kwabi nila limbu vs republic 2020 tzhc 3279 30 october 2020

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA CRIMINAL APPEAL 109 OF 2020 KWABI s/o NILA @ LIMBU APPELLANT VERSUS THE REPUBLIC RESPONDENT (Arising from the decision and orders of the district court of Serengeti at Mugumu, Hon. Semkiwa RM in economic case no 12 J of 2019 dated 28.05.2020) JUDGEMENT 20th & 30th October 2020 GALEBA, J. The appellant, Kwabi s/o Nila @ Limbu together with another person called Rau s/o Mboje @ Magembe who jumped bail and therefore was tried in absentia, were charged before the district court of Serengeti in economic case no 121 of 2019 and were both found guilty of having entered into the Serengeti National Park with one machete and two knives without any permit to enter in the park or to possess the above mentioned weapons in the said protected area. They were also found guilty and convicted of having been found in possession of four (4) carcasses of Thomson Gazelles, which items are, legally government trophies. In respect of the 1st two counts, the two were sentenced to 2 years imprisonment on each count and on the 3rd, each was ordered either to pay Tshs. 40,400,000/= or serve a term of 20 years in jail. The appellant was dissatisfied with both i conviction and the corresponding sentences, and to exhibit his grievance, he filed this appeal raising 5 grounds. The appellant’s grounds of appeal are, first that the conviction and sentence imposed upon him was unlawful because he was tried without there being in place a certificate vesting jurisdiction in the district court to try him, second, that the trial court erred because it did not permit the appellant to call his witnesses, third, that during his trial in the trial court, he was not afforded the right to be heard and fourth, that the trial court erred for failing to consider his defense and fifthly that the prosecution did not prove the case beyond reasonable doubt. The broad issue or a master question in this appeal is whether the individual grounds raised to challenge the decision of the trial court have merits. At the hearing of this appeal over video link, the appellant prayed that the court be pleased to adopt his grounds of appeal as his submissions so that Mr. Isihaka Ibrahim, learned state attorney submits first, in order that the appellant would rejoin if he wished. In respect of the 1st ground of appeal Mr. Ibrahim submitted that the complaint that the appellant was tried in the absence of the certificate to confer jurisdiction on the subordinate court is misconceived. He submitted that the said certificate was presented to the court on 11.11.2019 as recorded at page 4 of the typed 2 proceedings. He therefore prayed that the 1st ground of appeal be dismissed for want of merit. I have gone through the record, both the proceedings and also the certificate itself; I am satisfied that at the time the subordinate court was trying the case, it had requisite jurisdiction, for the certificate conferring it to the court was in place. In the circumstances the 1st ground of appeal is dismissed. As for the complaint in the 2nd ground of appeal, that the appellant was not afforded an opportunity to call his witnesses, Mr. Ibrahim submitted that the appellant was given the right to call his witnesses at page 27 of the proceedings but he stated that he would not call any witnesses in addition to himself. This court is satisfied that the appellant was afforded a right to call his witnesses under section 231(a) of the Criminal Procedure Act [Cap 20 RE 2019] (the CPA) but he deliberately opted not to use any such right and he expressly submitted so in court. The appellant at page 30 of the typed proceedings, after giving his evidence he prayed to close his case. It is the holding of this court that the 2nd ground of appeal is an afterthought, because at the trial, the appellant was given every right to call witnesses but he did not opt to seize the opportunity to his advantage in which case the court had nothing else that it could have done. In the circumstances, the 2nd ground of appeal is dismissed for want of merit. 3 The complaint in the 3rd ground of appeal is that the appellant in the trial court was not afforded a right to be heard. Mr. Ibrahim submitted that the appellant was given an adequate right to be heard. In the following lines I will endeavor to show who is right between the appellant and counsel for the respondent. Firstly, on all occasions that the case was called on for any orders in court, the appellant was present in person which means that nothing took place in court in his absence. Secondly, each time before a witness was called to tender an EXHIBIT the appellant was asked whether the EXHIBIT should be tendered or not, and on all 4 occasions the appellant had no objection to admission of any exhibit, see pages 15, 17 and 24 in relation to EXHIBITS PEI, PE2, PE3 and PE4. It is notable that the manner of tendering EXHIBIT PE2, (the weapons) is not reflected in the typed proceedings but the same is fully covered in the handwritten proceedings recorded on 30.01.2020 and the weapons were tendered without objection. Thirdly, the appellant was given an opportunity to cross examine all the prosecution witnesses who were called to give evidence against him. This is evident at pages 16, 18, 21 and 25 of the typed proceedings. Fourthly, section 231 (1)(3) and (4) of the Criminal Procedure Act [Cap 20 RE 2019] (the CPA) provides for two fundamental rights; one is the accused to be informed that he has a right to give evidence in 4 defending the case and to ask him how he would like to tender it and two is to inform the accused of his right to call other witnesses if he has any. In this case while resolving ground 2 we already stated that he was afforded these two rights. Plus the fact that the appellant participated in the preliminary hearing and signed even the memorandum of matters that were not disputed, I am satisfied that there is nothing more that the court could have done to guarantee the appellant a fair hearing. For those reasons the 3rd ground of appeal is hereby dismissed. The 4th ground was a complaint that the trial court did not consider the appellant’s defense. In response to that complaint, counsel for the respondent admitted the anomaly but he hastened to add that the remedy is for this court to consider the defence and make its independent decision. Indeed that is the position of the law as per the decision in Halid Hussein Lwambano v Republic, Criminal Appeal no 473 of 2016 (unreported). I will from this point proceed to consider the merits of the defense evidence in the trial court and decide whether in the circumstances, the trial magistrate would have come up with a different decision had she considered it. The appellant's evidence in the trial court was that on 22.09.2019 he was working in his farm. At the same time there was his fellow in a nearby farm also working. Then there came a car and stopped nearby and someone from the car asked him whether he had seen 5 poachers passing by; he said he had not. They then went to his fellow and then came back and arrested both of them, took them to the police and later to court. During cross examination, he stated that he was arrested in the village and not in the national park and that he had no witnesses to call. The above defense is in the nature of an alibi. Legally, before raising a defence of alibi, there must be issued a notice of alibi under section 194(4) of the CPA or its particulars as per section 194(5) of the same Act. The notice is always filed and served on the prosecution. However if both the notice and the particulars are missing, the court has a discretion to accord no weight to such a defence; see section 194(6) of the CPA and the case of Kubezya John v Republic, Criminal Appeal no 488 of 2015 (unreported) at pages 21,22 and 23 of the typed judgment. The evidence of PW1 Wilson Adam is that he participated in arresting the appellant together with Rau Mboje on 22.09.2019 around 1.00am at Barageti in the Serengeti. This witness tendered EXHIBIT PEI, the certificate of seizure, showing that the appellant was arrested within the Serengeti National Park. That certificate has a thumbprint of the appellant and when the same was being tendered the appellant did not object to its admission. See page 15 of the typed proceedings. In response to the questions asked by the appellant for cross examination, PW1 answered; 6 “You were sit (sic) down. You were possessed (sic) one panga and two knives. I don’t know since when you were there. It is not my duty to know what you were eating for those days. Is not my duty to bring you to court.” A careful scrutiny of the above answers of the prosecution witness does not suggest that the appellant while asking them had any issue or concern with the locus in quo or the scene of crime. He did not ask any question relating to where he was arrested. In law failure by a party to cross examine the other party’s witness on a crucial point of importance, the party failing to cross examine, is ordinarily taken as having admitted the contents of the evidence of the witness he failed to cross examine; see Martin Misara v the Republic, Criminal Appeal No 428 of 2016 (unreported). In this case, I opt to attach no weight to the defense, under section 194(6) of the CPA for want of notice and particulars as indicated above. Based on the evidence of PW1 and PW3 together with EXHIBIT PEI, this court holds that consideration of the defence evidence by the trial court would not have altered its decision. In the circumstances, the 4th ground of appeal is dismissed. The 5th and last ground of appeal was that the case was not proved beyond reasonable. Mr. Ibrahim submitted that according to the evidence on record in terms of the oral testimony of the PW1 to PW4 together with the evidence that were tendered, the prosecution proved the case. I am in full agreement with Mr. Ibrahim, a careful 7 study of the exhibit evidence of the prosecution cose, the respondent proved the charge to the hilt. Conversely, the defence raised no doubt in the case presented as expected. In the circumstances, the 5th ground of appeal is dismissed for want of merit. As all grounds of appeal have been dismissed, this appeal has no merit and the same is hereby dismissed. DATED at MUSQMA“:thrs^Oth October 2020 N. Galeba JUDGE 30.10.2020 Court; The appellant has a right of appeal to the Court of Appeal in 30 days. _; . N. Galeba JUDGE 30.10.2020 8