20181010 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA HIGH COURT CRIMINAL APPEAL NO. 167 OF 2017 (Original Economic Case No. 38 of 2014 of the District Court of Serengeti at Mugumu) JUMANNE CHONZA @ MONGELA .............................. APPELLANT VERSUS THE REPUBLIC .................................................... RESPONDENT JUDGMENT 20/08 & 10/10/2018 RUMANYIKA, J.: Having been charged, convicted and sentenced to thirty (30) years for offence of unlawful possession of government trophies, which, by the trial court's order sentences concurrently ran with 20 & another 20 years with respect to the 2nd and 3rd counts. That the appellant was on 08/06/2014 at about 23:00hrs at Nyibelekela village Serengeti District found in unlawful possession of 99 tails, 3 dry pieces of fresh of wildebeest, 5 horns of Topi and 13 horns of Thomson Gazelle (the trophies). Jumanne Chonza @ Mongela (the appellant) in person appearing is aggrieved. When ~riefly rephrased, the 5 grounds of appeal may read as ,. ;~t ,, follows: '\, \ ,/l 1. possessiqn· of the government trophies was not proved as against the appellant. 1 2. evidence by the commonly interested public witnesses needed corroboration by independent witnesses. 3. the charges were defective for want of the DPP's consent. 4. the purported certificate of valuation of the trophies was improperly admitted in evidence. 5. the appellant's cautioned statement was improperly admitted in evidence. Whereas the appellant offered no useful submissions. Ms. Gisela Alex learned state attorney appeared for the respondent republic resisted appeal and submitted: One; that led by informer, PW1, PW2 and PW4 were live and credible as the appellant was, red handed at home found in possession of the trophies (as per search/arrest warrant (Exhibit "P2" and Exhibit "PE4" the certificate of valuation by PW5 of the trophies). That a police, and therefore independent DC. Nelson (PW2) corroborated the evidence. That the trial court's records were so clear that the DPP's consent was accordingly procured (proceedings of 07/01/2015). That indeed the appellant's cautioned statement was improperly admitted in evidence. Having been retracted by the appellant, but the court simply admitted it without the mandatory inquiries carried out. p 2 ,,.. ~ On rejoinder, the appellant submitted that no independent prosecution appeared to support and or prove evidence on possession. Leave alone non-production in court of the trophies physically. Evidence on record, but in a nutshell reads as follows: PWl Stamius Mtalemwa a Park Ranger of Serengeti National Park stated that as was in ordinary course of business together with fellows but following informer's tip, they ambushed the appellant and recovered from him the trophies. That the local leader one Musoma Yusufu and a fellow one Maduhu Mayunga also witnessed it. PW2 F. 6875 DC. Nelson of police investigations department (seemingly having accompanied PWl) stated that he witnessed recovery of the trophies; Copy of search order (Exhibit "PE2''). His evidence was more or less a replica of PWl 's. That is all. PW3 F.6733 DC. Faru stated that having been duly assigned on 09/06/2014 he investigated the matter. And in due course recorded the , appellant's cautioned statement (Exhibit "PE3''). PW4 John Job stated that he was, at the material time a Park Ranger who in ordina~ course of business equa·IIy searched and apprehended the appellant (As per PWl and PW2). PWS Wilbroad Vicent a Wildlife Warden of Ikorongo Grummet Game Reserve and valuer of government trophies stated that he valued the trophies on 10/06/2014. (Totally valued at Shs. 104,222,000). Copy of certificate of valuation (Exhibit "PE4''). That is all. 3 ,- ... The appellant's defence essentially was as brief as only stating that he was arrested on 08/05/2014 earlier on charged on 06/05/2014 for child abduction. That no independent witness was involved in the material search. That possession of the trophies was not proved. That is it. The issue is whether the appellant was found in possession of the government trophies. The answer is no! Reasons are: One; Tipped by informer PW1 and fellows may have found at the appellant's home the horns, tails and dried fresh of the animals. But the trophies were for no reasons at all not produced in court physically as exhibits. Only a search order and copy of a certificate of valuation were produced. No inventory proper or something was tendered in court .. If anything the tails may have been perishable. But not the "horns", not the "dried" pieces of animal fresh. Without explanation for non-production in court of the exhibits, especially where possession was disputed, the prosecution case was shaky and bound to fail. As a rebuttable presumption would remain that if anything, something else was found in possession of the appellant. Two; the commonly interested four (4) public witnesses testified. Whereas I am also mindful of the rule against quantity as opposed to quality evidence, judges must always take evidence of witnesses of common intention but cautiously·. That is why the PWs invited Musoma Yusufu (the local/leader) and Maduhu Mayunga (probably a neighbour/ passerby). But none of them appeared in the trial court. The two may have end of the day not been traced yes! But the record is silent as for efforts and how were they tracked. Leave alone non-disclosure of contact 4 addresses. If anything, the records will only show that for the 13/07/2016 l when the case was called on for hearing, the public prosecutor simply prayed for adjournment and another date of hearing. Without telling how for insance if at all there had been efforts to serve the witnesses. It follows therefore that production, under Section 34B of the Evidence Act Cap. 6 R.E. 2002 of copies of the witnesses' statements was, but with greatest respect premature. In other words given the hereinabove reasons PW1 - PW4 lacked credibility for want of corroboration. In the upshot the conviction and sentence are quashed and set aside respectively Appeal is allowed entirely. Unless was held for some other but lawful cause, the appellant be released from prison immediately. Right of appeal explained. ANYIKA JUDGE 06/10/2018 Delivered under my hand and seal of the court in chambers this 10th day of October, 2018 in the presence of the appellant in person and in the absence of the respondent. ~o, M.A. MOYO DEPUTY REGISTRAR 10/10/2018 5