Limbu Makolanya versus Republic Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA CRIMINAL APPEAL NO. 3540 OF 2023 (Originating from Economic Case No. 62 of 2023 from the District Court of Bariadi) LIMBU s/o MAKOLANYA …………………………………………….….. APPELLANT VERSUS THE REPUBLIC……………………………………………….……..…… RESPONDENT JUDGMENT Date of Last Order 10.06.2024 Date of Judgment: 09.08.2024 MWAKAHESYA, J.: In the District Court of Bariadi District, at Bariadi, the appellant was charged with two counts, viz: Unlawful possession of a weapon in a National Park c/s 24(1) and (2) of the National Parks Act (the 1st count); and Unlawful possession of a government trophy c/s 86(1) and (2)(c)(iii) of the Wildlife Conservation Act (the WCA), read together with Paragraph 14 of the First Schedule to, sections 57(1) and 60(2) of the Economic and Organized Crime Control Act (the 2nd count). 1 It was the prosecution’s case that, on 05/09/2023 at Mbalageti area within Serengeti National Park, Elirehema Palanjo (PW1) alongside her fellow park rangers, Lucy Kavishe (PW3) and Leonida Dastani, apprehended the appellant in possession of a knife and a panga and a fresh head of an impala. The appellant did not have permit to possess either of the items he was found with, contrary to the law. PW3 filled a certificate of seizure (Exhibit P1) which the appellant signed by appending his thumb print, and took the GPS coordinates of the area in which the appellant was apprehended. Later on, a map (Exhibit P2) was produced as a result of the GPS coordinates. Meanwhile, one Michael Shirima (PW2) a wildlife Officer, examined the head of impala and confirmed it to belong to the same and proceeded to value it at TZS 979,650/= (the value of a whole impala) based on the exchange rates of the date the valuation was made. PW2 tendered the valuation report which was admitted as Exhibit P4. In his defence, the appellant denied the prosecution’s version of events and told the trial court that on the material date he had gone to water his cattle at a river only to be arrested and charged with the crimes facing him. The trial magistrate convicted the appellant of both counts and 2 sentenced him, on the first count, to a fine of TZS 100,000/= or one (1) year imprisonment in default of the fine, and a fine of TZS 2,000,000/= or 20 years imprisonment on the second count. It is against the conviction and sentence that the appellant has preferred this appeal which is based on four (4) grounds which are to the effect that: 1. That, the trial court failed to call a translator who knows the appellant’s language; 2. That, the trial court ignored the appellant’s defence; 3. That, the appellant was beaten which is contrary to law; and 4. That, the prosecution failed to prove the case beyond reasonable doubt. 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, having adopted his grounds of appeal as they appear on the petition of appeal, urged the learned State Attorney to respond to his grounds of appeal and reserved the right to make a rejoinder subsequently. 3 Ms. Magoti intimated that she was resisting the appeal and submitted on the grounds of appeal seriatim. On the first ground of appeal, the learned State Attorney was of the view that, when looking at the entire trial court’s record of proceedings there is nowhere that the appellant raised the issue of not being conversant in Kiswahili. The preliminary hearing and witness’ testimonies were conducted in Kiswahili and the appellant managed to follow the proceedings and examine the witnesses. She concluded that, the appellant claiming that he does not know Kiswahili is a mere afterthought. On the second ground of appeal, the learned State Attorney submitted that, the prosecution was able to prove that the appellant committed the offences he was charged with and that the trial court did not disregard his defence as it can be seen in the judgment. However, the trial court did not find the appellant’s defence raising a reasonable doubt. Responding to the third ground of appeal, Ms. Magoti submitted that, it is true that the appellant was arrested by female park rangers but it is not illegal for female park rangers to arrest someone. The appellant never 4 complained that he was beaten, doing so at this point in time amounts to an afterthought. Regarding the fourth and final ground of appeal, Ms. Magoti responded to the same by submitting that, the prosecution proved its case beyond reasonable doubt. The appellant was convicted of two offences, that is, unlawful possession of a weapon in a national park and the unlawful possession of government trophy. The learned State Attorney submitted further that, the first offence was proved through PW1 who was among the arresting officers. PW1 narrated on how they arrested the appellant within Serengeti National Park and also tendered, uncontested, a certificate of seizure (Exhibit P1), a knife and panga (Exhibit P3 collectively) and a GPS map printout (Exhibit P2). Ms. Magoti elaborated that, the evidence of PW1 was corroborated by that of PW3 who testified that they found the accused at Mbalageti area within Serengeti National Park and he was in possession of weapons. The learned State Attorney was also of the view that, the second offence was also proved through PW1 who gave evidence that the appellant was found in possession of the head of an impala without permit. 5 PW1’s evidence is corroborated by that of PW3 and PW2 who analyzed the impala head and concluded that the same was of a male impala. PW2 also made a valuation of the animal and filled a trophy valuation form which was received as Exhibit P4, uncontested. The learned State Attorney concluded that, the offences were therefore proved beyond reasonable doubt and therefore the appeal should be dismissed. The learned State Attorney also pointed out a flaw in the charge and submitted that on the second count the appellant was charged under section 86(1)(2)(c)(iii) instead of 86(1)(2)(c)(ii) of the WCA as the particulars of offence and the evidence given during trial points out. She was however of the view that, the irregularity was minor and curable under section 388 of the Criminal Procedure Act (the CPA) since it did not prejudice the appellant. In rejoinder, the appellant had nothing useful to add but prayed for the court to set him free so that he can join his family. Having gone through the record of the case and having heard the parties’ submissions what is left is to determine the merit, or otherwise, of this appeal. 6 As submitted by the learned State Attorney, there is no record of the appellant complaining to the trial magistrate that he was not conversant in Kiswahili. Records show that what he paraded at the preliminary hearing is that he was illiterate, and nothing else. Even during the tendering of exhibits when asked by the trial court whether he was objecting, the appellant responded. He went further to even cross examine some of the prosecution’s witnesses and conducted his own defence, all without the aid of a translator. The first ground of appeal, therefore, lacks merit. In his defence, the appellant alleges that he was grazing his cows and took to water them at Lubana river only to be arrested and taken to a camp and subsequently faced allegations that he was a poacher. This defence was considered by the trial magistrate in the trial court’s judgment at page 8 whereby it was stated: “The accused person said he was not in the national park when he was arrested but he was grazing the cows at Lubana river. In his defense he did not raise any other serious doubt which was left unproved by the prosecution side…” Admittedly, the trial magistrate did not go to great lengths to explain why it was the court’s view that the appellant’s defence did not raise any 7 doubt. However, I find that the court was correct in finding that the offences the appellant was charged with were proved beyond reasonable doubt. The testimonies of PW1 and PW3 puts the appellant at the crime scene on the material date, armed with a knife and a panga, and in possession of the head of an impala. The legal position being settled that every witness is entitled to credence unless there are sound reasons suggesting the contrary preposition (see Goodluck Kyando v. Republic [2006] T.L.R 369 and Christian Ugbechi v. The Republic, Criminal Appeal No. 274 of 2019 – CAT (unreported)) I do not see anything to suggest that the witnesses were not telling the truth. The appellant was caught red handed with the impala head and in possession of the aforementioned weapons, without a licence or permit. This disposes the second and fourth grounds of appeal which are unmeritorious. The appellant also alleges that he was beaten. In his defence he stated the following: “On 05/09/2023 I was grazing at my work place. I do graze as part of my work. I went to water the cows, at Lubana River (mto Lubana), later I saw people coming they told me to sleep “kifudifudi” they beat me with a side of a panga (ubapa wa panga), they ordered me to enter into the motor vehicle…Then later another motor vehicle came, they asked what 8 was wrong they told them that he was poaching later I was brought to Bariadi Police Station, we (sic) were then brought to court.” [Emphasis added]. And when he was cross examined during his defence, he had this to say: “I was beaten by park rangers.” It is also on record that the appellant was later handed over to the police by the arresting park rangers, now if indeed he was beaten by the park rangers as he alleges, one wonders why he did not make a complaint to the police after he had been handed over to them. And as the arresting park rangers had testified, the appellant did not raise the issue when cross examining them. This leads to one conclusion, that this allegation is an afterthought. This suffices to dispose the third ground of appeal which also lacks merit. The learned State Attorney also raised an issue with the charge whereby the appellant was charged under section 86(1)(2)(c)(iii) of the WCA instead of section 86(1)(2)(c)(ii) of the same Act. For ease of reference I shall reproduce the relevant provisions: 9 “86.-(1) Subject to the provisions of this Act, a person shall not be in possession of, or buy, sell or otherwise deal in any Government trophy. (2) A person who contravenes any of the provisions of this section commits an offence and shall be liable on conviction- (a) where the trophy which is the subject matter of the charge or any part of such trophy is part of an animal specified in Part I of the First Schedule to this Act, and the value of the trophy does not exceed one hundred thousand shillings, to imprisonment for a term of not less than five years but not exceeding fifteen years or to a fine of not less than twice the value of the trophy or to both; or (b) where the trophy which is the subject matter of the charge or any part of such trophy is part of an animal specified in Part I of the First Schedule to this Act, and the value of the trophy exceeds one hundred thousand shillings, to a fine of a sum not less than ten times the value of the trophy or imprisonment for a term of not less than twenty years but not exceeding thirty years or to both; (c) in any other case- (i) where the value of the trophy which is the subject matter of the charge does not exceed one hundred thousand shillings, to a fine of not less than the amount equal to twice the value of the trophy or to imprisonment for a term of not less than three years but not exceeding ten years; 10 (ii) where the value of the trophy which is the subject matter of the charge exceeds one hundred thousand shillings but does not exceed one million shillings, to a fine of not less than the amount equal to thrice the value of the trophy or to imprisonment for a term of not less than ten years but not exceeding twenty years or to both; or (iii) where the value of the trophy which is the subject matter of the charge exceeds one million shillings, to imprisonment for a term of not less than twenty years but not exceeding thirty years and the court may in addition thereto, impose a fine not exceeding five million shillings or ten times the value of the trophy, whichever is larger amount.” [Emphasis added]. PW2 having valued one impala at TZS 979,650, the correct provision to charge the appellant with was section 86(1)(2)(c)(ii) of the WCA and not section 86(1)(2)(c)(iii). However, since the two provisions only vary in the sentence to be meted out and nothing else, I find that the appellant was not in any way prejudiced in defence through the error, but that is only in relation to the charge. When composing this judgment, I learnt that in sentencing, the learned trial Magistrate strayed into an error as a conviction under section 11 86(1)(2)(c)(ii) of the WCA attracts a sentence of a fine of not less than the amount equal to thrice the value of the trophy or to imprisonment for a term of not less than ten years but not exceeding twenty years or to both and not twenty years imprisonment as meted by the trial court for failure to pay the fine. The fine itself being TZS 2,000,000/= was illegal as the amount was supposed to be not less than TZS 2,938,950/=. Therefore, I duly invited the parties to address the court on the propriety of the sentence. The appellant simply submitted that the sentence was wrong, without making any elaboration. Meanwhile, Ms. Magoti, learned State Attorney, for the respondent Republic was of the view that, the sentence for the 2nd count was illegal since the offence falls under Economic and Organized Crime offences, which according to section 60(2) of the Economic and Organized Crime Act (the EOCCA) the sentence should be imprisonment for a term of not less than 20 years and not exceeding 30 years or both imprisonment and a fine. The appellant was sentenced to pay a fine of TZS 2,000,000/= or in default to imprisonment for 20 years. Therefore, the sentence meted out by the trial court was in the wrong. she prayed for this court to rectify the anomaly. 12 Ms. Magoti also submitted that, the fine of TZS 2,000,000/= itself was also illegal. The fine according to section 86(2)(c)(ii) of the WCA, should be three times the value of the trophy, which comes to TZS 2,930,850/=. In rejoinder, the appellant had nothing to add. As stated previously, applying section 86(2)(c)(ii) of the WCA the fine for the 2nd count ought to have been TZS 2,930,850/=. However, with regard to custodial sentence, I do not subscribe to the learned State Attorney’s suggestion that this court should apply section 60(2) of the EOCCA and enhance it to imprisonment for a term of not less than 20 years and not exceeding 30 years or to inflict both imprisonment and a fine, the reason is simple. Section 60(2) of the EOCCA is to be read with section 60(7), for easy reference I reproduce them: “60. -(1) Except where a different penalty, measure or penal procedure is expressly provided in this Act or in the statement of an offence, upon the conviction of any person of any economic or other offence falling under the penal jurisdiction of the Court, the Court may impose in relation to any person, in addition to any order respecting property, any of the penal measures prescribed by this section, but not any other. (2) Notwithstanding provision of a different penalty under any other law and subject to subsection (7), a person convicted of corruption or economic offence shall be liable to imprisonment for a term of not less than twenty years but not exceeding thirty years, or to both such imprisonment and any other 13 penal measure provided for under this Act; Provided that, where the law imposes penal measures greater than those provided by this Act, the Court shall impose such sentence. (3) N/A. (4) N/A. (5) N/A. (6) N/A. (7) In considering the propriety of the sentence to be imposed, the Court shall comply with the principle that— (a) a proved offence which is in the nature of an organised crime or one that is endangering the national economy or public property, in the absence of mitigating circumstances, deserves the maximum penalty; (b) any other economic offence may be sentenced with a sentence that is suitably deterrent; and (c) a child shall be sentenced in accordance with the provisions of the Law of the Child Act.” [Emphasis added]. What can be garnered from section 60(2) and (7) is that, in our case, in order to impose the sentence provided under section 60(2) the court has to be satisfied with the condition set out in subsection (7)(a) or (b). The learned State Attorney, apart from submitting that the sentence meted out by the trial court was wrong, did not advance any reasons to suggest that the appellant’s case meets any of the criteria provided for under subsection (7)(a) or (b) of section 60 of the EOCCA. 14 In light of the foregoing, this appeal is devoid of merit and is dismissed in its entirety. The sentence for the first count is upheld while the sentence for the second count is set aside and substituted with a fine of TZS 2,930,850/= or imprisonment for a term of 20 years in case of non- payment of the fine. All prison terms are to run concurrently. It is so ordered. DATED at SHINYANGA this 09th day of August, 2024. N.L. MWAKAHESYA JUDGE 15 16