RASHIDI KIRANDA v REPUBLIC 1990 TLR 59 (HC)

 

RASHIDI KIRANDA v REPUBLIC 1990 TLR 59 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta J

29 June 1990

Flynote

Criminal law - Unlawful possession of government trophy - Essential elements of the

offence. G

Criminal Practice and Procedure - Sentencing - Value of property involved essential

in assessment of sentence - Need to prove value.

-Headnote

The appellant was arrested during an operation code-named "Operation Uhai",

charged with and convicted of the H offence of unlawful possession of government

trophy. The defence raised by the appellant during trial was that although the

elephant tusks were recovered from his house they belonged to other people, they

were not his. On conviction he was sentenced to ten years imprisonment although

the value of the tusks was not established. On I appeal against both conviction and

sentence.

1990 TLR p60

CHIPETA J

A Held: (i) Since the appellant admitted possession and he had no authority to

possess government trophies the conviction was inevitable. The circumstances in

which he came to possess the same could only be a mitigating factor in sentencing;

(ii) where the value of property involved in the commission of an offence is a

necessary element in the B assessment of sentence the value must be strictly proved

by credible evidence. In the absence of such evidence the accused must be given the

benefit of doubt - Abdalla Ali v R. [1969] H.C.D. 298; Amri v R. [1971] H.C.D. 126

followed.

Case Information

C Appeal dismissed.

Ruta, for the respondent.

[zJDz]Judgment

D Chipeta, J.: In Kigoma Resident Magistrate's Court, the appellant, Rashidi

Kiranda, was charged with and convicted of the offence of unlawful possession of

Government trophies contrary to sections 56 (1) and (2) and paragraph 16 (d) of the

Economic and Organised Crime Control Act, 1984 as amended by Act No. 10 of 1989,

read together with section 67 (1) and (2) of the Wildlife Conservation Act, 1974. He

was sentenced to ten (10) E years imprisonment. He now appeals against the

conviction as well as the sentence.

The prosecution's evidence was that during an operation code-named "Operation

Uhai", police received information that there were elephant tusks in the appellant's

house. On 3rd June, 1989, armed with a search warrant, D/Sgt F Joseph (P.W. 1)

accompanied by another police officer proceeded to the appellant's house at

Kazuramimba. On arrival there, they told the appellant that they suspected that he

was in possession of government trophies, a gun and some ammunition. The appellant

replied that he only had a gun. When the house was searched, police found three G

eland tails for which the appellant had no certificate for his possession of them. A

further search revealed a hunter's torch and some ammunition.

Thereafter, the search party demanded a hoe and they started digging up the then

floors of the house. When they H started digging up the floor of a room at the back,

the appellant told them to stop and said that he would show them where he had

hidden the elephant tusks. The appellant then removed grass from a certain place,

thus revealing a corrugated iron sheet. He removed it and dug out the soil to a depth

of three to four feet and unearthed two elephant tusks.

I When the appellant was asked about these elephant tusks, he said that they

belonged to a game Officer and that he had hidden them

1990 TLR p61

CHIPETA J

because he feared that they could be stolen. The appellant had no licence to possess

those elephant tusks. A

In his defence, the appellant insisted that the elephant tusks belonged to game scouts

called Masanja and Mrisho. He repeated that story before this court during the

hearing of this appeal.

With great respect to the appellant, I think he is labouring under his massive

ignorance of the law. As the learned B trial resident magistrate pointed out, the

charge was that of unlawful possession and not ownership. Since the appellant

admitted possession and he had no authority to possess the Government trophies, the

conviction was C inevitable. The circumstances in which he came to possess the

same could only be a mitigating factor in sentencing.

The appeal against the conviction, therefore, is without merit.

Regarding the sentence, Mr. Oswald, learned state attorney, submitted that the

sentence was unlawful. In his D submission, the trial court should have taken

judicial notice that two elephant tusks had a value of more than Shs. 5 million.

As was pointed out by the learned trial magistrate and conceded by Mr. Oswald, there

was not a scintilla of E evidence as to the value of the trophies. What is more, we do

not know the weight of the elephant tusks nor the price per kilogram of trophies at

the relevant period. What is more, this court is ignorant of the size of these elephant

tusks.

I am of the view that where the value of property involved in the commission of an

offence is a necessary element in F the assessment of sentences, the value must be

strictly proved by credible evidence. In the absence of such evidence, the accused

must be given the benefit of the doubt. (See Abdalla Ali v R. [1969] H.C.D. n. 298;

and Amri v.R., [1971] H.C.D. n. 126). G

For the foregoing reasons, I am of the view that the learned trial magistrate was

perfectly entitled to give the appellant the benefit of doubt in the circumstances.

In the upshot, this appeal fails and so is hereby dismissed in its entirety. H

Appeal dismissed.

1990 TLR p62

A