Beatus Petro Kaenga vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CRIMINAL APPEAL NO. 27107 OF 2023 (OriginatingfromEconomicCaseNo.27of2023ofMleleDistrictCourtatMlele) BEATUS PETRO KAENGA APPELLANT VERSUS THE REPUBLIC SPONDENT JUDGMENT The appellant herein was arraigned before the District Court of Mlele (to be referred as the trial court herein forthwith) for two counts, in which the first count was unlawful possession of government trophy contrary to Section 86 (1) and (2)(c)(iii) of the Wildlife Conservation Act [Cap. 283 R.E. 2022] read together with paragraph 14 of the First Schedule to and Sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap. 200 R.E. 2002]. The second count was unlawful possession of forest produce contrary to Section 88 of the Forest Act No. 14 of 2002 as amended by Section 28 of the Written Laws (Miscellaneous Amendments) (No.2) Act No. 4 of 2016. 1 It was the prosecution side’s case that on the 26th day of September, 2023 at Imalauduki village within Mlele District in Katavi Region the appellant was found in possession of Bush pig meat valued at USD 240 which is equivalent to Tshs. 1,035,720/= the property of the Government of Tanzania without a permit from the Director of Wildlife. That, on the same date and place, he was also found in possession of forest produce to wit ten (10) timbers of Mninga with the volume of 0.3395M3 valued at Tanzania Shillings 98,455/= only the property of the Government of Tanzania without any permit or licence sought and obtained from the Authorised Officer. When the appellant was marched to the trial court for trial, the charge sheet was read to him and he pleaded not guilty. However, as a full trial was inevitable, at the end of it, he was found guilty and convicted, and sentenced to serve twenty (20) years imprisonment. Being aggrieved by that decision the appellant herein filed this appeal to this court in which his Amended Petition consisted of four (4) grounds of appeal in which are reconstructed hereunder; 1.That the Trial Court erred in law and fact by basing its conviction and sentence on 1st count based on exhibit P6 2 whichwasnotreadoutafteritsadmissionandexhibitP1was defective. 2.ThattheTrialCourterredinlawandfactbyconvictingand sentencing the accused person on the 1st count while the aleged meat was not tendered as exhibits; the inventory exhibit P6 was not read out after its admission; and there was contradiction on the said meat 3. That the Trial Court erred in law and fact by convicting and sentencing the accused person on the 2d count while the case was not proved on the required standard. 4. That the Trial Court erred in law and fact by failure to consider the defense case evidence which is fatal. From the outlined grounds of appeal above, the appellant prays for judgment on his favour and that he be released from custody, and be set free. When this matter was scheduled for hearing, the appellant enjoyed the legal services of learned counsel Peter Kamyalile, while on the other hand, Ms. Flavia Shiyo learned State Attorney represented the respondent in which in this case, it is the Republic. 3 The counsel for the appellant submitted first that, in this appeal the appellant is aggrieved by the decision of the trial court, and that his side has We have four grounds. Submitting in support of the first ground, the learned counsel stated that, Exhibit P6 (an inventory form) was not read after being admitted as shown at page 36 and 37 of electronic record. That he prays for the same to be expunged. He referred this court to the case of Robert P. Mayunga & Another vs Republic, Criminal Appeal No. 514 of 2016. Mr. Kamyalile then submitted for the second ground of appeal that; the trial court erred to convict the appellant as the alleged trophy was not tendered as exhibit. That, the law requires the exhibit which is the subject of the charge to be tendered in evidence. In this case it was the physical meat allegedly found with the appellant or an inventory, according to section 101 of wildlife conservation Act, lack of inventory or the said meat, renders the evidence to be wanting. He again referred this court to the case of Jonathan Joseph vs Republic, Criminal Appeal No. 391 of 2020 Court of Appeal of Tanzania at Bukoba at page 7 - 8. He therefore insisted that, there was no evidence or rather the evidence was weak as the subject matter of the charge was not tendered. 4 The learned counsel then added that, there was contradiction among the witness as far as the said meat was concerned. He stated that some witness say it was roasted meat and others say it was boiled meat. That the testimony of PW1 at page 15 and 10 of the proceedings and PW2 testified that, the meat was roasted. And on the other hand, PW3 and PW4 testified that the meat was boiled. In that, Mr. Kamyamile opined that the evidence was weak to prove the first count. The learned counsel also stated that the valuation report was in contravention of the Wildlife Conservation (valuation of Trophies) Regulation, 2012 GN. 207 of 2012. That, in the valuation report the weight of the meat was not filled. In which, that defect contravenes the holding in the case of Nestory Nambamoja vs DPP, Criminal Appeal No. 505 of 2019, Court of Appeal of Tanzania at Sumbawanga in which columns IV was not filed. Submitting on the third ground of appeal, Mr. Kamyalile stated that, Exhibit P3 was admitted unprocedural. He urged this court to refer page at 24 of the proceedings. That, there was no proper identification of the exhibit. That, there was no special mark identifying the object, in which it is against the holding in the case of Nassoro Mohamed vs Republic, 1967 HCD No. 446. He clarified further that, the proper procedure of identifying the property in court is that, the claimant should describe the 5 item before it is shown to him so that it can be clear to the court when the item is eventually tendered whether or not he was able to identify it. He argued that, there was no proper description, special mark or the size of the woods. Coming to the fourth ground, the learned counsel submitted that, the trial court did not consider the evidence of the defence. He stressed that, in its judgment, there is nowhere it shows the defence evidence was considered. He therefore insisted that since this court is the first appellate court, his side prays for it to step into the shoes of the trial court and evaluate the evidence including the defence evidence and allow the appeal and set the appellant free. In responding to the submission made by the learned counsel for the appellant, Ms. Shiyo submitted that her side opposes this appeal and that her side opines that the case against the appellant was proved beyond reasonable doubts. That, there is enough evidence to prove that the appellant was found with government trophy and forest produce. She added by stating that, the testimonies of PW1, at page 14, PW3 at page 22 and PW4 at page 24 confirms what she had stated that the proof against the appellant was watertight. She proceeded that, these witnesses have explained how they participated in the case; and that 6 there are nowhere any contradictions. She added that, the argument by the counsel for the appellant that there was no valuation, she denied that and insisted that the valuation of the exhibit was tendered as the appellant was found with Government trophy, and she stressed that, the exhibits were enough to convict the appellant of the offences charged against him as the prosecution evidence was consistent and there were no any contradictions. Ms. Shiyo submitted further that she prays for her witnesses to be believed as it was decided in the case of Goodluck Kyando vs Republic [2006] TLR 363, where it was held that; "Every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing the evidence” From the decision above, Ms. Shiyo stated that there are no any reasonable grounds for not believing the witnesses. She then submitted against the argument that there was no inventory. She stated that, in the case of Mohamed Juma @ Mpakama vs Republic, Criminal Appeal No. 385 of 2017 page 12. 7 She stated that, the cited case above explains the importance of tendering an inventory in court, in which the inventory is in lieu of the physical exhibit. She added that, exhibits were tendered in compliance to the law and the witnesses were competent. Lastly, Ms. Shiyo submitted in defending the testimony of PW4 who identified woods, in which she insisted that, the same was identified properly by number of timbers. That, it is not only PW4 but also PW1 and PW3 were able to identify the woods that are mining woods. And therefore, she prayed for this court dismiss this appeal as there are no cogent reasons to overturn the findings and decision of the trial court. That, the evidence adduced conclusively proved that the appellant was found with government trophies and forest produce. Making his rejoinder, the learned counsel for the appellant submitted that the counsel is admitting that exhibit P6 was not read. Hence, no exhibit was tendered. Thus, the offence was not proved. Mr. Kamyalile also rejoined on the issue of valuation; he reiterated that the column of weight was not filled. He also reiterated that; on identification of exhibit P3 the description would have been done by the witness who tendered the same. He therefore prayed for this appeal to 8 be allowed, judgment of the trial court be quashed, sentence set aside and the appellant be released. After hearing the submissions made by learned counsels of both sides and indeed going through the records of appeal before me, the only determinative issue is whether there was sufficient evidence on „.„..._ Starting off with the first and the second grounds of appeal altogether, I have taken time to go through the entire record of the trial court. It would appear that, the trial ^Magistrate was fully aware of the requirement to read out the documentary exhibits after their admission as he rightly ordered to other documentary exhibits, unfortunately, after admitting Exhibit P6, he never ordered for the same to be read out loud. I find it best to reproduce an extract of the trial court’s proceedings for ease of reference as herein; "Court: PW8 identified inventory form PW8proceed:Ipraytotendertheinventoryformasexhibit Court:Accusedisaskedifhehasanyobjection Adv.Mdee:Wehavenoanyobjection Court: Inventory form is received and marked as exhibit "P6"andformparttocourtproceedings 9 XXidbyAdv.Mdee Shewasresponsibletotaketheaccusedtothevaluerand thentoInyongaprimarycourt Court: Nil C/Ws.210(3) of the CPA, Cap 20 RE: 2022 Dickson S/A: We pray to close our case Court: Prosecution case is hereby marked dosed" From the above extract, nowhere did the trial Magistrate record that the contents of the said exhibit were actually read aloud in court in compliance with the court's orders. It cannot therefore be safely said that the requirement of reading out the contents of the admitted exhibit P6 was complied with. In the case of Joseph Maganga and Dotto Salum Butwa vs Republic, Criminal Appeal No. 536 of 2015, the Court of Appeal of Tanzania stated that; “The essenceofreading out the document is toenablethe accusedpersontounderstandthenatureandsubstanceofthe factscontainedinordertomakeaninformeddefence.Failure 10 to read the contents of the cautionedstatementafter it is admittedinevidenceisafatalirregularity.” Thus, as rightly argued by the learned Counsel for the appellant, failure to read the contents of exhibit P6 in court after being admitted is a fatal irregularity and henceforth exhibit P6 is hereby being expunged from the record. However, the learned counsel only submitted for exhibit P6 and did not state anything on the defectiveness of Exhibit P1. Nevertheless, I proceed to allow the first ground of appeal. Coming to the third ground of appeal, the learned counsel argued that there was no special mark that would have identified Exhibit P3 to be the exact Forest Produce allegedly to be found in possession of the appellant. It was this argument that made me go back to the electric trial court’s proceedings, and admittedly the argument of Mr. Kamyalile is true. Again, below is an extract from the said proceedings for ease of reference; “W3proceed:Ifiseethetentimbersiwilidentifythemasit isMninga Court:PW3identifiedtentimbers PW3proceed:IPraytotendertentimbermakeMningaas exhibit Court:accusedpersonisaskedifhehasanyobjection 11 Adv.Mdee:Wehavenoanyobjection Court: Ten timbers, with the volume of 0.3395M3 are receivedandmarkedasexhibit“P3”andformparttocourt proceedings” It is the principle that, the essence of identifying the property in court is that the claimant should describe the item before it is shown to him so that it can be clear to the court when the item is eventually tendered. In other words, the person tendering the exhibit in court should differentiate the property to be tendered in court from other objects of similarity, in terms of size or special marks and/or peculiar features. In the case of Ally Zuberi Mabukusela v Republic, Criminal Appeal No. 242 of 2011 the Court of Appeal held that; ".....in all such cases the claimant should make a description ofspecial marks on an item before it is shown to him and allowed to be tendered as an exhibit. ” [Emphasis is Mine] Therefore, the admission of Exhibit P3 was also unprocedural as rightly submitted by the learned counsel for the appellant. I thus proceed to expunge Exhibit P3 from record and ground number three is hereby allowed. 12 Coming to the last ground of appeal, this would not detain much of this court’s precious time as the records especially the judgment of the trial court reveals that the evidence of the appellant was highly considered contrary to what was submitted by his learned counsel, and therefore I find no merits in the fourth ground of appeal and consequently it stands to be dismissed in which I proceed to do so. Having expunged Exhibit P3 and P6 from evidence means that there was no sufficient evidence on record to lead to the appellant’s conviction. Consequently, I do find merits in this appeal and proceed to allow it, and I therefore proceed to order the immediate release of the appellant from custody unless he is held therein for another lawful cause. It is so ordered. Dated at Sumbawanga this 26th day of November, 2024. T. M. MWENEMPAZI JUDGE 13