final Jones Alieza Mkindi vs

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI AT MOSHI DC. CRIMINAL APPEAL NO.9472 /2024 (Appeal from the Judgment of District Court of Same at Same dated 16th March, 2022 in Economic Case No. 08 of 2020) JONES ALEZA ANAEL @MKINDI…………….……APPELANT VERSUS THE REPUBLIC……………………….………...… RESPONDENT JUDGMENT 23rd & 30th July, 2024. A.P. KILIMI, J. At the District Court of Same at Same within Kilimanjaro region, the appellant herein above was arraigned with offence of unlawful possession of Government trophy Contrary to section 86(1) and (2)(c)(ii) of the Wild Life Conservation Act No.5 of 2009 as amended by the Written Laws (Miscellaneous Amendments) (No.2) Act, 2016 read together with paragraph 14 of the 1st Schedule to section 57(1) and 60(2) of the Economic and Organized Crimes Control Act [Cap 200 R.E 2019]. The prosecution alleged him in the particulars of the charge that on 18th day of December, 2020 at Ijinyu Mkonga area within the district of Same in Kilimanjaro region the accused person was found unlawfully in possession of government trophy to wit fresh meat of three (3) dik dik 1 valued at Tanzanian Shilling one million seven hundred thirty nine thousand two hundred and fifty (Tshs 1,739,250/=) the property of the United Republic of Tanzania. The charge was read over and explained to the accused/appellant herein, he pleaded not guilty to the charge and the case proceeded into a full trial. Upon hearing on prosecution witnesses the appellant jumped bail, that caused the trial court to continue with hearing other three prosecution witnesses in his absentia. Thereafter the trial court made a finding that a charge was proved beyond reasonable doubts and proceeded to convict and sentence the accused (the appellant herein) to pay fine of Tshs. 10,739,250/= or to serve twenty (20) years in prison in default of payment. Later the appellant was arrested and sentenced forthwith. Unsatisfied with the trial Court findings in conviction and sentence, the appellant has stepped in this court challenging the District Court decision with the prayer for this court to allow his appeal, quash the conviction and set aside the sentence basing on the following grounds of appeal; 1. That the learned trial magistrate grossly erred both in law and in fact in failing to find that, the house which the said search was allegedly conducted was not proved to belong to the appellant, since the house which the appellant was found sleeping was quite different from the one the alleged government trophy were said to have been retrieved. 2 2. That, the learned trial magistrate grossly erred both in law and fact in relying upon the inventory form (Exh.PE4) and the trophy valuation certificate (Exh.PE5) in finding and holding that, the said government trophy existed, despite the same being wrongly admitted in evidence as exhibits, as the same were not read over before the court after being admitted in evidence as exhibits. Therefore its contents remained unknown to the court during the trial 3. That, the learned trial magistrate grossly erred both in law and in fact in using weak, tenuous, contradictory, inconsistent, incredible, uncorroborated and wholly unreliable prosecution evidence from prosecution witnesses as a basis of the appellant’s conviction. 4. That, the learned trial magistrate grossly erred both in law and fact in failing to note that, there were no explanation on how the Exh.PE3 found its way back to the hands of PW1 who produced and tendered it in evidence as exhibits, since PW1 testified that, he handed the same to PW4 5. That, the learned trial magistrate grossly erred both in law and fact in according the appellant with an unfair trial, since the appellant was denied with his right to be heard after being re-arrested and re-arraigned before the trial court on the allegation of absconding bail, so as to give the reasons for his failure to appear before the trial court on the scheduled dates by the trial court. 6. That, the learned trial magistrate grossly erred both in law and fact in convicting and sentencing the appellant despite the charge being not proved beyond reasonable doubt and to the required standard by the law. Before addressing the appeal, it is pertinent to have a brief factual account underlying the conviction of the appellant. Christopher s/o Mahande (PW1) a park ranger at Mkomazi National Parks, on 18/12/2020 while on patrol with three other fellow rangers at a national park, received information through a phone call from an informer that 3 there was a person who was selling a wildlife meat at Ijinyu hamlet at Mkonga village. PW1 decided to report the matter to Kisiwani Police post for help. The OCS of Kisiwani post gave him two officers to accompany him to the said village and upon reaching the village; PW1 introduced himself to the hamlet chairman Mdangi Ramadhani (PW3) who took one independent witness and they all went to the appellant house and found him sleeping inside his house with his wife and three children. Further, it was the prosecution evidence that at the compound of the appellant house he had two houses, they searched one where he was found asleep and found nothing and upon searching the second house, they found fresh wildlife meat of three dik dik in a cooking pot. The skin and the head of the trophy were already removed but it was easier to identify that it was a wildlife meat of the dik dik. Upon questioning the accused if he had a permit and or a license, he had none, he was then arrested and the trophy together with a cooking pot and a knife were ceased and a certificate of search and seizure exhibit PE1’ was filled and signed by PW1 and witnessed by the witnesses who were present together with the hamlet chairman. He was then taken to Kisiwani police post and then transferred to Same central police station with exhibits which were handled over by PW1 to (PW4) E 7936 SGT Richard a police officer responsible in storage 4 of exhibits in a police custody and a handing over form exhibit ‘PE2’ from PW1 to PW4 was filled. PW1 testified that he also handed over exhibit ‘PE3’ to PW4 which were a cooking pot and a knife ceased from the appellant house. The District game officer of same, Thomas Katunzi (PW2) was phoned by OCCID on 21/12/2020 for identification and evaluation of the trophy and upon arriving , he was taken by the store keeper (PW4) to exhibit storage room, and upon his observation he was satisfied that exhibit ‘PE1’ was a wildlife meat of a dik dik, he filled the inventory form exhibit ‘PE4’ and prepared a trophy valuation form exhibit ‘PE5’ which showed the value of the trophy to be USD 750 equivalent to Tsh 1,739,250/=. From the above evidence the trial court findings was to the effect that prosecution managedto prove the charge against the accused/appellant and proceeded to convict and sentenced him accordingly as alluded above in his absentia since he jumped the bail. When this appeal was placed before me for hearing, the appellant opted to argue his appeal by way of written submission, whereas Mr. Ramadhan Kajembe learned state attorney prayed to argue this appeal orally. In support of his appeal, the appellant prayed this court to consider his submission in writing and further said upon his arrest after 5 jumping the bail he was arrested and sent to court wherein he was ordered to prison, he then prayed his appeal be allowed. In reply, Mr Kajembe learned state attorney opted only to submit on ground number five (5). He argued that it was true that the trial court failed to give the appellant right to be heard as after he was re- arrested after absconding bail. He stated that the trial court records were silent on whether the appellant stood again at a trial court to show cause as to why he jumped the bail. The learned state attorney referred to trial court proceedings at page 31 that such procedure were escaped by the trial court contrary to what the Criminal Procedure Act Cap. 20 “CPA” provides. The learned state attorney then invited this court to be guided by the decision of Shija Ndali @ Matongo vs Republic (Criminal Appeal No. 52 of 2021) [2023] TZCA 17744 (TANZLII) at page 9 and 10 Criminal Appeal No. 52 of 2021 for this court to invoke its powers as provided for under section 366(1)(a)(i) of the CPA and order for retrial of the case to start from where the prosecution closed its case so as to accord the accused the right to be heard. After carefully considering the petition of appeal filed, the argument and reasons advanced by parties in this case, the issue before me for determination is if the appeal before me has merits. 6 Right to be heard being the fundamental right as it is a constitutional right, I find it useful to start firstly on whether during trial the appellant was given right to be heard. The prosecution as stated above procured four witnesses to prove the charge, It is apparent according to the trial court record proceedings from page 28, 29,30, 31,32, and 41 the accused is recorded to be absent, also the record reveal the accused jumped the bail after the prosecution procured first witness, thus the remaining three witnesses adduced evidence in his absentia. I am aware, Section 226(1) of the Criminal Procedure Act gives power for the trial court to proceed with hearing of the case in absence of the accused if no probable cause has been given for his absence. The section provides as follows; “226.-(1) Where at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court in w hich the order of adjournm ent w as m ade, it shall be law ful for the court to proceed w ith the hearing or further hearing as if the accused person w ere present; and if the complainant does not appear, the court may dismiss the charge and discharge the accused person with or without costs as the court thinks fit” 7 [Emphasis is mine]. From the provision above, the trial court was right to exercise its powers to proceed with the hearing in absence of the accused personif he does not appear on the date fixed for continuation of the case. Now back to the grounds of appeal, starting with ground number five only argued by Mr. Kajembe, and here the point for determination is whether after the appellant re-arrest after jumping bail was given right to be heard. As correctly submitted by Mr. Kajembe the appellant was not accorded right to be heard. I am saying this because I have perused the entire trial proceeding record, it is silent on whether after re arresting the appellant, he was given a chance to explain himself as to why he was absent at the trial of his case. It is a trite law, where an accused person whose trial or conviction were conducted in absentia must upon appearing before the trial court, be accorded a right to explain why he had absented himself and whether he had a probable defence on the merit before the trial court which may determine whether to set aside the conviction and sentence. (See Shija Ndali @ Matongo vs Republic (supra). 8 Further I may say the above principle was echoed from the position of the provision of section 226 (2) of the Criminal Procedure Act Cap. 20 which provides; “226(2) Where the court convicts the accused person in his absence, it may set aside the conviction, upon being satisfied that his absence w as from causes over w hich he had no control and that he had a probable defence on the m erit”. [Emphasis added] Therefore, from the principle envisaged hereinabove, after the appellant arrest requires to be attended before the trial court for the compliance of the above legal procedure, by not doing so as the record reveals, it was a violation of his right to be heard. It is a cardinal principle of law that all parties have the right to be heard and their cases be considered for evaluation before the decision. See the case of Director of Public Prosecutions vs Rajab Mjema Ramadhani, (Criminal Appeal No. 223 of 2020), [2023] TZCA 45 (TANZLII) where the court had this to say; "Time without number, the Court has consistently insisted on the need to guard against contravention of the right to be heard (audi alteram partem) in adjudicating the rights of parties. It is a rule against a person being condemned unheard. Any 9 decision arrived at, without a party getting an adequate opportunity to be heard is a nullity.” In the circumstances I find this ground of appeal has merit, and since as alluded above this ground is based on fundamental breach of right, I find is sufficient to dispose of the entire appeal, therefore I find no need to proceed to the remaining grounds of appeal. Based on this sole ground the appeal is hereby allowed. In the premises, I invoke the powers of this court under section 366 (1) (a) (i) of the Criminal Procedure Act (supra), nullify the trial court’s Sentence of Paying fine of Tshs. 10,739,250/= or to serve twenty (20) years in prison in default of payment. Consequently, I order the accused be placed under custody to the trial court and be heard as directed by above by the law. After hearing the reasons of appellant absence at the trial, the trial Court accordingly to exercise his legal duty to determine afresh the guiltiness of the appellant for the offence charged or otherwise. This appeal at hand succeeds to that extent. It is so ordered. DATED at MOSHI this 30th day of July, 2024. 10 X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 30th day of July, 2024 in the presence of Ms. Judith Msenga learned State Attorney for respondent. Appellant also present in person. Sgd; A. P. KILIMI JUDGE 30/07/2024 Court: Right of Appeal duly explained Sgd; A. P. KILIMI JUDGE 30/07/2024 11