20150626 TZHC Mwanza

. II\J THE HIGH ., COURT OF :.A.NZAt,\JlP:,

AT IRINGA

APPELLATE JURISDICTION (Iringa Registry) (DC) CRIMINAL. APPEAL NO. 22 OF 2014 (C>"riginating from Criminal Case No. 20 of 2013 · of the District Court of Iringa District at Iringa Before G. N. Issaya, R.M.) GAITAN SUS UTA ........................................ . . APPELLANT

VERSUS THE REPUBLIC ..................................... RESPONDENT 15/4/2015 & 26/6/2015

JUDGEMENT MADAM SHANGALI, J. In the District Court of Iringa, the trial court, in Economic Case No. 20 of 2013, the appellant, Gaitan ., Susuta, was charged with and convicted of the offences in · three Gaunts namely: Fi.r:st count:· · Unlawfully entry into the National .. _., ., __ 1 ::\;~~:~-~ ~ l-..:· ": ;;· }, ::-'.;t~r-:' .. .. ',; . ~; :-·<t<:·_\':·.::/t;/:.~,-./rJ·:;~~\~,--' . ...... ;'... . .. " ·i_:>·{:·:");{tf'.'<;~,;:<-~?:·:, . :,,J~:: < <:~.-:-:,Y(~::_j!t !\:~}[ ' . "· .. ,. "'.· .''. . •• ·, :- • ~ "•- ,I'.\ • 1• f ~ :~:-: /:·~: .~ ~: ,:-' ~ ·' :; ,, ' . __;i.",1 .::- ... Patks,:co.n.~r?rY to _sections 21 (l); (2) and 29. (1),> .··- Nati'onal Parks Act:.Cap:- 2s·2 ·R.E 2002;··' .• (2} ~f the ., . ~ ' '~ . , , . . .. ,· . ·' ·.. -:· • r • • ... •' .: Second ·· count: -Unlawfully possession· of· .Government trophies contrary to sections ·a6 (1), (2) (C) . (ii) of the Wildliff.\,Cooservation . . . . 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 Organiz.ed Crime Control Act, Cap. 200 R;E 2002; -i: .. Third count~ Bein·g in an unlawful possession of . Arnmunition contrary to section·s-:4 (1), (2) and 34 (1) and (2) of the Arms and Ammunition, Cap. 223 R. E 2002 as amended by section 46 of the Written Laws (Miscellaneous Amendments) Act No. 17of2011. On the first

count he was sentenced to pay fine of T.Shs.50,000/= or to serve six (6) months imprisonment in · default of payment. On the second count he was sentenced to pay fine of T.Shs.80,000,000/= or· to serve twenty (20) years imprisonment in default of payment and on third count he was sentenced to pay a fine of T.Shs.50,000/= or to serve six (6) months imprisonm'ent in default <?f payment. 2 . 1• • -~ I'". • r•~:-- • " ,:. ~ ~ · ."/t,: ~~-.,~'.~J"i;-.·i?~--'i>· :.,'./i'.· ·. <-:-~~;,-... \;,'~:,/',:; _· .. :::>:-_,:•·;.' :·_ ¥ ·:1.·\~:- ·. ·: -::' _- · . _..,, .. f At the tdaf, the prosecution -had ·a dduced ev1dence to 1 the effect that, on 22.8.2013·1 Sofaret VVanjara (PVVl) and Steven !vlagombi. (PW2), park rangers, while on patrol at Changuswa · within Rua ha National Park they got- information from the staff of Kilombero North Company that they heard gun shot. O.n: their fo_llow-ups they found the ap..pellant in the reserve. When· searched the appel-lant's bag, it was found with lO elephant tusks, -one ·weigh machine, 16 bullets of 458 calibre and 19 bullets· of rifle with 416 calibre. Three dead elephants which were shortly killed were shown to them by the appellant. Majid Seleman (PW3), the valuer thro~gh hi$Ai\yalu.atiop ·-report in (Exhibit P2) respect of ten ·<? ·_ff. . •. . . ( 10) elephant tusks (Exhibit Pl) finds that their value vyas worth Tshs.. 120,000,000/=. . ·

The. . appellant defence was to . - . the ext~_nt that ~he case against him was f~bricated and that h~ was framed-up by the park rangers. Upon being aggrieved by the decision of the trial court the appellant appealed to this Court challenging the same. Before this Court, the appellant was fending for himself, unrepresented whereas the respondent Republic had the services of Ms. Pienzia Nichombe, learned State Attorney. The appellant filed a total of eight grounds of appeal which in essence they all intend to mean that the prosecution has · failed to prqv.:~,-.its C._?15-e. J,he appellarrt's contentions in tt"l,is: 3 ' : • •• • ,.. •• y --:_·.:-·-;1:..·•i:_·,_. ~:.,. ._,.,,. ... : ......... ,;. : ••••• ,· .. •.i ·' . ·· . •• .. - -· ;,~-;.i":c:t'";..~'"-~--;;J''.'. .··~~·""'.;.;::·-v.-·'/).Li-(;',:,;;l i.'.';:.f\z}~.:o.' :·c >"'.··,· ,-:,· ·,.; _.·,.·. ."... ·. ;·:,-:.. - ·:· ·:::_;j . ,c;:.·":.•:1. :·-~--·"·~~~>-:\•·.;."fl;~\\ ... t1f~).'. :, \. •~: / C, • , , ' "/i;)':''.~f}f '.~ ?/Jt:{~! ~:~ ~~~~·I ~•;,:~f('.-f,. ."f•<:' ,, f , I .;...::: ,:;.:('.;\;/}'}•)f,t, ·. . ·;, r, /'. . ,.', /'•• ~ ·, . .- ; r, \_: ·',",' appeal .are that: ,- ,on the 1 st grOlll.UC'lid the evidence of the : ·{ prosecution .fails to establish · his ,guiltiness. On. the 2"~ ' ground his convicd~n' w:as based on one sided evidence that' ·•.. ,,· ;, of the· park. rangers without considering the

independent . evidence. On the 3 rd ground the trial court's decision_ only used the eyidence from one side ir)stead ·of calling· other witnesse~. like ballistic to testify on ammunitions found with the appeUant alleged to have killed the elephant. On the 4 th g·round the search· of his bag was improperly conducted. as there was no lead.er to witness the same. On the 5 th ground his defence was not considered or was disregarded. On the 6 th ground the prosecution had failed to prove its case beyond reasonable doubt. On the 7 th ·ground the trial· court ... failed to summon other witnesses to testify such_ as the ~CO or police officer. On the 8 th ground th_e sen.tence meted by the trial court is brutal, excessive and punitive. The appellant, l;)eing a layperson had a little to add on his grounds of appeal which seems to have been· prepared by someone else with some legal knowledge. When this appeal was called for hearing on 15th April,· 2015 the appellant lamented to the effect that he was ready to proceed with the hearing in the absence of his advocate because he was not aware of his whereabouts. However, the alleged unnamed. advocate has never appeared before ~ this court since the appe_al ~as filed on 26 th May1, 2014. 4 ., . . ..... ':" . .; ~ . ...... _ .. -=.,. .. _ . -r·. . . . ..:-: .- , .. ~ ~ ·.-::>..- .:~. _.., --._ -..;·:. ;'" ~-. ~:;~_"'i•' ~-~ ~.,.:.·I ·: :;.. •~-

_i_:; -; - • •: ;,- ·: :. • _- ... ·:. : J! • -~:·1 ;:~_; _,._..., . i:::..,,;. __ · . ' '., .. . -·- ' -· . • -~,_:......:, . ~'-;:: i , ; '1,-- ' . Be· as it may, the appellant:· was fairly brief in his submission in support of the appeal. He completely denied involvement in the· com-mission of the alleged . offences, totally den-ied the pros~cutiqn. evidence · and accusation · · again~t him while labling the prosecution story as .a_ mere .fab~icat~d story .against him.: He contended that ·on the -materiq_ l_ ·day he was -found. by the· Park rangers· on his way _. - -home. He claimed that the alleged ammunitions fourrd in his p.ossessiqn .were not proved because there was no ballistic evidence. He further complained that the search was not conducted in his house and that he vvas not found in possession of a bag. T~e ···appellant . agued that it is unfortunate that the trial. Magistrate disregarded his defence ~-··anq_ insteap relied on the prosecution evidence which was . . not sufficient to prove the charges against hini. The appellant also complained that the sentence meted against h~m by the tdal" District Court was brutal and excessive. Ms. Pienzia Nichombe, learned State Attorney representing the respondent/Republic forcefully_ resisted the 9ppeal and fully support the decision of the, trial District Court on conviction and sentences. In response to the grounds of

appeal,• Ms. Nichombe started~with ~the 2 nd -ground at ~ppeaLand subrp°ttt~d t~~t.the 5 • T · · :.•-: ,. -,~-1§:i,w ·" "fir:r «;,¥:i/Htfr -·,:. ·, :.: : ?.: ( •f , , • .• · i_ .. ~i':,:··~f ·:' ---~~~_,·:_~ ~·. iaw does_ not· orovide :'for the 1.· t,,oe ·and n"Limber ·of \A.fitnesses I l . ·' needed to prove a case.· She submitted t:hat even ·a- single witness ;can be· used ·to prove- a· case .. She argued that PW1 • 1'•_ and PW2 were the ·Park rangers who arrested the· appellanr' within the game reserve, red-handed in possession of a bag containing ammunitions and government trophies (elephant . · ... tusks), Exhibit. Pl. . Thus there was no need of any other · evidence to prove··the arrest_arid posses·sion as'· proved by':·:; PW1 and PW2 who were credible witnesses. -~~7~· :.. · - • :. --- On the 3 rd ground of appeal, the. learned State Attorney su6'.mi_tted that there was no need of summoning ballistic ev,de~ce because the appellant was arrested in possession of both the ammunitions and elephant tusks. She contended that the appellant was not charged with ~he_ offen·ce of killing elephants rather the gist of his charges. were based on -the. unlawful entry to the game reserve and unlawful possession· of both the government trophies and ammunitions. On the. 4 th ground, Ms. Nichombe submitted that the appellant has already admitted that he was found in possession of the bag.

Furthermore the prosecution evidence (PW1 and PW2) entails in detail on how the appellant was arrested within the game reserve area, his bag searched and the items found therein. She submitted ~ . ' that when the bag and the whole Exhibit Pl was produced, in · . 6 ' . '"'">. .~;< ~~ <::, ~ ,.-. -·~ ,··:. -~-}'~.. ···:~·-.~ ~.....-..:·-: ..,: . ... ·, ·/''·.;_·. ··~ •. -. ,V· '• c_oyrt:·•··tt,e ·· _app-~llant had. no objection and he n~ver ch 9 11enged the bag_ ar,d its items:. Ms. !\li_chomb·e argued that since _'that.· evidence . was not contested by the appellant- duriRg. trial, it is a. mere afterthought to challenge it at the appellate stage. Responding on. the 5th ground of appeal the learned State .-Attorney submitted to the effect that _in reaching its dedsioii the trial court:. rightly:· considered both -the- prosecution and defence evidence. She pointed out page 6 of the judgement of the trial court where the ..Magistrate - .... ....... . . - discussed the defence evidence and correctly rejetted it. On the 7th ground of appeal Ms. Nichombe submitted that PW3 was the Expert valuer of the value of the trophies and. therefore there was no need of calling for other supporting evidence from the Regional Crime Officer or any other police officer. She contended that during the trial PW3 produced his_ Valuation Report Exhibit P2 which was not contested by the appellant. On the

1st and 6th grounds of appeal the learned. State Attorney argued · them together to the effect that the prosecution evidence is sufficient to prove the case a_gainst t~e appellant beyond all reasonable doubts. _.-_. ~ ...:. ~ ,..._ .. 7 ,. ,,._ • ., •,..: • l ' • ., ,_-;:.,. • - ~ , • • . . . ~ .· ~ -~ .••.• ., -?~.. . ·_ . ,• ... ·-~r:; ·· , · > ,: ··..; {~:; :·~-:'fi_~ T~ .•,- . ·.·: ;t :~- On:: the :;issue-- o{ sehtence on grou·nd 8 Ms, l\tlchqmbe sub·mitted that the'sentences :were proper and correct in . ~ . ~ . . law .. :~~- :She·;-~contended that the sentences. were fair and . minifnal 6ecause the· appellant could have ·been ·sentenced • e • . up to 30 years term of impriso~ment but he was only given ,: 20 years. She also submitted that the: appellant was foond: in. pos~ession of ammunition but was given a sentence ·of firie _·of T.Shs. 50,000/. · or six· months irnpris-6nment in.stead··. of 15 years · term of imprisonment or fine . of · up T.Shs.30,000,000/= . ... The two important issues in this appeal are whether the charges laid again·st the appellant were _proved beyond all . re 9?onable doubts and whether the sentences meted against the accused are proper in law. Having gone through the record of proceedings and the 1 Judgement . of the trial District Court and having seriously . ' considered the appeal grounds and arguments from both sides, I am satisfied that

this appeal is short of merits. In the first instance I agree with th·e learned State Attorney that .there is no •fixed number of witnesses required to testify in a given case or to proof a certain fact. Section 143 of the Evidence-Act, (Cap. 6 R.E. 2002) states:- .. "Su_bject to. Jhe pro_visions of any other writteo 8 la·w1 .no par~icufar number of Mtitr:;esses . - shall . in any ~ : .case be required for proof of any fact." In· law, w-r,iat is required is the .demeanou_r . and credibility . of a witt:1ess. · See the cases of Shehe · Hamza Vs. Republic, , .. •Criminal Appeal No. 114 of 2004, CAT at Tanga ·-- .-, . . . (unreported); Yohanis Msigwa Vs. Republic (1990) TLR .. 148; .Saada Abdallah and Others Vs. Republic: (1994) · TLR 132 and luma Senge -Vs. Republic, Criminal App~al No. 164 of 2008 (unreported). Furthermore the prosecution side have a liberty to call the witnesses of their choice whom they consider important to prove their case · before the court. See the case of Anuary Nungu and Another Vs.·· Republic Criminal Appeal No. 109 of 2006 (unreported). Therefore the appellant's complaints that the . prosecution called only PW1 and PW2 to prove the case and that there was no ballistic evidence and/or the Regional Crime Officer and other police officers who were involved should have been called to establish the value of the .. · trophies have no substance at all. The

value of the trophies; found in possession of the appellant were. determined by an,. .. expert PW3. In my considered opinion the prosecution _.. -~vid-e_r,C:e· (com PWl, PW2 · 9 nd PW3 w.~s C(?.rrectly: admitted .,., ., 9 ~-~?t._. ~-:.-:_\,.. ;,. . . ·_, :~1» ·: -~.·1r:.. ·::~·. . ·.~}--./ ·--...tli.•"'.._ ~-·1-,:···- ¼ • ' . '·. ~ ;.,..-\.. .. := ...- . . ,;.-·...... :4 ::-·~;- -, ... ,.,. ,. WO: ~ ""~ . , .... ·~~'"~: .. ·r ....... ~, ..·Y.: . . . ,~ ; .-.:,• •• :.•:•~:•~J'r • • .~,.~,:. ••~•!,: • ••• •. •1'~;~•7::;,.. _:i; ,.-7:_•,;:~~;r.~✓•_,·~ ~rrl . \/:· );: '~?·:r;:'~t~?,y•:f:, ?~;t; ~ . .... . .;·.. ,":" . •• '. ~ ,:- . : .. . · · f •• ~ 1 •., ~~F- •• I,' ', ...... ·.. , 'I. JI". .. •\ I by th·e trl~I Dlstrict,Court;' ·, I •·• "' • I am also 1n agreement. with Ms. Nichombe that the , . , issue of search raised by the. appellaht is not significant in the· circurpstances.. of this · case. The evidence on record i11dicate that soon after the information from the staff of Kilombero· North .Comp·any that they heard gun shot in the game . . reserve area, PV\/l.- and .PW2 . .. ·· .. . . quickly .. responded to 'the . ·•.·-· inf()rm.ation and managed .. to arrest the appellant red-handed in possessioD . of the. trophies and ammunitions . . (Exh/bit P1) within the game reserve,, area. The appellant's cofte·?tgUe$ . managed to esc,~:pe~ .There was no need of the so ' called

proper search because·the appellant was openly found in possession of Exhibit. Pl. • . Furthermore· the allegation by the appellant that the case was framed ·against him are unfoundable. The trial District Court critically scrutinized the defence evidence and prosecution evidence and found that there was nothing to establish any prior enemity between the rangers (PW1 and PW2) and the appellant. There was no element of ill-motives from PW1 and PW2 against the appellant. It is my considered opinion as rightly submitted by Ms. Nichombe that" the prosecution managed . to prove . the case . ~ ,. 8 I • . aga.inst · the appellant 0eyond al~ reasonable doubt. The 10 . \, .-!" \, . . ,· . , . -~ .' . ·. .'· ... _ . . ,•, ~-. . ~ '. .. . ..., orosecution ·evi,dence especl~lly that of Pv,r i and ?VV2 was . cogent to ground a conviction against the appellant, · In. the circumstances the grounds of appeal Nos. l, 2, - 3', 4; 5, 6, and 7 are hereby rejected and dismissed. -· · Concerning the issue of sentences I have no quarrel with the· sentences imposed by the-trial District Court and- in:· th.at regard I accept the ·learned State Attorney's opinion. The problem -with this ·case is· .~that · .the trial Resident .,. Magistrate ·bad a wide range of sentencing field. He elected .. to employ .. the provisions of Se_ction 86 -(2) (b) instead of ·. . either Section 86 2 (c) (ii) of the Wildlife Conservation Act or The· Economic and Organized Crimes Control Act, Cap.

200. In my considered opinion the sentences imposed by the trial District Court are fair, minimal and in complii~e'~ ..... ..·.• .. _. t·~:t~ the law. In the end result, I. hereby dismiss the appeal in its· entirety for want of merits and confirm the decision of the trial District Court. M. S. SHANGALI

JUDGE 26/6/2015 11 .. •';• •• "S • • -~ -...;; ...; ·; . ,._ ... ~ • ,.. ~':,,- • ) ••; ,·- ... ---· ~ • ,• ..,~• •· , •."~• • .•• •;. "4••.•~ _;·f;j.:::•~ ••. ~•• •~•1'"••;•.:-'.- 1_ .•• ~i~ •~•~• ,••~: . _~ • '.~•1• =- ..'"' j• .. ~ · • ·~:~-~-•._!~,: - II<- •• : ·' ,._. :' ',. ~ :· _.: ;· _;•·· "' ·-..;;-;?. :;.,_;;/,,;;. \::'(_:J~,-; ·,tJ:i~:-';,=-::~~- :;•:t1~:.:,: '-<·:'<, ;:•?~; · ;<r ,--~- ··:;,_;-_;~_ ;:..;,:c.;,::-_:.,,,_,.,;·,-,'7 r,·· 7';':r-:>~- !".-:/" ·: ~t; _. ·;~)? -~ : "' . ·- . ..,. ~ ·.·.. ' ;:. \::"t· y.· -~;_ . ~ \~ :'i\'.:!:''.' <~i:;~,\-i.-t ,f'' .. ,./.~] / °';<; :··-~ .~l/~·- ... ,.:},' . """ .. ).o : ~ • I , .. , judgement denvered in the presence of Ms, Happiness Flavian 1 learned State Attorney for. the respondent/Repub!ic . ' and in· the ·presence of the appellant in person. Right of appea1.·explai'ned . .. .. M. S. SHANGALI . ,_.._,_

JUDGE 26/6/2015 ., .' 12 ..... .;.,.. . . • ~ ,,I.,: • ... ... -< • .,. ~ .. ~ • . _;,_, •• -a) '. ✓ • ."'-. . .. ,. -- > - - ..