentioned weapons. But they • ~· 2 said they were there for the purpose of fishingo They denied to be responsible for the said elephant carcass. B~fore this Court they insisted that the carc~s .of the elephant was not under their possession and that they were there··for the soie purpo!3e ef fishing. ·The learned State Attorney Mr. Mtinangi who represented the Republic at the hearing of this appeal supported the conviction on the ground that the prosecution had proved the guilt of the appellants beyond all reasonable doubt. However he found the sentence of 20 years impriqonment to be on the higher sideo He called upon the court to consider a fair sentence. I have carefully gone through the record and considered carefully the evidence on record the appellants' grounds of appeal, the learned State Attorney's reply and the overall circumstances surrounding this case. There is no dispute that on the material day and time the appellants were found near Nakihu River where they had camped and that that area is within Selous as per PW1 & 2 evidencee There is also no dispute that they were found in possession of snares 1 wine traps~ arrows, knives, pangas, an axe and nets. There is ample evidence by PW1 and PW2 that the carcass of a dead elephant trapped in a wire trap was found just about 15 to 20 paces from the appe~lants' camp and that the wires which had killed it by trapping it around its neck were of a similar nature as those-found with the appellants. Considering the distance of only about 15 to 20 paces from their camp and the similarity of wires and snares which killed the elephant and those which they had, I am quite satisfied thnt that carcass was in their possessiono Their mere denial had no merits and was properly rejected by the trial Court.· An elephant carcass killed unlawfully is a government trophy. As far as sentence is concerned 9 the value of the said carcass was estimated to be shs. 2,4oo,ooo/- (according to the charge sheet). An elephant is listed in the first schedule to the Wildlife Conservation Act, 1974. The offence of being in unlawful possession of government grophy is an economic crime by virtue of paragraph 16 of the First Schedule to the Economic and Organized Crimes Control Act No. 13 of 19840 By the amendment of s. 67(2) of the Wildlife Conservation Act No. 12 created of 1974 · ~:··. ~: :~ by Act Nao 10 of 1989, the minimum sentence for an offence of this nature is twenty (20) years imprisonment. Therefore the s·entence of 20 years imprisonment imposed on each appellant by the trial Court is the "' minimum upon which this Court has no power to reduce. 000/300• ,,. 3 .. Their appeals against sentence are also dismissedo ·······- APPEALS I DISMISSEDo .\ .'! I' ,.I . ·1 I .l ~-·' S.i No KAJI JUDGE 31.5.99. ~: Judgment has been delivered in the presence of the appellants Attorney for the