Ilanga John Mzee Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA CRIMINAL APPEAL NO. 202408092000022490 (Arising from Economic Case No. 65 of 2023 from the District Court of Bariadi) ILANGA s/o JOHN………….…………………………………….….……..APPELLANT VERSUS THE REPUBLIC …...……………………………………………….……..RESPONDENT JUDGMENT Date of Last Order 26/09/2024 Date of Judgment: 08.11.2024 MWAKAHESYA, J.: In the District Court of Bariadi District at Bariadi, the appellant was tried and convicted of the following offences: unlawful possession of a weapon in a National Park c/s 24(1) and (2) of the National Parks Act (the first count); and unlawful possession of Government trophy c/s 86(1) and (2)(b) of the Wildlife Conservation Act read together with paragraph 14 of the first schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act (the second count). On the first count he was sentenced to two years imprisonment while on the second count he was sentenced to twenty years imprisonment, the sentences ordered to run concurrently. 1 At the trial it was the prosecution’s case that on 28.08.2023 Frank Bishao (PW1), a conservation ranger, whilst on routine patrol with fellow rangers within Serengeti National Park, came across the appellant who was in possession of a panga, two hind limbs of a zebra and a motorcycle. The appellant did not have therelevant permits for possessing the panga and the said Government trophy. A certificate of seizure (exhibit P1) was filled and GPS coordinates of the area were taken and a “GPS map” was subsequently printed and tendered during trial as exhibit P2. Meanwhile, the panga was admitted as exhibit P3 and the motorcycle exhibit P4. Anthony Mwisemi (PW2), a conservation ranger testified that on the material date he and fellow rangers namely, Frank Rutaizibwa and Amos Amos Magurutu arrested the appellant with two hind limbs of a zebra, a panga and a motorcycle. PW2 also gave evidence that it was Frank Ruatizibwa who filled the certificate of seizure (exhibit P1). PW2 identified exhibit P1 when he was shown the same in court. Michael Shirima (PW4), a wildlife officer, testified that he identified the trophy to be of a zebra because its skin had black and white stripes and the same had a single hoof. He also valued the trophy at TZS 3,002,400/=. PW4 tendered a trophy valuation certificate which was admitted as exhibit P6. 2 In his defence, the appellant testified that he was arrested, by park rangers, at Gambaseni village along other three persons for being in possession of charcoal and cutting trees without a licence. The next day his fellows were bailed out by their relatives, each paying a TZS 300,000/= fine. Since the appellant had no money he was taken to Hadajega (a “camp” within Serengeti National Park) and then to the Bariadi police station. He denied owning the motorcycle the prosecution had alleged he was arrested in possession of. The trial court did not buy the appellant’s version of events and as alluded earlier the appellant was convicted and sentenced to imprisonment. Aggrieved, he has preferred the present appeal based on three grounds which are to the effect that: 1. The learned trial court erred in law and in fact to hold conviction and pass sentence while there was no caution statement tendered by the prosecution side in court in order to prove that he committed the said offences; 2. The prosecution side failed to prove the case beyond reasonable doubt; and 3. The trial court erred in law and in fact when it did not properly evaluate the evidence adduced by the prosecution side. 3 At the hearing of the appeal the appellant appeared in person, unrepresented, while the respondent Republic enjoyed the services of Ms. Nyamyaga Magoti, learned State Attorney. Having adopted the grounds contained in his petition of appeal the appellant opted to let the learned State Attorney submit first whilst reserving the right to make a rejoinder if deemed fit. Meanwhile, the learned State Attorney intimated that the respondent was not resisting the appeal, the reason being anomalies in the name of PW1, who was a key witness, and thus casting doubts to his testimony and the case in general. In rejoinder, the appellant had nothing to add but continue to protest his innocence. Having gone through the record of the trial court, indeed the key prosecution witness was one Frank Bishao (PW1) a conservation ranger who tendered the certificate of seizure (exhibit P1). However, having gone through exhibit P1 the searching and seizing officer is identified as one Frank Rutaizibwa, indeed even PW2 testified that it was Frank Rutaizibwa who filled exhibit P1. In all earnest, I find it incredulous to assume that Frank Bishao and Frank Rutaizibwa are one and the same person, and I am definitely not splitting hairs. 4 PW1 is a public officer and there is no reasonable explanation as to why he might use two different names in different scenarios, both names being official. The name Frank Rutaizibwa was used in exhibit P1 which was an important document, and it was used to prove that the appellant committed the offences he was charged with. At the same time the name Frank Bishao was used for testifying, on oath, as to the arrest and possession of the offending items by the appellant. Both names were used in important milestones which culminated with the conviction and incarceration of the appellant. What actuated the confusion, be it sheer negligence or inadvertence is solely within the realm of the erstwhile prosecutors and in the absence of a reasonable explanation I find it quite unsafe to dance their tune. Having ruled that Frank Rutaizibwa (maker of exhibit P1) is not the same as Frank Bishao (PW1) who tendered exhibit P1, I can only conclude that exhibit P1 was tendered by a person not competent to do so in the eyes of the law, as he was neither the maker nor a person familiar with it (see: The Director of Public Prosecution v. Kristina Biskasevskaja, Criminal Appeal No. 76 of 2016; and The Director of Public Prosecutions v. Sharif s/o Mohamed @ Athumani & 6 Others, Criminal Appeal No. 74 of 2016 (both unreported) and, inevitably, I proceed to expunge it from record. Thus, even the 5 testimony of PW2 who identified the exhibit becomes watered down to the brink of irrelevancy. The preceding findings are enough to dispose off this appeal, but before signing off I wish to make another equally important observation. In his defence, the appellant had intimated that he was arrested, by park rangers, for illegally cutting trees and possession of charcoal and upon failure to pay TZS 300,000/= he was taken to a certain place and then surrendered to the police where he subsequently faced charges leading to his incarceration. In the judgment, the learned trial magistrate considered the appellant’s defence but brushed it off. The same is found at page 6 which reads: “…The accused person defence introduced a new date of arrest 27/8/2023 instead of 28/8/2023, and he said he was with his friends whom were released after giving 300,000/= Tshs to rangers who arrested them, but none have appeared to cement his allegations…” With due respect to the learned trial magistrate, it was wrong for the trial court to arrive at that conclusion. Need I remind her that as per section 143 of the Evidence Act there is no particular number of witnesses required for the proof of any fact, what matters only is the credibility of a witness (see: Yohanis Msigwa v. Republic [1990] T.L.R. 148; and Allan Duller v. The Republic, Criminal Appeal No. 6 367 of 2019 (unreported) and there is nothing on record to discredit the appellant. Coupled with that, it was the duty of the prosecution to prove its case and to do so beyond reasonable doubt, the appellant had to simply raise a doubt. The testimony of the appellant was crudely brushed off while in my view it had raised a reasonable doubt. In the upshot I find that the appeal has merit and I allow it. Respectively, the conviction and sentences meted out by the trial court are quashed and set aside. The appellant is to be released forthwith unless his continued incarceration is in relation to other lawful cause. And for the avoidance of doubt, since the appellant had disassociated himself with ownership of the motorcycle (exhibit P4), the order of forfeiture made by the trial court stands and remains undisturbed. It is so ordered. DATED at SHINYANGA this 08th Day of November, 2024 N.L. MWAKAHESYA JUDGE 7