19790203 TZHC Tabora1

7 IN THE HIGH CCURT OF TANZANIA AT TABORA APPELLATE JURISDICTICN (Thbora Registry) (Hc) CRIMINAL APPEAL NO.231 OF 197 6 OriGINLL CRIMINAL CASE NO.45 OF 1976 OF THE DISThICT COURT OF trnANBO DISTRICT AT UR1Y30 Before t F. N. Buberwa, Esq., Sèior Magistrate. YASSIN EL.MI 46. . .. PrELLANT (origina1 --Accused) vsus .. . THE REPUBLIC . . • . . . . . . . . . . RESPONDENT • .• (Original Prosecutor) CHARGE: ist Ct:. Unlawful possession of Gorernment...Trophy c/s 67 (1) (2) (b) of Wildlife Conservation AttNo.12 of ..197Jka 0 2nd Ct: ?aiiing to;Lrepqrt possession of Govt.Trbphy - c/s 68 (1) & (2) of Wildlife Conservation Act No.12 of1974. 3rd Ct Unlawful possession of tmmunations c/s 13(1) and 31(1) (2) of the f.rms and Amrunation Ordinance Cep.223 of the Revised Laws. -• ........ • 0 JUDGENT MAPIGJ If J. The appellant YiSIN MKELEMI wasjointly chargec with four others.with.be.ng in. unlawful pO8SCSSiOfl of Governrnent.tr.phy,.. under S.67(1) (2) (b( of the Wildlife Conservation act, 1974, anc he1.nc1n unlavrf'.il possession of 10 rounds of ammunition, contrary. to..Sectjcns 11)and 31(1) (2) of the Arms and Ammunite.tion Ordinance (Cap.223). he was convicted of the offences and sentenced to irnpri5onment for t:hree. yeai-s.on the. first count and six ronths on the second count. Thesentences were dirted.to run concurrently. An order was a1O rfade that his motor vehicle, a..1.androver, be forfeited tothe Government. He has ajpealed.against that decision on the grounds put forward 0 in his short petition of appeal. .• 1 •.• - The evidence which was presentedagainsthiinôan be brieflyre-stated q.q follows -. On or about..the24/1.O/75 the Pblice at 0 rambp received information that a 1ahdrover.carrying, some trb:hios Woul - . be driven from Usoke towards KIorna via 1 -7 Urambo and:: they were asked to intercept the same and a-rest the j...ecple concerned. It turned out to be true. Foir. io1 -2- officers headed by i.1 Inspector Fuime kept vigil and while C( 1fl, Sc they drove a Felice vehicle towaros Usoke at Midnight.. About fcur miles from Uambo, at a place called Kapilula,. they flticed a motor veic]e.cruingfrom toP1k9site dixeçton. They road-blocked it by i.arking the Police lanc-rover across the road and keeping its head-lights oh. They alighted and stood on thoThdes of throad'ingrou two. hen thc.other vehicle, a ndroverLstationwagon No.MZ 9391, approached then they stcpLec: and surrounded it. That land-rover was the property of and was being driven by the appellant. Its head-lights were also ke t on. Oil o1ng c'uestioned by P'U.l, the appellant told the 'oiice team that he was carrying bags of cassava to Kaliva,., which is a trading centre within the Urambo district. PW1 then ordered appeltant and his foürpasséngers, the co-accused' persons, to disemecrk. They did so upon which one of theolic officc•i-'s proceded/ to search the land-rover. He found ten sacks at the back and after examining the contents therein he anncnced tha the baEs did not contain cassava but elephart tusks. On further searching .th Police I fficers f.und a packet containing 10 ronds.of ammunition placed in the perch or shelf in the driver's cabin. The a eli -ant ir&the co-accused were then apprehended and taken to the Police Station ichere.th.Qy were locked-up. The 10 bags as well as the ammunition were seized and kept at te - olce Station. In thormorning the Police removed tFi.. tusLs from the h gs in order to count them. The flurnDer came to 2. .ppart from th-'t the Polico also riis-. Covered a skin of a cneotah in one of the ba g s All these troFhios were on assessment by aGame 'fficer, found to he worth SAIs.63,000/=. The ajypellant cid nct deny that the tiophies were founr in his rctcr veI - icle in that night. e did not deny that he was at the material tifle criving the vehicle and that he told tht Policc, on being stcpped, that he was carrying some cassava to Kaliuc, he, however, sought to show that he was not aare that the ten bags contained any trophy. ea1lged that earlier on that day he ha c611oced. the landrover from Tahora.where it had been for repairs, h0 stated that he was on his way to Tutuo with three of his co-accused who were his relations, namely the third, i'th.rth and fifth accused, when he was stopped by three strangr.s. Thethree,.peop'ie told-him that they wanted to hire his vehicle to take cassav- t-o i.aliva. he was agreeable and it was agreed between them that tJe. Ji.re-charge would be Shs.1,000/. Then they proceeded to another place and fxind the a...... .. ../3 3 second accued Dau.i ITyamshasi standing by a heap of gunny bags. The' tnre sttengers "nd Daucli then heaved the bass into the beck of the lndrover. He alleged that he himself remained in th lancrover ti'rLugnout the loading and th-t hc did not exanine the bags. uftr the loading, he ('rove off towards Kaliu0 only to be intcrcepted by the Police. he further c'llegec thet s the 'Police dare checIpn, the land-rover' the three strangers took to fiigt ad successfully absconded. He denied tht' - aiy amrru.nition'as found in the landrovero in large pert, is version was supported by the evi"ence of ho s'ecohd accued Daudi Nyamshasi Daudi stated that he he been 'ta!'en b'y''o'ne Lmroni from, Kigoma to Tabora ard thnt on 'the da in question the sid Arnroni took him to another place along with ne Boas and one Cmari where he foun the 10 h. He was then left thire to Luard the bags. A shóx't while later i'mroni Boaâ and Qmari came back in thd appe1lt's 16'nd-rovet. They toñ loaded taa bags into th vehicle aftcr'whih they drove off towards :cliva. I sked in cross-oxanination whether the api client knew th content of the bags, he rd lied and I quote from the proceedings - "The driver later came out of the vehicle and he oxa mod the bags. 1 e came near the begs and exaitmnec1 them and if he says that he, oid not cor e out of is vohiclç ho is te11mn Insum,. Daudi tried toshow that he' had b,eencóercqd into loaoing the trophis into the venicle. Is for the otr co-accused, they also d.,enmed any keowlodge of th ags having conttined trophies - up to the time they woo confronted by tp Police, Otherwise, their evidence was 1dontic01 with thdt of the' appellant. I may .mthvtion that' thrcu.gcut 'none of the át&u epersons d sought,, to 'show that the trophies were in tho vehicle lawfully. , Lft.er thoroughly rieing' the evidence 1 'the learned. district 'magistrat: was' of thei view thrt the, whple se ependc On the credibility of twitnes' He b'elieved the two.': Police officers Wt.O apprehended the appellant and his four co- accused and found 'the' stoy ut forwark by the defence, that three people escaped f'ro'm 't'h'e'cene-o'f"artest, was false. Ho found that not only was''the appellant in - conscious possession of the trophies as viell as the ammunition, but also that' he was fully involved man I1eaItransation ii'respect 9 f the trophies. Mr. Kwikima who appeared for the appellant in the lower court and on this ape 1 argued that possession was not established. lie submitted that the appellant was a more driver . .... I. • :' •, and that his contention that the trophieé belonged to . st=6 thred people who escaped and tht the appellant did not knowthat the 10 bags 'contaiiied'tusks and a cheetah skiti'was'he"1jevab1e, He reforrec'k'tô'the proceedings in another criminal case in which the ropuhlic'withdr3w froth the prosecution underS.86(a) c.P.C.,'• in which the public prosecutor informed the distrIct court, when applying for adjournmnts of the trial on three obaaions, that two or tnree other people whom he wanted to be joined Inthe charge had abscondec' anc were still at 1aig.' he aredtht this strongly, tend3d to support the assertidti, of the:appellant that three people actually absconded from the sene O1'arrest. Massaba', Counsel for the he'oublic,.supportedt.he. decision ofthe trial magis'rate. He urged the court' to dismiss te defence as implOnsible. He argued that it was inconceivable, in the cjrcums' - ances, that the appellant would remain inconcerned about what be had allege dlyb -een' hired 'to ', transport in his vehicle.. • I have given the matter sufficient thOiight. I wdhld 'first say that there was a real possibility, having" regard.to the record of the other case referred to by Ir. Kwikima, that some other suspects'fled from ,thePo'Ij-ce upon the encountcr at. Kapilula.. Onemust presume th&t the public proecutor who informed .thecourt that some other peo ( le had abscOnded from the Police custody had, full instruction to say so an? the.Republic must o bound by i. Even so, I do not think that on blance, in terms of S.70(2) (h) of the wildlife Conservation Act, tht the a.j chant succeded to rebut the presumption of his being in posseson of th tropLies w ich, on the undisputed facts of this case, was cast against him by the above provtsi,on. The goods were crtinly quite bi kX.and it is hardly believable that the appellant wculd not bother tp, come out 'of his vehIcle "nc view them as a leged. Besides, his assertion was given the lie by the testimony of his co-accused.' Daudj, as deredistra'ted herein above. lam of the opinion that on the whole the convictions enteroc against him by the trial magistrate were deservin&. iJothing cati b said about the sentences by way of criticism Likwiso the order2cr forfeiture. I will only observe that the sentence in respect of pOssession of the trophies was the minimum prescribed bylaw, that in resT)ect of possessIonof the ammuniticn was not oscessive and as regards forfeiture of 'the ammuniticii and the vehicle, S.78 of the Act enjoinedhc"' Court to make such OrdOr.'' as...... ..'../5 ., 5- In the final result, this appeal will fail and it is dismissed in its entirety. Pronounced in Court. Pabora, D. P lAPIGJNO, 3rd February, 1979 JUDGE. CERTIFIED TRUE CcFY CF THE ORIGINZL. DISTRICT PEGIS1'rQ, PA3ORfL. P