R. v. Mugemo Insp. Note –D-71; 25/5/71; Mwakasendo Ag. J.

R. v. Mugemo Insp. Note –D-71; 25/5/71; Mwakasendo Ag. J.

The charge in this case alleged that the accused was found in unlawful possession of Government trophy, to wit, a piece of an elephant tusk (a bracelet). The case was transmitted to the High Court to seek opinion on whether a bracelet and other like ornaments processed from ivory fall within the meaning of the term “Government Trophy” under the Fauna Conservation Ordinance Cap. 302.         

            Held: (1) Essentially the problem here is knowing the appropriate sections of the law to apply to the subject matter of the charge …….. the first question that the Magistrate should have considered was whether or not the bracelet was a Government trophy as defined in section 47 of the Ordinance. And in order to reach any conclusion on this question, it was necessary for him to refer to the definition of the word “trophy” in section 2 of the same Ordinance. According to section 2 of Cap. 302 “trophy” means “any animal, alive or dead, and any horn, ivory, tooth, tusk, bone, claw, hoof, skin, hair, feather, egg or other durable portion whatsoever  of any animal, whether processed or not provided that it is readily recognizable as a durable portion of an animal”. It seems to me that in the light of the definition of “trophy” in section 2, the learned Resident Magistrate should have had no difficulty in concluding that the bracelet before him was a Government trophy under either paragraph (e) (f) of sub-section (1) of section 47 of Cap. 302. Therefore, as the charge alleged unlawful possession of a Government trophy c/s 49(1), the Magistrate was wrong to reject the formal charge laid before him under section 89 of the Penal Code. Section 89 of the Penal Code is only appropriate where the formal charge or complaint made or presented to the court does not disclose any offence. The same cannot be said of the present case.” (2) It is not proposed to persue the matter further by way of revision.