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.

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 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 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) 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.

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 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.

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 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

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 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;

(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 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;

(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.

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

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

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 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. 

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 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 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.

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

Order accordingly.

1983 TLR p81

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