20190429 TZHC Mwanza

IN THE HIGH COURT Of TANZANIA AT MWANZA CRIMINAL APPEAL NO. 201 OF 2017 [Appeal from the Judgment of the District Court of Bunda/ Economic Case No. · 4/2017, Hon. G.E Mariki-Senior Resident Magistrate] DOMINICA S/0 MAGUA@ MAJALIWA ................ 1 5 T APPELLANT SAVI S/0 SHAURI@ GILIYA ............................~No APPELLANT . . . . . ' . VERSUS~--~- . .··. -REPUBLIC .•••••••.••••••. a • • • • • • • • • • • • • • • • • • • • • • • • • • • • • . • • • • • • • • ,.- • • • • RESPONDENT A~f·~ JUDGM,ENT 1tf'>February&2gthApril,20f --~ M.M. SIYANI, J. In the D i s t ~ of. B ' ~ sitting at Bunda, the appellants were c h a r g ~ ~ ~ m e l y ; Unlawful entry into the National Park con.t \t t ;( tO );~ ~2 se..,.~n 2)· (1) an.d (2) ; UnIawf U I possession . f . O weapons. tn a Nat1onal~~ntrary to section 24 (1) ·(b) and (2) (both of the National Parks Act Cap 282 Revised Edition 2002) and Unlawful possession of Government trophies contrary to section 86 (1), (2) (b) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 ( d) of the First Schedule to the Economic and Organized Crime Control Act, Cap. l . 200 of the Revised Edition, 2002. Upon conclusion of the case, the (-.·; ·- · appellants were convicted and sentenced as follows; on each of the first and se~ond count, they were sentenced to pay a f!ne Tshs 50,000/= or in ' . case of default, serve a term of one (1) year imprisonment; whereas a fine of Tshs 14,040,000/= or serve a term of twenty (20) years <<'·>,.,',1, ~ imprisonment in case of default was imposed to them';.,if1"',respect of the . ' (t . ~)~~ / ' third count. The sentences however, were to run·G~fi;~U'.fE@,~rlV~~~fgti~ved (::,.. '{\ )ff;;::C>~~'}Y by both conviction and sentence, t~e appell~i:1ts p~~;erred "'the present appeal with the following six :~~~- ~:\~i,' '\}' <}tt<?>>,.. "~t~,'. ~~ . ,<r;:.:c?~ "\ >, ~'\ . 1. That the Prosecutio(~:e e,;:j~'l{~z~!a;~ facts by joining the · appellants in<~1loli;q.~r. irhile./j~e ~ppei!ants were arrested in "A ~·.~ different i/.ace and¥ime. // ·::~; ;~::}~>;/ ··:;f];.'d!,~\ "<)~.2 ,... . t/l' 2. !;4~(~~~'!!,/ ..::'/1lf!!J/tfii1te erred in law and fact to rely on /ffeerl:ffida;lt~~'ii{~ldentification and valuation of Government t '~ ":i!'.\ ~'t'' ~~~1Trophies ~':Ythout proof from the Government Chemistry. , ~~~- .,)l ::J:1•'.1;;.,;1 rial Magistrate erred in law and in facts to rely on uncorroborated evidence from PWl and PW2 who were witnesses from the same working station. 2 4. The trial Magistrate erred in law and fact to admit exhibit Pl and P2 and no other evidence was tendered to prove that the appellants were found in the National Park. 5. That the Prosecution side failed to prove the consent fiom the Director of Public Prosecutions. immediately arrested them and upon a search, they found them with two connected hind limbs and two separated and fore limbs of wildebeest. They were also found in possession of a knife and Panga. They were interrogated and according to the evidence of PW1 and PW2, they 3 admitted that their entrance to the National Park was illegal as they had no a permit to do so. Consequently, these charges were prepared against them as stated earlier on . . When the appeal was called for hearing on 18th February 2019, the appellants appeared in persons and unr~esented. The . . . 11.>. ~~ a respondent/Republic was represented by Ms Mwatfafiawa Chanoale, the ; \V.0~ learned State Attorney .. The appellants o~~\!he lea'rned State attorney submit first. In doing so~.s~:) ~.te~l!led ~ response to the «_~ ~ ~ first g~ound of appeal tha/2stimo~ies'\t~ an~ PW2 who were the i\ .·. ,.it</ arresting officers proved. ~r.the~aiqiJe·l.lant's were arrested together within the National Park.~b eVi~cated that the appellants had a motor cycle ; i ~ n ~)s~rched they were found with a bush knife . - ~~ )l 1ff. a n ~ ~ ~ a e ~ . According to the learned State Attorney the firs · o p e ~ a s therefore baseless. :~-~~,,::.. t,_t·~?· On the second ground of appeal, Ms Changale argued that there was no legal requirement under the Wild life Act for the Government" Chemistry to approve or prepare certificates of identification and valuation of Government trophies. To the contrary, the learned State Attorney argued that the law under section 114 (3) of the Wild life Act (supra) vest powers 4 to issue a certificate of identification and valuation to a wild officer and not Government Chemistry. It was contended that PW3 being a wild officer prepared the complained ce.rtificate and tendered the same in court as required by the law. Regarding the fourth and fifth grounds of appeal, Ms Changale submitted that the same just as it was for the second one were meritless because the law of evidence Act Cap 6(t;~t~iioo2 does not \-,~' :·>~\" be proved. ppea ,,tf;f~ed a complaint that the court shifted a At,7 , · )Jahts. The learned State Attorney argued that the }:itt of burden. Rather evidence tendered before the '½:;,:&' hat the appellants were arrested within the National Park without a permit and so it was for them to defend themselves showing that they had permit. With those submissions· Ms Chan gale prayed the appeal to be dismissed. 5 While adopting the contents in their grounds of appeal, the 2nd appellant had nothing to add. He left it for the court to determine the fate of his appeal. On his side, the 1st appellant believed that the prosecution's case . was weak because even a police officer who investigated this case did not views, did not prove that the appellants were arrested inside the National Park. Both the learned State Attorney and the appellants appears to be in agreement that the duty in criminal cases is on the prosecution side to prove the offense charged. In this case, the prosecution side was therefore bound to prove; One that the appellants illegally entered and so 6 were arrested within the National Park. Two; that upon such arrest, they ( / were found in possession of the Government trophies. The key prosecution's witnesses were PWl and PW2. All these witnesses If I should be direct to the point, I would say no. The prosecution side did not discharge mandatory legal duty under the provision of section 22 (3) . . (ii) of the Economic and Organized Crime Control Act Cap 200 RE 2002 by preparing and tender in court a certificate of seizure which would prove 7 that those exhibits were actually seized from the appellants. In terms of that provision, there is a mandatory duty for a certificate of seizure to be prepared immediately after any property connected to a· crime is seized. That section provides that: 21(2) Where in accordance with any other written law the_ investigation of any economic offence or category of economic offence~ is ordinarily conducted by public officials other than police officer~ then for the purposes of this Act the term "police officer" shall include any public officials in the 8 discharge of Functions in pursuance of this Act. [Emphasis ( added] Guided by that provision, it is pertinent therefore that PWl and PW.2 when ·- seizing exhibits Pl, P2 and P4 were duty bound to prepare and issue an official receipt evidencing such seizure. 11>,, . <>-, "~~~' >> I am also kinly aware of the decision Court 2t ap~~~~~~~~ion . ,~~~ :'":/;,, '•ic<t:> . in Mandela Maskini @ Kasalama )!r•J~-:pb'.Qlij~· \~:1r7inal Appeal No. ~->< <.:,:>~>~ ;).. \\ 471 of 2015 (CAT) (unreported) ~t,fo'tl~et'-ii~~;-Where a certificate ,.,... \, . \\ '\". of seizure has not been te.Q1 . g,fF~ stilf:t~~\..cou.:t-may continue to rely on . I . <.- \:._ .-. ./: the other strong evidei:icJJf the~,ec~tf6";{ Much as I am subscribing myself to that decis~'il~~'i):~~$~fs, of the view that that Mandela Maskini's ~t,~~~1iertf'~:::;r;~~ ~ ." 1 -.;i,.?i~'\-,,.. to the present one. The principle of law is th'.)J;-;:p<l; "~e'~?1nli'bE!"tdecided depending on its own set of facts and A:<':}'.' ~,Y\~ circl~stances. :. -~~ case of Kimbute Otiniel v. Republic, Criminal ,~ j{~ . Appeal~NQ1r:JJ1Qg©f 2011 and Ngasa Nhabi V.Republic, Criminal Appeal -it;--;~1.'k.e;:~:fffF~~? No. 94 of 2008, (CAT) (Both unreported). In that case of Mandela Maskini @ Kasalama v. Republic (supra), the Court was satisfied that although there was no certificate of seizure 9 tendered in court during trial, there was sufficient evidence to prove that w ( the appellant was arrested with the exhibits in issue and in finding out that there was such strong evidence in that case, the court stated the following:- From the evidence of PWl, PW2, and PW4 whom. we find to be <~ credible witnesses which is supported by DW2 and D14Jiwe hasten to say that the appellant was found in un1a£fil!<1!/t~~rl1~~,.~e \i/\ '"<,./>-.. ,~, ,;// government trophies; to wit a lion skin~~ dtiff<!,Jjfllt~f)P& was Just given a lift by 'DW2 purportiqg to sl:J."0w th/},t the luggage <>·"~ '\~ \;t' belonged to DW2 does not !Jlfitd\W~tf(-~itl:il~Pf,,~i the credible evidence by PWlr PW2 and PW4~irho a}fJ'sted hitn~ith the luggage /~1~~>~~ '\~i~>>~ . ''<(~>, containing a //on skin, t/Ji;r'evidence y"&{'fl}:Jl.'·~hose motorcycle was hired by appellant~ a~i:J,, DW3~?21:;.~a"i:jtf:Vhen the appellant who carried a luggagfftJK~~gf.!?~,6/,"f/rrom DW2 and left after the appellantJlt9ititf1,far~~l::fh;:,:~OO~/ " /;',;;!t•Y, ~ ,.s, ~·~ , ~ %v!~0J'j; The ·/urt we :i.tpn(~~~ay that:- ,,\ ';~f: Even ,/Jithis case, we are settled in our mind that lack of ::~1;1,~_ ,:P certificatif · rseizure does not or cannot in anyway shake the strong evidence of PU:lr PW2 and PW4 that the appellant was (ound in unlawfully possession ofgovernment trophies, to wit, a lion skin. // Back to the matter at hand· the question is, was there such a strong evidence in this case to prove that the exhibits in issue were truly seized l.O from the appellants. In my view, there is no such evidence. The record is c· . clear that the appellants denied to have been arrested within the premises . . . . of the Serengeti National Park as alleged by PWl and PW2. It is well known that the duty of the appellants, as the criminal suspects, was not in this case. In Julius Matama @ Babu @ Mzee Mzima v. Republic, Criminal . . Appeal No. 137 of 2015, (CAT) (Unreported) the Court of Appeal of Tanzania emphasized on the necessity of preparing a certificate of seizure J.l where any property is seized by the arresting officer. In -that case the Court, referring the provision of section 38 (3) of the Criminal Procedure Act, Cap 20 Revised Edition 2002, which is a replica to section 22 (2) (ii) of the Act, stated that:- •~ . . Ipso jure, this section is coached in m~~ry terms, entailing that they must be complied with. <n,.f~cC it,Jn~o achieve the point that where physical evidenc~2e~'fifjd{a criminal trial, there must be evidence~~)ning~tlequate foundation on . where and h o ~ , J e ~ g offered in P-.lilz~. evidence is indeed the objec.. 'C,laimedro)e. // -~'~ L .·· All said cind done; and f o ~ b~e eride'civored.to state above, I am of the view that ce~ate~-,s~t~present case was of utmost since I "'"'~ important. ~ a s neit.'r?prepared nor tendered at the trial and .~~v~~ is no any other cogent evidence by the p r o ~ ~ against the appellants in the absence of that certifi~te, I h~t that the trial court's conviction against the appellants ·~~ . ., ~~, !J.-> . was not justified. In the circumstances I find addressing the remaining grounds of appeal, an academic exercise· which I am not prepared to perform. It suffices here to say that the appeal has merits and so the same is hereby allowed with 12 an order for immediate release of the appellants from the prison forthwith (" unless otherwise held for some other lawful cause. Order accordingly DATED at MWANZA this 29 th Day of April, 2019 NI DGE > . ,c;~ ~';¾f:1 ,,f(V"'~ ,,,, :;r::~;.w· . ~; 13