ELIKANA RAPHAEL MZELA final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF SHINYANGA) AT SHINYANGA CRIMINAL APPEAL NO. 33226 OF 2024 (Arising from decision of the District court of Meatu at Mwanhuzi before Hon G.Rwekiti-SRM dated 17thJune 2024 Economic case No.4746 of 2024) ELIKANA RAPHAEL MZELA ….…..............................APPELLANT VERSUS THE REPUBLIC……………..…………..……………….…RESPONDENT JUDGMENT 5th & 7th February, 2025 Massam, J: The appellant herein above was charged before the District Court of Meatu at Mwanhuzi with four counts. The first count is Unlawful Possession of Weapon in the Wildlife Management Area contrary to Section 103 of the Wildlife Conservation Act, Cap. 283 R:E 2022 (WCA) WCA read together with Paragraph 14 of the First Schedule and Section 57 and 60(2) of the Economic and Organized Crime Control Act Cap 200 (EOCCA). The Second count is Unlawful possession of Government Trophies contrary to Sections 86(1) (2) (c) (iii) of the Wildlife Conservation Act read together with Paragraph 14 of the First Schedule and Section 57 and 60(2) of the Economic and Organized Crime Control Act Cap 200 EOCCA. The Third Count is Unlawful possession of Government Trophies contrary to Sections 86(1) (2) (c) (ii) of the WCA read together with Paragraph 14 of the First 1 Schedule and Section 57 and 60(2) of the EOCCA. The Fourth count are Unlawful possession of Government Trophies contrary to Sections 86(1) (2) (b) of the of the WCA read together with Paragraph 14 of the First Schedule and Section 57 and 60(2) of the EOCCA. The briefs facts of the case for first count are that, on 07th day of November, 2023 at Shushuni area in Wildlife Management Area (WMA) within Meatu District in Simiyu Region, the accused person, unlawful was found in possession of one machete and a knife without the permission of Director of Wildlife. For the second count, it was alleged that 07th day of November, 2023 at Shushuni area in Wildlife Management Area (WMA) within Meatu District in Simiyu Region, the accused person unlawful was found in possession of Government trophies to wit; four (4) heads of dik-dik two (2) carcass of dik-dik equivalent to six (6) dik-dik unlawful killed valued USD 1800 equivalent to Tanzania Tshs. 4,496,400/=, the properties of the Tanzania Government. For the Third Count, it is alleged that 07th day of November, 2023 at Shushuni area in Wildlife Management Area (WMA) within Meatu District in Simiyu Region, the accused person, unlawful was found in possession of Government trophies to wit; one (1) heads of impala, one (1) thigh of impala, one (1) forelimb of impala equivalent to one (1) impala unlawful killed valued USD 390 equivalent to Tanzania 2 Tshs. 978,220/=, the properties of the Tanzania Government. For the fourth Count, it is alleged that on 07th day of November, 2023 at Shushuni area in Wildlife Management Area (WMA) within Meatu District in Simiyu Region, the accused persons, unlawful were found in possession of Government trophies to wit; one (1) heads of zebra, two (2) ribs of zebra, three (3) hind thighs of zebra equivalent to two () zebras unlawful killed valued USD 2400 equivalent to Tanzania Tshs. 5,995,200/=, the properties of the Tanzania Government. After the full trial, the appellant was found guilty of all counts, convicted and sentenced, to serve 20 years’ imprisonment for each count which will shall run concurrently. Aggrieved therein, the appellant rightly lodged his appeal in this court with 4 (four) grounds as follows; - 1. That, the learned trial Magistrate erred in law and in fact to conduct trial and reach conclusion without considering the absence of DPP’S consent and certificate as to the nature of the charged offence. 2. That, the whole trial court was vitiated with very serious procedural irregularities lead to the miscarriage of justice 3. That, the prosecution did not prove the charge beyond reasonable doubt. 3 4. That, there was irregularities made by the trial court. During the hearing of this appeal, the same was argued orally and the appellant appeared in person unrepresented, while the respondent was represented by Mr. Saguya learned State Attorney. In submitting his appeal, the appellant said that, he was not satisfied with decision meted by lower court because his case was cooked and prayed this court to left him free as he had five children who depend on him and one of them is cripple. In his response, the learned State Attorney Mr. Goodluck Saguya S/A for respondent supported the appeal and said that on their side they failed to prove their case beyond reasonable doubt because among of the witnesses who testified no witness tendered the GPS map to prove that the appellant indeed was found in possession of weapons in the wildlife area. Under such situation Mr. Saguya said that the first count was unproved for that failure. Moreover, Mr. Saguya said that in regard to other remained three counts of unlawful possession of Government trophies he said that if the first count remains unproved what is the fate of the other three count? It was submission of Mr. Saguya that if at all the appellant's first count do not stand then the remaining counts become meritless as the appellant may be arrested somewhere else. 4 Again, Mr. Saguya said that there was no independent witness to prove if the accused (appellant) was arrested outside the wildlife management area or not. Mr. Saguya said that the third ground of appeal has merit because the case was not proved beyond reasonable doubt. Finally, Mr. Saguya prayed this court to left the appellant free, since the third ground of appeal suffice to make charges against appellant to remain unproved then and he don’t see the reasons to deal with other grounds of appeal. Upon going through the entire records and carefully considered the submission from both sides, it is in view that the appellant is challenging the conviction and sentence meted against him on the reason 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. There is no objection that it is a common legal principle that in criminal law the burden of proof lies to the prosecution and the standard is beyond reasonable doubts see Section 110 and 112 which read together with Section 3 (2) (a) of the Evidence Act [Cap 6 R:E 2019]. 5 Arguing, the appellant said that his case was cooked and prayed to be left free. Mr. Saguya supported the appeal and submitted no any prosecution witness who tendered the GPS map to prove that the appellant indeed was found in possession of weapons in the wildlife area. Under such circumstances Mr Saguya said that the first count was unproved. I have gone through the submission from both parties and going through the trial records. Indeed, there was no prosecution witness who tendered the GPS map to prove that the appellant was arrested in wildlife Management Area. See the case of Dogo Marwa Sigina and Another vs Republic, Criminal Appeal No. 512 of 2019. Thus I join my hands with submission of Mr Saguya failure to tender GPS map the first count became unproved. See the case Emmanuel @ Magesa Chacha and Another v. Republic, Criminal Appeal No. 538 of 2020, [2024] TZCA (2 May 2024) and Mohamed Haruna @ Mtupeni & Another vs. R, Criminal Appeal No. 25 of 2007. Coming to the issue of independent witness. Mr Saguya said that it is true that there was no independent witness who was called to prove if the accused (appellant) was arrested inside to the wildlife management area or not. 6 Now, I have scanned submission from both parties and passing through trial records. The trial court record shows that there was no independent person witnessed the arrest. In the case of Tongora Wambura v DPP, Criminal Appeal No. 212 of 2006 CAT Arusha where the court held that ‘’As to why there was no independent person to witness the arrest, that, in our considered view, depend on the particular circumstances of each case. However, it should be emphasized that the absence of such people, parse, did not render the operation illegal or the prosecution case fatal’’. Being guided by the authority above and submission of the both parties. This court is in the view that the absence of independent witness in this case renders the prosecution case fatal because there was no independent witness different from park rangers (PW1 and PW2) who were arresting officers. It is settled law that during search and seizure; there should be an independent witness. I understand that a court being a court of law cannot be blind in respect of this issue simply because the said certificate of seizure was signed. The law provides that, during search and seizure, there should be an independent witness. The rationale behind having an independent witness is to provide independent evidence, as was emphasized in the case of Jibril Okash Ahmed Vs. 7 Republic, Criminal Appeal No. 331 of 2017; CAT (unreported). In the case of Shaban Said Kindamba vs Republic, Criminal Appeal No. 390 of 2019 at page 18 the Court of Appeal also emphasized that; "We are inclined to take it as logical that an independent witness to a search must be credible, or the whole exercise would be rendered suspect..." In the instant matter, the certificate of search and seizure was signed by Rajabu Semuye, who was the complainant. I am of the considered opinion that the complainant could not be an independent witness. Therefore, since the said certificate of seizure was not signed by an independent witness, then the trial magistrate erred in law in relying on it in convicting the appellants." Guided by the above authority, it is my considered view that since the evidence shows that PW1 and PW2 were on the same operation which was to arrest a suspect of government trophy therefore, they could not have been a credible and impartial witness in the search and seizure exercise as they were one of the arresting officers, thus having an interest in the matter. In regards to the above observation. I agree with the appellant and state attorney that the case was not proved 8 beyond reasonable doubt. I find the third ground of appeal has merit and I think no need of addressing the rest grounds of the appeal. Therefore, from the foregoing analysis, together with submission of both parties which prayed that appellant to be left free, I am satisfied that this appeal has merit. Based on the above reasons I allow this appeal; Therefore, a conviction against the appellant is hereby quashed and the sentence set aside. I hereby order the release of the appellant from custody immediately, unless held for other lawful reason It is so ordered. DATED at SHINYANGA this 7th day of February, 2025. R.B. Massam Judge 9