GULUNGWA NGHOLONGO VS REPUBLIC Unlawful possession1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF SHINYANGA) AT SHINYANGA CRIMINAL APPEAL NO. 13250 OF 2023 (Originating from Economic Case No. 76 of 2023 Bariadi District Court) GULUGWA NGHOLONGO @ MASANJA….…..........1ST APPELLANT ERNEST DOTTO @ MANGE..………………..…………2ND APPELLANT VERSUS THE REPUBLIC……………..…………..……………….…RESPONDENT JUDGMENT 2nd July & 9th August, 2024 MASSAM, J: The appellants herein above were charged before the District Court of Bariadi at Bariadi with two counts. One, Unlawful Possession of Weapons in the National Park contrary to section 17 (1) (b) and (2) of the National Parks Act [Cap 282 R.E 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], 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]. 1 The briefs facts of the case are that, on 6th day of October, 2023 at Mbalageti river in Serengeti National Park within Bariadi District and Simiyu Region, accused persons /appellants were found in possession of weapons to wit; -one panga and three animal trapping wires without the permit and failed to satisfy the authorized officers that the same was intended to be used for purposes other than hunting, killing, wounding or capturing of wild animals. Moreover, on the same date and place accused persons/appellants were found in possession of Government trophy to wit; - two fresh hind limb of zebra equivalent to one zebra unlawful killed valued at USD1200 equivalent to Tanzania Shillings Three Million and Eighteen Thousand (Tshs 3,018,000/=) Only, the property of Tanzania Government without the valid Permit from Director of Wildlife. After the full trial, the appellants were found guilty with two offences, convicted and sentenced, to serve two years (2) imprisonment for first offence and twenty years (20) imprisonment for second offence. Aggrieved therein, the 2nd appellant rightly lodged his appeal in this court with 4 (four) grounds as follows; - 2 1. That, the learned trial magistrate erred both in law and in fact when he did not properly evaluate the evidence and ignored my defense therefore arriving to wrong decision. 2. That, the trial Magistrate erred in law and fact to pass sentence in hearsay evidence which adduced by the public witnesses because I was not arrested in National Park while possessing the said government trophies. 3. That, the trial magistrate court erred in law and in fact to convict us while the government trophies disposed before brought in court as testified by the PW2. 4. That, the trial magistrate court erred in law and in fact when he failed to consider that the prosecution side failed to establish the case beyond reasonable doubts. 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 contended that, he was not arrested at the scene but at the mines area and hence prayed to be left free. 3 In response, the learned State Attorney for respondent strongly opposed the appeal and supported both conviction and sentence imposed by the trial court. With regard to the grounds of appeal submitted by the appellant. The respondent counsel urged ground no 2 and 3 jointly while 1st and 4th ground urged it separately. Starting with 1st ground of appeal, the appellant avers that his evidence was not evaluated and his defence was not considered. Mr Saguya submitted that the trial court considered the evidence of both parties as shown at page no 3-7 of judgment and it is not true that his evidence was not well evaluated. Again, he submitted that, this court being 1st appellate court can enter to the shoes of the trial court and come up with its decision. He added that failure of the trial court to admit the evidence of appellant does not mean that was not considered. Mr Saguya argued more that, appellant said that he was with his friends at Matongo but he did not bring any of his friend to testify about it. Finally, he submitted that the first ground of appeal has no merit and same be dismissed. Responding, to the 2nd and 3rd grounds of appeal, appellant complained that he was convicted by the hearsay evidence and the said 4 trophy were not taken to the court. Mr. Saguya argued that the record of the court showed that all witnesses testified the direct evidence for example PW1 said that on 6/10/2023 at 6.30pm while on patrol with his fellows, they managed to arrest two persons who had one panga, two wires and fresh hind limbs of zebra. The said person told the court that the said panga used to cut that trophies, and the same was filled to the certificate of seizure and appellant admitted to know that certificate of seizure. PW1 took the GPS map, to show that appellant was found in the National Park. Moreover, the respondent counsel argued further that the evidence of PW2 was the same with that of PW1 and PW3 evaluated the said trophy and filled the trophy valuation certificate which was admitted as exhibit P4. Also, Mr. Saguya submitted that PW3 filled the inventory form as the said trophy was already damaged so he destroyed the same. He fortifies his argument by referring the case of Michael Gabriel vs Republic, Criminal Appeal No 240 of 2017 page No 13-14. Lastly, he prayed the said two grounds of appeal be dismissed for want of merit. Also in regarding to the 4th ground of appeal, the appellant contented that, the case was not proved beyond reasonable doubt. 5 However, it was submission of Mr .Saguya that all witnesses and exhibits did proof that, the case was proved beyond the reasonable doubt and he prayed the appeal to be dismissed. In his rejoinder, appellant had nothing to add, than he insisted this court to left him free. 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 against him on the reason that the prosecution did not prove the 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 RE 2019]. Also, 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 6 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. The term beyond reasonable doubt is defined in case laws, see Magendo Paul & Another Vs. Republic (1993) TLR 219 where the Court held that: "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favor which can easily be dismissed." In considering this appeal this court will start by considering the submission of both parties, appellant in his grounds of appeal complained that his evidence was not well evaluated and his defense was not considered. In his reply Mr. Saguya submitted that the trial court considered the evidence of both parties as shown at page no 3-7 7 of judgment. Again, he added that failure of the trial court to admit the evidence of appellant does not mean that was not considered, and the appellant said that he was with his friends at Matongo but he did not bring any of his friend to testify about it. After scrutinized the submission of both parties and court records. It is my considered view that, the evidence of both parties was well evaluated and considered as appellants upon arrest they failed to surrender any permit to own weapons in the National Park as well as Government trophies. And the appellant failed to call any witness to prove that they were at Matongo gold mining by the time of his arrest to counter what the prosecution alleging against him. It is well known that failure to call material witnesses renders the court to draw adverse inference that if at all the said witnesses were called, they could have tendered adverse evidence against the party see the case of Boniface Kundakira Tarimo vs Republic Criminal Appeal no 350 of 2008 (unreported) the court held that: REMOVE ‘’It is thus now settled that where a witness who is in a better position to explain some missing links in the party case is not called without any sufficient reasons being shown by the party, an adverse inference may be drawn against that party”. According to that this court has its view 8 that appellant’s evidence was considered and evaluated but was not admitted as it is reflected in page 5-7 of the typed judgment. On the ground that, the court erred in convicting them by hearsay evidence and said trophy were not taken to the court. Mr. Saguya argued that there was direct evidence adduced by PW1, PW2 that the appellants were arrested in possession of one panga, three trapping animals wires and one fresh hind limbs of zebra. PW3 was the valuer, who identified that trophy, evaluated the same and filled valuation report, while PW4 was the investigator said how the movement of exhibit was conducted through chain of custody and the inventory was used on behalf of the trophy which was destroyed after the order of the court. In according to the evidence which was given, there was no objection that, the evidence adduced by the prosecution witnesses was strong which proved the case beyond reasonable doubt and the procedure of admitting an inventory as exhibit was done properly and procedure of chain of custody was adhered and hence there was no need of tendering trophy as exhibit in the court of law as the same was destroyed after being found spoiled as it was held in the case of 9 Michael Gabriel Vs. The Republic, Criminal Appeal No 240 of 2017 CAT Moreover, the rationale of chain custody when comes to exhibits was explained in the case of Chacha Jeremiah Murimi and 3 Others versus Republic, Criminal Appeal No. 551 of 2015, where the court held that chain of custody when comes to exhibits is very important to prove origin and custody of the exhibits up to the time such exhibits are taken to court. The aim is to prove that such exhibit was not tempered anyhow. Finaly, in regard to the 4th ground of appeal, the appellant said that the case was not proved beyond reasonable doubt. However, it was submission of Mr. Saguya that all witnesses and exhibits did proof that, the case was proved beyond the reasonable doubt and prayed appeal to be dismissed. Basing on the arguments of both parties and thorough the records of the trial court. It is noted from the records that the appellants were arrested by PW1 and PW2 on 6th day of October 2023 at Mbalageti in Serengeti National Park and were found in possession of one panga, three animal trapping wires and two fresh limbs of zebra without permit. 10 PW3 evaluated the said trophy while PW4 took accused person and exhibit before the trial Magistrate for disposal order. Moreover, certificate of seizure, GPS map, one panga and three trapping animal wires, trophy valuation report, and inventory form were admitted as exhibit P1, P2, P3, P4 and P5 respectively. Now, from extracted evidence, it is the view of this court that prosecution side proved the case beyond reasonable doubt as it was held in the case of Mohamed Haruna @ Mtupeni & Another Vs. R, Criminal Appeal No. 25 of 2007 CAT (unreported) where it was held that; "of course in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." See also the case of Joseph John Makune vs Republic (1986) TLR 44, George Mwanyigili vs Republic, CAT criminal Appeal No. 335 of 2016. 11 In view of the aforesaid, I find and hold that this appeal has no merit. I uphold the conviction and the sentence given to the appellant and I do not find cogent reasons to disturb the findings of the trial court. I accordingly dismiss the appeal. It so ordered. DATED at SHINYANGA this 9th day of August, 2024. R.B. Massam JUDGE 12