20190404 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA (DISTRICT RE_GISTRY). ATMWANZA HC.CRIMINAL APPEAL NO. 201 2018 · {Arising from the District Court ofSerengeti at Mugumu in Economic Case No. 87 of 2016 of) The appellant, John Mwita @ Marwa is charged in the District Court of Serengeti District with one count of Unlawful Possession of Government Trophy c/s 86 (1) and (2)(b) of the Wildlife Conservation . . Act No. 05 of 2009 read together with Paragraph 14 ( d) of the First Schedule to the Economic Organized Crime Control Act, Cap.200 [R.E 1 { . . 2002] and section 57 (1) and section 60 (2) of the Organized Crime Control Act, Cap.200 [R.E 2002]. It was alleged on the 23 rd day of September, 2016 at his house· at Marenge Village within Serengeti District in Mara Region, the appellant was found in possession of twenty-five pieces of dried meat n of wi_ldebeest valued Tshs. 1,430,000/= the prop~r:l:Y.. of the United . ·-'\. Republic of Tanzania Government. (-'>"',, -"~,., //', \ ----,,. 'v'" \• •c •,',_, 0'', \, \ /'·. ,-~·:·>,'-, "- '\. \· \ . . _. '--,. __ . \\, ' ' \ . The appellant being dissatisfied_ by't~e de't,isJon of the District ( __ ..........,_. '- ·,. \ ' Court of Serengeti District knocked \ '·-.. '-,"- ·,, --------. . court with five . 'th~'~tjat¢s:~~f--ttti~ . grounds of appeal. The same-,cah~b~ cryS~91ized as follows: One, the trial· magistrate tried the~a~~ witb~bf'f>,~~:~irig a consent form .the Director of Public 8rqse~~tjpn4~b>~h~:'.trial Magistrate erred in law "'" ·•.. \. '" / . and fact in relying_pn''f~lsJfied::witr(esses. Three, the exhibit P.E 2 was .// .. -·· '',_"""'\.\ \_\\\ ' ... , ......, ·•-;·~-~"- wrongly .ad~:~~-~d)\:J~si:_ w~:> not tendered by an expert from _the -goverrJ9:~~~~,e~s!"'as,r~:guired by the law. Four, ~he trial Magistrate ) /: erreqhn law anct/actJor failure to consider the defence case .. \~\,', \,<~'">---- - // ,_ . At the hearing, the· appellant appeared in person unrepresented while and Ms. Flyreg~te, the learned State Attorneys, represented the respondent. Having not much ·to say the appellant prays for this court to adopt his grounds of appeal and set him free. 2 ( In submitting the learned Seniqr State ·Attorney on his part supported the conviction and sentence for the reasons. to be advanced herein. Submitting in support of 1st - ground of appeal Ms. Flyeregete submitted that the consent of the Director of Publ,,it,Prosecution was issued and wasfiled in court. Therefore, this ~~ As to the 2nd ground of appeal~~ f~/Stafe Attorney submitted that the prosecution ~~~~)f were credible. She said PWl and PW2 testifi~d that they~ound out that the appe II an t .in possession . 71~~ G~ ' \ "- "'-t~") h. . h" . h overnrnent 'tr~ .1es m · 1s ~use. Th · ey . aiught him with 45 pie4s t'.°Fi~eat of wildebeest, and the . appellant was ~n~~o}~~~tion. Ms. Fl:eregete submitted further PW2~dQhf~ 'vli~en-evaluated the 45 pieces of Wildebeest meat and pre,~ a-eerti~te of evaluation the same was tendered credu~ · . in court~';$er~~ented that PW1 and PW2 evidence were . Arguiflg--for the 3rd ground of appeal Ms. Flyeregete rebutted that an expert did not tender th~ exhibit. The learned State Attorney argued that a Wildlife Officer, qualified expert tendered the exhibit P.E ~' therefore, this ground is demerit. j 3 - ( I ( I Concerni-ng the 4h and 5th gro'unds of appeal, Ms.· Flyeregete - I conceded that the trial Magistrate i~ his judgment did not consider the ·defence case thus ·she prayed I for -this court to evaluate the . 1 defence case. l I l On my" .part after a careful an~lysis I of the totality . of evidence - - on record, the grounds o_f appeal filed by the appellant and the 1 submissions by both sides. In determining these grounds of appeal, I I shoufd state at the outset that in the course of determi"ning these I grounds, I will be guided by the c9non of the criminal cases which places on the shoulders of the prosecution, the burden of proving the • I , guilt of the appellant beyond all re9sonable doubt. The question, in 1 this case, will be 'Whether the ·evidence adduced by the prosecution ,was strong enough to ground a conviction for the offence charged. " l I I /r-€~~9\~ l"~ound cifappeal, as rightly pOinted out by the l~arned State Attorney that the Director of Public Prosecution \\ \':\ I - • consenit,to try tne Economic case was issued, and the certificate was "·''-..JI l filed in Cdtirt~-Therefore this ground is baseless. · I I In relation to the 3rd ground of appeal that the· appellant was I I the exhibit P.E 2 was wrongly . tendered. and admitted in court as it . ) was not tendered by an expert from the government chemist as I required by law. It is in the record that the exhibit P.E 2was tendered I J 4 ( • • .· I by PW2, the Wildlife Warden, and an ,·experienced officer. PW2 valued ' and identified the government -trophies and prepared a certificate of • I valu 9tion. Therefore, this ground is baseless.· . l I I Concerning the fourth and .fifth grounds of the appeal, that the • I • ·trial Magistrate did not consider the defence case. It is in the record · . I that the trial Magistrate in his judgment analysed and evaluated the prosecution case then he continueq to enter judgment. But he did I not evaluate the defence case. Therefore, this court. is evaluating the . defence case as follows; DW1, olie. John Mwita testified that on 23/09/2016 the police officer sear¢hed his house and did not find • I • anything. Thereafter the accused yvere arrested and alleged to be found in· possession of government trophies. DW2, one Juma Thomas I 1 Mgendi testified that on 23/09/201 6 he was sent by her mother to < the house of one John Mwita to take meatand he was put on hold by I John Mwita. After a while, the police officer arrived at DW1 house • . I • and. ordered them to open the door. He said the police officers· . l . searched the house and found dried meat. Thereafter they were I . arrested and brought to court.· I I I From the findings of the defence case, it seems the police I officer searched the DW1 ·house and found dried meat although DW denied that they did not find anything. It was the duty of the I prosecution case to tender in court relevant exhibits as related to the I search such as a receipt of search warrant/permit, the Government I j I .5 I I I . \ trophies found in possession of the appellant and the certificate of seizure, but that was not done. Arguing in relation to the findings of the defence case concerning the case at hand, I have tound that the prosecution case . . failed to tender the alleged 45 pieces of dried wildebeest meat, and a receipt of.search and a certificate of seizure in court. · \;'-~:::~:-·<._ ~~,_,,--7 It -is ,in the records of court pro~~~-?ing\.~t~~>tB~:-Brosecution \., '~'" \ ✓ case tendered one exhibit which was inteMded t:o. prove the case to . ( ~-- - -. . ',<~-- \ \ the standard required by law.1 ~he<~Xhib1t:!~:::.,~t--yaluation certificate "',\_\ _··....... , ~'"'-., ·,,\ ., '••,,,.,_·.__ __.' which was admitted and JJ)c1rked·· c;3s ·etfJibit P.E2. PW2 and PW1 /·c-- \ '· .., ·, .,"\"'\ alleged having arreste¢ the· }RPell~nt with 45 pieces of dried ! .· /. - _\., ·,_.. \ wildebeest meat b~~-"~W{('~~-~ <n61:'~~:nder /the 45 pieces of wildebeest in court, there ,.-wAs nq -~ny-j~xl:libR related to Government Trophies caught in p~~SJ)?~ih(~s;llant. . ------- '\"::' <" '-,._> . . - !' " .-·,·<.,< ~\\. ~\--. ""- "'"' ( :'it is evide~t f~:ltl the provisions of section 10.1 of the Wildlife Cons~~~iQ_r13~! the Government trophies found in possession of the appell~nt-~~s required to be tendered in Court as exhibits. This was not done. Instead, a certificate of valuation was tendered and admitted in court. The appellant did not have an opportunity to raise an objection. In the case of Emmanuel Saguda@ Sulukuka and another v R Criminal Appeal No. 422' "B" of 2013 Court of Appeal . stated that it is a well-established practice in cases where witnesses 6 ( are required to testify on a do'cument or object which would subsequently be tendered as exhibit that the procedure is not simply _ t9 refer to it· theoretically as was the case here·, but to have .it - physically produced and referred to by the witness before the court either by display or describing it and then have it admitted as an - . . exhibit. Given the posit1on, the requirements under the law have not been met. /">._ ·,....__ \ - - \; <,:~::'•·,>- . - ·Equally significant is the fact tha('tJ,ere \W~s/ no---G~rtificate of ',,<\ \'-,, \ - - seizure to establish in whose eo,;~~-~5.!~Qt,~he\\~roperties under \ \ ---- - - "'- ' - \ \ - . . - discussion were found. It is <the r~quirem'e."nt '·-of the law that a . "·"'\.'--._ ', ,, -- -·- - \,_ ', certificate of seizure is r,i~ired td',~~,~rep_~:fd i~mediately after any property connected to (a/ crime/".is_ sei~ep. The police investigators ought to have complied 'With ,~-'-;,,~t,d~tory provisions of section 22 ', .,,_ "-,. ·~\, \ '\,'"' ' "'"' .......,,~.~· J .- // (2) (3), (ii) 9f"tnf= 'E"oriomic_.an"d Organised Cnime Control Act Cap.200 [Ri'-,,~0~2J~PY ')>~~paring the certificate of seizure which - "\ \/> - ---,_ _,-'~-~- '" - could 1~~:s~o\i~(n,,the i)erson from whom the -said items were recoi~red. Sect~r-'·22"'{2) (3), (ii) provides that: \\ \ .. \ . \~WnernA\;iything is seized after a search conducted pursuant to ,,""-.,::~~\.~· ~-- , ,,'._,.•'' . . this section, the police officer seizing it shall- - . (ii) issue an official receipt evidencing such seizure and on which the value of the property as ascertained and bearing in addition to his signature, the- signature of the owner of the premises searched and that of at least one independent person who witnessed the search [Emphasize supplied]. 7 I- (__ . . In the absence of the exhibit to ~how that the government . trophies were.ca~ght in ·possession of the appellant and in a~sence of a ·certificate of seizure it adds more injury to the already unsatisfactory evidence of the prosecution, as doubts linger strongly that could be those items were recovered from the appellant as they h~ve dynamically clai~ed. Since PWi and PW~~e the. ma'.n witnesses and their evidence was relied uporr--t,~ the prosecution in i\i)~ ~"// disproving the appellants' defence therefor~ \ailllr-e to tender the government trophies in court and ~~,~~ isV~rtificate of . seizure caused m1scarnage . . . r.t.1cse. . .,as~sJ1,e of JUS __ t ~t d\I ~n \ m. th e case of " " - ... ..._ . -- \ v Julius Mata ma @ Babu @· ~zee"'Mzi~-Republic, Criminal Appeal No. 137 of -2015/eAf (u~o~\the Court of Appeal of Tanzania emphasized ~, n~ty)~ preparing a certificate of . seizure w .h.ere t·h ('\._ t·\ · · e arres \ ffi ) ; any property. ~ mg~e1zes . G· u1'd~dQb- e ,y th~b~ ..· .an d au.thon·t··1es, I am of th e e'a.~e prov1s1on view(f~~~'\cution case failed to prove the case to the · stancl1-ct requo/"a ;;: law by tendering· before the court cogent eviden2e~-gains/ the appellant. Therefore, I hold the trial court's -..;.:::.._....-' conviction against the appellant was conducted contrary to the law, and which occasioned a failure of justice on the part of the appellant. 8 . . . . Under the circumstances, I allow the appeal and quash the conviction and set as1de the sentence. I order the immediate r~lease . . . of the appellant from prison unless he. is lawfully held for other .lawful purposes. Order accordingly. 9