Tom Abraham Salema Mandara v. R., Crim. App. 707-D-67, 6/12/67, Biron J.

Tom Abraham Salema Mandara v. R., Crim. App. 707-D-67, 6/12/67, Biron J.

Accused was convicted of stealing government property and of unlawful possession of Government trophies. There was evidence that one Shabani, a Divisional Executive Officer, was storing at his house two elephant tusks which had been shot by a Game Warden in the course of his duties. Accused, who was an Area Secretary, brought two smaller tusks to Shabani’s house and told him that he had been authorized by the Game Warden to exchange them for the larger ones which Shabani was storing. The exchange was effected. At accused ’s first trial the magistrate held that accused had no case to answer. On appeal by the prosecution, the High Court stated that there had been a case to answer, but that the trial had been a nullity because accused had not been allowed to plead after new charges had been substituted.

            Held: (1) Since the first trial was a nullity, accused could be retried for offences in respect of the same transaction. [Distinguishing Akberali Walimohamed Damji v. R., 2 T.L.R ( R ) and cases cited in Rosen and Stratton, Digest of the East African Case Law, P. 285.] (2) In evaluating the evidence, the failure of accused to testify under oath is not without significance in view of his position and advanced education. (3) The possession of the tusks by Shabani was merely custody as opposed to owner-hip or possession with authority to pass ownership or title. Therefore, the taking of them by accused constituted theft and not obtaining by false pretences.