20170607 TZHC Dodoma

"""'· ..,:: •°I". ' •:., ''L. 7'~•: -"•---" • • "" ;"L . i""1.~'i .: I ·. IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION}. DC. CRIMINAL APPEAL NO. 8 OF 2017. (ORIGINAL ECONOMIC CASE NO. 3 OF 2015 OF THE DISTRICT COURT OF DODOMA AT DODOMA). HAMIS MODESTUS @ HUMBA ........................................... APPELLANT VERSUS JUDGMENT 29/03/2017 . & 07/06/2017 H. H. KALOMBOLA,J.: The appellant HAMIS MODESTUS @ HUMBA stood charged and convicted of an offence of unlawful possession of government trophy contrary to Section 86( 1} and (2} (ii} of the Wildlife Conservation Act, Act No.5/2009 read together with paragraph 14 (d} of the First Schedule and Section 57 ( 1} and 60 (2} of the Economic and Organised Crime Control Act, Cap 200, R.E. 2002. He was before the Resident Magistrate Court of Dodoma at Dodoma. Consequently he was sentence to suffer 20 years of imprisonment. 1 " - In-brief -tile-facts-of-the -case-are that-LUCEGlJ DEOG-RATIUS - • BONY (PWl) while with BEATUS EMMANUEL MBAGA and JOSEPH JIM were informeq one TWAHA was dealing with business of selling elephant tusks, they arrested him but he told them that HAMIS MODESTUS used to supply him with the same. So they went to llangali village and arrest HAMISI MODESTUS while in possession of two elephant tusks. Appellant raised six grounds of appeal as follows:- 1. THAT, your honor Judge the Learned Magistrate erred in Law and fact when convicted I appellant without considering the fact that the prosecution case failed to prove the case beyond reasonable doubt. 2. THAT, your honor Judge the trial court erred in Law and fact when convicted I appellant while knowingly _ that the whole proceeding erred by procedural irregularities. 3. THAT, your honor Judge there was no evidence given by the prosecution case indicating that there was a chain of custody of the two tusks in order to rule out the possibility of tempering with the exhibits. As it was given in the case of Paulo Maduka · and others Vs Republic, Criminal App. No. 110 of 2007 ( unreported) 4. THAT, your honor Judge the trial court erred in Law when received the trophy evaluation report without considering that PW3 was supposed to read it loudly 2 L_ ;J1i··-• before the court in order to provide an opportunity to I appellant to hear what was all about and thereafter to comment on it or to cross-examine the one who prepared it failure to read it before the court is fundamental irregularities as it was held in the case of SUMUNI AMA AWENDA VR CRIMINAL APPEAL NO. 393/2013 CAT ARUSHA ( unreported). 5. THAT, your honor Judge the trial Magistrate erred 1n Law and fact when convicted I appellant without warning herself that the prosecution case was not _ corroborated since __pw l & PW_2_te_sJH.ied ____b_e1o[e_ the~- court that -1--appellant -I-was mentioned with-one Mr. --- Twaha Omary but surprisingly. I was not joined with such person so as the corroborated PW l & PW2 testimony. 6. THAT, your honor Judge the trial court erred in Law and fact when ignored my defence and relied upon the prosecution case only. At the hearing of appeal Ms. Mgoma learned State Attorney appeared- for the Republic while appellant appeared in person. When the appellant was called upon to argue his appeal he opted to adopt his grounds of appeal as they appear in his petition of appeal. While Ms. Mgoma for Republic/Respondent supported both the conviction and sentence imposed to appellant. She contended 3 ., in line of PW 1, PW2 PW3 and PW 4, testimonies that their testimonies proved beyond reasonable doubt the appellant committed the offence. Together with the above testimonies, exhibits Pl,P2 and P3 which were not objected imply appellant was truly found with two elephant tusks. On complaint that elephant tusks were admitted in court without proof of their being in good custody, it was submitted that the same were in good custody as the investigator ( PW2) took them from the place where they were dug out and place the same to police custody. On the complaint that the appellant's case was not considered, it was contended that the trial court considered appellant's defence but found a lot of credence in the testimonies of prosecution witnesses and sentence the appellant accordingly. As on a complaint that the trial court admitted the evaluation report when intact the same was not loudly read before him so as to afford him the opportunity to cross- examine on the same, it is submitted that appellant was afforded opportunity but opted not to object to its being tendered as exhibit. Again on the failure of the prosecution to call 'the said Twaha to corroborate PWl and PW2's testimonies, Ms Mgoma elaborated that the same was corroborated by PW4 who was an independent witness who along with PWl and PW2 went to the place where the elephant tusks were buried and upon being shown by appellant the same was dug out. As long as appellant and PW4 signed on the seizure certificate, appellant complaint is of no avail. 4 •- I have scanned the evidence of both sides, the evidence by prosecution generally is to the effect that PW 1 and PW2 and Joseph Jim who did not give evidence in court went to arrest one Twaha who was said to have been dealing with business of selling elephant tusks. That Twaha mentioned Hamis Modestus (the present appellant) as a person who supplies elephant tusks. They went to appellant home at llangali village. According to PW l, appellant dug under a tree and take out two (2) elephant tusks. Seizure Certificate was filled which was signed by appellant and village leader. That on the day appellant did put on a black T- shirt and jeans. While re-examined by Mr. Sarara State Attorney, PWl answered they did not inform village leaders because they did not want anybody to know that there was special operation which was going. PW2 added that he was team leader on that day, he sent PWl to enter appellant house, they arrested appellant took him to their car for interrogation, he denied to be involved. in the business. While on the way to Dodoma appellant admitted that he was left with two (2) tusks so they went back to llangali and report to Michael Machena, then appellant went to bring the tusks from bushes. He filled certificate of Seizure, he went to village office and record Michael Machena statement. He tendered as exhibit P1 collectively two elephant tusks and Exhibit P2 Certificate of Seizure. That accused did wear a sport T-shirt and jeans trouser. PW2 answered accused questions that he did not arrest him but Lulegu ( PWl ). That it was not necessary -to~-imorm village leader. 5 That appellant show to them a place he hide elephant tusks, it was in bushes. Looking at evidence of PW4 Michael Chumungu, he said to have been llangali Ward Executive Officer and that on 25/12/2014 he was in the home of Elia when (4) four policemen arrived and ask for Ward Executive Officer. He was asked to join them they were with appellant ( Hamisi). He was asked to witness their work, appellant took them to bushes where he dug out two (2) elephant tusks. Police officer filled Certificate of Seizure, he signed as a - village_ leoder, f?Oliceman signed so as appellant. PW4 answered appellant question that he took them to place he hide tusks. It is quite clear there are different stories found in prosecution evidence. Each of eye prosecution witnesses gave different story from one another in regard of what took place when they went to appellant home, particularly where the two elephant tusks were revealed. PW2 and PW4 said it was in bushes while PWl said it was under a tree. PWl did not mention that it was in bushes. There is no similar story in this point. And in regard to presence of village leader, PWl told court when re-examined by Mr. Sarara Attorney that they did not inform village leader while when stating in examination in chief he said village leader signed on Certificate of Seizure. PW2 gave another answer to appellant question that it was not necessary to inform village leaders. And in examination in chief PW2 stated he went to village office and write Michael Machena Statement. Whereas PW4 Michael Chumungu told court 6 ., he witnessed policemen exercise which was done to appellant as Ward Executive Officer and sign on a certificate of Seizure. These statements are contradicting each other. Where did the Ward Executive Officer came from whereas on times PWl and PW2 said there was no need of having village leaders presence. If it ,;_,~s --so-, --then· if ·meahs - PW4 was- -called - as- on aftertho_ug_t:1 _irJ _ order to bring up picture that village leader was called so as to witness search as it is necessary when search exercise 1s conducted. PW 1 and PW2 evidence does not tally as to what time appellant went to show them place he hide the tusks PW 1 said on reaching at llangali, appellant took them and dig out (2) two elephant while tusks while PW2 said they first left with appellant · whil-e ·o-n-t-heir- --woy.to.D.odomo _appellant - - - - admitted - - ~ .. to possess the - tusks so they went back to llangali where they find the same. If PWl and PW2 were together why did PWl cut short the story, why didn't he explain like PW2? Then who between them told court the truth? It is the view of this court that the contradictions found in prosecution evidence leave a lot of doubts such that defence evidence is not shaken. Appellant said in his defence that he was beaten and was forced to admit he possessed elephant tusks which are alleged to have been found in bushes. In all I am completely in agreement with appellant that prosecution case was not proved beyond reasonable doubt. I agree with appellant 7 II" I------- . - - --- -- -- ... .that evaluation report {exhibit P3) was not read loudly, taken this was an exhibit, appellant had right to know the content and evidence which was brought by prosecution against him. Having the above discussion and reasons, I find the appeal at-t:1.a.n.d_w.ith merits, it is allowed. In the premises, conviction and --------~-- -------- sentence are quashed it is hereby ordered appellant-be releasea - - from prison forthwith unless otherwise held for Lawful Order. It is ordered. - - - - ~------. __ _ lli (li-:-Jl:-K~LOM-BOtA-)---------------------- JUDGE 07/06/2017 Right of Appeal explained. w ( H. H. KALOMBOLA) JUDGE 07/06/2017 8 QATE: 0 7 (CJ_!!_{.201z.:._______________________ _ ·---------- -Cororn: Hon.D.R. Lyirno- DR. Appeffant: Present. Respondent: Ms. Nsono State Attorney. C/c: F.Nkarnirwa. The case is corning For Judgment and we ore ready. -----D-EP-UfY-REGISTRAR 07/06/2017 Judgment delivered on this 7 th day of June, 2017 in the presence of Appeflont in Persona/ and in the Presence of Ms. Nsono State Nkamirwa Attorney Present. For the Respondent. Court clerk Fotrn 0 9 f Right of Appeal Explained. =-----~--- o.~ DEPUTY REGISTRAR 07/06/2017 10 (j