Court name
High Court of Tanzania

Abdul Salum Mnuye & Another vs Republic () [1990] TZHC 15 (23 November 1990);

Law report citations
1990 TLR 131 (TZHC)
Media neutral citation
[1990] TZHC 15
Kazimoto, J.

Kazimoto, J.: Abdul Salum Mnuye, and Abdul Zuberi Ndete the appellants have been convicted for being in H unlawful possession of government trophy c/s 67(1) and 2(b) of the Wildlife Conservation Act No.12/74 and each sentenced to 20 years imprisonment. The second appellant was also convicted of possession of firearm without a licence as amended by 3rd Schedule to Act No.13 of 1984. He was sentenced to 7 years imprisonment. Both have I appealed and their appeals have been consolidated.

A The case at the trial was simple and straight forward. Twelve elephant tusks were found and seized from the shamba of the first appellant. The evidence further disclosed that it was the first and second appellants who directed the police to where the tusks were buried and both were present when the tusks were dug out. The second B appellant had claimed ownership of 6 tusks. There was clear evidence that the first appellant had permitted the second appellant to hide the tusks in his shamba. The first appellant had conceded on ground one of his appeal that the tusks were found in his shamba. His only complaint is that he was not the owner of the tusks. That is a non issue in this case. If the first appellant had been found with tusks in his shamba in law he is deemed to have possessed C them unless he can show either that he had authority for keeping them there or that he did not know of the presence of the tusks in his shamba. Neither of this has been shown. The manner the tusks were hidden clearly proves to his Dknowledge that the tusks were illegally hidden in his shamba.
The second appellant had querried the judgment of the trial court on how he could be convicted on the evidence of the first appellant on this issue. I find no merit in this complaint. The first appellant was not the only person who gave E evidence in this case. I am satisfied that both appellants have been properly convicted on the first count and the appeal against the first count is dismissed.
The second appellant had admitted in round one of his appeal that he was found with a firearm which was not his. F He contended that he was given it by Amil Mpondi to take to Ally Salum. But that does not licence him to possess that firearm. He had no licence and he was rightly convicted on that count.
The appellants were sentenced to 20 years imprisonment in count 1. That sentence is illegal. The maximum penalty for the offence charged is 7 years imprisonment. The appellants were also ordered to undergo twelve strokes. The G imposition of strokes is unauthorized by law.
The learned trial magistrate has wrongly applied the provisions of Act. No.10 of 1989 which come into force on 21.5.89. The offences in this case were alleged to have been committed on 22.4.88. I wish only to refer the learned trial magistrate to the provisions of section 49 of the interpretation of laws and General Clauses Act, No.30 of H 1972, the case of Barjit Singh v R. [1974] LRT No. 61 and Article 13(6) (c) of the constitution of the United Republic of Tanzania which reads:
No person shall be punished for any act which before its commission was not defined as such offence, and no I penalty imposed for any criminal offence shall be heavier than the penalty in force at the time the offence was committed. As stated the maximum penalty at

time of the alleged commission of the offence was 7 years imprisonment and there was no provision for corporal A punishment. I therefore quash the illegal sentence of 20 years and twelve strokes and set it aside. Taking into account the prevalence of such offence in Liwale District I sentence each appellant to six years imprisonment on count 1. I find no reason to vary the sentence imposed on the second appellant in count 3 . B
In the result the appeal against conviction is dismissed. The appeals against sentence are partly allowed to the extent indicated above.
Order accordingly. C