Joseph Machota

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT SHINYANGA CRIMINALAPPEAL 202403112000006344 (Originating from Criminal Case No. 41 of 2023) JOSEPH S/O MACHOTA ...................................................................... Appellant VERSUS REPUBLIC ....................................................................................... Respondent JUDGMENT 3rd and 7th June 2024 F.H. Mahimbali, J The appellant was charged and convicted by the trial court on economic case for two offences. In the first count, the appellant was charged that on the 18th day of June 2023 at Kivuko cha Trekta area was found being in unlawful possession of weapons, to wit one machete, three animal trapping wires within the National Park contrary to section 24(1) and (2) of the National Parks Act, Cap 282 R.E 2002 without permit. On the second count, it was alleged that on the same date and place stated in the 1 first count, the appellant was found being in unlawful possession of government trophy to wit one fore limb fresh meat of the wildebeest equivalent to one wildebeest which is an offence contrary to section 86(1) and (2) (c )(iii) of the Wildlife Conservation Act, Cap 283 read together with paragraph 14 of the First Schedule to and section 57(1) and section 60 (2) of the Economic and Organized Crime Control Act, Cap 200 R.E 2022. The accused person pleaded not guilty to the charge. Upon a full trial, the appellant was convicted on both counts and consequently sentenced to serve one-year imprisonment for the first count and twenty years’ imprisonment for the second count. Undaunted with both conviction and sentence, the appellant has preferred this appeal based on four grounds, paraphrased as follows: 1. That the trial magistrate failed to evaluate properly the evidence of the case and that his defense testimony was not considered. 2. That the trial court’s conviction to the appellant was based merely on hearsay evidence. 3. That in the prosecution of the case, there was no any exhibit tendered in court. 4. That there was no cautioned statement tendered in court to establish the guilty of the appellant. 2 During the hearing of the appeal, the appellant was self-represented whereas the respondent was represented by Ms. Mushi, S/A. On his part, the appellant had nothing to add but just prayed that his grounds of appeal be adopted to form part of his submission. He then prayed that his appeal be allowed and that he be acquitted as he is innocent in the charge. On the other hand, Ms Caroline Mushi – State Attorney supported the appeal but on legal grounds. She submitted hat this being an economic case, it is the domain of the Economic Division of the High Court pursuant to section 3 of the EOCCA. Thus, for subordinate court to be clothed with jurisdiction, it must be dully conferred with jurisdiction pursuant to section 12(3) and (4) of the EOCCA. Reading the accompanying document of the charge, there is only a consent certificate and not a certificate of DPP toprosecute conferring jurisdiction to the subordinate court. Thus, the trial court was not sufficiently clothed with such a jurisdiction to preside over the matter on consent instrument alone. Thus, all that had transpired before it was a nullity. consequently, proceedings, judgement and the resulting sentence must set quashed and be aside for being a nullity. 3 However, as a way forward, she prayed for retrial in consideration of the fact that the alleged committed offences were fully established as per evidence in record. She clarified that PW1 and PW2 testified how they arrested the appellant being within the National Park. That was exhibited by coordinate points on the point of his arrest (Exhibit P2). That the said weapons were seized (three tarping wires, panga and admitted as part of exhibit P.1). That, the said trophy (wildebeest) was seized and later disposed (exhibit P.5). That the same were dully identified by the wildlife officer and certified to be wildebeest (PW3) who stated so vide exhibit P4. Thus, borrowing the settled principle in the case of Fatehali Manji v. Republic [1966] E.A. 343, that retrial cannot be ordered for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial but for the interests of justice. Having heard the submissions of both parties in this appeal and having gone through the trial court’s records, it is undisputed that the said economic offence was commenced at the trial court without there being an instrument (certificate) conferring jurisdiction to that court to preside over the matter. The only instrument available is the consent of the DPP pursuant to section 26(2) of the EOCCA of Cap 200. Thus, in law, for 4 consent certificate to be filed pursuant to section 26 (1) and (2) of the EOCCA, it must first be preceded by certificate of conferring jurisdiction to the subordinate court pursuant to section 12(3) and (4) of the EOCCA. The rationale is simple, an economic case, it is the domain of the Economic Division of the High Court pursuant to section 3 of the EOCCA. Thus, for subordinate court to be clothed with jurisdiction, it must be dully conferred with that jurisdiction pursuant to section 12(3) and (4) of the EOCCA and consent to prosecute pursuant to section 26 (1) and (2) of the EOCCA. In the absence of one, the trial is invalid as the subordinate court will not be clothed with requisite jurisdiction. As the trial of the appellant at the subordinate court proceeded without certificate conferring it with jurisdiction, the trial was a nullity and so is the resulting conviction and sentence. Consequently, I hereby nullify all the proceedings, conviction and sentence thereof as being nullity. As to the way forward, Ms Caroline Mushi, S/A has prayed for retrial arguing that as per evidence in record, the alleged committed offences were fully established. She clarified that PW1 and PW2 testified how they arrested the appellant being within the National Park. That was exhibited by coordinate points on the point of his arrest (Exhibit P2). That the said 5 weapons were seized (three traping wires, panga) and admitted as part of exhibit P.1. That the said trophy (wildebeest) was seized and later disposed (exhibit P.5). That the same were dully identified by the wildlife officer and certified to be wildebeest (PW3) who so vide exhibit P4. Thus, borrowing the settled principle in the case of Fatehali Manji v. Republic [1966] E.A. 343, that retrial can be ordered for the interests of justice, adding that there was ample evidence to mount conviction against the appellant. When propped by the court on whether the charge was established beyond reasonable doubt on the court of unlawful possession of government trophy, especially whether PW3 - Wildlife officer sufficiently described the said trophy as really trophy; Ms Caroline Mushi, replied that so long as there must be credence to witnesses, what PW3 did testify as an expert witness sufficed the legal purpose. Thus, he must be believed so. According to the said PW3 – Wildlife Officer, on identifying the said trophy as wildebeest trophy, at page 15 of the typed proceedings, is recorded to have testified: “…I had examined it, it was one fresh hind limb of wildebeest. It had a skin greyish brown and on its scapula …” 6 In my considered view, I wonder if this is a scientific explanation of the alleged wildebeest meat for this court exercising its real legal mind can find satisfaction that it was nothing but the alleged wildebeest. Yes, it is trite law that every witness is entitled to credence. I have however no doubt that as an expert, his evidence can be considered by the Court along with other evidence in the record. Indeed, as stated by the Court in Makame Junedi Mwinyi v. Serikali ya Mapinduzi Zanzibar (SMZ) [2000] TLR 455: "The position of the law is that an expert evidence is admissible in cases where specialized knowledge is required." It is appropriate at this point to reiterate what was stated in Bashiru Rashid Omar v. Director of Public Prosecutions, Criminal Appeal No. 309 of 2017, (unreported) with regard to the expert evidence: "Indeed, opinion of the expert evidence is premised on a general rule that there are certain matters which cannot be perceived by the senses. Their existence or non-existence is ascertained by inferences drawn by persons specifically trained in the particular field with which the subject is connected. 7 Nevertheless, the opinions of experts are not ordinarily conclusive and therefore not binding upon the judge. In this regard, the reasons for the opinion evidence must be carefully scrutinized and examined and considered by the trial court along with all other relevant evidence in the record. The trial court therefore cannot surrender its opinion to that of an expert in disregard of the other relevant evidence for both sides of the case. The trial judge is therefore entitled to scrutinize the expert evidence and come to his own conclusion on the facts of the case. [Emphasis supplied] Moreover, it is also a position that for an expert to be believed by the court, he must furnish it with the necessary scientific criteria for testing the accuracy of his conclusion so as to enable the Court to form its own independent judgment by the application of these criteria to the facts proven in the evidence (see Davie v. Edinburgh Magistrates, 11 [1953] SC 43, Daubert v. Marrel Dow Pharmaceutical Inc. 509 US 579 (1993) and United States of America v. Roy Van WYK, US District Court for the District of New Jersey, Cr. 99 -2717 (2000) referred in the Republic v. Kerstin 8 Cameron [2003] TLR 88 at page 128). Indeed, as stated by the Supreme Court of India in Malay Kumar Mukherjee & 2 Others, AIR 2010 SCC 1007: ”The scientific opinion evidence, if intelligible, convincing and tested becomes a factor for consideration along with other evidence of the case. The credibility of such witness depends on the reasons stated in support of his conclusions and the data and material which form the basis of his conclusions” To that end, I hasten to add that an expert has to go beyond making mere assertions if he is to be taken serious as convincing and effective. Applying the above expounded position with regard to the expert witness in the instant appeal, I am settled that in view of the factual setting of PW3's oral account during the trial, I am of the considered opinion that his evidence cannot solely be relied upon to reach the conclusion that what the appellant was found in possession with, was actually government trophy. His evidence has to be considered along with other evidence in the record. In the circumstances, I agree with Ms. Mushi that every witness’s evidence should be believed (Goodluck Kyando Vs. Republic, [2006] T.L.R 363, also Mathias Bundala Vs. Rep, Criminal 9 Appeal No. 62 of 2004, Court of Appeal at Mwanza and section 146(2) of Tanzania Evidence Act, Cap 6). However, that credence where the accused pleads not guilty to the charge, it is the prosecution’s duty to establish all the ingredients of the charged offence through their witnesses. Therefore, where the evidence by witnesses does not establish the ingredients of the charged offence, it is hard for the court to be convinced just on mere assertion that there must be credence to every witness. For there to be credence, the witness must tell the material evidence convincing the court to reach the said verdict. Evidence from wildlife expert saying the said meat was wildebeest trophy as it had a skin greyish brown and on its scapula, I wonder if this evidence by itself sufficiently explains the scientific features of the charged trophy where its charge is vehemently disputed by the accused person. I have not seen the legal credence in PW3’s testimony as far as the description of the said trophy is concerned. He being a wildlife officer ought to have stated what actually he examined and established that the said fresh meat is nothing but of wildebeest trophy. His, was a very general statement and hardly qualifies to be of wildlife officer possessing a bachelor of science in wildlife management. Thus, though it is trite law that every witness is entitled to credence and 10 must be believed and his testimony accepted, what is to be believed is not mere words but useful material aiding the court to reach a proper conclusion of the case. Therefore, where there are good and cogent reasons not believing a witness, his evidence cannot be believed as it is in the current case, for lack of expertise evidence in wildlife. In the circumstances, ordering a retrial would give the prosecution a chance to fill in gaps and thus occasioning injustice to the appellant. That would be against the settled principle set in the case of Fatehali Manji v. Republic [1966] E.A. 343, that retrial cannot be ordered for the purpose of enabling the prosecution to fill up gaps in its evidence at the trial. In the final result, I order the immediate release of the appellant from prison custody unless held there for some other lawful cause. Order accordingly. DATED at SHINYANGA this 7th day of June 2024. F. H. Mahimbali 11 Judge 12