Maganga Sasa v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA ECONOMIC APPEAL NO. 10011 OF 2024 (Originating from Economic Case No. 27 of 2023 from the District Court of Bariadi) MAGANGA s/o SASA….………………….…….……………………………. APPELLANT VERSUS THE REPUBLIC…………………………………………….………….…..… RESPONDENT JUDGMENT Date of Last Order 12.06.2024 Date of Judgment: 26.07.2024 MWAKAHESYA, J.: In the District Court of Bariadi District at Bariadi, the appellant, Maganga s/o Sasa, was charged with the offence of Unlawful possession of Government trophy c/s 86(1) and (2)(c)(iii) of the Wildlife Conservation Act, 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. It was the prosecution’s case that, on 01/06/2023 A/Insp. Mbaji (PW1), a police officer in Simiyu Region, received information that the appellant was a poacher. He organized a team of policemen and then proceeded to Matale village and surrounded the appellant’s house. This 1 was in the early hours of 02/06/2023. PW1 managed to get the village chairman to act as an independent witness to the impending search of the appellant’s house. A search was then done in the appellant’s house and twelve (12) pieces of dry meat were found in his kitchen, the appellant confessing that it was of a giraffe. A certificate of seizure was filled and signed by the independent witness and the appellant who appended his thumbprint, the same was admitted during trial and marked as Exhibit P1. PW1’s evidence is corroborated by E. 5943 D/SSGT Godfrey (PW2) who testified that in the evening of 01/06/2023 he was ordered by PW1 to prepare a police officer and “working items” as PW1 had received information that there was a person who was a poacher and that a search was going to be conducted at Matale village. PW2’s version of subsequent events tallies with that of PW1. Michael Shirima (PW5), a wildlife officer working at Maswa Game Reserve, identified the 12 pieces of meat found at the appellant’s homestead and determined that it was that of a giraffe. He equated the 2 pieces to one giraffe unlawfully killed whose value stood at TZS 35,505,000/=. Meanwhile, the independent witness to the search of the appellant’s home, one Kulwa Nhandi, could not be found thus the statement made by him, to the police, subsequent to the search and seizure was received in court and marked as Exhibit P5. The appellant denied committing the offence and testified to the effect that the charges were framed. The trial court convicted the appellant and sentenced him to 20 years imprisonment. It is against the conviction and sentence that the appellant has preferred the present appeal. In his petition of appeal, the appellant has raised three (3) grounds of appeal which are to the effect that: 1. The trial court erred in convicting the appellant while he was arrested at his home without any exhibit; 2. The hamlet chairman who witnessed the search did not come to testify; and 3. There was no independent witness to the search and seizure who testified in court. 3 At the hearing of the appeal, the appellant appeared in person, unrepresented, while the respondent Republic was represented by Ms. Nyamnyaga Magoti, learned State Attorney. The appellant opted to adopt his grounds of appeal and allowed the respondent to make a reply while reserving the right to make a rejoinder. Ms. Magoti informed the court that the respondent was resisting the appeal and supported the conviction and sentence of the trial court. Submitting on the first ground of appeal, Ms. Magoti was of the view that, the charges were proved beyond reasonable doubt. The same was proved by a number of witnesses for the prosecution such as PW1 who received information from an informant and proceeded, with other police officers, to arrest the appellant. And through a search witnessed by a local chairman the appellant was found in possession of pieces of giraffe meat. PW1 proceeded to fill a certificate of seizure (Exhibit P1) that was signed by the appellant. It was the learned State Attorney’s contention that the evidence of PW1 was corroborated with that of PW2, and was also complemented with 4 that of PW5 who confirmed that meat found in possession of the appellant was giraffe’s and whose value exceeded 35 million shillings. Ms. Magoti, argued the 2nd and 3rd grounds of appeal conjointly. It was her submission that, although the only independent witness to the search, the village chairman, did not come to testify in court, his statement was tendered in court by PW2 who testified that, he had moved to Mpanda and could not be found. In the alternative, Ms. Magoti submitted that, even without the evidence of the village chairman, the evidence of the other witnesses was enough to prove the charge, these are PW1 and PW2. Ms. Magoti rested her submission on these grounds by submitting that, the law states that there must be a witness during search, but it doesnt mention that there must be an independent witness. Meanwhile, the appellant, being a layman, had nothing to respond to the respondent’s submission. Having gone through the records, petition of appeal and the parties’ submissions I shall now endeavor to determine the appeal. 5 It is on record that PW1, having received information of the appellant’s dealings beforehand obtained authorization from his RCO and prepared a team to go to the appellant’s premises, conduct a search and if need be arrest him. Having arrived at the location they proceeded to involve the village chairman, one Kulwa Nhanja, who was to act as an independent witness during the search. The search was done, offending items were found thus leading to the appellant’s arrest. The search warrant cum certificate of seizure was prepared, duly filled and witnessed by the “independent witness”. It was also told that the appellant filled the certificate as well. However, during trial, it was the prosecution’s version that the independent witness to the search and seizure could no longer be found, hence his statement was tendered and admitted in court under section 34B of the Evidence Act. Thus, the only persons who testified and gave the appellant room to cross examine were the police officers who conducted the search, seizure and arrest. It should be noted that, under section 38 of the Criminal Procedure Act (the CPA) a search is preceded by a search warrant. This is given by a 6 police officer in charge of a police station. Exhibit P1 bears the signature and stamp of the officer in charge of Bariadi Police Station, therefore it seems to follow the law up to the point of issuance. However, it is also the dictates of the law under section 38(3) of the CPA that a search and seizure must be witnessed and the witnesses have to sign the receipt issued by the police officer seizing the offensive item. For clarity I find it prudent to produce the provision. “38 (1) N/A (2) N/A (3) Where anything is seized in pursuance of the powers conferred by subsection (1) the officer seizing the thing shall issue a receipt acknowledging the seizure of that thing, being the signature of the owner or occupier of the premises or his near relative or other person for the time being in possession or control of the premises, and the signature of witnesses to the search, if any.” The need for an independent witness during search and seizure has been emphasized through various decisions of the Court of Appeal, as the presence of an independent witness is what brings credence to the search (see Ndima Kashinje @ Joseph v. The Republic, Criminal Appeal No. 446 of 2017 (unreported)). 7 In the appellant’s case, in a twist of events, it was alleged that the independent witness to the seizure could no longer be found. Thus, the statement that he made to the police subsequent to the search was tendered under section 34B of the Evidence Act. PW2 who tendered the statement of Kulwa Nhandi, testified that the said Kulwa Nhandi had moved to Mpanda and when he twice took summons to him (06.11.2023 and 13.11.2023) the same were signed by the hamlet leader (presumably the current hamlet leader and not Kulwa Nhandi). Prior to tendering the statement, on 23.11.2023 the prosecution produced a notice to tender the statement allegedly under section 34B of the Evidence Act. The same was received in court, and on 01.12.2023, despite protest from the appellant, the statement was admitted in evidence (Exhibit P5). At this juncture, I find it prudent to reproduce section 34B(1) & (2) of the Evidence Act, which reads: “34B.-(1) In any criminal proceedings where direct oral evidence of a relevant fact would be admissible, a written electronic statement by any person who is, or 8 may be, a witness shall subject to the following provisions of this section, be admissible in evidence as proof of the relevant fact contained in it in lieu of direct oral evidence. (2) A written or electronic statement may only be admissible under this section- (a) where its maker is not called as a witness, if he is dead or unfit or by reason of bodily or mental condition to attend as a witness, or if he is outside Tanzania and it is not reasonably practicable to call him as a witness, or if all reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation of any law he cannot attend; (b) if the statement is, or purports to be, signed by the person who made it; (c) if it contains a declaration by the person making it to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence, he would be liable to prosecution for perjury if he willfully stated in it anything which he knew to be false or did not believe to be true; (d) if, before the hearing at which the statement is to be tendered in evidence, a copy of the statement, is served by or on behalf of the party proposing to tender it, on each or the parties to the proceedings; (e) if none of the parties, within ten days from the service of the copy of the statement, serves a notice on the party proposing or objecting to the statement being so tendered in evidence; 9 Provided that, the court shall determine the relevance of any objection; (f) if, where the statement is made by a person who cannot read it, it is read to him before he signs it and it is accompanied by a declaration by the person who read it to the effect that it was so read…” [Emphasis added]. In Mwale Mwansanu v. Director of Public Prosecutions, Criminal Appeal No. 105 of 2018, CAT- Mbeya (unreported), at page 21 the Court held that, “For a witness statement to be admissible under this section all the conditions stipulated under Section 34B (2) must be met collectively.” In the appellant’s case PW2, when recalled on 01.12.2023, testified to the effect that: “On 02/06/2023 at 1:00 hours, we went to work at Matale Village we arrested a person called Maganga in possession of wild animal meat. I recorded the statement of the person who witnessed the search. Who is Kulwa Nhandi. I wrote the statement on 02/06/2023. The witness has now shifted to Mpanda but I don’t know where I took the summons in different dates 06/11/2023 – 13/11/2023. And they were both signed by the hamlet leader.” It is clear that, the witness’ efforts were to serve the witness summons, on the two different dates, to the hamlet chairperson of Matale 10 Village, while it is alleged that the witness had moved to Mpanda. I am not satisfied that these were genuine efforts of locating the witness. First; if the said witness had moved to Mpanda, then it served no useful purpose serving the Matale village chairperson the witness summons. Second; the said witness was formerly a village chairman, it does not make sense that all of a sudden, all contact with him was lost and he could no longer be found nor traced. I can only conclude that no genuine effort was made to locate the said witness, and therefore the condition under section 34B(2)(a) was not met. It is not on record whether a copy of the witness statement was served on the appellant at least ten (10) days prior to the statement being tendered (section 34B(2)(d) and (e) of the Evidence Act). The prosecution issued a “notice to tender a statement” on 23.11.2023 and tendered in evidence the statement on 01.12.2023. The said notice cannot be equated with the actual service of the witness statement as directed by section 34B(2)(d) of the Evidence Act, and just for the sake of argument if it was, then it violated paragraph (e) of the same provision which puts a buffer of ten (10) days between service of the statement and the tendering of the 11 statement. Therefore, the conditions under paragraphs (d) and (e) of section 34B(2) of the Evidence Act were also not met. Having stated previously that, the conditions in section 34B(2)(a) – (f) of the Evidence Act must be met collectively, and having found that the conditions in paragraphs (a), (d) and (e) were not met, the witness statement of Kulwa Nhandi (Exhibit P5) was illegally admitted. And I proceed to expunge it from record. Having expunged Exhibit P5 from record, what remains of the search and seizure of the alleged giraffe meat at the house of the appellant is the evidence of PW1 and PW2 who were police officers involved in the search, seizure and arrest of the appellant. An independent witness to the seizure is lacking. The search and seizure not being under emergency conditions, credence of the same is diluted in the absence of an independent witness. Having found so, and the entire prosecution’s case hinging on the seizure of the giraffe meat, I find that the appeal is meritorious and I allow it. The conviction and sentence meted by the trial court are hereby quashed and set aside, respectively. The appellant is to be set free forthwith, unless otherwise lawfully held. 12 It is so ordered. DATED at SHINYANGA this 26th day of July, 2024. N.L. MWAKAHESYA JUDGE 13