ELIAS MASUNGA vs Republic final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF SHINYANGA) AT SHINYANGA CRIMINAL APPEAL NO. 35071 OF 2024 (Arising from decision of the District Court of Bariadi at Bariadi before KILIWA C.E -PRM dated 23rd October 2024 Economic Case No. 17019 of 2024) ELIAS MASUNGA@ BULUBA….…................................APPELLANT VERSUS THE REPUBLIC……………...………….……………….…RESPONDENT JUDGMENT 27th February & 28th March, 2025 Massam, J: The appellant herein above was charged before the District Court of Bariadi at Bariadi with two counts. One, unlawful possession of weapons in the National Parks C/s 17 (1)(b) and (2) of the National Parks Act Cap 282 RE of 2002. Second, Unlawful Possession of the Government Trophies Contrary to Section 86 (1) and (2) b of the Wildlife Conservation Act [Cap 283 R:E 2022], which read together with paragraph 14 of the First Schedule to; and Section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap 200 R.E 2022]. The briefs facts of the case are that, on the 7th day of June 2024 at ‘’Mlima Nyaruboro’’ area in Serengeti National Park within Bariadi District in Simiyu Region, accused person was found in unlawful possession of weapons to wit; one knife, one bush knife (panga) and 1 four trapping wires and he failed to satisfy the arresting officers that the same was not intended to be used for purpose other than hunting, killing, wounding or capturing of wild animals. Likewise, on the same date and place accused person was found in unlawful possession of Government Trophy to wit; five fresh pieces of zebra meat equivalent to one zebra unlawful killed valued at a total of USD 1200 equivalent to Tshs. 3,144,000/= the property of Tanzania Government without valid permit from the Director of wild life. After the full trial, the appellant was found guilty with two offences, convicted and sentenced, to serve two years (2) imprisonment for first offence and to serve (20) twenty years imprisonment for second offence. Aggrieved therein, the appellant rightly lodged his appeal in this court with 4 (four) grounds as follows; - 1. That, the trial magistrate erred in law and in fact to pass sentence in hearsay evidence which adduced by public witnesses because he was not arrested in the scene of crime while possessing the said trophies. 2. That, the learned trial magistrate court erred in law and in fact to accept inventory form as exhibit instead of bringing 2 the trophies in court as the charge sheet read over thus left a shadow of doubts. 3. That, the learned trial magistrate court erred in law when she did not properly evaluate the evidence and ignored my defense therefore arriving wrong decision. 4. That, the trial magistrate court failed to prove the case beyond reasonable doubts. During the hearing of this appeal the appellant appeared in person unrepresented, while the respondent was represented by Mr. Goodluck Saguya Learned State Attorney and the matter was heard orally. In submitting his appeal, the appellant argued that he was not satisfied with the decision meted by the trial court thus why he appealed to this court. So he prays this court to consider his grounds of appeal and left him free. In response, the Learned State Attorney for respondent strongly opposed the appeal and supported both conviction and sentence imposed by the trial court and prayed to argue ground no 1 and 4 jointly while for ground no 2 and 3 to urge it separately. Arguing, in ground no 1 where appellant complained that he was convicted by the hearsay evidence as he was not arrested in the National Park with Government Trophy and the offence was not proved beyond reasonable doubt. 3 Mr. Saguya said that the offence was proved by using the evidence of four witnesses and six exhibits which was brought to the court. PW1 who is a park ranger told the court that on 7.6.2024 while at Nyaruboro mountain at Serengeti National Park he arrested accused person with four trapping wires, one knife, one bush knife (panga) and five fresh pieces of zebra meat without permit to enter in National Park and possess Government Trophy. Again PW1 said that he recorded the GPS code by using a GPS coordinate device which has password and the same cannot be edited by anybody. PW1 stated further that he filled the certificate of seizure which was tendered and admitted as exhibit P1 without any objection. Also the said GPS map was tendered and admitted as exhibit P2, while the said weapons plus the said four trapping wires were tendered and admitted as exhibit P3. The evidence of PW1 was collaborated by that of PW3. PW2 a wildlife officer, valuated the said trophy and identified to zebra meat because the skin had white strips and its muscles, all features made him to know that the said meat was zebra. Again, PW2 said that they were exchanging exhibits from one person to another through chain of custody and filled Trophy valuation report which was tendered and admitted as exhibit P4. 4 PW2 continued by uttering that, because the said meat was fresh and had a nature of decay he filled inventory report in order for the said meat to be disposed of and the said form was tendered and admitted as exhibit P5. The last prosecution witness, was PW4 who was an investigator, he to issue the called PW2 to conduct trophy valuation and identification and took appellant and the said five pieces of meat to the magistrate disposal order. He said that in exchanging exhibits they were using chain of custody and the same was tendered and admitted to the court as exhibit P6. Moreover, Mr. Saguya said that according to the evidence of all witnesses and exhibits proved that the said offence was proved beyond the reasonable doubt. Finally, Mr. Saguya prayed ground no 1 and 2 be dismissed because it has no merit. Coming to the ground no 2 appellant complained that trial court erred by accepting the inventory form instead of the said trophy thus left a shadow of doubts. It was submission of Mr. Saguya that the law allows the exhibits which had a nature of decaying to be disposed of after the inventory form filled and failure of tendering meat as exhibit cannot disprove the case as the inventory was brought instead of meat. 5 Finally, Mr. Saguya prayed this court to find ground no 2 has no merit. Coming to the ground No 4 appellant complained that the trial magistrate failed to evaluate the evidence and ignored his defense thus arriving to the wrong decision. Mr. Saguya said at page no 2 of the copy of judgment shows that the prosecution evidence was analysed and evaluated and issues were framed. Again, the record at page 7 shows that the appellant evidence was considered but had accorded no weight. Finally, Mr. Saguya prayed this court to find ground no 4 has no merit, dismiss the same and upheld the trial court decision. In the way of rejoinder, appellant said that his ground of appeal has merit and prayed the same to be considered and be left free to join his family. Upon going through the entire records and carefully considered the submission from both sides, there is no doubt that the appellant is challenging the conviction and sentence meted against him on the reasons that the prosecution did not prove its case against him beyond reasonable doubts. Therefore, the main issue to be determined by this court is to whether the prosecution proved the case against the appellant beyond reasonable doubt. 6 It is a trite law that onus of proving in criminal cases is always in the side of the prosecution, as elaborated in the case of Joseph John Makune vs. Republic (1986) TLR 44 at page 49 where the court of appeal held; - “the cardinal principle of our criminal law is that the burden is on the prosecution to prove its case, no duty is cast on the accused to prove his innocence. There are a few well known exceptions to this principle one example being where the accused raises the defence of insanity in which case he must prove it on the balance of probabilities.’’ The importance of this requirement was underscored, yet again in the case of George Mwanyingili vs Republic, Criminal No. 335 of 2016 it was restated as follows; ‘’We wish to restate the obvious that the burden of proof in criminal case always lies squarely on shoulders of the prosecution, unless any particular statute directs otherwise. Even then however, that burden is on the balance of probability and shift back to prosecution’’ Again under Section 3 (2) (a) of The Evidence Act provides that the standard of proof that "A fact is said to be proved when - (a) in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists; ’‘See Edward Nyegela Vs. The Republic, Criminal Appeal No. 312 of 2019 (unreported); and Sosthenes Myazagiro @ Nyarushashi Vs. The Republic, Criminal Appeal No. 276 of 2014 (unreported). 7 Remarkably, the same principle was stated in the case of Woodmington Vs. DPP (1935) AC 462, the court 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 is a universal standard in criminal trials and the duty never shifts to the accused. See also the case of Christian Kale & Another Vs. The Republic (1992) T.L.R 302 CAT and John Makorobera & Another Vs. The Republic (2002) T.L.R 296, where it was firmly held that: the accused person should only be convicted of an offence, he is charged with on the basis of the strength of the prosecution case not on the weakness of the defense case. Having gone through the rival submission by both parties and going through the trial records and before tackling grounds of appeal. It is important to note that under rule 4(1) of the Judicature and Application of Laws (Electronic Filing) Rules, 2018, G.N. No. 148 of 2018, the Chief Justice has been given a mandate to establish an electronic filing system and make provision for specified documents to be filed, served, delivered or otherwise conveyed using that system. Rule 4(2) provides for functional equivalence by providing that where a document is required to be filed, served, delivered or otherwise conveyed to the 8 court under any other provision of the Rules, it shall be so filed, served, delivered or otherwise conveyed using the electronic filing service. In line with rule 4 above, the Judiciary of Tanzania established the Judiciary Statical Dashboard System (JSDS), The system operated for the large part of 2020-2023. In November, 2023, the judiciary implemented a new and comprehensive electronic case management system (eCMS). The eCMS is a much complex and comprehensive system covering both court processes as well as non-court (trial) process. The eCMS also serves as the electronic filing system envisaged under rule 4. Rule 8 of the Rules provide further that all pleadings, petitions, applications, appeals and such other documents must be filed electronically through an electronic management system. In accordance with rule 9 the official records shall be those contained in the electronic case file (ECF). Now, in the instant case, I have advantage to access the records of the eCMS regarding the present case. In accordance with the digital file system, there is no dispute that the matter was filed on 17th December 2024 however a charge, consent and certificate as to jurisdiction was not filed and therefore it is difficult before this court to ascertain whether the trial court was vested power to entertain the matter or not. 9 It is well settled that the proceedings of the court are presumed to be accurate and authentic such that they represent what really transpired in court. See the case of Alex Ndendya Vs Republic, Criminal Appeal 207 of 2018) [2020] TZCA 688, Masalu Ipiringa vs. Republic (Criminal Appeal No. 263 of 2019) [2003] TZCA 17401, Felick Kilipasi vs Republic (Criminal Appeal No 260 of 2021) [2023] TZCA 17941, Security Group T. Limited vs Steven Gerson Kizinga (Consolidated Civil Appeal No. 386 of 2020 &50 of 2021) [2024] TZCA 107 Remarkably, in the case of Halfan Sudi Vs Abieza Chichili [1998] TLR 527 in which, the Court of Appeal, relying on what it earlier stated in Shabir F. A. Jessa Vs Rajkumar Deogra Civil Reference No. 12 of 1994 (unreported) held: "A court record is a serious document; it should not be lightly impeached" And, restating what the High Court of Uganda (Bennett, Ag. CJ) stated in Paulo Osinya Vs R [1959] EA 353, the Court of Appeal added: "There is always a presumption that a court record accurately presents what happened" Guided by the authorities above, and going through the trial records, Indeed the trial proceedings shows that consent and certificate as to jurisdiction were filed and admitted, but the same are not found in 10 digital file or elsewhere in the eCMS. In the premises it is difficult before this appellate court to ascertain whether the trial court was vested power to entertain the matter or not. In view of the aforesaid. I allow this appeal and quash the conviction and set aside the sentence. I further order the appellant be released from prison forthwith unless held for any other lawful cause. It is so ordered. DATED at SHINYANGA this 28th day of March, 2025. R.B. Massam. Judge 11