19831126 TZHC Mbeya1 1

IN THE HIGH COURT OF TANZANIA ATJVIBEYA APPELLATE JIJ1ISDICTION IGH OtT CRIMINAL APPEAL NO. 62/1983.. ORIGINAL CRIMINAL CASE 'NO. 305/1982 OF TUE DISTRICT COURT OF IRINGA DISTRICT AT IINGA Before LD. Nohalla Esq. Resident Magistrate SAIDI S/O YTJSUFU . , a o ••e ooo • • a • a •• o •• a • o • APPELLANT 0,• V rsus. . THE .PUBLIC • aaa • , ae . a e o a aec a • . a a a a a a a • •o .RESPONIYENT Charges: 1st countg Unlawfil possession of Gove'nnient Trophy c/s 67 (1) and (2)(b) and 78(1)(a) of the Wildlife conservation Act No. J, of 1974. 2nd cor.tFai1iñg to report possession of..Gove'nment • Trophy.d/s 68(1)and (2).ofth.e .V!i]41ife Conservation Ac± 1974 JUDGT.ENT p LTIDT, J. Indicted before Irina District Court, in the order of 4th and last accused, was Said slo Yuuf, herei.:n the appellant, whoàe trial .cu1minatd in his convictio±i as charged — 1st., for unlawful possession of Government trophy 2nd, for failing to report his possession of Government t±bphy to the nearest Game Officer, or to the designated organisation. The appe11an was unfortunately visited with three yedr, and one year imprisonment, on 1st and ncI counts, sentences -to ntly. The now appealed against conviction. I have anxiously but dutifully and. studiously examined the testimony, and the p:pdllants mend of appeaj, and I have gathered that, the ap7ellant is in so iiany words, protesting lus innocence — even bitterly say1n he was never in possession - •• : ,. . . ./2 J —2 of the government trophy. Before immersing myself in the obvious issue ; the recapitulation of the facts of the case1 necessary to il,tininat the 'way 0 The fadts of the ease the microscope fall within çuite a izarrow compass. The appellant was 'a turn—bor usefully emplbyed..on a SeaniaLexy TZ 61358. It does rit attrac't controVersy, that PW04 Joshu.a Ivtsemwa Njombe• on 8/7/1983.hired the said lorry to tratsp his 107 bags full of potatoe, •to Dar es, Salaam. The '1a éuch., ot at o es was unsuspecti.gy done. at Magodviliag 4.,Njombe.: They 'final1y took off,., and al,thugI they . i,fl stóp.—overs. Qfl the way that did not provoke supiGiZg accused PW..3wit.h his crew1.st, 2nd, 3rd/and the appellant finally reached the gate of Ruaha bridge, where there was a polo post. It Was like a suicidal mission — deliberately drivJ,g into the mouth of a hungry han. For PQace officers PW.J, Musa, and PW.2 C. Yusuf, as if tipped, immediately and without prelimina±'iessearched the vehicle, only to recovsp two luggages the contents of. whi :ch were twenty eight Qleph=t tupks& And the consistency ofevidence from PWli PW2 1 PW4,. accusedç 3rd sccttsed and the appellant, is to theeffectb that it was the fiist. accusd who. while ±àlling on hi1rneaa..' pleadingunequivocalJ-y. admitted 'the same to:b' his... The twent eIght e1ephart tuskS were tead'ered.; as Exhibit A' Up to the Oloeure of the prosecutions case,, it was noi known as to how the same two luggage s 7got into that 1ory1 However, the disclosure emerged fron'the 3rdacused,';wIo his defence i'e'ported to the' court as follows and quota "I heard 1st accused telling the driver' (2nd adüsed) that, he had Secured cassava. for futali. 2nd'accused• asked the,aceued where - that cas'sava was, '1st aOcused replied, it was on the' road. riear.1the mo'toD.—vehicle, the 2nd accu.sèd gave the key to the .bod of the.Sania.:o. the turn—boy the 4th accused to o to open the body, .:1t,. '4•th"and I, ..*ent together to the'sia..., 1 As I was standing about 20 paces-away I saw 1st accused loading two bundles into the scania. He was 'sanding on the ground, handing them over to •the 4th accused who was inside the body of the scania." .13 This ve.rion of the incident was repeaed and confined by-- -- the appellant. And if it were not for the appellanth confi'mar. tion of the testimony by 3rd acciIsod"I iould have demanded applications of circumspetion-in relyiag on the same, The trial Magistrate, having acquittod the' 2nd , 3rd accuseds . zib alia convicted the appellant, who denied and ' denying posse ssion of the questioned government trohi'es For easiness of tracking the trial magistrate's working of mind on its way to bio conviction of the appellant, an excercise we have to undertake, I shall hereunder have him 0 speak, and L quote's-. " "Even the'4th:accused I have considered.the vidence surrounding him 0 I am quite convinced, that the 4th accused also knew that,the're were elephant tisks in the'two bags 0 Ihave seen the :wo bags co'ñ'taining the tuSks The tüsks'árë jutting out and chattering;in such a:manne, that by merely..touching those bags one could right away dis'cove' that, they contäined'elophant tusks and' not cassava. .:MQreover,'4th accused denieda,,:' .uaha any' ;knowle,dge of the owner of those bags. • There is'ery strong ci±cumstantial evideiiee,'that th :4th ccused'knew'that the two bags contajned':";.:: elephant tusks, and he is contructively deemed to .hthré ben'in possésion: of thdse tilsks 4th-' aocused said he knows elephant tuks' Before I come to the central pbint. I feeJ like making e following observations As I have eaxlier pointed out, t4he closure of the prosecitioris "ase the only testimoy against the appellanu, was alrst a passin remark by PW02 9 tha't''àn as followsg "then we asked 4th :acused, whose were thI@ •'"' '' 0 bUndles with tusks ; . said he did, not knowt! Bu.t unfortunately PW.l PC testimony is wanting in agreement with the tetiniony by PW 6 2 9 as regards the appel nt's reacton to police inqt.iry.. f there wasp. PW1 relevan said as follows, and I quotes • •: "Yüsufu ent bn bbai fit"the' ontentth of the.two bund.ies .He. also felt,. tem to be elephant tusks. Then, we called the dxiye.z' (2nd acOused)aidaskE'him whose werethe two budle He. aaid they. belonged tothe: lst . accused." • •he above two excerptsb.y PW.l. and PWi21 juxtaposed, do demonstrate material difference, ..P,W,2 1 s, excerpt even made we.aker by the t.estimey: of the .2nd. accused, who even said and I quote:— :.., •' •- . '!The 4th,accusad saidthe owner was seated. infront H This being the obvious fact, I do not think, PW,ls evidence th.t the appellant denied knowledge of the owner of the luggages should have been given such undeserving weight. Again, that being the only evidence, and of such doubtful qttalty at the closure of the i. rosecution's case 9 one would hayeimagitied set.ion2O5 of the criminal Procedure Coe Cap 20, would have easily been appliedi But unfortunately, that ,vidence was elevated and clothed with the quality and statuot of a rima facie case, and hence the defence, The saie extract above, does also unequivocally demonstrp te how the triaim-gistraté was iiisbchistically and actively droing himself in the swimming pool of speculation, For ,he trial magistrate senoct io hink that since the elephant tusks were jutting out and cautcring on3/9/1982 (date of trial), .aid they could at that, time, easily :bpeen, as the trial magistrate hiniso1feas-ily sa* them, therefOre the appellant should have seen knowr ±he,same in that very state, This reasoninr, would indeed, be very attractive to any logical and ohervant orsin and evon that proverbial reao nable man, would make the safle observation, if only there we no time and journey clistanco factors At the time of ldading in Njombe, according to the 3rd accased., and the appellant, th 1st accused told. the 2nct and 4th accused that this was cassav, which was a white lie. If the lurgage so l9aded as cassava, had its contents jutting out and chattering, the cuiming ls accused, v'ôuld not have lied, that cassava were the content, • .', ;" '•''' ' :. :''• :- ': : '..';:,' '. ;•. - It i'.'thexeforéreasonable''to' expect, -'Ghat'thd: - -juitinhg and chattering of such 'ôontents,' began in te COUXSe of the journey, and were excerbated by reopenIngs ',ard'nvemnt thereafter, - before' they were tendered in court.' It caniot therdfore be ima€ined, that the state of aproarahce'.of'the contents when they were1 tendered as exhibits on '//1983, was' the sameas when they were"loaded. This would be unsustainale. It would be dangerous therefore to impute on:the. appeflaht lmowledge of the contents of the luggage befol'e their arrest at ?Luaha bridge. Mid. to finally come to the cruciel question even if, the app'ellait no more noless imew,: that the said content were elephant tusks, would that mere knowledge, amount to possssiozi of such Govcrnment trophy? I hope I. shall not be accused of being utoIOgical,, ii', I once again ;iake rei'erenoe to the jiidnent's excerptabov reproduced, in which the trial magistrate cocIuded •bold.ly,"that. since the 4th accuseq knei 'that, the two b,ór luggages contained elehant tusi:s, therefore he was "Oonstructively deemed %o be in"unláwfuI 'possessio -i of the sai& Gernmènt trophy. Thi conclusion ,ha' provoked and geñeratéd a pvadin anxiety 'in me Z have given anxious thou'ht to the provii'ona of se'O'tion, 67 (i) and the Evidetiary Provisions in' ection 70 (2) of th6 Wildlife Conservation act 1974 hereafter to bèreferred to, as the act, and I am of the view, •thato3session of' overent tphr n4e section 67 of the act is twined it means and includes:- Inediate andphybical detention or cOntrol •' o.f Government trophy I• ,' Contuctive possessioli w'ere the possession is in contemplation of çlthe law. as opposed to actual possession in fact', —'i.e. iiossëssion infei±edby law as in section 70 (2 of the act, where possession by ;ccuséd is presumed or:inferred, where' the Government. tmihy ,is found in the hose or vehicle occupied or oontrolled., as the 'case • may be, by the' accused, unless the acousM • satisfies the court to the contrary, - • , ' ,' -6 The above applied, to the case, the obvious and irtab co1.cusion is that, the appellant was not in7. physical possesQ or control of the, said Government trophy ixnilar1y he oann be said to have been in constrictive pd ssion of the samg trophy, as they were neither found in his house, ndr in the vehicle under his control, As he was only a turriby1 as respects the same trophies, his wished ard'powrs if WS werc irrelevant in the absence of joint ownersbip, as he •ould not even refuse loading the same I hold therefore that under the act mere knowledge by the. accused, of the wheroalloqt or existence somewhere, of ovenment trophy, does not to constructive pssssion of the-same v stretching the to such an extent, woild be'mre&ionable and. tt was not ih intention of the.le4slaturo 1 cannA imagihe that oni liability under the.cction was meant to be ihour'red indg minately as dads, t'iat is bitheal oigin1 sih The above lands me, to the only one 1neviabe', ad irTesistable. conclusion, andtat is case; the was neitherin physical or constractivo'bssdssion of'govp ment trophies and case was not therefore proved, beyond nable doubt aainst the appo'liont'. 'The conviction is t fore quashed,.and sentence set a'ido 'The appellant to released forthwith, unless he has otherwise offended the JAw Delivered this 26th day of November, 1983. E.W. KATITI, JUDGE. COURT: (1) Mr. Kapinga 'State Attorney appesring for the Republic present. (2) Appellant abseht, I certify that the foregoing is a tiie and correct copy of the original. IMSTIRICT