Vincent Mapunda v. R. Crim. App. 85-D-70; 29/4/70; Georges, C.J.

 

Vincent Mapunda v. R. Crim. App. 85-D-70; 29/4/70; Georges, C.J.

The appellant in this case was charged with four counts – one for stealing by public servant contrary to sections 270 and 265 of the Penal Code and three for offences against the Fauna Conservation Ordinance Cap. 302, unlawful hunting without licence, failing to report possession of Government trophy and unlawful possession of Government trophy. He was acquitted of filing to report possession of Government trophy and convicted of all the other counts. The facts are that one day Sita Lyimo, saw a dead elephant as she was on her way to fetch firewood ….. She sent news of her discovery to the village and in due course the report reached Hussein Mwanjuli, who went there that very day with his brother Salimu Mwanjuli, a 10-cell leader. Such was the state of discomposition of the dead elephant that the party was able to remove one of the tusks that very day merely by pulling it out. It was left at the home of the 10-cell leader, Salimu Mwanjuli. A messenger was sent to notify the Assistant Divisional Executive Officer, Omari Mhemji, he testified that he received the new on Monday 16^th June, from which it can be concluded that Sita had discovered the elephant on Sunday, 15^th June, On Tuesday, 17^th June, the ten-cell leader and his party removed the other tusk from the dead elephant and both tusks were kept at his home. The Game Warden, Mr. Mgegye, testified that the appellant came to his office on 17^th June, 1969 and asked whether he had received the letter in connection with a pair of tusks which had been taken from an elephant which he, the appellant, had shot at Isuwa. The appellant wanted that he could not authorize this unless he knew something more of the matter. On that very day, according to Hussein, the Assistant Divisional Executive Officer, the appellant came to his village and demanded that the tusks be given to him. Hussein was unwilling to part with the tusks be given to him. Hussein was unwilling to part with the tusks unless authorized to do so by the Game Warden. The appellant who was a Primary Court Magistrate insisted that he had the Game Warde’s permission. He seemed bent on creating a

disturbance unless he got the tusks and accordingly Hussein gave them to him in exchange for a chit acknowledging their receipt. Having got hold of the tusks the appellant took them to the Inland Revenue Officer in Singida to have them registered. Mr. Mhegye, the Game Warden, received new of this and issued instructions to the officer not to issue a certificate until further investigations had been make. The appellant called on the Game Warden on that very day and explained that he had shot the elephant on 4^th June, as it had gone to drink water. He had wounded it but the animal had managed to escape and he had not been able to track and kill it. Later he had heard that a woman had found the dead elephant and he had then gone down and claimed the tusks. The Warden pointed out of him that if his story was true he had already committed three offences against the Fauna Conservation ordinance – shooting at a drinking place, wounding an animal without reporting that he had done so, and obtaining the tusks from the villagers. He advised the appellant to surrender the tusks at once and thus avoid further investigation. The Warden testified that this advice greatly annoyed the appellant who accused him of attempting to convert the tusks to his own use and demanded a receipt from him certifying that the tusks had been detained. The Warden refused to do this unless the appellant showed his game licence. The appellant would not do this. The Warden ordered him to leave the office whereupon he became violent and slapped one of the porters who was attempting to eject him. The Warden called the police who arrested the appellant and took him to the police station. On 20^th June, the Warden traveled to see the carcass of the dead elephant. He formed the impression that it may have been shot as long ago as two months before the date on which he saw it. The appellant had not in fact been issued with a game licence to shoot an elephant until 17^th June. His story was that he had shot the elephant on that very day, that the villagers had found it on 17^th June, and removed the tusks, and that he had collected the tusks on 19^th June. The prosecution called a witness, Susid Rajabu, who stated that he had gone hunting with the appellant and Jonnathan Paulo, sometime in June, 1969. The appellant had shot and wounded an elephant but had not managed to kill it. At first Sudi agreed that the date on which this had happened was 4^th June, but later had changed this to mid-June, 1969. The trial magistrate accepted the evidence establishing that the elephant had been in an advanced state of decomposition when found. He accepted also the evidence of the Assistant Executive Officer that the report of the finding had been made to him n 16^th June. He concluded, therefore, that the animal had been shot before that date. Since the appellant’s licence had been bought on 17^th June, the Magistrate held that he must have been hunting without a licence when he shot the elephant.

            Held: (1) “The trial magistrate also convicted the appellant on the fourth count for stealing by a public servant. I am satisfied that he was correct in coming to the conclusion that the appellant was guilty of stealing the tusks. The appellant had obtained possession of them from the villagers by tricking them into believing that he had permission from the Game Warden to do so. He was seeking to have them registered in his name as an essential step towards disposing of them as his own. It could be argued that he might have thought that he had a claim of right to the tusks. I cannot, however, accept this contention. On the magistrate’s finding the appellant would have known that he had shot this elephant when he had no licence to do so. He would have known that under these circumstances the tusks would become Government trophy. His awareness of this was established by the fact that he sought to establish that the shooting had taken place

after he had obtained the licence. He knew that he could not make a claim otherwise. There could be no question, therefore, of his having a claim of right.” (2) “All the ingredients of stealing have been established. The appellant was also a public servant. He could not, however, be convicted of stealing by a public servant unless the theft had taken place in the course of the performance of his duties as a public servant or unless the opportunity for theft ha arisen because he was a public servant. Neither of these circumstances has been established here. The fact that he was public servant was quite unrelated to the theft except in the sense that the villagers might not have accepted his word and given him the tusks had they not known him to be magistrate. This connection was not such as to support a charge of stealing by a public servant. On this count the appeal must succeed, but by virtue of the powers vested in the Court by the provisions of section 181 of the Criminal Procedure Code, a conviction for theft contrary to section 265 will be substituted as this has been amply proved.” (3) “Once the appellant had been convicted of theft he ought not to have been convicted on the third count of unlawful possession of Government trophy. The facts constituting the unlawful possession were the same as those which constituted the theft. The offences should really have been charged in the alternative. In such cases an accused person found guilty of one of the alternative charges ought not to be convicted also of the other. No finding need be recorded on that other charge. In the event of an appeal the appellate tribunal would then be free to change the conviction if it though fit. Accordingly, as regards the third count the conviction must be quashed and the sentence set aside.” (4) “The appellant sought to raise two legal defences. The first was based on section 44 of the Fauna Conservation Ordinance. This is one of a series of sections beginning at section 42 dealing with ivory and rhinoceros horn. Section 42 provides that anyone who kills an elephant or a rhinoceros shall produce the ivory or the horn to a licensing officer within thirty days together with his game licence. Section 43 provides that the officer shall, if satisfied after such inquiry as he thinks necessary that the ivory or the horn belongs to the person who has produced it, because it to be marked in the appropriate manner and then issue a certificate of ownership to that person. Section 44 states: - If the officer is not as satisfied as in section 43 he may retain the ivory or rhinoceros horn pending further investigation. Provided that if no proceedings are instituted within three months of the production of the ivory or rhinoceros horn it shall be dealt with as prescribed in section 43. The appellant argued that this section created a limitation period of three months which barred any action against him under the Fauna Conservation Ordinance. The section does not, in my view, create a limitation period for criminal offences. It could not in any way bar charges for unlawful hunting, nor could it bar a charge for stealing under section 265 of the Penal Code. it is aimed at preventing undue delay by the licensing officer in making up his mind on the question of whether or not he should issue a certificate. The relevant date also is the date on which the tusks are produce to the licensing officer. In this case the appellant produced the tusks for registration on 20^th June, 1969. The charge was laid on 9^th September, 1969, so that in any event the proceedings were commenced within three months of the date of production of the tusks.” (5) “Accordingly, the appeal is dismissed as regards count 1 and the sentence of six months is confirmed. On count 3 the appeal is allowed, the conviction set aside ad the sentence quashed. On count 4 the conviction for stealing is substituted for that of stealing by a public servant. As the property stolen in this case was Government trophy stated in the particulars to be the property of the Government of Tanzania, the Minimum Sentence Act still applies. The sentence of two years imprisonment and 24 strokes in respect of this offence must therefore be confirmed