dpp vs godgift slaa others 2022 tzhc 777 4 march 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA CRIMINAL APPEAL NO. 149 OF 2019 (Originating from the Court of Resident Magistrate of Mbeya, at Mbeya, in Criminal Case No. 17 of 2017) DPP.......................................................................................... APPELLANT VERSUS 1. GODGIFT S/O SLAA.................................................. Ist RESPONDENT 2. EDWARD S/O SAMSON CHEM.............................. 2nd RESPONDENT 3. SHABAN S/O RUKWARO MZIRAI........................... 3rd RESPONDENT 4. ARNEST S/O MARTINE MGHUNA............................. 4th RESPONDENT 5. FRANK S/O MSIGWA................................................ 5TH RESPONDENT JUDGMENT Date of last Order: 10.10.2021 Date of Judgment: 04.03.2022 Ebrahim, J. The appellant herein, the Director of Public Prosecution (DPP) was aggrieved by the decision of the Court of Resident Magistrate of Mbeya at Mbeya of acquitting the 1st, 2nd, 3rd and 4th respondents (the four respondents) and the sentence of the 5th respondent. Page 1 of 23 Before the trial Court the respondents were charged with five counts to wit; one unlawful possession of the forest produce contrary to section 88 of the Forest Act No. 14 of 2002 as amended by section 28 of the Written Laws (Miscellaneous Amendment) Act No. 2 of 2016, two transporting forest produce without transit pass contrary to Regulation No. 13 (1) (a) (b) and 57 of the Forest Regulations 2004 made under section 106 (1) of the Forest Act, three conspiracy to commit an offence contrary to section 386 (1) (f) of the Penal Code Cap, 16 R.E 2002 (Now R.E 2019), four personation contrary to section 369 (1) and 35 of the Penal Code and five forgery contrary to section 335 (a) and 337 of the Penal Code. The 1st, 2nd and 3rd Respondents together and jointly faced counts one and two of the charge whereas count three was for the 1st and 5th respondents, count four for the 5th respondent only and count five for the 4th respondent only. According to the charge sheet, the offences under counts one and two were alleged to be committed on 9th day of August 2016 at Isangawana Village in Chunya District within Mbeya Region while the rest counts (i.e counts three, four and five) were alleged to be committed on 11th August 2016 within the same Page 2 of 23 District and Region. They all pleaded not guilty to the charge. Having conducted a full trial, the trial Court found that the charge was only proved to the fourth count against the 5th respondent. It thus acquitted other respondents but convicted the 5th respondent. The trial Court therefore sentenced him to pay a fine Tanzania Shillings 300,000/= or imprisonment for three months in default of paying the fine. Dissatisfied with the acquittal of the four respondents and the sentence to the 5th respondent, the appellant preferred three grounds of appeal as follows: 1. That the trial magistrate erred both in point of law and fact for failure to analyse the prosecution evidence properly and hence arrived into erroneous decision of acquitting the 1st 2nd 3rd and 4th respondents on both(sic) counts charged. 2. That the trail Magistrate erred both in points of law and fact for imposing a very lesser sentence to the 5th accused person without due regards to the nature of the offence committed. Page 3 of 23 3. That the trial magistrate erred both in points of law and fact for failure to order forfeiture of exhibit number 10 and exhibit number 11. Owing to these grounds of appeal, the appellant prayed for this Court to allow the appeal, convict the four respondents, mete sentence to the 5th respondent and order for forfeit of all exhibits. During the hearing of the appeal the appellant/DPP appeared through Mr. Baraka Mgaya, learned State Attorney. The respondents were not personally present but the 1st 2nd, 4th and 5th respondents were represented by Mrs. Joyce Kasebwa and Mr. Baraka Mbwilo (both learned advocates). The appeal was heard by way of written submissions. In his submissions supporting the appeal, Mr. Mgaya for the appellant narrated a short back ground of the case. He submitted regarding the 1st ground of appeal that the prosecution had strong evidence which the trial Court was supposed to rely on it to convict the respondents. He contended that when the respondents were apprehended had no valid license instead, they had a photocopy of the expired license which was issued on 30/12/2015 and it was valid for 30 days from the date it was issued. Page 4 of 23 According to Mr. Mgaya for the appellant, the prosecution had strong evidence which showed that the 1st and 2nd respondents were arrested transporting 400 slippers while having a licence to fell and collect the forest produce dated 20/3/2015. He further contended that the respondent failed to explain why he transported the forest produce after the expiry of the licence for one year. Mr. Mgaya argued that the respondent had to show if there was an extension of time after the expiration of 30 days. Thus, the 1st respondent had no valid licence to cut and collect forest produce hence he committee the offence of unlawful possession of forest produce. Moreover, Mr. Mgaya argued that the slippers were seized being transported on 9/8/201 6 while the transit pass was issued on 11 /8/2016 two days after the arrest. It was his contention therefore that the 1st and 5th respondents conspired with the 4th respondent to issue the transit pass after the arrest. That the act was contrary to Regulation 13 (1) of the Forest Regulations of 2004 which prohibits to remove/transport forest produce from one point to another without transit pass. According to Mr. Mgaya the forest Page 5 of 23 produce was harvested in Mafyeko Village and they were seized at Isangawana hence they were moved without Transit Pass. Another argument made by Mr. Mgaya for appellant was that, the transit pass issued on 11/8/2016 was a forgery aimed at rescuing the situation of the offence of transporting forest produce without transit pass. He also argued that Regulation 8 of the Forest Regulations requires the licensing officer to approve the forest produce before issuing licence. But the 4th respondent issued it on 11/8/2016 while the produce was arrested on 9/8/2016 which signifies that the 4th respondent committed the offence of forgery. Furthermore, Mr. Mgaya submitted that, despite the fact that the 1st respondent was not present at the scene when the forest produce was seized but he had constructive knowledge that the forest produce was transported from Mafyeko village to Mbeya Town. Regarding actual and constructive possession, he cited the case of Moses Charles Deo v. Republic [1987] TLR 139 where it was held that for a person to be found to have had possession, actual or constructive of goods it must be proven either that he was aware of their presence and that he exercised some control over them. Page 6 of 23 As to the 2nd ground of appeal, Mr. Mgaya submitted that the trial Court failed to reconsider the nature of the offence committed by the 5th respondent in passing the sentence against him. Though he argued that he is aware of the law that an appellate Court can only interfere with a sentence meted by the trial Court if it was illegal or the trial Court had acted on a wrong principle or had imposed a sentence which in the circumstances of the case was manifestly excessive or clearly inadequate, he insisted that the offence of impersonation committed by the 5th respondent was connected to the transportation of forest produce valued at 13,104,332.80 which attracted a stiff sentence than a fine of 300,000/= meted by the trial Court. In regard with the 3rd ground of appeal, Mr. Mgaya invited this Court to re-evaluate the evidence since it is the first appellate Court and reverse the decision made by the trail Court. After that he urged this Court to convict the respondents and order for forfeit exhibits PE10 and PE 11 as they are proceeds and instrumentality to crime. He also prayed for this Court to reconsider the sentence meted to the 5th respondent. Page 7 of 23 In turn, counsels for the respondents forcibly objected the appeal. As to the 1st ground of appeal they argued that the prosecution did not prove the case as per the required standard. They also argued that the trial Court properly analysed and evaluated evidence as the result it acquitted the respondents. It was the contentions by the respondents’ counsels that the charge was manifestly based on the mistakes made by task force personnel and Tanzania National Parks (TANAPA) officers who disregarded the truth and advice made by officers from Tanzania Forestry Service Agency (TFS) which is the authority intrusted with task of issuing licences and transit passes. According to the respondents’ advocates, the respondents were arrested on 11/8/2016 while having all valid license to fell and collect forest produce. They contended that the fact of arresting the respondents with all necessary documents was supported by the prosecution witnesses. Counsels for the respondents also argued that 30 days limit given in the license, only meant to fell and collect forest produce, it did not include removing. According to them the testimony of DW1 who assigned the 2nd respondent to supervise the work was to the effect that Page 8 of 23 they fell and collected the forest produce within 30 days that is from 21/3/2015 to 15/4/2015. Nonetheless, counsels for the respondents urged this Court to firstly resolve the issue of the date the respondents were arrested. They contended that the claim by the appellant that the respondents were arrested on 9/8/2016 cannot be believed since they did not prove it by at least adducing the register of police to indicate that they were indeed arrested on that date. Counsels for the respondents referred this Court at different pages of the proceeding for it to read the evidence adduced by the witnesses before the trial Court. As to the 2nd ground of appeal, the respondents’ advocates essentially submitted that the sentence meted by the trial Court did not offend the law. That the 5th respondent was sentenced according to section 35 of the Penal Code, since the offence under which the 5th respondent was charged falls under that section. They argued that the offence under which the 5th respondent was charged did not indicate monetary value, thus it could not be possible for the trial Court to associate it with the Page 9 of 23 value under other offences which related to other accused persons. Moreover, counsels argued that sentencing is the discretion of the Court, the appellate Court can only interfere if there is a reasonable cause which the same does not exist in the matter at hand. To bolster their argument, they cited the case of Swalehe Ndungajilungu v. Republic, [2005] TLR 97. On the 3rd ground of appeal, the respondents’ advocates simply submitted that the ground as raised by the appellant does not qualify to form the ground of appeal but it is the appellant’s prayer, thus, they prayed for this Court to dismiss the appeal for want of merits. In his rejoinder submissions, Mr. Mgaya while trying to respondent on the issues raised by the respondents’ advocates, he essentially reiterated his submissions in chief. He added that though the prosecution did not call any witness in their favour from the office of TFS Chunya, the same should not make other witnesses' evidence redundant since it is the law that every witness should be believed and his testimony be accepted. He added also that the prosecution did not call witness from the TFS Page 10 of 23 office- Chunyo os they were among the suspects. Mr. Mgaya thus, insisted his prayers. I have passionately followed the rival submissions by the parties. Generally, the appellant’s complaints are based on evaluation of evidence. While the appellant is of the view that the prosecution proved the case at the required standard, the respondents are maintaining that there was no enough evidence to support the conviction. In essence the appellant is complaining that the trial Court was supposed to find guilty and convict the 1st, 2nd and 3rd respondent of the offence of being found in possession of the forest produce without valid licence and transporting of the forest produce without a valid transit pass. The appellant also is complaining that the trial Court was supposed to find the 4th respondent guilty and convict him of the offence of forgery. Under the 1st ground of appeal therefore, this Court is enjoined to determine two issues as follows: i) Whether the prosecution proved the 1st and 2nd counts of the charge against the 1st, 2nd and 3rd respondents; and ii) Whether the prosecution proved the offence of forgery against the 4th respondent. Page 11 of 23 For convenience purpose, and for the purpose of smoothly resolving the above posed issues, I will firstly resolve the dispute between the parties on the date as to when the 1st, 2nd and 3rd respondents were arrested in possession of the forest produce. The appellant is maintaining that the arrest was made on 9/8/2016. Whereas, the respondents maintain that it was on 11 /8/2016. The said dispute will be well resolved by reverting into the evidence adduced by the prosecution witnesses vis-a-vis the evidence adduced by the defence witness (the respondents). It should be noted earlier that this is the criminal case in which the burden of proof lies to the prosecution. It should also be noted that during the preliminary hearing, the respondents only admitted their particulars. It means therefore, that, the date for arresting them was the fact which the prosecution was supposed to prove during trial. Mr. Mgaya argued that, the above fact was proved by PW1 and PW3. It was his contention that the prosecution could not prove the arresting date by producing the Occurrence Book of Lupa Tingatinga police station. He referred to the testimony of the PW3 who told the trial Court that when they took the 2nd and the Page 12 of 23 3rd respondents to the nearest police station of Lupa Tingatinga they found the station fully occupied hence they had nowhere to offload the forest produce, thus they took them to Ikoga- mbarali. I have keenly read the testimony of both, PW1 and PW3, in fact they testified on the proposition that at Lupa Tingatinga police station there were fully of the forest produce and there were nowhere to offload the slippers. In course of reading the evidence, I found nowhere the two witnesses testified that the police remand of Lupa Tingatinga was fully occupied by the suspects and that the 2nd and 3rd respondents were not received at the station. The record shows that the two witnesses testified that the 2nd and 3rd accused/respondents were arrested and taken to Lupa Tingatinga police station on 9/8/2016. Then on 12/8/2016 they started the journey of taking them to Ikoga where they reached on 18/8/2016; these are at pages 27-28 and 62 - 63 of the typed proceedings. PW1 and PW3’s testimonies did not state how and where they remained with the 2nd and 3rd respondents from 9/8/2016 to 12/8/2016 when they started a journey to Ikoga. The non­ Page 13 of 23 disclosure of how and where fhey remained with the two respondents for about three days leaves a doubt. Under such circumstance, it is my view that there was a need for the prosecution to produce occurrence book of Lupa Tingatinga police station as evidence. This is because, the evidence is clear that they were taken there. This Court cannot easily believe the submission by Mr. Mgaya that the prosecution could not produce the Book of Lupa Tingatinga police station. This Court has also the question of if the 2nd and 3rd respondents were taken to Lupa Tingatinga, what was the motive behind for the prosecution not to tender the occurrence book? That unanswered question, in my opinion leaves doubt on if the accused were real arrested on 9/8/2016. The doubt leads this Court to believe the version by the respondents that they were arrested on 11/8/2016. The evidence on this date (11/8/2016) of arrest was adduced by all defence witnesses; see pages 204, 212, 218, 226, 231. It is a law that the defence has just a duty of casting doubts in the evidence of the prosecution. It is my concerted opinion that the defence/respondents discharged that duty. Page 14 of 23 Having resolved the issue of when the respondents were arrested and the forest produce seized, the issue as to whether or not the forest produce where transported with transit pass remains simple to answer. This is because the basis of the appellant’s contention was that the transit pass was issued on 11/8/2016 after the arrest of the respondents and seizure of the forest produce on 9/8/2016. However, since I have resolved that the respondents were arrested on 11/8/2016 and they had the transit pass issued on the same date, it is my clear finding that the respondents had transit pass. It is also my finding that the law does not prohibit to transport forest produce with the transit pass issued on the very date of transporting them. Now, I have left with one sub-issue in so far as the 1st issue posed above. It is whether or not the respondents had licence to harvest forest produce. The appellant is claiming that they had one but had already expired. The respondents are maintaining that the time frame referred by the prosecution only meant for felling and collecting. Counsels for the respondents argued that there was no time limit of removing forest produce from the bush/forest. Page 15 of 23 For easy reference though not reproduced in whole, the licence provides: “THIS Licence is granted to MTULA SAWMILL ot P.O. Box MBEYA (“the licence") to fell/collect at MAFYEKO (place) in the MAFYEKO Forest Reserve produce of the following description quantity and value subject to the conditions indicated hereunder:" The description quantity and value are not reproduced in this judgment since are not contested by the parties. Besides, at the bottom of the licence there are conditions numbered from 1 to 7. Number 1 of the conditions provides: “This licence is valid for 30 days only from the date of issue.’’ Considering the wording in the licence, I agree with counsels for the respondents that the licence issued to the 1st respondent, (who was trading as MTULA SAWMILL) was in relation with felling and collecting forest produce. Nevertheless, I do not associate with the assertion by the respondent’s counsels that the law does not provide for time limit of removing forest produce from the bush/forest. This is because, Regulation 8 of the Forest Regulations, 2003 provides that the Page 16 of 23 removal of fhe forest produce shall be completed as soon as possible within the period prescribed in the licence or within such further period as shall be extended by a forestry officer. For better reference the regulation provides that: “8 (1) The removal of the forest produce allowed by a licence issued under this Part shall be completed as soon as possible within the period prescribed in the licence or within such further period as shall be extended by a forestry officer upon payment of prescribed fees. (2) Such forest produce which remains un-removed from the forest reserve after the expiry of the licence period or the extended period of the same, shall be forfeited and disposed of by the Director." It is thus, my observation that apart from the fact that the licence issued to the 1st respondent did not explicitly state that the forest produce should be removed within which time, I am of the view that the term ‘fell/collect’ included ‘removal’. This is so because, the licence is made under Regulation 3 of the Forest Regulations, 2003. Whereas, the marginal notes of the said regulation indicates that Regulation 3 deals with ‘Restrictions on felling, removing etc. of forest produce. Page 17 of 23 Be os it may, the matter at hand on whether the respondents had licence to harvest or not; required evidence from the Forestry Authority. The prosecution called one witness i.e PW2 (Gerald Elly Otieno) from the Headquarters of Tanzania Forest Services at Dar es Salaam. In essence, the witness made the assessment and valuation of the seized forest produce, tendered the report (exhibit P. 1) and gave general view over the law relating to forest. According to his view, the licence held by the respondents was not valid since it had already expired. In turn, there is evidence of DW4 (Ernest Martin) who was an officer of TFS from Chunya who testified that the harvest was legal and was the one who issued transit pass after being satisfied with the documents presented to him. Despite that fact, Mr. Mgaya submitted that they did not call witness from TSF - Chunya as they were suspected to be involve in the saga. In my opinion, the contention by Mr. Mgaya is untenable. This is because, the record shows that before the respondents were arraigned before the trial Court, there were complaints about the arrest of the respondents and the seizure of the forest produce. The complaints were referred to the Regional Page 18 of 23 Police Commanding (RPC)- Mbeya, DPP Chamber - Mbeya and TFS - Chunya. The complaints were about the seizure of the forest produce by TANAPA officials. The evidence i.e Exhibit D4 a report prepared by the office of forest Manager- chunya dated 01/9/2016 to Zonal Manager of TFS about the dispute between harvesters and TANAPA confirmed that the forest produce was legally obtained by having licence and paying royalty of Tsh. 6,144,000/= with payment receipt (exhibit D 2) dated 20/3/2015. This report was not contradicted by any other officer from TFS. Moreover, when this Court read the report between the lines, it observed that initially the forest produce seized was suspected harvested from the National Park (Ruaha National Park). However, the report was given in contrary. It is my opinion thus, since there was already a controversy between the TANAPA officials who arrested the respondents and the TFS, and since later the nature of offence was changed to indicate that the offence were committed in the forest from Isangawana village, it was upon the prosecution to call witness from TFS-Chunya. Mr. Mgaya sought this Court to rely on suspicious that the officers in TFS - Chunya were suspected to involve in the saga. Page 19 of 23 However, the low requires the Court to decide the cose basing on the available evidence. It is the law also that, suspicion however grave cannot be a basis for conviction in a criminal trial; see MT. 60330 PTE Nassoro Mohamed Ally v. Republic, Criminal Appeal No. 73 of 2002, CAT at Dar es Salaam (unreported). All being said, the sub-issue above is answered in affirmative that the respondents had licence for harvesting the forest produce. That being the case, also the 1st issue above is negatively answered that the prosecution did not prove the offences under the 1st and 2nd counts. Another issue for resolution as posed above is forgery by the 4th respondent. As it was for the 1st issue, it is upon the available evidence that will lead to its determination. It is in my mind that the basis for the appellant’s complaint was that the transit pass held by the respondent was issued by the 4th respondent after the seizure of the forest produce. The contest by the appellant does not involve the issuer. This means that it is neither contested that transit pass was issued by an officer authorised to issue the transit pass nor the paper itself was a forged document. That being the case, since I have already resolved that the seizure was not Page 20 of 23 effected on 9/8/2016 os alleged by the appellant; and since I have resolved that the respondents had valid transit pass, it is my finding that the offence of forgery did not exist. It follows therefore that, the prosecution did not prove the offence of forgery. Regarding the second ground of appeal, I hasten to resolve that the sentence meted by the trial Court did not in any how offend the law. Correctly said by counsels for both sides, the appellate court does not have a free reign to alter or vary a sentence imposed by the trial Court. See the case of Rajab Dausi v. Republic, Criminal Appeal No. 106 of 2012, CAT at Mtwara (unreported). In the case of Silvanus Leonard Nguruwe v. Republic (1981) TLR 66 there are circumstances in which the Court can interfere with the sentence. They include: a) where the sentence manifestly excessive, or b) where it based upon a wrong principle, or c) manifestly inadequate, or d) where it is plainly illegal, or e) where the trial Court failed or overlooked a material consideration or f) where it allowed an irrelevant or extraneous matter to affect the sentencing decision. See also Swalehe Ndungajilungu v. Republic (supra). Page 21 of 23 The 5th respondent was convicted of the offence of personation contrary section 369 (1) of the Penal Code, Cap 16 RE 2019 the same provides that: “Any person who, with intent to defraud any person, falsely represents himself to be some other person, living or dead, is guilty of an offence." The provision does not provide for punishment. Where the punishment is not expressly provided for any offence, the same is punishable with imprisonment for a term not exceeding two years or with fine or with both. However, in the case at hand the trial Court sentenced the 5th respondent to pay a fine of Tshs. 300,000/= or serve three years imprisonment in default of paying the fine. The sentence is neither inadequate nor illegal nor falling under any of the circumstances illustrated above. Thus, this Court finds no any reason to fault the sentence meted on the offence of personation. Therefore, the ground of appeal is dismissed. As to the 3rd ground of appeal, it is my view that it has no leg to stand. This is because, the trial Court found the respondents not guilty. The confiscation could only be a ground of appeal if the trial Court would have been found the 1st, 2nd and 3rd respondents guilty and consequently convicted them of the offences stood Page 22 of 23 charged with. This Court has already negatively resolved the 1st ground of appeal. Thus, the 3rd ground of appeal suffers a natural death. Owing to the above findings, the appeal is hereby dismissed in its entirety. 04.03.2022 Page 23 of 23