baraka so alex makole vs republic 2017 tzhc 2165 22 february 2017

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) DC. CRIMINAL APPEAL NO. 71 OF 2016. (ORIGINAL CRIMINAL CASE NO. 5 OF 2013 OF THE DISTRICT COURT OF MANYONI DISTRICT AT MANYONI. BARAKA S/O ALEX @ M A K O LE.................................................APPELLANT VERSUS THE REPUBLIC ..............................................................................RESPONDENT JUDGMENT 21/12/2016 & 22/02/2017 H. H. KALOMBOLAJ.: BARAKA ALEX MAKOLE lodged this appeal against the decision of Manyoni District Court, Criminal Case No. 5/2013. He faced a charge of Unlawful possession of Government Trophy Contrary to Section 86 (1) (2) (b) of the Wildlife Conservation Act No. 5/2009 read together with paragraph 14 (d) of the first schedule and Section 60 both of the Economic and Organized Crime Control Act, Cap. 200 R.E 2009. The appellant was found guilty, convicted and was sentenced under Section 86 (1) (2) (b) i of the Wildlife Conservation Act No. 5/2009 to pay fine of Tshs. 7,040,000/= or imprisonment for Seven (7) years in default. He raised the following grounds of appeal:- 1. That, your honour Judge the learned trial Magistrate Court erred in Law and fact when convicted I appellant while the prosecution case failed to produce its key witness. 2. That, your honour Judge I appellant I was convicted basing on the evidence of PW1 and PW2 which was uncorroborated. 3. That, your honour Judge the trial Magistrate erred in Law and fact when failed to consider that no proof of the chain of custody of the alleged the two elephant tusks was found regarding the person who took care of them from where they were found up a point when they were tendered as exhibits before the court. 4. That, your honour Judge the trial court erred in Law and fact when he failed to note that anything which is seized in accordance with the Law the officer seizing the thing shall issue a receipt acknowledging the seizure of the thing with signature of the owner or occupier of that thing and witness to the search. 5. That, your honour Judge the trial Magistrate erred in Law and fact when assessing the evidence of PW1 and PW2 in page 22 the trial court added its own words to the effect that “the trophies were found in the thatched and cemented floor about three years ago,” while the added words was not adduced by the prosecution witness. At first on the day of hearing the appellant had nothing to add. Ms. Kezilahabi State Attorney submitted the appeal should be dismissed because on the 1st ground of appeal PW la nd PW 2 who were key witnesses were called to prove the case so their evidences was enough. As on the 2nd ground of appeal it is submitted the evidence of PW1 was corroborated by the evidences of PW2 and PW3. It is thus proved the appellant was found in possession of the government trophy. On the 3rd ground they submitted the chain of custody procedure was followed as the one who conducted search (PW1) was the one who went before the court and tender the exhibit. The appellant did not object and he admitted the exhibit was found at his home ( see page 8 of the proceedings) he could not even cross-examine the witness. Failure to cross- examine it implied he admitted the exhibit as it was found in 3 the case of MAILI KEMBOGE VRS REPUBLIC, Criminal Appeal No.327/2013 ( unreported). In the premises they found the trial court’s decision correct. They submitted on the 4th ground of appeal that a search warrant was filled which show the exhibits were taken from the appellant and the appellant signed on it so as people who conducted the search. The appellant did not challenge the search warrant when being tendered, it implied he conceded with the same. There is nothing to doubt about the exhibits as they have not been shifted to any other different place. In the circumstance the conviction was correct. They found the 5th ground of appeal devoid of merit as it cannot make this court find the appellant not responsible. That there is no dispute the exhibits were found in appellants home as the appellant himself show in his defence the same were found in his home, since prosecution case was not contradicted the decision was justifiable. They prayed the appeal be dismissed. The appellant rejoined that prosecution witnesses could not be called because the Republic had no fare. That the exhibits were found in the bathroom which was being used by many people. The truth is that the exhibit was found in a ground area in the bathroom and not that the bathroom floor was dug. This court have gathered from the evidence in hand that the alleged elephant tusks were not found inside the accuseds house but in the bathroom which is outside the house. PW1 and PW3 testified to have been on duty, they were informed that the accused used to deal with trophy business that is why they went to search his home. These two witnesses testified as eye witnesses. PW1 told court they found a witness who dug in the bathroom and find two small elephant tusks. While PW3 told court that a black nylon bag wherein two elephant tusks were found was found around the compound, he said at page 11 of the proceedings:- "...but around his compound and found a place wet they dug, found a black nylon bag, we found two (2) elephant tusks...” PW1 and PW3 said to have been together but why do their evidence differ in respect of a place whereby the elephant tusks were said to have been found. Although these witnesses were taken as eye witnesses and key witnesses I find that there was need to have corroboration evidence from independent witnesses like ten cell leaders Flora Matei, and Leonard Noah who were mentioned to have witnessed the search because PW1 and PW3 are both game wardens. In the circumstance I find the 1st and 2nd grounds of appeal have merit. In respect of the 3rd and 4th grounds of appeal it is a fact there was no proof in regard to chain of custody. There is no seizure certificate therefore the 3rd and 4th grounds of appeal have merit. I find the 5th ground of appeal lacked merits because there is no proof that the trial Magistrate added his own words. All in all I find the evidence against the appellant was not to the standard as it is provided by Law i.e beyond reasonable doubt. It is doubtful if the elephant tusks were hidden by the appellant as the place they are said to have been found is outside the appellant’s house hence there was possibility for any person with bad intention to have planted them in order to get the appellant into difficulty. In the circumstance the appeal has merit, the conviction and sentence are quashed. The appellant be released from jail forthwith unless otherwise detained by a lawful order. It is ordered. (1h.kH- KALOMBOLA) JUDGE ' ' 2 / 02/2017