20141027 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA

ATMWANZA HIGH COURT CRIMINAL APPEAL NO. 37 OF 2014. (Original Economic Case No. 1 of 2010 of the District Court of Serengeti District _ atMugumu) MAGOIGA.S/0 MAGUTU WANSIMA ............................. APPELLANT • I ~

VERSUS THE REPUBLIC •............. ■ I • • • • • • ·., • • • . • • · · . I • • ■ •• ■ ••• I : ■■■ ••••• ., • •• -.RESPONDENT

JUDGMENT BUKUKU, J.: In the District Court of Serengeti at Mugumu, Musoma Region, the appellant, Magoiga Magutu Wansima, was charged with, and convicted of . . the offence of unlawful possession of. Government trophies contrary to section 86 (1) and (2) (c) of the Wildlife Conservation Act, No. 5 of 2009 read together with paragraph 14(d) _of _the first schedule to, -and section 57(1) and 60(2)_ of the Economic· and Organized Crime Control Act, Cap 200 R.E.

2002. He was sentenced t6 pay a fine "bf T.shs: ·so;000,000/= or serve 20 years imprisonment. Hf-'now ~fppeals: against the conviction as well as the sentence. 1 " .. The -prosecuti~·n's evidence was that, on 13th May, 2010 at around . 13.00 hours, a police officer b/C Mauzi and four park rangers of the Se·r~ngeti. .. . Nc,:1tional Park (SENAPA); ..Reriatus Izack Aaron (PWl), Steven . ,, Muta}.efnv.Ja . . ... ~_ . (PW2), Thadeus 'Manongwa · and mainland. ~ ._ .. Mapunda, were · dr&ving.frOG1:SENAPAto M~gumu toWn; -As soon as they were approaching a ~:iace· ~a}fed Tabora B prisoQ, they saw in front of them, the appellant • dd:dg a. bicycle, and was carrying something in a resin bag. According to ?Vli1 and ?W2, as a soon as the appellant saw their car, he immediately .' , threvv the taggage and took to his· heels. They then stopped the car and • • I C ~ •• • > • ·.. ~tarted chasing him.· Within a distance of 20 feet, they caught and arrested · ;him. They then took him to where he ·threw the bag, and proceeded to search the same. According to PWl and PW2, in the bag they found two · dry leopard skins. They then took the appellant to Mugumu police station where he was remanded and later on arraigned in court. ·whiie the case was ·at the hearing stage at the trial court, on 28 th ·January; 2011; the court was ·informed that, on 11{01/2011, the appellant ' had jJmped from the lorry

while being retur_ned to remand prison from the ~Ou.t,. and had disappeared· while in police custody, as such, judgment was. "I ' • . . , . deiivered ·without the appella_nt d_efending himself. He was convicted and 2 'I sentenced in absentia on 13th June,· 2013. Luckily enough, the app~llant was re arrested and on 8th October, 2013,_. he-.was ~ ' .. _brought in court,~ - · . i•', According to the record,. on the' day he was brought 'in cburt, the court .Y'!aS_ informed that, while the appellant was' at· large,· he'cornmitt~a .... · ,=, .·. . . . other offences of unlawful entry into the National Park, unlawfuFpo'sseS$i6n· of weapon's in the Nat'ional Park and again,•·. unlawful·. possession .bf Government trophies hence, charged. again in• c·ourt on ·31 st July 2013, in,;_ Economic Case No. 62 ~f 2013. The cou·rt was 'further informed that the appellant was charged at the Mugumu Urban Primary Court for the offence of escaping while under lawful custody, and had admitted all the facts read over him. He was then sentenced to serve one year imprisonment. When the appellant was asked whether the facts as narrated by the prosecutor are correct, he admitted by saying:- "Trully, I didn't know what I was doing. Prays_ (sic) the court's mercy and forgiveness. I won't repeat again. I still have pending economic"... ,.:; ,· case No. 62/2013'~ 3 t•- ·•• '• s,..;"~• ~I ~ .. "•t • /.. _,• •

,• 0 .. ,_ • --:t~·,"'<-:_: ·:.,..,.-. , • ~. -- '·. · jj · . Vy:ith the above admission;· the triai court committed the appellant to . serve his sent~nce as delivered on 13 th . June, 20i3, which was to ·comrn•e~.ce immediatelyi Tne .appeal was argued orally. The appellant appeared in person, \.mrepresented. Mr. Kajungu, Learne.d · State Attorney_ appeared for the ,espondeilt Republic. He did not support the appeal. In summary, _the· grievance of the appellant as contained in -his . . . . . . , . · ·: petition of appeal is that, the trial magistrate convicted and sentenced the • · · appeaant·based··on weak evidence of the prosecution, to wit:- - (i) That- the prosecution did_ not call the material witnesses i.e D/C ~ , ... Mauzi .and Thadeus Manongwa. -· ·•-(ii) That·r.c-'independent- prosecution witness from the locus testified. (Hi) That no official permission or documents were tendered by the .. .•' .P-;G-Se'--u ..... ,,...f. t'. lun . I"\ (-i:v) That, ·ihe aHeged ·bic_ycie which the appellant r<;>de was not tendered . . . . in evidence to prove arid corr·oborate the points of the matter. ' . '' 4 .. , ' On his part, the appellant_ ~dopted · his grounds of appeal · as . contained in his petition of appeal and added that, i.n his testimony, PW3 did not take into consider.ation the evidence tendered by the police. . ,, Mr. Kajungu gave his reasons why he did not support the

appealto .. be as follows: First, with regard to the prosecution witnesses, Mr. Kajur1gu - argued that, PW1 and PW2 who were both park rangers, testified. There is also the testimony of PW3, who is also a park ranger, and who did the valuation of the trophies and who .tendered in court Exhibit P2. It is thus Mr. Kajungu's submission that, the non testification of other witnesses did not water down ·the prosecution case. He thus surmised that, the . testimonies of the three- prosecution witnesses were competent and credible. : ' · Submitting further, Mr. Kajungu is of the opinion that, considering that the appellant had escaped under· lawful custody while he _was in remand, it shows that he was guilty. Mr. Kajungu further arg~ed that, the. appellant admitted to have been facing another ch.arge of entering into the national park. F0r that reason, Mr. Kajungu prayed that the appeal be dismissed since it has no merit. -- . ifF;fi~~t+Jf;t"':_ r ·~- f.:. i 'A>:;' ..,· ·• •. ~ :-,..:-~ ' i• ' , .. • • ,~.:.. :~• •• rw • • • ,; ·?·.-:~~i1}-,:_.-:~> .~~ . f.,: . ~ •. - . ,f,..·. ~ . •·. { : , . ., : -....:, ;witheSs,e:s,. Le police officer D/C Mauzi and Thadeus Manongwa were not .. . :·. , ..-· ·. ~ .. --~~--\· ,.,,.. :.•' . . .. '. . . . .. 1 .ff called. t0 testify, relying on the case of Aziz Abdallah V. Republic, · ·· [1991] TLR 71. It is trite that, all persons shall be competent to

testify un!essCne court considersthat they .are prevented from under.standing the question put to them or from giving rational answers to those questions, by te:ider. years, extreme old age, disease, whether of body or .mind, or any ' cti-:-er cacse of tl1e same kind. In fact; the only disqualification given about wltr.esses ;s inability to understand the _question or give a rational answer tJ it. Even children, under special, circumstances, can be competent witnesses. It-;s not disputed-In this particular case that, D/C Mauzi and Thadeus Mancngwa did not testify. These two were with PWl and PW2 when the_ appellant was arrested with the trophies on the fate~ul day. Now can it be said that these two were the material witnesses in this case without whom the court may draw an adverse inference to the prosecution case as suggested by the appeUant? I think with due respect no. I will tell why. Evidence consists of statements made by a witness or contained in a document. In case of oral evidence, only that person who has actually 6 .·.. ' '.. perceived something by :that sense by. .which it is capable of. perception, . .. : ' ~ .< . • should make th~ sta_te111ent about it and no one _els_e. In this. pa~ic~lar:-.. . ,, . . ~~ case, both PWl and PW2 were. at the . locus . on that day. . They . . ~ saw' tne: •. \. ;•: \ , " ~ ' . ,.· . ~ ., appellant. PWl chased ~md apprehenc;led .the

appellant . and .: sear.ched ... th:e· · . ' . .. ~ ' bag. PW2 was the driver of the car w~i~h they were .using, and: whic~. the: · . appellant also boarded after he. was arr~sted. For that matter, tn-~se· . - ,(.• .tw.o . . .. ' : , .. witnesses are in my considered view, en~ug}1 to prove the case,.ag~in~t th~. ::, , • •~ • •• I , :; • • " • • ! ,. ~ • appellant. The rule now accepted in all systems of jurisprudence. Js that,.· ~. • " , st,._, ·evidence should be weighted, not counted. Even if t~ere. is only o~e 'i witness, and the court is satisfied that he is speaking the truth, it i_s ~ ' . >·. ?<· , • ,, •• sufficient; the fact that there are a nu"Ilber of witnesses,.· means n~oth_ing,·tr- , ~ .,. . the court thinks that they are not. speaking . the truth. . ' It is trite '" that, no ,. .. . particular number of witnesses shall in. any case be r~quired for the proof of any fact. In the olden days, · quantity rather than quality was , . emphasized. There is no rule of law of.evidence that no conviction can b,.e • ~ • • I ' • • based unless a certain number of witnesses have. identified a particular ":'>_ I 1' • • ,,, . ' • ,;, • .-•. ,F • accused though it may be prudent to insist on .at least . t,wo . . . reliable .. . . witnesses in cases of unlawful assem~ly of a ·large ~umber of_ pers~,:i~ . :;, ._ · , 7 f~~?-~~".'~;.:,.:~?~.::;'.~i~~:.,t.;:.......~.: ·.;::~-:.- . '·;

.''.{.,:: '. ,,;_;.,;-,.:. :,~ ·"', -~ ' . . Convi_ctions can be based on evidence of a single eye witness if his . credibility is not. shaken in any manner. It is quality not quantity that ·:_ counts. Evidence is weighted but not counted. · From the above therefore, I find this ground of appeal has no me_rit. -· The two prosec·ution witnesses, are witnesses of the truth. They testified ... 0n What they saw. PWl arrested the appellant, searched him and found_- , - the-trophies.· He then took him to Mugumu police· station. PW2 was the · Qriver ·of the-car. He saw the whole incident as to how the appellant was ~ >9pprehended. To make~atters worse, the appellant was reported to have .·:{· \:~- esca·ped under unlawful custody on 11th January, 20~1 when he was being ferried back to remand police from the court, and that, he had committed ..:,;;,>an0ther~s!;nllar offence. It is tr,te that, the conduct of any party, or of any agent to any party, t to any suit or proceeding, in· reference to such suit or proceeding, or in reference to .. any fact in issue . therein or relevant thereto, and the conduct -· cf ~my person an offence against whom is the subject of any proceeding, is ~ . rerevant, if ·such conduct influences or is influenced by any fact in issue or relevant fact, aild whether it was p~evio~s or subsequent thereto .. 8 .. , . . _. :··.:. In this particular case, the act of

the appellant jumping out from the · , • .. • • • • ,. • • • J ~ ~; ,._ ·; ' • \\· police van and disappearing, creates a·n inference · of guilt, as rightly • • • t # f ~• • • .. • ._ • I ' f- J; ~ .. ,. • : ' ~..:: ..,_ ,;,. submitted by Mr. Kajungu, Learned Sate Attorney for the respondent ' t > .. • . . '.; ', •. ··: "., t ~ , .;'' -~ W. ' : . • ~~- .. ,: ·::' · ·1 Republic. - . .,, .. . .,.. To add salt into wound, when the· appella~t was re- arrested, he • • • ~ • •• ' • t } . f ·. ··~ pleaded guilty, not only to the charge ·facing him, but t9 the other charm~s . . .. ... ' . ' . . . 't". • . .- '.' .·_·. ' that were facing him. All this goes to show t~at, ~he p~ose.cu_tion. has~ , '<\•" ·l·- I - . . ' . . . :, -~ ' . . . "' . . . ' proved its case on the stand~rd required, i.e. beyond reasonable doupt. ' , • • . , ., , I The other issue raised by the appellant is that,. .there was' no prosecuti.on witness who came from the·. locus in quo to testify how h~ _, . threw the bag containing . . . .. the trophies. With . due . respect, .. there is no ;. law - , . '(,(. .. compelling the prosecution to call a witness . from the crime . scene; ·._ . What-is•· . ,• . I · required is for the prosecution to prove its. case beyond reasonable doubt. . I • . • . . It is immaterial where the witnesses came from. What • • I ~ ~ is requireQ is to. • '":<:-+.. • • • • • o • c • a • : # • ,.

• ~- satisfy the court beyond reasonable doubt that, indeed it is the aP,pellant ;.i. -• •,. - , • ,..-t • ' • ',. • ;:' ·., "' l :·{.,,_, .i'" who committed the. offence, . and nothing . else.. This g·rouno ,, . , " - of .. appeal. .., has - , , , _, ·.;~--. , ~--:") no merit. It is equally dismissed. As far as tendering of exhibits is concerned, I think this ground 11eed . . . ·.,· . ., .. . . . .... ,~ - ' .; ~ ., ;,· ·, ~ . not detain me. From what I have gathered from the _proceedings, PW1, 9 ft"~:/",'.t'.i:~"'"t':?t•/{":,'.:.;'~:_::"· --~~:-:.:~. '-:" . •·.••·• .;c,\ ,•-·- •-, . R.ei1at·us Izack, tendered in court Exhibit Pl, the two pieces of the ·leopard skin . .?W3, one Athuman Kitenana', a game war9er informed the court . that;: op. 14th May 2010 at 7.00 am upon _ instructions, he proceeded to ·Mugumu police station. While there, he identified· two dry skins of a leopard. He also told the court how he valued the trophies, and signed the •, ·~ certificate'of Government trophies. This certificate was tendered in court by '' PW3 and was admit;ted as Exhibit P2 without objection from the ·- appeilant. This being an official document, togeth.er with the trophies . tendered. as Exhibit Pl, the appellant cannot claim that no official .documents were tendered in court. This ground too is dismissed. _ F:rya!'iy, the appellant claimed that, the alleged bicycle which he was - ,

· ;-idii1g>ori·the . . fateful day-was . . not tendered as evidence. With due respect, I ·_thi\lk tl1e appellant here has missed the point _The issue in dispute is not the bicycle. The issue here is whether the appellant was found with the tr<?pbies. \he trophi~s were tendered in court and admitted in court as · :Ex;efblt ;Fl without any objection from the appellant. I fail to understand •.·.· ' ! ' how the issue of tendering the bicycle becomes an issue in the first place. · 10 ·- • "I, . Under the circumstances, I fin9 that, the appeal is. lacking . , in . merit . I '. ·_, . accordingly dismiss it in terms of conviction . and. sentence. ' .. • ' I uphold. ~', ' the..i:. decision of the District Court. Order accordingly. ' , A.E. BUKUKU

JUDGE Delivered at Mwanza This 27th October, 2014 11