republic vs saidi so seif 1987 tzhc 105 6 july 1987

IK Hlo.-. COURT OF TANZANIA AT sONGEA LCCi.-i.IC CKl'K^G JURISDICTION ClT.n.Kn idjGISTRY) EU..v,.iv Cjvxi4.Jw Ciioij ?•:. 8 eF 1986 i ..ji t —>~-LC v .rsus S-iIJI s/o ot.IFU J L D G ■_£ ii_JJ RU o.iiii i , Jo S.VIDI S...II-U has ....an charged with be -ng in unlawful possession of Government Trophies contrary to section 6. ^ ) \.2) (b) ?.nc’. 78(1)(n) of t •i w i l , . ’ .ife Conservation Act No. 12 of 19 74 rcr.d toyether wix.a p..r ^rap’ n 16 of the Fisst Schedule of the Economic and Org nized Crime Control Act No. 13 of 198-,, The prosecution is alleging that Saidi Seifu was on th-_ -ith day of July, 1985 at i'ug: zini Village, Songea District tVund in unlav;ful possession of eighteen elephant tus/.s w e l d i n g 142% kgs valued at s'ns,49a875/ = . Under the memorandum of the matters agreed ..s not disputed, the accused has accepted that some of the eighteen eleph :nt tusks h r been found buried within the backyard of his nouse at Magazini Village on 4.7.85. Th-j accused also accepted as true; that the eighteen elephant tusks produced in court were the ones that had been recovered from his n„„se on that day. He had no licence for possessing or dealing .lephant tusks as was required by 1;.w c ASP Ha;aici Haruna (PWl' drew a sketch map (exhibit. »•„ 1) of layout of the backv :-rd of the accused house as it was cn 4.7.85 folice'in. the . -arch the Anci Poaching Unit. Afe the backyard of the accused house still evident were two uug holes from which, the accused, Beno Augustino Nyoni the ,^rd Secretary and uashici Kussa, the Ten Cell Leader hhd confirmed the eighteen tusks hid been unearthed on 4th July, 1985, He, ASP Har.'.isi also testified on the occupation of the accused house, a tv;o bed roomed bangalow. He stated that the accused ../2 had, at tho time of th- discovery of the eighteen elephant tusks t a guest - a Somali by r_: „• c '.Ilf 1 Hohaiiec Par ah* Th- accusod vr-zs o c c u p y in a room nex| to the ro^ :i that his guest Mohamed Frx-?Ji w;:s ccc .,/yir. This evider.ce w »s supported by that of Bene .ugestine wy ni PW2f Hamisi _,af. .ri :>or .-Z : ^ Chair inan of C.CoI'l* Branch of Magazini Village jnd ill;.?; .inula (PWS) one of th . ,-xti r-c; cr . Unit Officers that had conducted the se rch at tir.e- h . . u ;:... o f tn e a c c u se d . At the closc of the prosecution evidence the occur u elected to remain silent when called upon to defend himself in terms of the Criminal procedure Act, 1985. In my summing up- to tho two Ley Members, I pointed out to the members that the duty to prove that Government trophy - i.e. the eighteen elephant tusks - was found in th -3 house of the accused premises lay on the prosecution and that this obligation was only discharged when the prosecution had managed to prove its case beyond reasonable doubt. I did however emphasise the import of s*70(2)(a) of the wildlife Cor-ervation Acty 1 9 7 4 on the burden of proof. I further advised the Ley Members that in selecting to remain silent, the accused was exercising his statutory right, i_xc t that in accordance with the law the court w a s entitled to drew adverse inference or the matt •?. From the way th« accused her. conducted his cross examination of t h e witnesses, I dr-.-w th-_ attention of the Lay Members to the fact that the accused, while accepting that he used to live in th,: s a m e house as his guest Mohamed Farah, h e none­ theless si- ,e n t his nights at h i s shamba some distance aw_y guarding his crops against destruction by wild animals; a story that was confirmed by Hamisi Bakari Ponela ( P ia/4). I drew the attention of the Lay Members to the possibility that the unearthed eighteen elephant tusks could have b e e n buried or hidden by somebody other than the accused at the 3 backyard of the accused's house without the knowledge of the accused. The prosecution t II— 1 five witnesses while the accused when aciuressed in tar~s of s.293{l) of the Criminal _.,<rdure Act, 1905 elected to remain silent* Sect.ion 67(1) i th;. ildlife Conservation Act, 1974 provides: "No .sea: shall be in possession of or buy, sell or otherwise deal in any Government trophy,11 Section 70(2)(a) of the Wildlife Conservation nct, 1974 shifts, at some stage, the burden of proof from the prosecution to the accused. It states: "Where in ^ny proceedings for an offence under section 67 it is proved to the satisfaction of the court - that the Government trophy which is the subject matter of the charge was found in any building, premises or ship, or any part of any building, premises or ship occupied by the accused or his dependant, whether or nct -ch-_- accused was physically present when the trophy was found; the court shall presume that such trophy was in the possession of the accused unless the accused satisfies the court to the contrary," This court rinds that the prosecution witnesses have outlined a consistent story and have no reason of telling lies against th,. accused. They are all mature and responsible people. Except for PW4, the rest have had very little contact with the. accused prior' to 4,7,85, The court finds them credible vdtnesses. Those present at.the house of the accused on 4,7.85 i.e. Eeno ^ugustino Nyoni (PW2) ind Elias Mahula (PW5) corr'ohore.te cc.ch other fs story on hew the search of the /4 4 »* house of the accused h_d been conducted and what had b -n recovered -;nv, frcni we _r _ end the deHteSQOW the accLj-.-u ~-n the ciay. Taking into consideration the points th .t tn.- accused does neb aisjruf.e ane considering the evidence of .-iSP H-nisi Harunc -n.I, Icamisi Ba^ari Ponela PW4, Elias i'Uihula P»v5 --ni Beno Augustine Nyoni Pi,j2, the court finds es ;-.,jwished that exhibit P.l wrts a correct reproduction of the scene at the backyard ob the accused*s house. The court further finds that the eight ...en elephant tusks were £o;:.nd buried at the two S&Qts that the wore -within thenf eaaettsbac* yat.<i--a£ the-; accuseflnhouse and that the accused hp--1 voluntarily pointed ou: to the search party cn 7.85 the scot marked on exhibit p.l us 'Y'» accused denial that the suet was not known to him or that it had ~>een is outside the enclosure of his'house without foundation.. Elias Mahul-a, Ph5 had been specific on issue that the accused had voluntarily pointed out to them the second spot from which was recovered two elephant tusks. according to him,, these two elephant tusks were the biggest out of the lot. This evidence is to some extent supported by Beno Augustino Nyoni PWl. He had testified that from the first hole marked "X" on exhibit P.l were recovered small sized elephant tusks while from the second hole marked "Y" on the exhibit P.l were recovered fairly big elephant tusks„ There were two bigger tusks than the rest in exhibit P. 2 (The elephant tusks}. This court is further satisfied that the accused knew of the existence of the elephant tusks buried at his backyard and that he had been a participant in the exercise of hiding them in that r.annc-r. The court rejects the implied rejection by the accused of the prosecution case that the elephant tucks had been buried at the accused house backyard without the accused's knowledge and participation for the following reasons: that even accepting the accused's contention that the eighteen elephant tucks had been buried by a person other than hi.T^elf during his absence, the fresh soil from the dug holes t,,._>uld have drawn his attention. Going by the evidence of botri Pitf2 ana PW5 the place from which was recovered the first lot of the buried elephant tusks was easily detected as hiding somethin^ by trusting a bayonet into the ground* The place .,. / 5 5 also c-._geared to have '..>e:.n marked „,y gourds, ,iv.ded to this, tho accuse;. w.*s the ^^rsvR who h 1 pointei ^ut the second s. ot from vrnxch wcv.. recov- r>.v. some elephant tusks., could iwt hav_ ^ucv.ii tho exist ;v -f the elephant tue.-:s in the second hoi- v/j-'cnoct his h v.ir: j e .own the existence _f the sanie in th j tirst nolc. What is .eore, he was by the evidence j£ Elias Manilla firm that th were no more elephant tusKc to b;j recoveree irer his rae.-.y Ard. The court further finds that the accused hr„d been occupying the house from whose backy „rd were found the tusks. In terms of s.66 of the Wildlife Conserva­ tion Act, 19 74, the eighteen elephant tusks are Government trophies. In the light of all the evidence before it, this court is satisfied that the accused was in possession of Government trophies and that that possession was illegal. The prosecution need not lead evidence to establish that the eighteen elephant tusks belonged to or whre owned by the accused. Ownership of the tusks is here irrelevant, «.ll chat is required of the prosecution is to establish illegal possession of the tusks. This court finds the prosecution has suffifiently established this to the level required of it in accordance with the standard of proof required .'In such cases. The eighteen elephant tusks were found buried oith either his knowledge participation or both at his house backyard. The accused as pointed out above had elected to remain silent; he had nothing to state in his defence. This court finds the accused guilty as charged and is accordingly convicted. '7e would like in conclusion to point out that th- - lice had not investigated this case with the speed that tho people have every right to expect from such an institution. The offence •ijhe accuseel was being investigated against was a serious one and prevalent. Its harm to the Republic needs no elaooration. Yet from the time the police attention of the discovery of the eighteen elephant tusks at the backyard of the accused house was drawn on 6.7.85, the police found it fit to visit the scene of crime on 22.10.85 over three and half months later! The excuse given that there had been no transport to take them to the scene is not, in the finding of this court, good enough .../6 - 6 - excuse. 'kce diligcr. - 2 is called for in tnc ::ijht against crime. V/a found thi:. I_cking irj this cas :- ,.nd something dras cic ;~:u nr'jrnt ne^ds to be taken. It would have I. eon in th_- xno^'r of o^th the Republic and the accused hau the invasti^;.Lion cf oh-:; St. been finalised that much earlier than it h;.J tj;cn leaiinj to the saving the accused j f lot of anxiety that it.uch faster, the Republic being issur-C chat much c; rlior of tha effectiveness of the workings of it^ forces of law and ord^r, not to mention the consequent _mt very important positive effects on the reduction of over crowding in remand prisons etc. Yahya Rubama judge . 6 7.8 7 Thomas Mshamu Lay Member , 6 7.87 Vincent Awasi Lay Member . 6 7.87 Coram: J. the two lay members, Mr. Senawaji Senior State Attorney for the Republic Accused; present Judgment delivered. Yahya Rubama Judge , 6 7,87 - 7 hi-.vc- no previous record of the accused, How^v=.r I inv.uLo the court to consider the proviso in s. 59 of ikct. 13 of 19Co. I r.'articul„rly invite the court to c^r.siuvr sub. section 3 of the ,vct. That is all. - Accused; I have eight children, a very old father, a dead mother. Tc take care of the children in my cbs.;nce is ..«,t easyV;v. i ask for leniency. S E N T E N C E i'hia court fin^c it r.ot necessary to elaborate on the issue of the seriousness and prevalence of the offence that the accused stands convicted of. In the case under conoidera— tion, the court finds that the value of the Government trophies not that much important in the determination of the sentence. It is evident that relatively few elephant tusks had been recovered because that was what had been obtained at the time:. The accused had not set to obtain only 18 tusks. He would have wanted a bigger number. What is more, there exists in the tusks many very small tusks; the wanton destruction c f the- wildlife knew no ago limits. I see no mitigating factors in favour of the accused. I sentence the accused to 15 years imprisonment. Yahya Rubarha Judge 6.7.87 Right of Appeal explained to the accused. Yahya Rubama Judge 6. 7.87 Order; The 18 elephant tusks are hereby ordered confisticated by the Government. \ \ \ Judge 6. 7„87