DIRECTOR OF PUBLIC PROSECUTIONS v FIDELIS ERIO 1988 TLR 88 (CA)

 DIRECTOR OF PUBLIC PROSECUTIONS v FIDELIS ERIO 1988 TLR 88 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Makame JJA and Omar JJA

27th June, 1988 B

Flynote

Criminal Practice and Procedure - Sentencing - Imprisonment sentence manifestly

inadequate - One statute provides for maximum but not minimum sentence - Another

statute provides for a minimum sentence. C

-Headnote

The respondent, a priest, was charged with and convicted of an offence in connection

with elephant tusks. He was sentenced to one day imprisonment. While the

Economic and Organized Crime Control Act under which he was charged provided

for a maximum D of 15 years imprisonment but not a minimum, the Wildlife

Conservation Act provided for a minimum of 3 years imprisonment and a maximum

of 7 years imprisonment.

Held:: (i) Section 67(2) of the Wildlife Conservation Act provides for a tariff of E

sentences for the offence of unlawful possession of Government trophies according to

value;

(ii) since the value of trophies in this case was over four million shillings and

taking into account all the relevant factors the punishment imposed was neglible,

inappropriate and manifestly inadequate. F

Case Information

Appeal allowed.

Kyaruzi, for the Appellant

Kumwembe, for the Respodent G

[zJDz]Judgment

Mustafa, Makame and Omar, JJ.A. This is an appeal by the Republic against the

sentence of one day imprisonment imposed

on the respondent consequent upon his conviction for the offence of being found in

H unlawful possession of government trophies to wit, 224 elephant tusks, valued at

shs. 4,660,000/-. The Republic was represented by Mr. Kyaruzi, learned State

Attorney, while Mr. Kumwembe learned advocate, appeared for the respondent

before us as he did also in the lower court presided over by Munyera, J.

The respondent is a reverend father in the Roman Catholic Church, and at the

material I time he was the padre in charge of

1988 TLR p89

MUSTAFA JJA, MAKAME JJA AND OMAR JJA

Mchuchu Parish at Mikindani, Mtwara District. He was charged in connection with

the A elephant tusks as aforesaid, and in a unanimous judgment by the Economic

Crimes Court he was found guilty.

The Republic's complaint was that the trial court took into consideration immaterial

factors and left out important ones in sentencing the appellant. The second complaint

B was that the sentence imposed was manifestly inadequate. Mr. Kyaruzi submitted

that the trial court should have taken into account the number of tusks involved and

their value, and the prevalence of the grave offence. He also pointed out that under

the Wildlife Conservation Act the minimum sentence is three years and the

maximum is C seven years imprisonment. Read together with the Economic and

Organized Crime Control Act the maximum imprisonment for this offence is fifteen

years. The position is therefore that a minimum sentence of three years is provided

for under the Wildlife Conservation Act. D

Mr. Kumwembe, learned advocate, urged this Court to impose a suspended sentence.

He submitted that the respondent did what he did because he was naive and he

innocently thought he was acting the good samaritan to Aziz. Aziz is the person who

allegedly took the tusks to the respondent's residence for safe custody, the villain who

has since disappeared into thin air, leaving the respondent holding the baby,

figuratively E speaking.

The trial court's 'sentence' was about as long as the rest of the judgment. We propose

to make only a brief comment on it. The trial court opined that the respondent's

conduct was innocent and also made reference to the "surroundings the accused has

grown in till F this age of 56 (which) made his knowledge of such things as trophy

laws very limited, that is why he fell an easy prey to rogue Aziz".

With respect, we do not think that Roman Catholic priests are necessarily that naive

and gullible, if that was what the trial court was suggesting. We are satisfied that the

G respondent is a well-educated and informed person and that, in getting mixed up

with the alleged Aziz he knew what he was doing, and that he had his eyes wide

open. The trial court made an oblique reference to the respondent's comparatively

secluded life. The H respondent's life was not all that cloistered and we do not agree

that he was all that unworldly. He was going about visiting people, meeting several

people in Mikindani town and even drinking coconut liquor with some of them. To

expect this Court to believe his story is to be too optimistic. Receiving elephant tusks

at about 12 midnight, I and again at 3 a.m., allegedly because Aziz did not want to be

seen by thieves

1988 TLR p90

MUSTAFA JJA, MAKAME JJA AND OMAR JJA

and taking the tusks there because there was no other safe place, do not impress us as

A being innocent. It may be suggested that the nearby Police station at Mikindani

was at least as safe a depository as the respondent's official residence.

The sad fact is that the respondent knowingly got mixed up with a person or persons

B cannibalizing the national economy. In his position the respondent fully knew that

he was straying from the ideals he was supposed to personify. He degraded and

scandalized his trusted position. It was submitted that the casual stocking of the

elephant tusks in a C banda showed his innocence. No, it rather illustrated his

modus operandi, playing rustic innocence, knowing and exploiting the respect and

awe with which the parish premises were being treated. The respondent would

hopefully be familiar with the ideas enunciated by his right reverend seniors, the

Roman Catholic Archbishops and Bishops D of the then Tanganyika, in their

Pastoral Letter of 1960, 'The Truth that makes men free', wherein it was propounded

that "One cannot be a good Catholic without being a good citizen."

Mr. Kumwembe conceded that under the Wildlife Conversation Act there was no E

discretion to impose the sentence of one day imposed. As it is known section 67(2) of

the said Act provides a tariff of sentences for the offence of unlawful possession of

Government trophies according to value. The value of the trophies in this case was

over four million shillings. Taking into account all the relevant factors, and

disregarding immaterial considerations, the punishment imposed was negligible,

inapropriate, and F manifestly inadequate.

In view of the foregoing, we allow the appeal by the Repubic. We set aside the

sentence of one day imprisonment and impose in its place a sentence of five years

imprisonment.

G Appeal allowed.

1988 TLR p91

A