samwel masa moronya vs republic 2020 tzhc 4212 8 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MUSOMA AT MUSOMA CRIMINAL APPEAL NO. 84 OF 2020 (Originating from Eco. Case No 42 of 2017 of the District Court of Ta rime at Tarime) SAMWEL MASA MORONYA.................................. APPELLANT Versus THE REPUBLIC...................................................... RESPONDENT JUDGMENT 23rd November & 8>h December, 2020 Kahyoza, J. Samwel Masa Moronya (the appellant) and Chacha Marwa Mariba appeared before Tarime District Court at Mugumu charged with three counts; one, unlawful entry into the National Park, two, unlawful possession of the weapons in the National Park, and three, unlawful possession the government trophies. The appellant and Chacha Marwa Mariba pleaded not guilty to the charges. At the conclusion of a full trial, the district court found the appellant and his co-accused person guilty and convicted them of the offences they stood charged. The trial court sentenced the appellant and Chacha Marwa Mariba to pay fine of Tzs. 20,000/= or to serve an imprisonment term of one year for the offence in the first count. It also sentenced the appellant and Chacha Marwa Mariba to pay fine of Tzs. 50,000/= or to serve an imprisonment term of one year for the offence i in the second count. Finally, it sentenced them to serve an imprisonment term of twenty years for the offence in the third count. It ordered the sentence in three counts to run concurrently. Chacha Marwa Mariba jumped bail. The trial court convicted him in his absence. Aggrieved by both the conviction and sentence, Samwel Masa Moronya appealed to this Court raising six grounds of appeal. The appellant's grounds of appeal raised the following issues- l.Was the trial court justified to hold that the appellant was found in possession of the alleged government trophy? 2. Was the case fabricated against the appellant? 3. Was the appellant properly arrested in the absence of an independent witness? 4. Did the trial court properly evaluate the evidence? 5. Were Pwl and Pw2 reliable witnesses? 6. Did the prosecution prove the case beyond reasonable doubt? The trial court convicted the appellant and Chacha Marwa Mariba with three counts: one, unlawful entry into the National Park c/s 21(l)(a), (2) and 29(1) of the National Park Act (CAP. 282 R.E. 2002) as amended by the Act No 11 of 2003 (the NPA),: two unlawful possession of weapons in the National Park c/s 24 (l)(b) and (2) the NPA: and three unlawful possession of Government Trophies, contrary to 86 (1) and (2) (c)(iii) of the Wildlife Conservation Act, [Cap. 283] (the WLCA) read together with paragraph 14 of the First Schedule to Economic and Organized Crime Control Act, [Cap.200 R.E. 2002] 2 (the EOCCA) as amended by act No 3 of 2016. The prosecution summoned four witnesses and tendered three exhibits to prove the appellant's guilt. The prosecution witnesses, Mzee Ndakama (Pwl) and Yahaya Seif (Pw2) deposed that on the 7/8/2017 at about 18.00hrs were on routine patrol with two other parker rangers namely Fredy Kivuyo and Joseph Nyamsuka at Tindigani area within Serengeti National Park. They saw two people hiding in the bush. They surrounded the area and arrested them. They found them in possession of four fresh hind limbs of wildebeest, a spear, a knife and five animal trapping wires. They had no permit to enter into the national park and possess government trophy. They took the appellant and Chacha Marwa Mariba to police station with the exhibits. H 9753 PC Samson (Pw3), the investigator summoned Jackson Munuo (Pw4) to identify and value the trophy. Jackson Munuo (Pw4) identified the hind limbs that they were of the wildebeest. Jackson Munuo (Pw4) prepared a trophy valuation certificate. He tendered the trophy valuation certificate and the inventory form collectively as Ex.PE.2. H 9753 PC Samson (Pw3), tendered one knife, one spear and five animal trapping wires as Exh. P. 1. The appellant denied the charges under oath. He testified on oath that parker rangers arrested him while grazing his oxen. Chacha Marwa Mariba jumped bail. He did not make any defence. 3 The appellant fended for himself before the trial court and before this Court, whereas Mr. Peter, the state attorney represented the respondent. The appellant relied on the grounds of appeal, he did not expound his grounds of appeal. Mr. Peter, the state attorney did not support the appeal. I will refer to his submission while answering the issues raised by the grounds of appeal. I wish to point out that the appellant raised specific and general ground of appeal. I will commence with specific issues first and this being the first appeal, I will give attention to the general issue at the end. The practice of raising specific and general grounds of appeal ought to be discouraged. Was the trial court justified to hold that the appellant was found in possession of the alleged government trophy? The appellant complained that there was no evidence to prove that the appellant was found with government trophy. The respondent's state attorney submitted that the appellant admitted during the preliminary hearing that he was searched and found with four hind limbs of wildebeest. In addition to that, the state attorney submitted that people who arrested the appellant testified that the appellant was found in unlawful possession of government trophy. It is true that the appellant admitted during the preliminary hearing that he was found in unlawful possession of government trophy. However, the trial magistrate did not comply with the procedure of 4 conducting the preliminary hearing. He did not read the undisputed facts to the appellant before he called upon him to sign the memorandum of agreed facts. The omission rendered the preliminary hearing a nullity. It cannot be relied upon. See the Court of Appeal decisions in the cases of R v. Addallah Salum @Haji, Cr. Revision No. 4/2019 and Kanuda Ngasa @ Kingolo Mathias v. R, Criminal Appeal No. 247/2006. In the latter case, the Court of Appeal held that- 7t is trite law that failure to prepare a memorandum of undisputed facts, or to read and explain the contents of said memorandum to the accused is non-compliance with the mandatory provisions of the law. Where there is such non-compliance, as rightly argued by Mr. Magongo and Mr. Kakwaya, the provisions of the subsection (4) do not come into play. Nothing shall be deemed to have been proved" (Emphasis is added) There is another piece of evidence that Mzee Ndakama (Pwl) and Yahaya Seif (Pw2) testified that they found the appellant in possession of the government trophy. It is true that they gave evidence to that effect. The only problem was that they did not tender the trophy the appellant was found in possession. Jackson Munuo (Pw4) deposed that he identified and valued the trophy the appellant and another person possessed. He also tendered an inventory form in lieu of the government trophies as they subject of quick decay. Unfortunately, Jackson Munuo (Pw4) evidence cannot be relied upon on the ground 5 that while preparing the inventory form he did not comply with the law. Jackson Munuo (Pw4) had a duty to prepare the inventory by observing the procedures under Paragraph 25 of the Police General Orders (PGO) or section 101 of the WLCA, as amended in 2017. The procedure of disposing of exhibits subject to speedy decay under the Police General Orders (PGO) was considered by the Court of Appeal in the case of Mohamend Juma @ Mpakama v. R Criminal Appeal No. 385/2017 (CAT Unreported). The Court made a reference to Paragraph 25 of the PGO which states that- 25. Perishable exhibits which cannot easily be preserved until the case is heard, shall be brought before the Magistrate, together with the prisoner (if any) so that the Magistrate may note the exhibits and order immediate disposal. Where possible, such exhibits should be photographed before disposal. The Court of Appeal held that the accused person must be present and the court should hear him at the time of authorizing the disposal of the exhibits. It stated- "This paragraph 25 in addition emphasizes the mandatory right of an accused (if he is in custody or out of police bail) to be present before the magistrate and be heard." (Emphasis added) There is no evidence that Jackson Munuo (Pw4) took the appellant to the magistrate who ordered the disposal of the exhibits. Jackson Munuo (Pw4) violated the procedure under the PGO. Also, an inventory form can be prepared to dispose perishable, 6 exhibits in the circumstances of this case, under section 101 (1) of the WLCA, Cap 283 as amended by the Written Laws Miscellaneous Act, No.2 of 2017. It provides that- 101.-(l) The Court shall, on its own motion or upon application made by the prosecution in that behalf- fa) Prior to commencement of the proceedings, order that- (i) any animal of trophy which is subject to speedy decay; or (ii) any weapon, vehicle vessel or other article which is subject of destruction or depreciation, and is intended to be used as evidence, be disposed of by the Director; or (b) at any stage of the of proceedings, order that- (i) any animal of trophy which is subject to speedy decay; or (ii) any weapon, vehicle vessel or other article which is subject of destruction or depreciation, which has been tendered or put in evidence before it, be disposed of by the Director. (2) The order of disposal under this section shall be sufficient proof of the matter in dispute before any court during trial. (3)....(4).... not applicable. There is no evidence to prove that Jackson Munuo (Pw4) complied with the procedures under section of 101 of the WLCA. In the end, I find that the inventory form was not admissible. I expunge it from the record. That done, I find no evidence to establish that the 7 appellant was found in unlawful possession of the government trophy to wit; four hind limbs of wildebeest. I uphold the first ground of appeal. Consequently, I set aside the conviction and sentence of the appellant for the offence in the third court. Was the case fabricated against the appellant? I will determine the issue whether the prosecution fabricated the case together with the issues; one, whether there was a need for an independent witness; and two, whether Mzee Ndakama (Pwl) and Yahaya Seif (Pw2) are reliable witnesses. The appellant complained that the prosecution witnesses, Mzee Ndakama (Pwl) and Yahaya Seif (Pw2) fabricated evidence against him. Mr. Peter refuted the appellant's allegation. He submitted that the appellant was found in the national park and found in lawful possession of exhibits. The prosecution witnesses, Mzee Ndakama (Pwl) and Yahaya Seif (Pw2) arrested him and took him to police station. He added that Jackson Munuo (Pw4) identified the trophy. As to why did the prosecution fail to call and independent witness, the state attorney submitted that the appellant and his co-accused person where found in the national part, where it was not possible to find an independent witness. I will not dwell on ground of appeal whether or not the 8 prosecution witnesses are credible or whether the case was fabricate. The second, third, and fifth questions the credibility of the prosecution witnesses. It trite law that every witness is entitled to credence unless there is a cogent reason to question his credibility. In Goodluck Kyando v. R., [2006] TLR 363 and in Edison Simon Mwombeki v. Rv Cr. Appeal. No. 94/2016 the Court of Appeal stated 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 a witness." I am unable to find any cogent and good reason to disbelieve the prosecution witnesses. There is no doubt that Mzee Ndakama (Pwl) and Yahaya Seif (Pw2)were the prosecution's principal witnesses and both were park rangers. Does that make their evidence not credible? A witness may be labelled an interested witness only when he derived some benefits from the result of litigation, or in seeing an accused person punished. But in the present case, neither of the witnesses (Mzee Ndakama (Pwl) or Yahaya Seif (Pw2) was to get any benefit, if the appellant is punished. The appellant did not explain the benefits the park rangers derived from his conviction. I am of the view that the prosecution witnesses were competent, credible, and independent witnesses. They had no interest to serve or gain from prosecuting the appellant and his co-accused person, apart from to secure his conviction for the offence they believed he committed. I dismiss the second, third, and fifth grounds of appeal. 9 Did the trial court properly evaluate the evidence? The appellant complained that the trial court did not evaluate the evidence leading to his conviction. The state attorney submitted that there was enough evidence to establish the appellant and his co-accused guilty. I will answer the issue whether prosecution evaluated the evidence together with the issue whether the prosecution proved the case beyond reasonable doubt. I scrutinized the trial court's record, which depicts that all prosecution witnesses gave evidence in the presence of the appellant. I stated that the prosecution's witnesses were all credible. Mzee Ndakama (Pwl) and Yahaya Seif (Pw2) testified that they found the appellant and his co-accused person in the national park. The appellant denied this piece of evidence. The appellant told the trial court during cross-examination that he had no bad blood with Mzee Ndakama (Pwl) and Yahaya Seif (Pw2) park rangers. I have no reason not to believe the evidence of Mzee Ndakama (Pwl) and Yahaya Seif (Pw2). I find the offence of unlawful entry in the national park proved beyond reasonable doubt. I will consider whether there was evidence to prove that the appellant was found in possession of weapons to wit; one spear, one knife and five animal trapping wires. Mzee Ndakama (Pwl) and Yahaya Seif (Pw2) gave evidence that they found the appellant in possession one spear, one knife and five animal trapping wires in the National Park. They did not tender the weapons or identify them. It was H 9753 PC 10 Samson (Pw3) who tendered the weapons. It is doubtful whether the weapons tendered by H 9753 PC Samson (Pw3) were the same weapons found with the appellant. Mzee Ndakama (Pwl) and Yahaya Seif (Pw2) did not tender or identify the weapons. I find reasonable doubt. Finally, I find the offence of in the first count of unlawful entry into the National Park c/s 21(l)(a), (2) and 29(1) of the National Park Act (CAP. 282 R.E. 2002) proved beyond all reasonable doubt. I uphold the conviction. I am unable to uphold the conviction in the second and third counts of unlawful possession of weapons in the National Park c/s 24 (l)(b) and (2) the NPA: and unlawful possession of Government Trophies, contrary to 86 (1) and (2) (c)(iii) of the Wildlife Conservation Act, [Cap. 283] (the WLCA) read together with paragraph 14 of the First Schedule to Economic and Organized Crime Control Act, [Cap.200 R.E. 2002] (the EOCCA), respectively. The prosecution flouted the procedure of tendering the exhibits to prove unlawful possession of weapons and of the government trophy. It is highly improbable that the appellant was found in unlawful possession of weapons and of the government trophy in the National Park. Eventually, I quash the appellants conviction of the offence in the second and third counts that is of unlawful possession of weapons in the National Park c/s 24 (l)(b) and (2) the NPA: and unlawful possession of Government Trophies, contrary to 86 (1) and (2) (c)(iii) of the Wildlife Conservation Act, [Cap. 283] (the WLCA) read together with paragraph li 14 of the First Schedule to Economic and Organized Crime Control Act, [Cap.200 R.E. 2002] (the EOCCA),respectively. I had a cursory look at the sentence imposed in the first count. The trial court sentenced the appellant pay fine of Tzs. 20,000/= in default, the court sentenced the appellant to serve an imprisonment term of one year. The sentence is just, I will not interfere. It is ordered accordingly. J. R. Kahyoza JUDGE 8/12/2020 Court: Judgment delivered in the absence appellant and the presence of Mr. Temba, the State Attorney for the Republic via video link. B/C Ms. Tenga present. J. R. Kahyoza JUDGE 8/12/2020 12