19781014 TZHC Mbeya

._____.a- • .-•.-__.-_. - •. - (!) tIV* i& I1 q '1'4 APPELLATE J]LJEISDICTION CRIMINAL APPEiL NO. 117 OF 1978 (Original Criminal Case Net 116 of 1978 of the District Court of Iringa District at Iringa - Before N. S. M. NKtJBI, ESQ., RESIDENT MAGISTRATE) STEVEN KIGAVA GEORGE KIGAVA .. t o to to •, .• •. •• APPELLANTS JuLIUS KILANGA (Original Accused) Versus THE REPUBLIC to .. .. .. .. .. to to RESPONDENT (Original Prosecutor) CH/.RGE: Unlawful possession of Government Trophy c/s 67 (i) 2(a) of \'lildlife Conservation Ord. Act No. 12 of 1974. Failure to report possession of Government Trophy c/s 68 (i) (2) of Wildlife Conservation Act No. 12 of 1 974 JtJDGMNNT IWJCIBETE, J., — The appellants were charged with and convicted of two counts - nariely being in unlawful possession of Government Trophy c/s 67 (i) 2 (2) of the Wildlife Conservation Ordinance - (Act No. 12 of 1974) and Failure to report pos$ession of Governxent Trophy c/s 68 (i) (2) of the Wildlife Conservation Act No. 12 of 1974. Each was sentenced to 3 years imprisonment in count one and 1 year imprisonment in count two - the senthnce to run concurrently. They have appealed against the conviction and the sentence. Their appeals are consolidated. It was alleged that the three were, on 14/2/78 at around 7.30 p.m. at Ruaha bridge - Iringa town, found in possession of 6 pieces of elephamt tusks. It was ex1ained that each of the three appellants had hidden two pieces of the alleged trophy in his suit case. The three were proceeding to Dar es Salaaat. Other facts have been amply set out in the judent of the lower court - in which case it is not intended to repeat the whole story in this judent. There was no dispute that the pieces of tusk were in fact found in each of the three suit cases alleaod to belong to the • - I And according to the facts on record the appellants admitted ownership of the three suit cases. Each one of thorn sied a note admitting ownership of at least one of three suit cases. I view not On the facts - I am of a oetiledL that they weeLforoed to admit ownership of the suit cases. Indeed in one of the suit cases there was found one receipt that indicated that one of the appellants had admittedly sent some money to his relative by registered post, a fact that went far to confirm the admission as to ownership of the box. It was submitted on behalf of the appellants that the convictions were bad in law in that they were based on confessions made to Police Officers - as to ownership of the trophy - contrary to the provisions of s.27 (T) Evidence Act, The record clearly shows that the appellants made no confessions as such. All they did was, as already observed, to admit ownership of boxes, but after the admissions each one of them was ordered to open his box - whereinthe trophy was discovered. A discovery of the trophy under the circunstances did not amount to confession I am satisfied the appellants were properly convicteJt I would accordingly dismiss the appeals against conviction in either count. • As for sentence I aee with the learned counsel for the appellants that hardly any evidence was led to establish the weight let alone the value of the trophy seized. The omission td specify the value of the trophy croaed in my view a special mitigating factor warranting imposition of sentence which was less than the prescribed minimum. Accordingly I would reduce the sentence in count one to one of shs. 5007= fine or 6 months imprisonment in default each andthat in count two to shs. 15 0 /= a fine or 2 months imprisonment in default each. Dated at 1beya this 14th day of October, 197 8 - 11. J. I1LJCIBI!'TE' J UDGE