DIRECTOR OF PUBLIC PROSECUTIONS v BERNARD NJAVIKE 1988 TLR 18 (CA)

 

DIRECTOR OF PUBLIC PROSECUTIONS v BERNARD NJAVIKE 1988 TLR 18 (CA)

Court Court of Appeal of Tanzania - Mbeya

Judge Makame JJA, Kisanga JJA and Omar JJA

30th January, 1988

Flynote

Economic Crimes - Unlawful prossession of Government Trophy - Whether an economic crime.

Statutory interpretation - Meaning of "dealing" - Economic and Organized Crime Control Act, 1984, Wildlife Conservation Act, 1974.

-Headnote

The accused was charged, before the Economic Crimes Court, with unlawful possession of Government trophies contrary to para 16 (b) of the First Schedule to and s. 59 (2) of the Economic and Organised Crimes Control Act, 1984 as read together with s. 67(1) of the Wildlife Conservation Act, 1974. Before the accused was asked to plead, the court, suo moto, invited counsel on both sides to address it on the question whether unlawful possession of Government Troply per se is an economic offence under the Economic and Organised Crimes Control Act, 1984. The court decided that unlawful possession per se is not an economic offence as it is not included in the list under para 16 of the said Act. The DPP appealed.

Held: (i) Unlawful possession is not an economic offence because para 16 of the Economic and Organised Crimes Control Act, 1984 does not embrace all s. 67 offences of the Wildlife Conservation Act, 1974, but picks only un-lawful dealing in trophies or Government Trophies.

Case Information

I Appeal dismissed.

[zJDz]Judgment

Makame, Kisanga and Omar, JJ.A.: The Director of Public Prosecutions, A represented by Mr. Sengwaji Senior State Attorney, is appealing against the ruling of the Economic Crimes Court, Mbeya, presided over by Mroso, J., in which it was decided, in short, that the possession of Government Trophy, per se, is not an economic offence under the Economic and Organized Crime Control Act, 1984. Mr. Bateyunga, learned advocate, resisted the appeal on behalf of the respondent, and sought to support the trial court's decision.

In the Economic Crimes Court the respondent was charged with unlawful possession of Government Trophies, contrary to Paragraph 16(b) of the First Schedule and section 59 (2), both of the Economic and Organized Crime Control Act, 1984, as read together with section 67(1) of the Wildlife Conservation Act, 1974. The allegation was that the respondent was found in unlawful possession of eight pieces of elephant tusks. Before he was asked to plead, the court, on its own volition, invited counsel on both sides to address it on a preliminary point - whether, as aforesaid, the unlawful possession of government trophy per se, is an economic offence. Mrs. Makulu, learned State Attorney, submitted to the trial court that it is an economic offence and advanced an argument E which was, with respect, not particularly logical. It seems to us that the learned State Attorney's stand was as follows: You cannot be a trophy dealer, as defined under section 2 of the Wildlife Conservation Act, 1974, without being in possession of the trophy you are dealing in, and because trophy dealing is an offence under the Economic F and Organized Crime Control Act, unlawful possession is also such offence. Now this sort of reasoning is very clearly untenable and arid of logic. Mr. Bateyunga, who also appeared for the respondent in the court below, submitted before us that the court below was right and pointed out that unlawful possession of Government Trophy is not the only G offence under the Wildlife Conservation Act which does not constitute an economic offence.

Mr. Sengwaji had an up-hill task and we think that he knew as much. After Mr. Bateyunga had concluded his submissions Mr. Sengwaji said simply "I don't think it is necessary to respond". We are not surprised. Mr. Sengwaji had tried to seek help from the definition of an 'economic offence' in the Act. An 'Economic Offence' is defined as any offence triable under this Act", and section 2(2) provides that "All offences created by or punishable under the First Schedule to this Act shall be referred to as economic offences". This does not carry us anywhere for the purpose of the issue raised by the court below. Mr. Sengwaji also invited us to look at the Preamble to the Act and the marginal note to Para 16 of the First Schedule. With respect, the Preamble does not help the D.P.P.'s appeal at all. The marginal note says 'Offences against conservation of Wildlife Act 1974' and the Para 16 says which ones of those are economic crimes. The pivot of the argument by both Mroso, J. and his lay members, as well as Mr. Bateyunga, appears to us to be that unlawful possession is not included, and they say deliberately so, in the list of Para 16 - Offences. We shall return to C this as it seems to us quite central in the whole argument.

Mr. Sengwaji finally pleaded with us to say that the Economic Crimes Court was in error for the reason that "Dealing" under Section 67 was the most notorious offence when the Act was passed and Parliament must have intended to curb Unlawful Possession without which there could be no Dealing which was, in most cases, difficult to prove. Well, Dealing might have been 'most notorious' indeed but that can be no good reason for deliberately fracturing the clear provisions of the law. Further, even if it is true that E there can be no Dealing without Possession, and we express no opinion on that, for we do not think this is the right occasion for us to do so, in pure logic that does not make every Unlawful Possession a Dealing.

With respect, we think that Mroso, J. and his lay members have advanced very lucid and compelling arguments in support of their views and we are convinced that their opinion is sound. We wish to express the same thing in a different manner, thus: It is an economic offence triable by the Economic Crimes Court to deal in trophies or in Government trophies, under Paragraph 16 of the First Schedule to the Act. That would be an Economic offence by virtue of its being an offence under section 67 of the Wildlife Conservation act 1974. (Unlawful) Possession is not the only offence under the said section 67. It is also an offence, under the section, to buy, sell or otherwise deal in any Government trophy. Para 16 of the First Schedule under reference says:

Any person is guilty of an offence under this paragraph who (a) (Not Applicable)

(b) Unlawfully deals in trophies or in Government trophies,

(c) (Not Applicable)

Contrary to section 10, 11, 35 (which have to do with hunting in game reserves; A capturing, wounding, molesting protected animals etc.), Part VI (which deals with 'Dealing in Trophies), section 67 (our relevant section) and 71 (to do with weapons), of the Wildlife Conservation Act ...." Obviously section 10, 11, 14 and 35 are irrelevant. The 'Dealing' the Act talks about under Part VI means to engage in the buying, selling, cutting, carving, polishing, cleaning mounting, preserving or processing of trophies, as defined under section 2, plus, more specifically, transferring, exporting and importing trophies without the necessary permits, licences, and certificates. None of the above would, in our view, accommodate Unlawful Possession without more. One may conceivably be tempted to say that 'Preserving' under section 2 of the Wildlife Conservation Act is to keep in one's possession or to retain, as such. This would be out of tune with the most of the relevant portion of the section and would offend the Ejusdem Generis rule. In the context to preserve must mean to keep from decay or degeneration, to make it lasting. We have made this little remark so as to avoid conceivable doubt.

We promised to come back to the argument regarding Para 16. As remarked, a section 67 offence is decleared to be a Para 16 Offence therefore on the face of it it would be an economic offence. The correct argument is that although Unlawful Possession is a section 67 offence, so that on the face of it it would amount to an economic offence, it is not an economic offence for the simple reason that Para 16 does not embrace all section 67 offences i.e. Possession or Buying, Selling or otherwise dealing in any Government Trophy. From Section 67 Para 16 picks out only Unlawful Dealing in Trophies or Government Trophies. And as aforesaid, Dealing is defined; it is a term of art; and it does not include Unlawful Possession as such.

We have digested and carefully considered the rival arguments and, having done so, we are of the firm view that the one leading to the conclusion that Unlawful Possession of Government Trophy, per se is not an economic offence under the Economic And Organized Crime.

Control Act 1984 is formidable and sound. Accordingly, we dismiss the appeal by the Republic and uphold the Economic Crimes Court's decision. We wish to commend the particular Economic Crimes Court for initiating the debate, on an occasion so meet and right, which led to the matter being properly placed before us I for consideration and decision. We think it is desirable that the matter is now settled for we gather that there were conflicting decisions in the High Court. With respect, however, we wish in passing to observe that the various examples of unlawful possession of Government trophies which the court below remarked do not raise serious public outcry may not be without controversy. Such examples given include hired porters who carry Government trophies, and "drivers of big lorries which transport large quantities of Government trophies for unlawful sale within or outside the country".

In fact some people might say some of the examples given amount to Dealing, but at this stage we can say no more than C that. "There is a place and season for everything".

Appeal dismissed.

1988 TLR p22

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