john mwita marwa and steven mkoyi gagiri vs republic 2020 tzhc 4613 21 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MUSOMA AT MUSOMA CONSOLIDATED CRIMINAL APPEALS NO. 101 AND 102 OF 2020 (Arising from the decision of the District Court of Serengeti at Mugumu in Economic Case No. 31 of 2019) JOHN S/O MWITA @ MARWA................................. 1st APPELLANT STEVEN S/O MKOYI @ GAGIRI.............................. 2nd APPELLANT VERSUS THE REPUBLIC........................................................... RESPONDENT JUDGMENT 21st October and 21st December, 2020 KISANYA, J.: The District Court of Serengeti at Mugumu convicted JOHN S/O MWITA @ MARWA and STEVEN S/O MKOYI @ GAGIRI, the appellants herein of the offences of Unlawful Entry into the National Park, contrary to sections 21 (1) (a) (2) and 29(1) the National Parks Act[Cap 282, R.E. 2002] as amended by the Written Laws (Miscellaneous Amendment) Act, No. 11 of 2003; Unlawful Possession of Weapons in the National Park, contrary to section 24(l)(b) and (2) of the National Parks Act[Cap 282, R.E. 2002]; and Unlawful Possession of Government Trophies, contrary to 86 (1) and (2) (c)(iii) of the Wildlife Conservation Act, No. 5 of 2009 (as amended) read together with paragraph 14 of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organized Crime i Control Act [Cap. 200, R.E 2002] (the EOCCA) as amended. Upon conviction, they were sentenced to serve imprisonment for six months for the first count, one year for second count and twenty years for the third count. The sentences were ordered to run concurrently. The material background facts leading to the appellant arraignment and conviction went as follows: Thadeus Joseph Manonga (PW1), Driku Shaban (PW2), Nurdin Bawaziri and William Ngavike are park rangers stationed in Serengeti National Park. On 22/04/2019 at around 0700 hours, the said park rangers were on patrol at Nyabehu area within Seregenti National Park. They saw five people hiding in the bush. Upon surrounding the said bush, the appellant and three other persons were arrested. When searched, the appellants and their companion were found in possession of one panga, three knives, six animal trapping wires and eleven pieces of fresh meat of zebra. The said items were seized by the park rangers as per certificate of seizure (Exhibit PEI). It is deduced from Exhibits PEI that other persons who were with the appellants on the material day are Joseph Wansato Ryoba, Samwel Manga and Kisana Sangali Mwita. According to PW1 and PW2, the appellants had no required permits authorizing them to enter into the National Park, possessing the said weapons in the National Park and possessing the government trophy to wit, 11 pieces of fresh meat of zebra. The said one panga, three knives, six animal trapping wires were tendered by PW1 and admitted as Exhibit PE2 collectively. 2 The appellants and other accused together with the said one panga, three knives, six animal trapping wires and eleven pieces of fresh meat of zebra found in their possession were taken to Mugumu Police Station. Police Case File No. MUG/IR/1259/2019 was opened on 23/4/2020. Wilbrod Vicent (PW3), a wildlife warden was called at Mugumu Police Station to identify and value the government trophy found in possession of the appellants. He identified the said 11 pieces of fresh meat of zebra equivalent to one zebra killed and valued at Tshs. 2, 640,000. A trophy Valuation Certificate was admitted in evidence as Exhibit PE3. On the next day (24/04/2019), PW4 who investigated this case took the appellant and the other three person together with the said 11 fresh meat of zebra to the District Court of Serengeti where he sought for and granted with an order for disposal of the said 11 pieces of fresh meat of zebra. Such order is evidenced in the Inventory Form which was admitted as Exhibit PE4 in lieu of the government trophy alleged to have been found in possession of the appellants. Both appellants gave their defence on oath. They told the trial court that they were arrested in their farm on 21/04/2019 and taken to the police station. They denied to have committed the offence. In view of the evidence adduced by the prosecution and the defence, the trial court was satisfied that that the prosecution had proved its case. It went on to convict and sentence the appellants as stated 3 herein. Aggrieved by the conviction and sentence, the appellants have knocked at the door of this Court by way of appeal. Their separate of appeals were consolidate into one appeal. However, their respective petitions of appeal had similar grounds which can be summarized as follows: 1. The trial was conducted without certificate from the Director of Public Prosecutions (DPP). 2. The appellant was given the right to be heard during trial. 3. There was possibility of tempering with exhibits tendered by the prosecution. 4. The appellants' defence that they were arrested in the farm was not considered. At the hearing of this matter, the appellants appeared in person while Ms. Monica Hokororo, learned State Attorney appeared for the respondent/ Republic. In the first ground of appeal, the appellants contend that the trial was conducted without the certificate issued by the DPP. Ms. Hokororo replied that the consent and certificate conferring jurisdiction on a subordinate court to try the offence were filed in the trial court. It is a legal requirement that, where an accused is charged with economic and non-economic offences as in the case at hand, a certificate conferring jurisdiction on a subordinate court to try the said offence has to be issued by the DPP or an officer authorized 4 by him under section 12(4) of the EOCCA. It is trite law that a trial that commences before the subordinate court without the required certificate is a nullity. In the present case, the certificate signed by the Senior State Attorney In-Charge under section 12(4) of the EOCCA was filed in the trial court on 06.11.2019. On the same date, new charge was read over and explained to the appellants. As that was not enough, the prosecution filed the consent of issued by Senior State In-Charge on behalf of the DPP. The preliminary hearing was conducted on the same date and the prosecution commenced on 20.11.2019. With that findings, I am of the opinion that the first ground is unfounded. In now move to determine the second ground of appeal. The appellants' complaint is that they were denied the right to be heard. However, they did not state how the said right was infringed by the trial court. On her part, Ms. Hokororo submitted that the appellants were accorded the right to be heard. The learned State Attorney pointed out that the appellants were present at the hearing of the case and given the right to give their evidence and call witnesses. The right to be heard is a constitutional right enshrined under Article 13(6) (a) of the Constitution of the United Republic of Tanzania, 1977. It requires the judicial authority to ensure that a person likely to be affected by its decision is accorded the right to be heard. In criminal trials, the right to be heard include among others, the accused right to know the charge filed against him, right to be 5 present at the hearing of the case, right to cross examine witness marshaled by the prosecution, right to give evidence in defence, right to call witness and right to appeal or other remedy. It is in record that that the substance of the charge was read and explained to the accused person as required under section 228 of the CPA. Further, the appellants were present during the hearing of the prosecution case, given right to ask questions to PW1, PW2, PW3 and PW4 and comment before any exhibit is admitted in evidence. Also, the documentary evidence (Exhibit PEI, PE3 and PE4) were read over to the appellants upon being admitted. Thus, the appellants were made aware of the contents thereto. The record reveals further that the appellants were addressed in terms of section 231 of the CPA. They opted to give evidence on oath and call witnesses to supplement their oral testimony. Indeed, their defence was given on oath. However, the appellants decided to close their case without calling the intended witnesses. They informed the trial court their witnesses were not reachable. In that regard, I am satisfied that the appellants were not denied the right to be heard. The second ground is unfounded as well. In ground three, the appellants challenge the exhibits tendered by the prosecution. They contend that there was possibility of tempering with the said exhibits. In their oral submission, the appellants argued that; the government trophy alleged to have been found in their possession was not tendered in evidence; they did not sign the 6 documents tendered to prove the government trophies found in their possession; and they were not present at the time of identification and valuation of government trophies. Replying, Ms. Hokororo submitted that the evidence and exhibits tendered by the prosecution were relevant to the case at hand. She stated further that the government trophy was identified and valued by PW3 while the government trophy was disposed of in the presence of appellant as per evidence of PW1. The issue is whether exhibits tendered in evidence were tempered with and the prosecution evidence fabricated. According to PW1 and PW2, the appellants were found in the National Park. One panga, three knives, six animal trapping wires and eleven pieces of fresh meat of zebra found in their possession were seized as per certificate of seizure which was admitted Exhibit PEI. The appellant signed the said Exhibit PEI. They did not object when PW1 requested to tender Exhibit PEI. Further, the appellant did cross examine PW1 and PW2 who testified to have found them in the National Park. Furthermore, the said one panga, three knives and six animal trapping wires found in possession were tendered by PW1 and admitted as Exhibit PE2 collectively. The appellants did not objection admission of the said Exhibit. PW2 stated on oath that upon arresting the appellant the said weapons were taken to the police station and that he labeled them IR No. MUG/IR/1259/2019. Therefore, looking at PW1 evidence, it is clear that Exhibit PE2 tendered in evidence was 7 related to one panga, three knives and six animal trapping wire found in possession of the appellants. Both PW1 and PW2 were not cross examined at all by the appellants. Thus, their evidence was not challenged by the appellants. By failing to cross examine them, the appellants admitted their evidence that they were found in the National Park and in possession of the said weapons without permits. Therefore, the appellant are estopped from asking the Court to disregard evidence of PW1 and PW2 which was supplemented by Exhibits PEI and PE2. Basing on evidence of PW1 and PW2 together with the said Exhibits PEI and PE2, I find that the offences of unlawful entry into the National Park and Unlawful possession of Weapons in the National Park were proved. As to the third count on unlawful possession of Government Trophies, evidence thereto is deduced from PW1, PW2, PW3 and PW4. PW1 and PW2 deposed how the appellant was found in possession of 11 fresh meat of zebra. PW1 tendered the certificate of seizure (Exhibit PEI) which was signed by the appellants. The said 11 pieces of fresh meat of zebra were identified and valued by PW3 as required by section 86(3) of the Wildlife Conservation Act, 2009. PW3 Testified that the identification and valuation was conducted in the presence of the appellants. Such evidence was not challenged by the appellants who have submitted herein that they were not present at the time of identification and valuation. 8 PW2 went on to state that the identification and valuation was in respect of 11 pieces of fresh meat of zebra and related to File No. MUG/1R/1259/2019 shown to him by PW4 who investigated this case. His identification confirmed that the 11 pieces of fresh meat of zebra found in possession of the appellants were equivalent to one zebra valued at Tshs. 2, 640, 000/=. The Trophy Valuation Certificate (Exhibit PE3) was admitted without being objected by the defence. The said Exhibit PE3 names File No. MUG/IR/1259/2019 thereby indicating that it related to the fresh meat of zebra which was found in possession of the appellants and labeled by PW1. For that reasons, I find that Exhibit PE3 was not planted or fabricated. It relates to the case filed against the appellant. It is not disputed the said 11 pieces of fresh meat of zebra alleged to have been found in possession of the appellants were not tendered in evidence. PW4 deposed that the said exhibit was disposed of after obtaining the court's order. He stated further that the appellants were also taken before the magistrate who ordered for disposal of the said exhibit because the same was perishable. PW4 tendered an Inventory Form (Exhibit PE4). Again, reading from Exhibit PE4, the 11 pieces of zebra that were ordered to be destroyed were in respect of File No. MUG/IR/1259/2019. Also, evidence by PW4 was not challenged by the prosecution. Thus, the appellant did not challenge PW4' evidence that they were taken to the court which granted the order for disposal of the government trophies. It is my considered view that, the government trophy was disposed of in accordance with 9 the law. In terms of section 101 of the Wildlife Conservation Act as amended, Exhibit PE4 was a sufficient evidence to prove the 11 pieces found in possession of the appellant. For that reasons, I am of the opinion that the third count was proved as well. The last ground is premised on the issue whether the defence case was not considered by the trial court as contended by the appellants. The learned State Attorney was of the considered opinion that the defence case was considered. The law is settled that failure by the trial court to consider the defence case is as good as not hearing the accused and hence fatal. See the decision of the Court of Appeal in Hussein Iddi and Another vs R [1986] TLR 166. In the instant case, the defence case was to the effect that the appellants were arrested in the farm. It is on record that their defence was considered by the trial court. The trial magistrate held: "On their part, the accused person testified that they were arrested in their farms. It shows that the accused persons committed the offence because their defense did not describe the offence they had been charged and also their defense did not raise any doubt on the part of the prosecution case." In the light of the above, the appellants' complaint that their defence was not considered is not meritorious. This is especially when it is taken into account that they did not cross examine PW1 and PW2 who deposed to have arrested them in the National Park. It follows io that their defence was an afterthought. As rightly held by the trial court, the appellants defence did not raise any doubt to the prosecution case. In the final analysis, I find this appeal not meritorious. It is accordingly dismissed in its entirety. DATED at MUSOMA this 21st day of December, 2020. E. S. Kisariya JUDGE COURT: Judgment delivered through virtual court this 21st December, 2020 in absence of the appellants and in the presence of Mr. Nimrod Byamungu, learned State Attorney for the Republic/Respondent. B/C Mr. Maigsa-SRMA present. E. S. Kisanya JUDGE 21/12/2020 Order: 1. The appellants be supplied with the copy of judgment. 2. The appellants have right to appeal to the Court of Appeal. E. S. Kisanya JUDGE 21/12/2020 11