Mapunda v. R. E. A. C. A. Crim. App. 40-D-71; 4/6/71; Duffus P.

 Mapunda v. R. E. A. C. A. Crim. App. 40-D-71; 4/6/71; Duffus P.

The appellant was convicted of stealing a pair of elephant tusks, the property of the Government of Tanzania. On appeal to the High Court of Tanzania a conviction of stealing c/s 265 of the Penal Code was substituted for the conviction of stealing as a public Servant. He then appealed to the Court of Appeal for East Africa. The facts were that dead elephant was found, partly decomposed, by a villager on 15^th June, 1969. The tusks were removed and kept by the villagers who made a report to the authorities the next day. The appellant heard of the discovery and on 17^th June, 1969 obtained a game licence to hunt and kill an elephant. The same day he demanded and obtained the pair of tusks from the villagers. On the 19^th or 20^th June he took the tusks to the Revenue office at Singida to have them registered. The tusks were seized and he was charged.

            Held: (1) “Section 47 of the Fauna Conservation Ordinance provides that any game animal or trophy of such an animal killed without a licence or any game animal fund dead and the trophy of such an animal is a government trophy and as such the property of the Government. A game animal, of course, includes an elephant and the definition of trophy includes any animal alive or dead, and also the tusks, inter alia, of such an animal. The elephant tusks in this case were therefore the property of the Government.” (2) “It is really immaterial whether or not the appellant had found the elephant with the tusks in the bush or whether he obtained these tusks from the villagers by a trick or otherwise. The theft charged is not a theft from the villagers; the undoubted fact is that the appellant did take these tusks and took them into his possession intending to keep them. The question of claim of right was raised and argued before the Chief Justice ad in our view rightly rejected. The fact that he appellant rushed to get a game licence to kill an elephant and his very defence that he had shot this elephant after he got his licence clearly show that the appellant knew full well that he had no right to those elephant tusks that he had a guilty intention to steal when he seized them.” (3) “The difficulty that arises here is caused by his taking the tusks to the Revenue office for registration and to obtain his certificate of ownership, but this in our view really amounts to further evidence that he did intend permanently to deprive the owners, here the Government, of the tusks.” (4) “The offence of stealing is the deprivation of possession not of ownership – the theft is committed when he wrongly removes the goods with the necessary intent, that is, in this case, permanently to deprive the owners of it.” (5) Appeal dismissed.