JILALA MULAKWA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUB REGISTRY OF SHINYANGA) AT SHINYANGA CRIMINAL APPEAL NO.128 OF 2023 (Originating from Economic Crime Case No. 16 of 2023 Bariadi District Court) 1. JILALA SIO MULAKWA APPELLANT 2. MASANJA SIO BUNDALA MAYUNGA APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT Ffh March & 2.1h April 2024. MASSAM, J:. The appellants hear in above jointly and together were charged before the District Court of Bariadi at Bariadi with five counts, First, unlawfully entry into the game reserve contrary to section 15(1) and (2) of the Wildlife Conservation Act, [CAP 238 R:E 2022], Second, Unlawfully possession of weapons within the game reserve contrary to Section 17 (1) and (2) 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, Third, 1 unlawfully possession of Government trophies contrary to section 86 (1) and (2) (iii) of the Wildlife Conservation Act, (Cap 200 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], Fourth, Unlawfully possession of Government trophies contrary to Section 86 (1) and (2) (ii) of the Wildlife Conservation Act, (Cap 200 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] The particulars of the offences were as such that, on lSthday of February, 2023 around 16:30 hours at Ibumba area, Maswa Game Reserve within Bariadi District and Simiyu Region, the appellants, first did enter into the game reserve without the permission of the Director and thereafter they were found in possession of weapons to wit, one bush knife, one knife and four animal trooping wires. Again, they were unlawful found in possession of Government trophies, to wit, 23 tail of wildebeest and seven dry pieces of wildebeest meet equivalent to 23 wildebeest unlawfully killed worth Usd 14,950 equivalent to Tshs, thirty-four million nine hundred sixty eight thousand and fifty (34,968,050/=), and again they were found 2 unlawfully possession of forty dry heads of Vulture equivalent to forty Vulture unlawfully killed values at Usd. 13,000, equivalent to Tsh. thirty million four hundred and seven thousand (Tshs. 30,407,000/=, the properties of the Government of Tanzania. At the trial, the prosecution managed to prove both offences against the accused persons, and subsequently, were convicted and sentenced to serve one year imprisonment for the 1st offence, payment of fine of Tsh. 100,000/= for the second offence, and to serve 20 years imprisonment with regard to the 3rd, 4th, andSth offences. Aggrieved therein, both appellants rightly lodged this appeal in this court with 4 (four) grounds, for convenient purposes all grounds clock within one ground that, the prosecution case was not proved beyond reasonable doubt. During the hearing of this appeal, both appellants appeared in person unrepresented, while the respondent was represented by Mr. Goodluck Saguye, learned State Attorney. 3 In submitting their appeal, both the appellants informed this court that, the trial court did not do justice hence they prayed for the court to consider their grounds of appeal and left them free. Replying to the appellants ground of appeal the respondent stated that, he is supporting the conviction and sentence imposed by the trial Court and he is not supporting the appeal. He started by informing this court that in arguing this appeal he will merge grounds number 1 and 2, while the rest of the remains grounds were argued distinctly. With the first sets of grounds which were complained by the appellant that, the conviction was based on weak evidence preferably that of PW1 as he testified that, they were many game rangers when arresting the appellants but other game rangers were not called to testify. It was from the respondent the requirement of law under the provision of Section 143 of the Tanzania Evidence Act, Cap 6 R:E 2019, that no number of witnesses required to prove a case but rather the competent evidence, and it was the duty of the prosecution to prove the case beyond reasonable doubt. He refers this court to the case of Furaha Allick Edwin Versus Republic, Criminal Appeal No. 410 of 2020 CAT at Mbeya Pg 18. So, he found that the said ground of appeal without merit pray to be dismissed. 4 Further to that in replying the second ground that the conviction relied on certificate of seizure which they were forced to sign it, he submitted that, the conviction was not only based on the certificate of seizure but also the evidence and other exhibits tendered by the prosecution and the same were not objected by the appellants. He refers this court at Pg 10 of the court proceedings and the case of Mukisa Biscuits Manufacturing Co. Ltd Versus Western Distributers Ltd,(1968) No. 1 E.A 696 at Pg. 701.50 according to that he found again the said ground unmerited. With grounds number 3 and 4, which were complained by the appellant that, the trial court erred by admitting dry piece of meat while there was no enough evidence to prove that there was an unlawful entry to the National park, the counsel submitted that, the complaint was raised without reasoning as there was no any piece of dry meat was taken to the court, but rather, after the appellants have been found in possession of that meat, it was disposed off before them. He refers this court at Pg 15-16 of the court proceedings. And therefore, what was tendered before the court was the inventory form which was admitted as exhibit without any objection. 5 Yet again, he submitted that, the evidence testified was strong enough to convict the appellant as the offences they were charged with requires a proof that, the appellant were found in the national park, and the same was proved by tendering a map which was found through Gps (Global Positioning System) and it was admitted as exhibit P2. Also, prosecution brought three witnesses to wit, PW1(park ranger), PW2 (wild life officer) and Pw3 (police officer) who narrated the whole story on how the appellants were found in the national park while in unlawfully possession of weapons and government trophies and also the chain of custody from which it was tendered as an exhibit. He refers this court at Pg 22 of the court proceedings thus the offences before the trial court were proved beyond reasonable doubt. On their rejoinder, both appellants had nothing usefully to add than keep on praying to be left free. Having gone through the submissions by the parties, the centre issue for determination is whether this appeal has merit. This court will wish to argue on ground number one as complained by the appellant that, the evidence testified by the prosecution witnesses were weak since Pwl alleged that, while arresting the appellant, he was with his fellow wild rangers but were not brought as witnesses to 6 of The Evidence Act Cap 6, R:E 2022, that, ''Subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any teet". It is from these provisions, the law makers made it clear that, no number of witnesses are required to be brought before the court to testify, thus I will positively agree with the arguments submitted by the respondent with reference to the cited section. From the above analysis, this court make reference to the trial proceedings at Pg 9 preferably when Pwl was testifying, he said that, "on 15 /02/2023 around 16':30 hours I was at Maswa game area at Ibumba area, I was in patrol with my fellow park rangers who are Joshua Raphael, Malidadi Juma, and Joshua Mulanga we saw two people and followed them, and 7 managed to arrest them, we found them having weapons which are one panga, one knife, and four animal trooping wires, they also had 23 tails of wildebeest, and 7 pieces of wildebeest meat and 40 heads of vultures, we interrogated them and asked their names " Thereafter, two witnesses testified who are PW2, Michael Shirima who testified to have been called to identify the Government trophies and make valuation thereto, thereafter he filled Trophy Valuation Certificate (Exh. PS), Inventory Form (Exh. P6). Further PW3, C, 1976 DjCPL Larson testified to have been prepared the chain of custody (Exh. P7) and wrote the caution statements of the accused persons. From these findings this court is of the view that, the evidence testified by prosecution witnesses were enough due to the fact that, even if other three witnesses who were with Pw1 during the arrest of the appellants could come and testify their evidence could not be different from that of Pw1 as they could have say the same thing hence this ground is found to have no merit. Besides, it has been complained by the appellant that, they were forced to sign the certificate of seizure, it was from the Respondent that, since the exhibit were not objected then the appellant admitted it. This court has properly scanned the trial records and observed that, the said certificate of seizure was admitted as exhibit Pi, but is however plainly that, the purported search was conducted without any warrant as instructed under the requirements of section 38 of the Criminal Procedure Act, [ Cap 20 R;E 2022. Despite the said exhibit being objected by the accused person, yet the trial Magistrate opted to admit it without being satisfied as to whether all the procedures under the provisions of section 38 were properly followed. Again, even the said Joshua Raphael who was mentioned at Pg 9 of the Court proceedings and alleged to have been filled the seizure note was not called to prove its validity. Yet again, after exhibit Pi has been received, the prosecution was burdened to ask the court for it to be read but faulted to do so hence procedural irregulates. See the case of Robison Mwanjisi and 3 others vs Republic (2003) TLR 218), the Court made it clear that admission of a documentary evidence involves three stages of clearance, admission and of being read out. However, there is also, other exhibits which were admitted but the prosecution did not ask the court for it to be read, that is Exh. PS, P7 and the caution statements of the accused person. 9 With the fourth ground as to whether the appellants were arrested inside the game reserve or along the road outside the reserve, as it was alleged in their defence that they were arrested at Butuli center this court thinks that, since the 1st ground has been found to have merit, it is therefore clear from the evidence tendered by Pwl properly proved that the appellant were arrested within the game reserve area. In addressing the third ground that, the magistrate erred to accept the exhibits of the dry piece of meat while it was fabricated and fraudulently made, it was from the respondent that, the meat found with the appellant were disposed of and they tendered an inventory form. From the above, it is clear under the provision of paragraph 2 (a) of the Police General Orders (PGO),that, the Police Force has the duty to protect every exhibit, perishable or otherwise, which comes into their possession, the section provides that; 2.(a) The police are responsible for each exhibit from the time it comes into the possession of the police, until such time as it is admitted by the Court in evidence, or returned to 10 its owner, or otherwise disposedof according to instructions; [Emphasis is added]. Concerning how the Police are obliged to handle unpreserved exhibit when still at the stage of criminal investigation, paragraph 25 of PGO No. 229 (INVESTIGATION - EXHIBITS) applies, and states that: "Perishable exhibits which cannot easily be preserved until the case is beard, shall be brought before the Magistrate, together with the prisoner of any so that the Magistrate may note the exhibits and order immediate disposal Where possible, such exhibits should be photographed before disposal [Emphasis added]" It is therefore clear that, any nearest Magistrate may issue an order to dispose of unpreserved exhibit, again, the accused must be present before the Magistrate and be heard and yet again photographs of the exhibit must be taken before its disposition. In the instance case the Inventory form to wit exhibit P6 shows that, the Principle Resident Magistrate on 16/02/2023 order for destruction of the government trophies, again, behind that exhibit, it revels the following 11 From the above quote, and after a thoroughly perusal of the court proceedings preferable at Pg 15 -16 which have been referred by the Respondent, nothing shows as to whether the appellants were called before the Magistrate to be heard before issuing the disposition order. As well, no photographs were taken before disposition of the government trophies thus violation of the above section which vitiates the proceedings of the trial court, consequently, Exhibit P6 cannot be relied on to prove that the appellants were found in unlawfully possession of government trophies. See the case of Mohamed Juma @ Mpakama versus Republic, Criminal Appeal No. 383 of 2017, CAT, from Pg 21-23 and it is here by expunged from the proceedings. 12 On the other hand, both appellants prayed to be acquitted and set free. After a thoroughly perusal of the trial court records, I have realised that, there is enough evidence which connect the accused persons with these offences and there is no way that, if this court will order a retrial, the prosecution will have chance to fill in gaps as it was discussed in the case of Fatehal Manji V. Republic (1966) E.A 343, which held that, "In genera/, a retrial will be ordered only when the original trial was illegal or defective. It will not be ordered where the conviction is set aside because of insufficient of evidence for the purposes of enabling the prosecution to fill up the gaps in its evidence at the tria/. Even where a conviction is vitiated by a mistake of the trial court for which the prosecution's not to blame it does not necessary follow that a retrial shall be ordered; each case must depend on its own facts and circumstances and an order of retrial should only be made where the interest of justice require. " [Emphasis added]. From the above case, and in the present matter, the appellants were charged with an economic offence, therefore on the other hand, whether the claims are true or not the records of proceedings should provide an 13 answer to that. In the circumstances, it will be for the interests of justice to order for retrial. Thus, I remit the matter to the District Court of Bariadi at Bariadi for a retrial before another magistrate of competent jurisdiction. It so ordered ~ R.B.Mass~ JUDGE 25/04/2024 14