20171220 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA CRIMINAL APPEAL NO. 193 OF 2016 (Original Economic Crime Case No. 18 of 2016 from District Court of Chunya) EMANUEL VENANCE KIPAKA ..JOHN J..................................... APPELLANTS VERSUS THE REPUBIJIC ............................................ RESPONDENT JUDGMENT Date of last Order: 05/1212017 Date of Judgment: 2011212017 A.F. NGWALA, J. In the District Court of Chunya, the appellants were charged and convicted of unlawful possession of Government trophy Contrary to Section 86 (1)(2) (c) (ii) of the Wild Life Conservation Act No. 5 of 2009, as read together with paragraph 14 (d) of the 1st Schedule to Section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, [Cap. 2002 R. E. 20021 on the first count. For the 2' count the appellants were charged with Unlawful possession of fire arms Contrary to Sections 4 (1) and 34 (1)(2) of the Arms and Ammunitions Act [Cap. 223 R. E. 20021. Page 1 of 9 On the 1st count, it was alleged that on 05/05/2015 at Kichangani area - Lukwati Reserve area, within Chunya District in Mbeya Region the appellants were jointly and together found in possession of government trophy. That is one Tusk and a skin of elephant of the United Republic of Tanzania without permit. In the 2nd count it was alleged that the appellants on 05/05/2015 on the same place within Chunya District in Mbeya Region they were jointly and together found in possession of fire arms to wit a muzzle loading gun without a valid licence. During the hearing of this appeal, the appellants were unrepresented. They prayed the court to adopt their grounds of appeal. They prayed the appeal to be allowed because the charges were not proved beyond reasonable doubt. Miss Benadetha, State Attorney, did not support the Appeal. She argued that the appellants were arrested in the game reserve area as per exhibit 'TEl". The evidence of PW4 Sgt. Hassan, the Police Officer at Mkwajuni corroborated the evidence of PW1, PW2, PW3 and the confession statements of the 1st appellant. The evidence sufficed conviction and sentence. Miss Benadetha further submitted that the prosecution exhibits which were not objected warranted the appellant's conviction. The learned State Attorney argued that the appellants did not ask question on cross-examination. This meant that the witnesses were not quarried as per the case of Paulo Anthon v. Republic, Page 2 of 9 Criminal Appeal No. 189 of 2014 the Court of Appeal of Tanzania at Bukoba (unreported). As regards the allegation that Section 235 (1) of the Crimiral Procedure Act was contravened, the learned State Attorney submitted that the irregularity is curable. The case was proved beyond reasonable doubt. This is the required standard of proof in criminal cases. The appellant in rejoinder prayed for leniency and that they be pardoned by this court. The question for determination in this appeal is whether the offence of unlawful possession of government trophy was proved? The elements of unlawful possession of the government trophy were well out lined by Chipeta, J:. as he then was in the case of Rashidi Kiranda v. Republic (1990)T. L. R.58, where it was held that:- "Where the value of the property in the commission of an offence is a necessary element in the assessment of sentence, the value must be strictly proved by credible evidence. In absence of such evidence, the accused must be given the benefit of doubt. See also Abdallah Alli v. Republic (1969) HCD 298 and Amri v. Republic HCD 126." In the instant case during trial there was a valuation report which the appellant complain that it was not tendered by a person who made it. Section 173 of the Evidence Act [Cap. 6 R. E. 2002] which is relevant to this point read together with the case of Thomas Ernest Msungu @ Nyoka Mkenya v. Republic, Criminal Appeal Page 3 of 9 No. 78 of 2012, the Court of Appeal of Tanzania at Arusba (unreported) held that:- "Ideally, it is good practice that a document should be produced in evidence by its maker as author except where it is impossible to secure his attendance due to unforeseen circumstances such as those mentioned under Section 34B (2) (a) of the Evidence Act (Cap. 6 R. E. 2002), that is, if he is dead or unfit by reason of bodily or mental conditions etc. we say so because the maker or author will always be better placed to explain what the document is all about, the intricacies, if any, relating to the said document, etc. In the process the said witness could always be examined and cross-examined on the said document." In view of the above holding and Section 173 of the Evidence Act, a document in court can be tendered by the author, addressee or custodian or any person with power in the institution. All those persons can tender documents in court. The appellant's complaint that the document was tendered in court by Mussa Mbaga, the Game Officer who wrote the trophy valuation certificate (exhibit P6) is not supported in law. This is because in terms of Section 86 (4) and 114 (1) (3) and (4) of the Wildlife Conservation Act, No. 5 of 2009 and the G. N. No. 207 of 2017 the Wildlife Officer has the powers to state and certify the value of the trophies. The appellants never objected its admission in court. At this appellate stage their complaint is an after thought. Page 4 of 9 Further more, the appellants complain that the trial magistrate did not consider their defense. In the typed Judgment, the defense evidence was discussed. The appellants in their defense contradicted each other. The 1st appellant alleged to have been arrested in one area being in a company of other six people but only two of them were arrested. That is the 1st and the 2nd appellant. The 2d appellant alleged that they were only two and at different area. This defense is contradictory in itself. Regarding the argument that the appellants were not explained their rights concerning the recording of their cautioned statements. In the testimony of PW4 it is shown that the appellants were given the alleged rights. The cautioned statements were tendered in court and admitted without being retracted or repudiated. The 1st appellant in his defense resisted to have been found with the government trophies and "gobores". The 2nd appellant did not dispute the evidence leveled against them by the prosecution witnesses. It is a trite principle in law and practice that failure to cross-examine on important matters implies an admission. The same cannot preclude the trial court from believing the said witnesses. The Court of Appeal of Tanzania in the case of Paulo Anthony v. Republic, Criminal Appeal No. 189 of 2014 the Court of Appeal of Tanzania at Bukoba (unreported) at page 6 held so. The appellants at several occasions have been praying to be pardoned by the court. When a person prays to be pardoned, he or she concedes that he/she is wrong or was wrong, as it was held by Chipeta, J:. in Rashid Kiranda's case that:- Pages of 9 "Since the appellant admitted possession and he had no authority to possess government trophies the conviction was inevitable. The circumstances in which he came to possess the same could only be a mitigating factor in sentencing." In the Petition of Appeal, the appellants complain that Section 235 (1) of the Criminal Procedure Act (supra) was contravened by the trial magistrate. I am of the considered view that the irregularity noted by the appellant is sound. This complaint is valid as the said provision of the law reads:- "235 (1) the court, having heard both the complainant and the accused person and their witnesses and the evidence, shall convict the accused person and pass a sentence upon or make an order against him according to law or shall acquit him or shall dismiss the charge under Section 38 of the penal code" In the quoted provision of the law, the word "shall" is used. This means that this is a mandatory requirement which Magistrates Judges or courts of law must comply with. Fetching the meaning or an interpretation of the word "shall" from the Interpretation of Laws Act [Cap. 1 R. E. 2002], Section 53 (2) of the very law provides to the effect:- "53 (2) where in a Written Law the word "shall" is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed." (emphasis mine). Page 6 of 9 It is well settled now that whenever the law requires something to be done, it should be done accordingly. The failure to comply with, it occasions a miscarriage of justice on either part to the proceedings. In view of reasons so advanced, it is my considered view that the omission by the trial court to comply with Section 235 (1) of the Criminal Procedure Act, Cap. 20 (supra) in the proceedings are fatal and render the conviction illegal. The Court of Appeal of Tanzania in the case of Elias Mwangoka @ Kingoli v. Republic, Criminal Appeal No. 25 of 2015 at Mbeya(unreported) while quoting in approval the case of Hassan Mwambanga v. Republic, Criminal Appeal No. 410 of 2013 (unreported)held that:- "It is now settled law that, failure to enter conviction by any trial court is fatal and incurable irregularity which renders the purported judgment and imposed sentence a nullity and the same are incapable of being upheld by the High Court in the exercise of its appellate jurisdiction." All in all in the whole process of writing judgments in criminal proceedings, courts of law are bound by the provisions of Sections 312 (2) and 325(1) of the Criminal Procedure Act. Those provisions impose mandatory compliance. Therefore non compliance or the rejection of one of the two sections is as if there was no valid judgment by the subordinate court. As the appellants have stayed in custody serving a sentence imposed to them with such an Page 7 of 9 • irregularity which is a fatal irregularity. It is my considered view that the reward to them is to set them free from custody. In the upshot, this Appeal has merit to the extent shown herein above. Accordingly I allow the Appeal. It is further ordered that the appellants be released from custody forthwith unless they are lawfully held for other lawful cause. Order Accordingly. Jt fta • Judge 20/12/2017 4 Page 8 of 9 Date: 20/12/2017 Coram: A. F. Ngwala, J. 1st Appellant: Present 2nd Appellant: Present For the Republic: Mr. Baraka (State Attorney) B/C: Sarah A. Mungure Court: Judgment delivered in court in the presence of the appellants and the learned State Attorney. Court: Right of Appeal to the Court of Appeal of Tanzania explained. A. trala Judge 20/12/2017 Page 9 of 9