JUDGMENT Daudi Yeremia Mapunda

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB- REGISTRY AT SONGEA CRIMINAL APPEAL NO. 24476 OF 2024 (Originating from Namtumbo District Court in Economic Case No. 11 of 2023) DAUDI MAPUNDA YEREMIA …………………….….……………………… APPELLANT VERSUS REPUBLIC ……………………………….……………..……………………. RESPONDENT JUDGMENT 12th November & 16th December, 2024. KAWISHE, J.: The appellant, Daudi Mapunda Yeremia was arraigned before the District Court of Namtumbo (trial court) with the offence of unlawful possession of government trophy contrary to section 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 section 57 (10) and 60 (2) & (3) of the Economic and Organized Crime Control Act (Cap. 200, R.E 1 2022). When the charge was read over to the appellant, he denied the allegation hence full trial was conducted. However, at the end of the trial, he was found guilty, convicted and sentence to serve twenty years in jail. Aggrieved with the decision of the trial court, the appellant has approached this court by way of appeal. Initially, the appellant filed his petition of appeal consisting four grounds of appeal. However, when the appeal was called for hearing on 12th November, 2024, the appellant prayed to add a new ground of appeal. The appellant’s prayer was not contested by the respondent and this court allowed the appellant to add another ground of appeal which is the fifth ground of appeal. Thus, the grounds of appeal are as follows: i. That the trial court erred in law and in fact by convicting the appellant relying on the uncorroborated evidence adduced by PW1. ii. That the trial court erred in law and in fact by convicting the appellant due to the reason that, there was variation between the conviction and value of the subject matter. iii. That the trial court erred in law and in fact by convicting, basing on the doubtful evidence adduced by PW1 concerning on the value of the subject matter, due to the reason that, on memorandum of facts, the subject matter was written valued at TZS 5,951,853/=, but when testified before the court he said that the subject matter was valued at TZS 5,950,000/=, but bad enough, he testified that, the subject matter was valued at USD 2550 (according to the exchange rate) which 2 is equivalent to TZS 2,334/=, but when you take USD 2550 x 2,334 (market value exchange rate) the answer is TZS 5,951,700/= and not TZS 5,950,00/= as PW1 testified. iv. That the trial court erred in law and in fact to convict the appellant on the matter which was not proven to the standard required by the law that is beyond reasonable doubts. v. The trial court erred in convicting the appellant while the prosecution failed to tender the government trophy (wildlife meat) or any photograph showing the appellant to be in possession of the government trophy as exhibit in court. The factual background giving rise to the trial of the appellant and subsequently, the decision from which this appeal arose, may be briefly stated as follows: It all started in the morning hours of 1st April, 2023, when PW3 (Godson Sekoture Dafi), a Game Warden was in a normal patrol together with his fellows. When they reached at Lusewa Village, they received information from their informer that the appellant was in possession of wildlife meat. They approached the street chairman and requested him to accompany them. They went to the appellant’s house and upon arrival at the appellant’s house, they informed him on what had brought them there and they conducted a search in the appellant’s house. In that search, they found nine pieces of wildlife meat (sable antelope) in the appellant’s house which was stored in a cooking pot, which was seized 3 and the certificate of seizure was admitted as exhibit P3. Thereafter, the appellant was arrested and sent to Namtumbo Police Station where his cautioned statement was recorded by PW5 (G. 4181 Detective Corporal Mecky) and he admitted to have been found with nine pieces of wildlife meat (sable antelope). The cautioned statement was admitted as exhibit P5. According to PW1 (Lameck Mfuruki), a Game Warden and trophy valuation expert, the nine pieces of wildlife meat which the appellant was found to be in unlawful possession was identified to be the meat of wildlife animal known as sable antelope. Its value was USD 2550 which was equivalent to TZS. 5,950,000.00 at the exchange rate of TZS. 2,334.00. The valuation report was admitted as exhibit P1. PW2 (H.506 Corporal Shaban) the exhibit keeper at Namtumbo Police Station admitted to have received a cooking pot which contained nine pieces of wildlife meat which was disposed after obtaining court order and he remained with the cooking pot. The cooking pot and inventory form were tendered and admitted as exhibits P2 and P4 consecutively. 4 PW6 (G. 2010 Detective Corporal Said) was the investigator and the one who recorded the statement of an independent witness who was not found at time when the trial was conducted. The recorded statement of an independent witness was tendered by PW6 and admitted as exhibit P6. The appellant was the sole defence witness. In his sworn defence testimony, he denied the allegations made by the prosecution for the reason that, the meat which was seized was not tendered as an exhibit by the prosecution. He contended further that, the street chairman who witnessed the search and seizure was not called to testify. It was from these testimonies that, the trial court found the prosecution to have proved its case, proceeded to convict and sentence the appellant as stated herein above. When the appeal was called for the hearing, the appellant appeared in person without any representation whereas the respondent/Republic had the services of Mr. Frank Sarwat, learned State Attorney. Availed with a chance to argue for his appeal, being a layperson, the appellant prayed for his grounds of appeal to be adopted and considered 5 by the court. He also prayed to be given an opportunity to rejoin after the respondent’s submission. Arguing against the appeal, Mr. Sarwat, prayed to argue on the first, fourth and fifth grounds of appeal collectively. It was his view that, the three grounds of appeal challenged on whether the case was proved beyond reasonable doubt. He submitted that, in this appeal, the appellant was convicted with the offence unlawful possession of government trophy contrary to section 86(1) & (2) of the Wildlife Conservation Act (supra) and in proving the offence, the prosecution marshalled six witnesses. That PW3 who was the arresting officer testified that on the fateful date while at Lusewa Village within Namtumbo District, he managed to searched the appellant’s house and found the appellant to be in possession of government trophy (wildlife meat). He seized the trophy and the certificate of seizure (exhibit P3) was signed before an independent witness who witnessed the search and seizure. He added that, since the independent witness could not be found, his statements recorded by the investigator was tendered by PW6 and admitted as exhibit P6. 6 He submitted further that, PW1 identified the government trophy seized at the appellant’s house to be of a wildlife meat (sable antelope) and prepared the valuation report which was tendered and admitted as exhibit P1. Also, PW2 who was the exhibit keeper testified that on 1st April, 2023 while at Namtumbo Police Station he received nine pieces of wildlife meat which were in a cooking pot. That, the wildlife meat was immediately disposed but the cooking pot was kept as an exhibit and tendered during trial and admitted as exhibit P2. That, according to the testimony given by PW4, the wildlife meat was disposed after obtaining disposal order from the court and the inventory form was admitted as exhibit P4. Moreover, Mr. Sarwat argued further that, PW5 who recorded the cautioned statement of the appellant stated that, the appellant confessed to have been found with the government trophy. The cautioned statement was tendered and admitted as exhibit P5. He contended that, in criminal trial, the best evidence is that of the accused person who freely and voluntarily confesses to have committed the offence. To bolster his submission, he referred the case of Herman Muhe vs. Republic (Criminal Appeal 113 of 2020) [2022] TZCA 781 (7 December 2022, TanzLII). He averred that, in additional to the testimonies given by 7 the prosecution witnesses, the trial court proceedings show that, among the agreed matters before trial court included the fact that, the appellant was arrested at Lusewa Village and the nine pieces of wildlife meat (sable antelope) were seized at his house and he signed the certificate of seizure. He prayed these grounds of appeal to be dismissed. The second and third grounds of appeal were also argued collectively by the respondent’s learned counsel. He submitted that, the complaints made by the appellant in respect to the contradiction on the exchange rate is baseless. He averred that, the prosecution evidence as given by PW1 is clear that, the value of the wildlife meat which the appellant was found with was USD 2550 and on that date the exchange rate was at TZS. 2,334.00. That though PW1 in his oral testimony told the trial court that, the value of the meat was TZS. 5,950,000.00, but the trophy valuation certificate which was tendered and admitted as exhibit P1 clearly show that, its value was USD 2550 as he stated in his testimony. He contended that, the contradiction which the appellant has noticed in the prosecution testimony in respect to the variation on the value of the wildlife meat which the appellant was found to be in possession is minor and does not go to the root of the case. He added that, the contradictions are minor and by 8 any means cannot shake the credible evidence given by the prosecution. He invited this court to be guided by the decision of the Court of Appeal in the case of Ikonyo Kashuma @ Noah vs Republic (Criminal Appeal 6 of 2022) [2022] TZHC 13205 (28 September 2022; TanzLII), and find the contradictions to be immaterial. He then argued that, the case against the appellant was proved beyond reasonable doubt in accordance to the provision of section 3(2)(a) of the Evidence Act (Cap. 6, R.E 2022) and prayed for the appeal to be dismissed. In his short rejoinder, the appellant came with new complaints that he confessed before the Police Officer since he was beaten and his confession was involuntarily procured. He also averred that, the independent witness who was the street chairman was not called to testify for the pretense that he was not found something which is not correct. He added that, he failed to cross examine PW6 who testified on behalf of the independent witness because he was not present when his house was searched. Having heard and followed the submission from both parties, this court is set to determine the merit or otherwise of the appeal. I my view, 9 the whole grounds of appeal and submissions made by the parties entails to a sole issue of whether the prosecution proved its case against the appellant beyond reasonable ground. In addressing this issue, the court will have determined all the grounds of appeal. Starting with the fifth ground of appeal, it is the appellant’s complaint that the trial court erred in convicting him while the prosecution side failed to tender the wildlife meat or any photograph showing that he was found with the government trophy as an exhibit during the trial. This complaint is not new. It was raised by the appellant in his defence and the trial court addressed it. It was held by the trial court that, since the wildlife meat is among the perishable goods, the law allows the investigator to disposed them before trial after obtaining court’s order. In this appeal exhibit P4, which is an inventory form was issued by the court and allowed the investigator to dispose the wildlife meat which was seized from the appellant. That, instead of tendering the wildlife meat, the prosecution side tendered exhibit P4 which represents the disposed wildlife meat. In a normal thinking, how could the meat be kept awaiting trial of the case. The legislature applied its wisdom to enact provisions allowing application for disposal of perishable exhibits like meat. Keeping it in order to be tendered 10 during the trial is not logical. As long as there was a court’s order to dispose the same, I find the fifth ground of appeal has no merit and it is dismissed. The second and third grounds of appeal are on the contradictions found in respect to the value of the government trophy. The appellant is doubting as to why he was convicted despite the contradictions found in the testimony given by PW1. That, the government trophy had the value of USD 2550 which is equivalent to TZS. 5,950,000.00 while during preliminary hearing the value was stated to be TZS. 5,951,853.00. He has complained further that, since PW1 in his testimony stated that, the exchange rate on that date was at TZS. 2,334.00, then the exactly value would have been TZS. 5,951,700.00. Responding on the contradictions pointed by the appellant, Mr. Sarwat conceded that, the testimony given by the prosecution has the pointed errors. However, he argued that, the contradictions are minor and do not go into the root of the case. That, exhibit P1 tells the exactly value of the meat and cures the doubts raised by the appellant in respect to the contradictions found in the testimony given by PW1. 11 As stated by the parties, I must concur with them that, there are contradictions in the value of the trophy between the testimony given by PW1 and that found in exhibit P1. PW1 in his testimony told the trial court that, the trophy has the value of USD 2550 which is equivalent to TZS. 5,950,000.00, at the exchange rate of TZS. 2,334.00. The appellant has contended that the value would have been TZS. 5,951,700.00. In light to exhibit P1, it is understandable that, the value of the trophy was USD 2550 and the exchange rate on the date it was valued was TZS. 2,334.00, which is equivalent to TZS. 5,951,700.00 as stated by the appellant. It is clear that, the appellant has confronted the contradictions on the oral testimony given by PW1 and those contained in exhibit P1. The appellant’s doubt is cleared by the provision of section 100 (1) of the Evidence Act (Cap. 6, R.E 2022), which state that, documentary evidence cannot be superseded by an oral account. The provisions of the cited section were emphasized by the Court of Appeal in the case of Agatha Mshote vs. Edson Emmanuel & 10 Others, (Civil Appeal 121 of 2019) [2021] TZCA 323 (20 July 2021; TanzLII). Also, the Court of Appeal in Martin Fredrick Rajabu vs. Ilemela Municipal Council & Another, Civil Appeal No. 197 of 2019 (unreported), had this to state: 12 “In the premises, the oral account in respect of the land purchased by the appellant is as stated in the three exhibits and it cannot in any way be superseded by the oral account of the appellant at the trial.” [Emphasize is mine). From the above excerpt the law is clear that, an oral testimony’s value is less than that contained in a documentary exhibit. As stated by the respondent’s learned counsel, the testimony given by PW1 in this appeal cannot supersede the contents of exhibit P1. Therefore, Court of Appeal’s position is applied to the appeal at hand hence, the shortfalls stated by the appellant are watered down. The appellant also complained that, the facts which were stated by the prosecution during preliminary hearing stated that the value of the trophy was TZS. 5, 951,853.00. These facts were not agreed by the parties. It was not part of the prosecution evidence and it cannot be complained of been in contradiction with the other evidence given by the prosecution. Thus, the second and third grounds of appeal also have no merits. Having accurately pondered on the second and the third grounds of appeal, I find the first ground of appeal has also been addressed in the course of addressing the two grounds. That, the testimony given by PW1 13 was to be given its weight basing on the exhibit P1 which he tendered during trial. It needs no further corroboration. The fourth ground of appeal reflects the issue which has been raised by this court, that is whether the prosecution proved its case beyond reasonable ground. The appellant’s complaint is that, the prosecution failed to prove its case against him. He relied on the contradictions in the prosecution testimonies as addressed above. Also, his complaint is anchored on the fact that, the prosecution failed to tender the wildlife meat which was claimed to be in unlawful possession by the appellant. This has also well discussed above while I was discussing the fifth ground of appeal. The learned State Attorney for the respondent in his submission has argued that, the six prosecution witnesses together with the tendered exhibits proved the offence of unlawful possession of government trophy contrary to the provision of section 86(1) & (2) of the Wildlife Conservation Act (supra). He added that, the cautioned statement (exhibit P5) cleared all the doubt since the appellant confessed to have committed the offence he was charged with. 14 From the rival submissions made by the parties, this court is called to determine the issue which was raised by this court which directly reflects the fourth ground of appeal. I hasten to answer this issue at hand in the positive. As stated by the respondent’s learned counsel, the evidence given by the prosecution side, when taken in its totality, proves that the offence the appellant stood charged with. Also, taking into consideration on the cautioned statement (exhibit P5), in which the appellant confessed to have committed the offence he stood charged with, which clearly proves that, the offence was proved beyond reasonable doubt. Consequently, I find the fourth ground of appeal unjustified and it is dismissed. As stated earlier, in his short rejoinder, the appellant came with new complaints that he confessed before the Police Officer since he was beaten and his confession was involuntarily procured. Although, he did not raise it earlier to allow the respondent’s learned counsel to reply, I decided to go through the trial court’s proceedings and found that, the appellant raised such a concern before the trial court and an inquiry was ordered for 3rd May, 2024. The ruling of the trial was to the extent that the confession was 15 made voluntarily and in accordance to the provisions of section 57(1), (2), (3) and (4) of the Criminal Procedure Act, (Cap 20 R.E 2022). I have no any reason to doubt the trial court’s findings on the inquiry. Hence, the complaint is unmeritorious. The appellant also averred that, the independent witness who was the street chairman was not called to testify instead his statement was given by PW6. Once again, this was not raised in the grounds of appeal to allow the respondent’s learned Attorney to reply. It was raised in the appellant’s rejoinder. This could make a ground for appeal which would require the respondent to be availed an opportunity to reply. Since it came as a new issue after the respondent has replied to the adopted grounds of appeal, it cannot be taken as failure on the part of the respondent. However, I decided to throw a glance on the trial court’s proceedings only to find that, the independent witness could not be procured, and the provisions of section 34B (2)(c) of the Evidence Act, (Cap 6 R.E 2022) were complied with. The witness statement was admitted without objection, marked as P6 and read aloud in court. This admission of the witness statement who could not be procured conformed to the requirements of 16 section 34 of the Evidence Act (supra). Consequently, the appellant’s complaint on non-attendance of the independent witnesses has no merit. In the event, I find that, this appeal has been brought without sufficient grounds. I hereby dismiss it in its entirety. It is so ordered. DATED and DELIVERED at SONGEA this 16th day of December, 2024. E. L. KAWISHE JUDGE COURT: Judgment delivered in the presence of Mr. Jamse Robby, State Attorney for the respondent and in the presence of Mr. Daud Yeremia Mapunda the appellant. Right of appeal explained. E. L. KAWISHE JUDGE 16/12/2024 17