OCHORA ONGIRA v REPUBLIC 1983 TLR 74 (HC)

OCHORA ONGIRA v REPUBLIC 1983 TLR 74 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwaikasu, J

February 17, 1983

CRIMINAL APPEAL 55 OF 1982

Flynote

Criminal Law - Wildlife Conservation Act 1974 - Hunting a larger number of

specified H animals than that authorized by licence -Accused licenced to kill one

buffalo and one wildebeast -Accused killed an extra wildebeast as substitute for the

buffalo -Section 31(b) (ii) of the Wildlife Conservation Act 1974 - Whether lawful.

Criminal Law - Wildlife Conservation Act 1974 - Failure to record animal killed on a

game I licence - Section 44(1) (b) (3) of the Wildlife Conservation Act 1974 -

Consequences.

1983 TLR p75

MWAIKASU J

Criminal Practice and Procedure - Sentence - Forfeiture of firearm - Mandatory

where used A in the commission of an offence under the Act-Section 78 (1) (b) (2) of

the Wildlife Conservation Act 1974.

-Headnote

The appellant was convicted of six offences under the Wildlife Conservation Act

1974. B The appellant was authorised to kill one buffalo and one wildebeast. With

an oral permission from a game scout, he killed an extra wildebeast as a substitute for

the buffalo. He was charged and convicted on six counts and his firearm was forfeited

to the government. He appealed against all orders. C

Held: (i) Under the Wildlife Conservation Act, 1974, no person is empowered to grant

an oral permission to kill any game animal; therefore the killing of an extra

wildebeast as a substitute for a buffalo on a purported oral permission by a game

official was unlawful; D

(ii) a person authorised to kill a game animal must keep a record of animal

killed before the animal is removed from the place where it falls or is killed;

(iii)where the offence is committed under the provisions of the Wildlife E

Conservation Act 1974 forfeiture of the firearm involved in the commission of the

offence is mandatory.

Case Information

Order accordingly.

No case referred to F

W.K. Butambala for the appellant

J.B. Tendwa for the respondent

[zJDz]Judgment

Mwaikasu, J.: The appellant, one Ochora s/o Ongira, stood jointly charged as the first

G accused, before the lower court, with four other persons on six counts all under the

Wildlife Conservation Act 1974, firsts with the offence of hunting game without a

valid Game Licence c/ss 23 and 70 (1)(2) of the Act; second, with the offence of

hunting a H larger number of specified animal than that authorised by the licence

c/ss 31(b) (ii) and 70 (1)(2) of the Act; third, with the offence of hunting a game

animal by using a prohibited weapon c/ss 54(1)(a)(iv), 70(1)(2), 78(1)(2) and 10 of the

Act as amended by Act No. 21 of 1978; fourth, with the offence of failing to record

animal killed on game I licence c/ss 44 (1)(b)(3)

1983 TLR p76

MWAIKASU J

A and 70(1) of the Act; fifth, with the offence of unlawful possession of

Government trophy c/ss 67 (1)(2) and 70(2)(b) of the Act; and sixth, with offence of

failing to report the possession of Government trophy c/ss 67(1)(2) and 70(2)(b) of the

Act; and sixth, with the offence of failing to report the possession of Government

trophy c/ss 65(1)(2)(3)(5) and 70(1)(2) of the Act.

B He together with the other accused persons pleaded not guilty to the charge. He

was nevertheless found guilty on all the counts and sentenced accordingly. He now

appeals against such conviction and sentence together with the lower court's order of

forfeiture. C Mr Butambala advocate appeared for the appellant and the Republic

was represented by Mr. Tendwa, a state attorney.

Only one witness was called for the prosecution. He is one Frederick Mwombeki, the

officer in charge of Anti-poaching squad for the Lake Zone, with his office at

Mwanza. D His testimony was to the effect that on 26th of December 1981, at about

9.00p.m. while on duty at Lukungu Game Post, he saw a m/v Land Rover station

wagon, registration No. MZH 136 coming from the bush and entering the main road.

On being stopped and searched there were found five persons including the appellant

and the driver, and two carcasses of wildbeasts. On enquiry about the lawfulness of

the killing E and possession of such animals it turned out that the appellant had a

valid Game licence that was to expire on 29/12/81 and had also valid licences for the

one rifle and muzzle-loading gun (gobore) he had. However, it turned out that

whereas the appellant F had been licenced to kill one buffalo and one wild beast, he

in fact violated the terms of his licence by killing one extra wild beast. Consequently

there followed such stream of offences charged against all the five accused persons.

However, according to unchallenged evidence of the defence side, of which there was

G nothing forthcoming from the appellant as he opted to remain silent, it appears

that the hunting was done in the company of a Game scout, and it was the Game

scout, who for failure to find a buffalo, authorized the appellant to kill an extra

wildbeast, and did in fact, kill one of such animals.

H It is in the light of such evidence before the lower court that counsel for the

appellant submitted and to a greater part, counsel for the Republic conceded save for

the offence on the 4th count only, that the convictions on 1st, 2nd, 3rd, 5th and 6th

counts should be squashed and the sentences together with forfeiture orders should

be set aside. In I support of such submission counsel for the appellant had a valide

Game licence, the mere fact that he had killed an extra

1983 TLR p77

MWAIKASU J

animal contrary to what had been specified in his Game Licence could not constitute

the A offence charged on the 1st count, that of hunting Game animal without a valid

licence. This was bad in law, as in the case, as rightly pointed out by the counsel for

the Republic the offence committed, if any, would have been contrary to s.31(b)(ii) of

the Act. With that I totally agree. So conviction of the appellant on the 1st count

cannot stand. B

As regards arguments in respect of the 2nd count, was the argument for the appellant,

which was equally supported by counsel for the Republic though on different ground,

that since it was in evidence that the killing of the extra animal had been authorized

by the C Game Scout for failure to find a buffalo, the appellant could not be said to

have contravened the law. And as if to add weight to such argument, counsel for the

Republic contended that by way of interpretation of the Act as provided for under

s.25(1)(3), taking the Game Scout as a Game officer, who under the Act is a Licensing

D Authority, it could be said that the appellant was given a verbal permission after an

oral application. Of course it is this court which can provide an authoritative

interpretation of the law, and I must say, I respectfully differ from the view held by

the two learned counsel. For the law is very clear. Neither does the law permit an

oral application for a E licence nor does it empower an game officer, as a licensing

authority, to grant a verbal permission to hunt and kill a game animal. Clearly, the

interpretation put by the learned counsel for the Republic on s.25(1)(3) of the

Wildlife Conservation Act 1974, can hardly, even remotely be approximated to the

meaning of the section in question. If I F may quote the relevant subsection, they

provide as follows:

25-(1) Game licences may be issued by a licensing officer upon an application

made therefor in writing in the prescribed form; (emphasis mine) and upon payment

by the applicant of the G prescribed fee.

-(2) No game licence shall be granted to an applicant who fails to satisfy the

licensing officer-

(a) that he has attained the apparent age of eighteen year; H

(b) that he is in possession of a valid firearm intended to be used in

hunting;

(c) in the case of licence for hunting of a specified animal, that he is a

citizen of the United Republic or that he has been ordinarily resident in the United

Republic for a period of I

1983 TLR p78

MWAIKASU J

A not less than twelve months immediately proceeding the date of the

application;

(d) that he has a reasonable knowledge of the use of a fire-arm for the

purpose of game hunting;

B (3) The licensing authority may require an applicant for a game licence to

appear before him and answer any question or produce any document relevant to any

of the matters referred to in subsections (2) and the fire-arm proposed to be used.

C Thus under subsection (1) above the application for a licence has to be in writing

and in a prescribed form. And the licensing officer, who under s.2 of the Act includes

a Game Officer, may grant such licence only upon payment by the applicant of the

prescribed fee and upon being satisfied that the applicant has satisfied the conditions

laid D down under subsection (2) of s.25, quoted above. The audience which a

licensing officer may give to an applicant as provided for under subsection (3) of the

said section is for the purpose of making an enquiry or interview in order to satisfy

himself as to the conditions laid under the said subsection (2). It is not an authority

for granting an oral E permission to kill any game animal. In the absence of any

express or implied provision under the Act empowering a licensing officer, or Game

Officer for that matter, the alleged permission by a Game Scout to kill the extra

wildebeast cannot be accepted to waive the F requirements of the law. For no

person be he an enforcement officer or not, has the power to break the law, unless

expressly so empower by the law itself. So what transpired, and I am entitled to

assume it to be true was and must, regrettably be, at the appellant's risk. The appellant

was licensed to hunt and kill only one wildbest. He killed two. This was contrary to

the terms of his licence and amounted to an offence under G s.31(b)(ii) of the

Wildlife Conservation Act 1974. I have therefore no hesitation in sustaining the

conviction on this count.

Coming to the offence on the 3rd count, it was argued that whereas the appellant had

H two guns a rifle and the muzzle-loading gun (gobore), the prosecution failed to

establish which of the two guns was used to kill the animal. In fact, it was in

evidence that an empty case of a cartridge, which must have been used in the modern

gun - the rifle - was also seen and produced in court as an exhibit; and the "Gobore"

which is the subject of I the charge on this count, was found loaded with gun

powder, thereby meaning by necessary implication that it was the rifle that had been

used to shoot the

1983 TLR p79

MWAIKASU J

wildebeast. Under such circumstances, despite the burden of proof placed upon an A

accused person under s.70 (1) of the Act, the prosecution had failed to reach even the

minimum standard of proof in order to establish a prima facie case, so that the offence

on that count, too had not been established. I too, have no reservation on this point. I

entirely agree with counsel for the appellant. On this counsel for the Republic also

fully B agreed. Accordingly conviction on this count cannot stand. It must be

quashed.

Coming to the offence on the 4th count, on this the law is very clear and there is a

general consensus that the offence was clearly committed. For it is the requirement of

s.44(1)(b) of the Act that the recording of the animal killed had to be done before

such C animal had been removed from the place where it fell or was killed. This the

appellant failed to do. He therefore clearly committed the offence in question. That

the killing was done at night and the appellant had no opportunity to make such

entry, cannot be a D mitigating factor in any way. The conviction therefore on this

count must be sustained.

As to the 5th count which was very much interrelated with the 2nd count, here too,

it was the common stand by the two learned counsel that as submitted in respect of

the 2nd count that with the Game Scout's permission to kill the extra wildbeast the

appellant E could not be said to have unlawfully killed such animal, ipso facto, could

be accused of unlawful possession of government trophy in respect of such extra

wildebeast. Such arguments having been rejected in respect of the 2nd count it

follows, too, they are not valid in respect of this count. Accordingly the conviction on

this count must be sustained. F

As to the offence on the 6th count, it was argued and I think rightly so and also

conceded by the counsel for the Republic, that in the light of evidence that the

hunting was done in company with a Game scout and that on their way to and from

the hunting, G the appellant with his party, reported at the Game Post, where they

must have been checked, such reporting the subject of the charge was simply not in

issue. I totally agree with such argument. In consequence, the appellant's conviction

on this count cannot stand.

The final issue which is equally of great importance to the appellant and the Republic

H alike concerns forfeiture orders made by the trial court. It was submitted by

counsel for the appellant and conceded to by the counsel for the Republic that in the

light of submissions for the appellant, it was only fair and just that such orders should

also be set aside. With due respect and much regret, I must say that even if this court

had been I sufficiently persuaded by

1983 TLR p80

MWAIKASU J

the learned counsel to sustain the appellant's conviction on the 4th count only, it still

A could not interfere with the forfeiture orders made by the lower court. This is so in

the light of the provision under s.78(1) (b) (2), of the Act. And what does the section

say? It provides as follows: B

78 - (1) Where any person is convicted of an offence under this Act, the court

shall (emphasis mine) order forfeiture to the government of- (b) any weapon in the

possession or under the control of the accused at the time when the offence was

committed, whether or not there is any C evidence to show that such weapon was

actually employed by the accused in the commission of the offence:

That, I think, clearly goes to dispel any doubt as to the mandatory nature of such D

forfeiture order, that has to be, and was rightly, made by the lower court in respect of

the weapons found with the appellant consequent upon the commission of the

offence of which he was convicted. This court, therefore cannot disturb any of the

order of forfeiture made by the lower court. They are mandatory. E

As to sentences, I note that the offence on the 2nd count attracts a minimum sentence

of not less than six months of imprisonment but not exceeding three years. The

sentence imposed by the lower court is nine months of imprisonment. However,

mindful of the fact F that there was an unchallenged evidence that such excess

animal killed was authorized by a Game Scout in substitution for one authorized

buffalo that had not been found and in terms of the provisions of s. 79(3) of the said

Act empowering this court to impose a sentence lower than the minimum prescribed

under the Act, if the High Court, for any G special mitigating factor deems fit so to

do, I consider that this is a fit case to exercise such power. Accordingly I reduce the

sentence imposed on the appellant to one of a fine of shs. 2,000/=; or imprisonment

for three months in default thereof.

To summarize, the appeal is allowed in part in respect of offences on the 1st, 3rd and

H 6th counts. Sentences imposed on the accused in respect of such counts are

accordingly set aside. On the other hand, convictions on the 2nd, 4th and 5th counts

are upheld. Sentence on the 2nd count is reduced to a fine of shs 2,000/= or

imprisonment for three months in default thereof. Orders for the forfeiture of the

various articles produced I before the lower court as exhibits A, B, C, G1, A2 and B2

are to stand.

1983 TLR p81

Although the other accused persons charged as 2nd and 3rd accuseds did not appeal I

A take this opportunity to exercise my revisional powers. In this regard I am clearly

of the opinion that the 2nd accused who was the driver of the vehicle that had been

borrowed by the 1st accused was an innocent party who had been dragged in by

virtue of his employment as the driver of the vehicle. He should not have been found

guilty of B any of the offences charged. Accordingly, I acquit him of the offences

charged on the six counts and should be released forthwith unless lawfully held for

any other offence.

In the case of the 3rd accused person, having acquitted the 1st accused on the 1st, 3rd

C and 6th counts, he too, cannot stand convicted of such offences. He is acquitted

accordingly. As to sentence on 2nd count, this is also reduced to one of a fine of sh.

2000/= or three months' imprisonment in default thereof.

D Order accordingly.

1983 TLR p81

E