CHIMA NYARANDU V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CRIMINAL APPEAL NO. 21157 OF 2024 (Arising from the Judgment of the District court of Bariadi before Hon C.E KILIWA-PRM in Economic Case No. 80 of 2023) BETWEEN CHIMA S/O NYARANDU @ KINASA…………………….1ST APPELLANT SELYA NGUSA………………………………………..……..2ND APPELLANT VERSUS REPUBLIC………………………………………………………. RESPODENT JUDGMENT 31st July & 27th September, 2024 MASSAM, J.: The appellants herein , Chima S/O Nyarandu @ Kinasa and Selya Ngusa, were convicted and sentenced to serve two years imprisonment in respect of the 1st offence and twenty (20) years imprisonment in respect of the 2nd offence at the District Court of Bariadi at Bariadi in Economic Case No. 80 of 2023 for being found with unlawful possession of weapon in the National park c/s 17 (1) (b) and (2) of the National Parks Act [Cap 282 R.E 2022 and Unlawful Possession of Government Trophy c/s 86 (1) (2) (c) (iii) of the Wildlife Conservation Act [Cap. 283 of 202] read together with 1|Page paragraph 14 of the first schedule to and Section 57 (1) ad Section 60 (2) of Economic ad Organized Crime Control Act [Cap 200 R.E 2022]. Aggrieved, they preferred an appeal to this court challenging the decision of the trial court. During the hearing it was revealed that on 29th day of October, 2023 at ‘’Milima’’ Bubere area, into Serengeti National Park within Bariadi District in Simiyu region, the appellants was found in unlawful possession of weapons to wit Two knives, One Panga and six trapping wires without the permit and failed to satisfy the authorized officer that the same were intended to be used for purposes other than hunting, killing, wounding or capturing of wild animals. The appellants were also found in possession of Government trophy to wit, one fresh tail of wild beast and two pieces’ fresh meat of wild beast equivalent to one wild beast unlawful killed equivalent to USD 650 or Tshs. 1, 625,0000/=. The prosecution revealed further that, while being on patrol PW1, PW2 and other Conservation rangers saw two persons walking with a bag, they followed them and managed to arrest them. They found them with weapon explained herein above together with two pieces of fresh wildebeest meat, 2|Page one fresh tail of wildebeest without having any permit. Then, they record the area they were found and filled a certificate of seizure. Thereafter the appellants and other person were taken to Bariadi Police station, exhibits were given to CPL Lucas after signing chain of custody. On 29/10/2023 PW3 went at the police station and took the said meat for examination after signing chain of custody, after examination he discovered those exhibits to be one fresh tail and two fresh pieces of wildebeest unlawfully killed. Then the appellants were arraigned before the court. In their defence, the appellants denied to have committed the offence. They said that they were arrested at Nkololo while riding a bicycle to town. They were carrying charcoal and went, they were asked about the permit they did not have. They were taken to Anselia Camp being beaten and locked up, on the 3rd day they were taken to taken to Bariadi police station. After a full trial, the trial court was satisfied that the prosecution proved their case beyond all reasonable doubt. The appellants were convicted and sentenced to serve jail sentence as explained herein above. Being aggrieved the appellants preferred the present appeal based on the three grounds as follows: 3|Page 1. That, the trial magistrate court erred in law and fact based on weak evidence adduced by the public witnesses as stated by the PW1 that they were many game rangers when they are arresting us but other game rangers were not called to testify. 2. That, the trial court erred in law and fact by admitting dry piece of meat while there was no enough evidence and therefore what was tendered before the court was inventory from which was admitted as exhibit without any objection. 3. That, the prosecution side failed to prove the case beyond reasonable doubt. During the hearing of this matter which was done orally, the appellants fended for himself without representation while the respondent was represented by Mr. Goodluck Saguya, State Attorney. Submitting in support of the appeal, the appellants prayed this court to consider his grounds and set him free. On his side, Mr. Saguya opposed the appeal and supported the conviction and sentence of the trial court. On the 1st ground he said that, the appellants were convicted based on the strong evidence submitted by 4|Page the prosecution. He said that the appellants were arrested by PW1, PW2 and other park rangers on 29/10/2023 at Serengeti National Park. They were arrested with Government trophy which is the wildebeest and weapon such as bush knife, two knives and six trapping wires. After interrogation they admitted that they had no permit. A certificate of seizure was filled and they went together to GPS room to print map of the scene. All exhibits were tendered, admitted and read over without any objection. PW4 also testified and she was the one who took the trophy and the appellants before the court for disposal order. Thus, a chain of custody was well conducted, so this grounds has no merit. Regarding the 2nd ground of appeal, Mr. Saguya stated that the dry meat was tendered before the court together with inventory form on behalf of Government trophy which was a perishable one and both were admitted without any objection. As for the last ground of appeal, he said that based on the evidence submitted at the trial court the case against the appellants as proved beyond reasonable doubt. He prayed for the appeal to be dismissed and the decision of the trial court to be left undisturbed. 5|Page Having gone through the grounds of appeal, and the submission made by the counsel for the appellants, the issue for determination is whether the prosecution did prove the case beyond reasonable doubt. It is a trite law that, the duty of the prosecution to prove the case beyond reasonable doubt which is also universal. In woodmington v. Dpp (1935) AC 462, it was held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. This duty in criminal trials has never shifted to the accused. The term beyond reasonable doubt is not statutorily defined but number of cases has defined it, like in the case of Magendo Paul & Another v. Republic (1993) TLR 219 the Court held that: "for a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favor which can easily be dismissed." Guided by the cited authority, the question now is on whether the prosecution in the instant appeal proved the case beyond reasonable doubt. At the trial court PW1 and PW2 explained how the appellants and other 6|Page person were arrested with a bag at “Milima ya Bubere’’ within Serengeti National park. They were searched and found with weapons such as knives, six taping wires and one panga, they were also found with two pieces of wildebeest meat and one fresh tail of wildebeest. Then a certificate of seizure was filed (Exhibit P1) and they signed together with the appellants. Thereafter they went with them to GPS room where a map of the scene was printed using coordinates taken at the scene. Then, they were taken to Bariadi Police Station together with their exhibit which were handled over to store keeper after signing chain of custody. On 29/10/2024 PW3 conducted examination on the Government trophy taken at the police station after signing chain of custody and he realized they were the meat of wildebeest values USD 650. See inventory form which was admitted as exhibit P5. A chain of custody was tendered before the court by PW4 and admitted as exhibit P6. She was also the one who took the appellants before the court for disposal order together with other police officers. The appellants’ defence were also considered by the trial court, however it did not shake the evidence submitted by the prosecution side. 7|Page I am alive to the time bound by principle of law that, in criminal cases, the burden of proof lies to the prosecution, to prove the case beyond reasonable doubt. In this case, the prosecution did discharge their duty by proving the case beyond all reasonable doubt. On the basis of the above stated reasons, I find no merit in the appeal and the same is dismissed in its entirely. The decision of the trial court remained undisturbed. Ordered accordingly. DATED at SHINYANGA this 27th day of September, 2024. R.B. Massam JUDGE 8|Page