[1947] EACA 80

## APPELLATE CRIMINAL

### Before SIR BARCLAY NIHILL, C. J., and DE LESTANG, J.

### **REX.** Respondent (Original Prosecutor)

v.

HARRY EZEKIEL AND ABDULLA S/O SALIM, Appellants (Original Accused) Criminal Appeals Nos. 167 and 168 of 1947

law—Unlawful possession of rhinoceros $horns-S.$ $41.$ Criminal Game Ordinance, 1937—Possession—Aiding or abetting.

The appellants were convicted of unlawful possession of a number of rhinoceros horns contrary to ss. 41 and 52 (1) of the Game Ordinance, 1937.

They were sentenced to six months' I. H. L. and to pay a fine of Sh. 400. with three months' I. H. L. in default of payment.

They appealed.

The facts appear sufficiently from the judgment.

*Held* $(4-1-47)$ .-(1) That the evidence was consistent with the appellants being intermediaries in the sale of the horns but did not establish conclusively that they had exclusive or joint possession of the rhino horns at any time.

(2) That for an aider and abettor to be convicted as a principal it is necessary that an offence should have been committed.

Appeal allowed.

# Kelly for the Appellant.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—Both appellants Harry and Abdulla were convicted of the following offence:-

"That at about 4 a.m. on the morning of the 22nd February, 1947, in the Voi Township in the Coast Province they were found by the Hon. Game Warden in unlawful possession of twenty-two rhinoceros horns contra section 52 (1) of Ordinance $38/37$ ".

Section 52 of that Ordinance merely prescribes the penalties and the offence of which the appellants were convicted is created by section 41, which provides that no person shall possess any game animal or any trophy, etc., of such animal, unless such animal, trophy, etc., is obtained in any one of certain prescribed circumstances which do not arise here.

As far as can be ascertained from the evidence the facts appear to us to be as follows: $-$

An African by the name of Tito inquired from a certain European-Mr. Rouge—whether he wished to purchase rhino horns and ivory. Mr. Rouge was very much interested and after a few days, on the suggestion of Tito, saw appellant Harry, who informed him "that it would be easy to obtain and that he would write to him when the rhino horn was ready to be collected". Subsequently, appellant Harry wrote two letters to Mr. Rouge. One of them, which is undated and which was probably the first to be written, reads as follows: $-$

"Mr. Rouge,

With reference to your conversation of last night with that bloak. He has openly told me that you are prepared to take up business of which he had discussed together the other day with you. My difficulty of having not fulfilled the promise was that, you wanted things to take them for trial at the Coast by which was beyond my capacity since I had paid them cash. The

reason being that, they are dangerous things. Now I am quite convinced with your talk that you are really in need and if you are prepared to take them in cash at the spot, I'm quite prepared to do so by to-day. Another thing that, you asked about the Sergeant Major. It was yesterday when I came across to him and he told me a lot of tale that, you had arranged to go with him to Makitau for a special case. Is that true? What sort of case was it? You met him at Mwatate and you called him personally and you said to him that, you were coming to Voi and he should wait for you to take him to Mwakitau to arrest somebody. This was an old arrangement that, you will be taking him sometimes to Mwakitau to do so. I wonder where and how possible could he have gathered all the story.

Really I like to join for same, but I would ask you kindly to give me your real truth of it. You are under Government Service as well as I do and I don't want such things to be known to anybody, and if there is anything under it, you may please expose it to me otherwise I am ready at any time to join you for such game. There are 1,180 lbs. of black and 4 hides and 3 paithons and if you are ready for Shs. 8 per lb., 170/- per hide and 40/per paithon. Please let me know by return as per bearer.

Yours So and So".

The other letter is dated 21st February, 1947, and reads as follows: -

## Voi Hospital. $21 - 2 - 47$ .

### "Dear Mr. Rouge,

I have to inform you that, I am expecting one complete head of white as you know this evening probably. You may therefore be prepared for 400 lbs. of Black and White as well in the way of cash please. The place where we are going is rather cold. I shall be therefore highly obliged if you would bring one bottle of brandy for our consumption while at the hills. We may probably drop down first for the tusk and come back for the hills. Wish you good luck.

Yours truly,

### Sd. H. B. Ezekiel".

On the night of 21st/22nd February Mr. Rouge went in his lorry with. appellants Harry, Abdulla and Tito to the house of one Johosophat in the Teita Hills and collected therefrom two baskets of rhino horns. The prosecution evidence is very sketchy as to what exactly took place that night, but taking all the evidence together it would appear that Mr. Rouge left Voi with Tito and appellant Harry in his lorry and picked up appellant Abdulla on the way. They proceeded to Johosophat's house from which, after some agreement about payment, two baskets of rhino horns were removed and carried into the lorry by appellant Abdulla. The party, including Johosophat, then returned to Voi only to meet with disaster at the hands of Mr. Foster, an Hon. Game Warden, who was waiting for them by pre-arrangement with Mr. Rouge. Mr. Foster had the horns taken from the lorry to Mr. Rouge's house and ascertained by questioning the party that the horns belonged to Johosophat or to his grandfather.

On these facts it is contended on behalf of the appellants that they were never in possession of the horns and that they should not have been convicted.

In our view the circumstances of this case do not establish any unlawful possession whether exclusive or joint in the appellants. The letters and other facts are consistent with the appellants being mere intermediaries between Rouge and the real possessors. Nevertheless, notwithstanding the fact that they were not in possession they would still be guilty of the offence charged if the facts showed that they aided or abetted another person in committing an offence (V. section 22/c, P. C.). That the appellants did aid and abet Mr. Rouge to get possession of the horns is beyond doubt.

The difficulty that arises in this case, however, is that, if the question be put as to whether Mr. Rouge was himself guilty of an offence of being in unlawful possession of the horns on the night in question, the answer must be in the negative. He had no criminal intent, in fact he was acting with the full knowledge and consent of the Game Warden. Now, for an aider and abbettor to be convicted as a principal, it is necessary that an offence should have been committed. It does not suffice as in this case that a person may be aiding and abetting actions which he himself thinks is an offence through imperfect knowledge of the circumstances.

It may well be that in the case of the appellant Harry Ezekiel, the evidence available to the Game Department would have supported a prosecution under section 36 of the Game Ordinance, and it will still be open for the Crown to consider that aspect of the matter. Mr. Todd, for the Crown, has conceded that the evidence of possession by the second appellant Abdulla, son of Salim. is weak to sustain the convictions. We think that there is evidence that he aided and abetted Mr. Rouge's activities on the night in question, but for the reason already given this does not constitute an offence. It follows that the appeal of both appellants must be allowed and their convictions quashed. The fines, if paid, to be remitted.

In the light of our decision we have also considered the cases of the other two accused, Tito Crispino and Johosophat Mwalimu, who pleaded guilty at the trial to unlawful possession of the horns, and who are not before us as appellants. In their case we think there is evidence pointing to their possession of the horns on the night in question before possession was surrendered to Mr. Rouge, so that in their case their convictions may stand.