christina cosmas kilowoko v the republic 2023 tzhc 18363 15 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SONGEA DISTRICT REGISTRY) AT SONGEA DC. CRIMINAL APPEAL NO. 13 OF 2023 (Originating from Songea District Court in Economic Case No. 10 of2022) CHRISTINA COSMAS KILOWOKO......................... APPELLANT VERSUS THE REPUBLIC................................................................................. RESPONDENT JUDGMENT Date of Last Order: 30/05/2023 Date of Judgment: 15/06/2023 U. E. Madeha, J. It is worth considering the fact that, before the District Court of Songea, the above named Appellant was charged with the offence of unlawful possession of Government trophy contrary to sections 86 (1) and (2) (b) of the Wildlife Conservation Act (Cap. 283, R. E. 2022) read together with paragraph 14 of the First Schedule thereto and sections 57 (10) and 60 (2) & (3) of the Economic and Organized Crime Control Act (Cap. 200, R. E. 2022). i The particulars of the offence are to the effect that; on 28th July, 2022, at Songea Municipal Offices within Songea Municipality in Ruvuma Region, the Appellant was found to be in unlawful possession of four pieces of eland meat valued at USD 1,7000 which was equivalent to TZS. 3,966,100.00, the property of the Government of the United Republic of Tanzania without a permit from the Director of Wildlife. After a full trial she was convicted and sentenced to pay a fine of Tanzanian shillings thirty-nine million, six hundred and sixty-one thousand (TZS. 39,661,000.00) or in default to serve twenty years in prison. In fact, the sentence and conviction did not amuse her. As a result, she lodged this appeal on five grounds of complaints. For easier of reference, I will reproduce them as follows: 1. That, the Trial Court erred in law and facts when it convicted the Appellant without any proof thereof. 2. That, the Trial Court erred in law when it conducted the trial contrary to the law while the second accused was not arranged before the court. 3. That, the Tria! Court erred in law and facts when it sentenced the Appellant contrary to the law. 2 The background of this appeal are as follows: The Appellant was arrested by PW1, who had full information that the Appellant was dealing with the business of selling wild meat. According to PW1, when the Appellant was arrested, she admitted that she was selling wild meat and she surrendered a box which contained four pieces of eland meat. The meat was stored in the box that was stored at the security guard's hut The Appellant told PW1 that she received it from Alex John Mwinuka. PW1 seized the four pieces of meat and the certificate of seizure was signed by the Appellant and PW1. After that the Appellant together with the exhibits were taken to Songea Central Police Station. Similarly, PW2 who is the Wildlife Conservation Officer had the same evidence as PW1. PW3 (F. 4808 D/CPL Feliche) testified that; on 26th June, 2022, he was on duty at Songea Central Police Station and went with PW2 and PW3 to the Municipal Office. At the Municipal Office they found Mr. Jordan Haule and they asked him to be an independent witness. They went at the security guards hut and found two women and they arrested them. They had an interrogation and the Appellant admitted to deal with the business of selling wild meat and she surrendered four pieces of dried wild meat. PW4 Brayan Ruben Olekunei, the Wildlife Officer, in his evidence testified 3 that he is a degree holder in Wildlife Management and he has nine years working experience. On 28th June, 2022, he was instructed by his superior to go to Songea Central Police Station to identify and make valuation on the Government trophy that was seized. Acting accordingly, he went to the Police Station where a box containing four pieces of dried wild meat was handled to him. Through the skin that was found on each of the four pieces of dried wild meat he discovered that it was an eland meat. After that, he made the valuation and the meat was valued at USD 1700, equivalent to an amount of TZS. 3,996,100.00. The valuation report was admitted as an exhibit PW4. On the same note, the Appellant (DW1) testified that on 28th June, 2022, she was on duty as the security guard at Songea Municipal Offices and one person came to the security guard's hut and asked to keep the box at the security offices hut. When interrogated by the Police Officers on the eland meat she explained that the eland meat was owned by one Alex Mwinuka. On S^April, 2019 when this appeal was for hearing the Appellant was represented by none other than Mr. Eliseus Ndunguru, the learned 4 advocate whereas Ms. Tumpale Lawrence, State's Attorney represented the Republic. Mr. Eliseus Ndunguru opted to abandon the third ground of appeal and argued only on the first and second grounds of appeal. Submitting on the first ground of appeal he contended that the Trial Court erred in law and in fact when it convicted the Appellant while the offence was not proved to the required standard. He submitted that the decision was based on an illegal search report since the search was conducted in the absence of an independent witness. He added that PW3, one F. 4808 D/CPL Feliche was not qualified to be an independent witness since he had prior knowledge of the search. He added that the presence of an independent witness was a legal requirement and not an option. Also, he claimed that the Appellant was convicted based on contradictory evidence of PW1 (Deogratius B. Chami) and PW2, one Diana Alex Ntaganda. He argued that PW1 testified that the seizure certificate was signed by an independent witness while on his part, PW2 testified that there was no independent witness who signed in the seizure certificate, which was a key exhibit used to prove the offence the Appellant was charged with. He further contended that there were no proper records of 5 the chain of custody the evidence shows that the trophies were delivered to the Police Station on 28th June, 2022 and there were no any records as to where they were kept from 26th June, 2022 when they were seized up to when they were brought to the Police Station. He further contended that this was a serious irregularity and it creates doubts as to whether what was valued was the same to what was seized from the Appellant. He humbly submitted that the prosecution was duty-bound to parade witnesses who dealt with the exhibit between 26th June, 2022 and 28th June, 2022 when the exhibit was handled to the exhibit keeper at the first time. Mr. Eliseus Ndunguru further averred that while the Appellant testified that the box which was seized at Songea Municipal Offices gate was the property of Alex Mwinuka who was arrested and he was a party to the case but he was not arraigned before the Court. He added that the Trial Court did not assign any good cause for not believing her evidence. Furthermore, he contended that there was no proof that the Appellant was not on duty on that particular date. Surprisingly, neither did the prosecution call any witness to prove the fact that the Appellant was not on duty. He contended that the prosecution testified that the Appellant admitted when she was interrogated but the cautioned statement was not 6 tendered before the Court. He added that failure to tender the caution statement as an exhibit demanded the Trial Court to draw adverse inferences against the prosecution. He contended that since PW1, PW2 and PW3 testified that the Appellant was arrested with the said box at the security hut in the vicinity of Songea Municipal Offices and she told them that the box belonged to one Alex Mwinuka. Also, they testified that there was another security guard who was not arrested, the fact which invited the Trial Court draw adverse inference. Apart from that, he added that the security guard was a material witness who had to be summoned by the prosecution to testify. He prayed for this Court to draw adverse inference that the witness could be called in order to give testimony against the prosecution to the effect that the trophy belonged to Alex Mwinuka who was also arrested by the prosecution but he was not arraigned. On the second ground of appeal, he submitted that the records of the Trial Court are crystal clear that there were two accused persons namely; Christian Cosmas Kilowoko and Alex John Mwinuka but Alex John Mwinuka was not arraigned and tried before the Trial Court. Finally, he prayed for 7 this Court to allow this appeal by setting aside both sentence and conviction. On the other hand, Ms. Tumpale Lawrence representing the Respondent, supported the conviction and sentence of the Trial Court. On the first ground of appeal, she submitted that the Trial Court convicted the Appellant basing on the search report which was conducted in the presence of independent witnesses who are Jordan Haule, Diana Alex Ntanganda and F.4808 D/PCL Feliche. She further stated that the Trial Court convicted the Appellant basing on the strong evidence given by PW1, PW2, PW3 and PW4. She argued that PW1 arrested DW1 after being informed by an informant that DW1 was dealing with the business of selling wild meat. She contended that after interrogation, the Appellant admitted to be dealing with that business and surrendered four pieces of dried meat which was stored in a box. PW2 and PW3 went at the scene of the crime at Songea Municipal Office and managed to get an independent witness, Jordan Haule, who witnessed the search. On the second ground of appeal, she submitted that, Alex John Mwinuka was interrogated and agreed to be the owner of the box but after investigation, the police officers arrested Christina Kilowoko and took her 8 to the Police Station. Therefore, the second accused was not part of this case that is why he was not arraigned before the Trial Court. On the third ground of appeal, she contended that it Is the Respondent’s submission that the Trial Magistrate passed judgment and sentence according to the law. She added that the accused person was charged with an offence of unlawful possession of a Government trophy contrary to sections 86 (1) and (2) (b) of the Wildlife Conservation Act (Cap 283, R. E. 2002) read together with Paragraph 14 of the First Schedule thereto and sections 57 (1) and 60 (2) (3) of the Economic and Organized Crimes Control Act (Cap. 200, R. E. 2022) and the law imposes a sentence of twenty years imprisonment and the Appellant was lawfully sentenced. Finally, she submitted that this appeal has no legs to stand on and ought to be dismissed in its entirety. As much as I am concerned, having heard the submissions from both parties on the grounds of appeal and upon perusal of the Trial Court's records, I find they boil down into only one issue which is whether the prosecution side proved all the essential ingredients of the offence of unlawful possession of the Government trophy contrary to sections 86 (1) and (2) (b) of the Wildlife Conservation Act (supra) read together with 9 Paragraph 14 of the First Schedule to and sections 57 (10) and 60 (2) (3) of the Economic and Organized Crime Control Act (supra). As a matter of fact, from the Trial Court's original records, I find that the prosecution side managed to parade a total of four witnesses in proving the offence of unlawful possession of Government trophy against the Appellant. Also, the prosecution side tendered four exhibits which are the seizure certificate, chain of custody, inventory form and the valuation report. The four witnesses proved on how the Appellant was found to be in unlawful possession of an eland meat. In his submission on the issue at hand the Appellants learned advocate, Mr. Eliseus Ndunguru contended that the Trial Court erred in law and in fact to convict the Appellant while the offence was not proved. Actually, his contention was on four mains reasons: One, that the Trial Court convicted the Appellant basing on the contradictory evidence of PW1 and PW2. Two, that the fact that there was no proper record of the chain of custody from the incident date up to 28th June, 2022, Three, that there was no true independent witness who witnessed the search of the Government trophy to the Appellant. Four, the cautioned statement of the io Appellant admitting to have committed the offence was not tendered as an exhibit. The Appellants learned counsel submitted that in their testimonies, PW1 and PW2 contradicted each other. PW1 testified that the seizure certificate was signed by an independent witness as required by the law, but PW2 testified that there was no independent witness who witnessed the seizure. The Appellant's learned counsel was of the view that since the seizure certificate was the most important evidence to prove that Government trophy was found to be unlawfully possessed by the Appellant o and it was important to be witnessed by an independent witness. It is worth considering the fact that, the learned State Attorney for the Respondent submitted that, from the proceedings of the Trial Court, the prosecution properly stated that Jordan Haule was an independent witness and the seizure certificate shows that he was the one who was an independent witness. She was of the view that there is no contradiction on the prosecution witness on the issue of independent witness. As a matter of fact, having reviewed the testimonies of PW1, PW2, PW3 and PW4 as well as the seizure certificate, I find there is no any 11 colour of contradictions. The prosecution witnesses testified that Jordan Haule was an independent witness and his name is also found on the seizure certificate which was admitted during trial. Therefore, I find that the arguments of the Appellant's learned counsel that there are contradictions on the issue of an independent witness is not tenable. Also, the Appellant's learned advocate argued that the records of chain of custody of the Government trophy from the date it was seized that is on 26th June, 2022 up to 28th June, 2022 when it was brought into the V hands of the Police Officers are not clear. From the available evidence whichhwas given by both parties, it is clearly shown that the Appellant was found to be in unlawful possession of the Government trophy on 28th June, 2022. There is nowhere in the records of the Trial Court which shows and proves that the Appellant was caught in unlawful possession of the Government trophy on 26th June, 2022. Thus, I find the arguments adduced by the Appellant's learned counsel are misconceived. Moreover, on the issue of the absence of an independent witness when the Appellant was searched. It is a fact that, having gone through the prosecution's evidence I find that there is nowhere the prosecution stated that they went to search the Appellant. 12 Principally, from the records of the Trial Court, it is crystal clear that the appellant was found to be in unlawful possession of the Government u trophy. As a result, it was seized. Lastly, the Appellant's learned counsel submitted that, since the cautioned statement of the Appellant was not tendered, the prosecution failed to prove the charge laid against the Appellant. The learned State Attorney for the Respondent has nothing to submit on the issue of the cautioned statement. However, I am of the view that, the prosecution was not bound to tender the caution statement. The prosecution side had a choice on which evidence to bring in order to prove the charge which was levelled against the Appellant. As far as the evidence givemby PW1, PW2 and PW3 is concerned, it is crystal clear that the Appellant was found to be in unlawful possession of four pieces of an eland meat. To crown it all, the Appellant in her defense testimony didn't deny the fact that she was found in unlawful possession. Alternatively, the Appellant in her defence stated that it was not her property as she was given by another person. Section 100 (2) of the Wildlife Conservation Act (supra), reads as follows: 13 "Where in any proceedings for an offence under section 86 it is proved to the satisfaction of the court- (a) that the Government trophy which is the subject matter of the charge was found in any building, premises or vessel, or any part of any building, premises or vessel occupied by the accused or his dependant, whether or not the accused was physically present when the trophy was found; or (b) that such Government trophy was found in any vehicle, baggage, package or parcel in possession of or owned by the accused or over which the accused had control at the time when the trophy was found, unless the contrary is proved, the court shall presume that such trophy was in the possession of the accused". In the instant appeal, from the testimonies given by the prosecution witnesses, it is crystal clear that the Appellant was found to be in unlawful possession of four pieces of dried. From the testimony given by PW4, the dried meat was an eland meat which is a Government trophy. Conclusively, in the upshot of the foregoing discussion, leads me to the conclusion that the Appellant was found to be in unlawful possession of Government trophy to wit four pieces of an eland meat. The Trial Court correctly convicted and sentenced the Appellant for the offence she was 14 charged with. The appeal stands dismissed. I uphold the Appellants conviction and its corresponding sentence. It is so ordered. DATED and DELIVERED at SONGEA this 15th day of June, 2023. learned advocate Mr. Eliseus Ndunguru and Ms. Tumpale Lawrance, the State Attorney representing the Respondent. Right of appeal is explained. 15