Kayogela

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB- REGISTRY AT TABORA DC CRIMINAL APPEAL NO. 66 OF 2023 (Appeal from the decision of the district Court of Tabora at Tabora in Criminal Case No. 3 of2023) KAYOGELA S/O KINANDA @NDEENGA........... ..............APPELLANT VERSUS THE REPUBLIC.................. ................................ ....... RESPONDENT JUDGEMENT Last order: 12/02/2024 Judgement date: 14/03/2024 MANGO, J The Appellant, Kayogela s/o Kinanda @Ndeenga was charged with the following offences; Unlawful Possession of Government Trophy c/s 86(1) (2) ( C) (ii) of the Wildlife Conservation Act, No. 5/2009 read together with paragraph 14 of the 1st Schedule to and section 57(1) and 60(2) of the Economic and Organized Crime Control Act, [Cap.200 R.E 2019]; and Unlawful dealing in Government Trophies c/s 80 (1) and 84 of the Wildlife Conservation Act No. 5/2009 and Rules 12 of the Wildlife Conservation (Dealing in Trophies) Regulation G.N 230 of 2010 as read together with section 57(1) and paragraph 14(b) of the First Schedule both of the Economic and Organized Crime Control Act,[ Cap. 200 R.E 2019]. After full trial, the he was convicted and sentenced to serve 20 years imprisonment. 1 Aggrieved by the decision of the trial Court the Appellant preferred the appeal armed with four grounds of appeal which reads; 1. That Hon. Trial Magistrate erred in law and fact to find the Appellant guilty of the alleged offence without considering the defence given by the Appellant 2. That Hon. Trial Magistrate erred in law for admitting Exhibit P2 without it being read before the Court. 3. That Hon. Trial Magistrate erred in law and fact to admit exhibit Pl( Certificate of seizure) while knowingly that it lack legal implication as there was no independent witness 4. That the prosecution failed to prove the case against the appellant beyond reasonable doubt During hearing the Appellant appeared in person while the Respondent was represented by Mr. Dickson Swai learned State Attorney. Being a lay person, the Appellant adopted his grounds of appeal and prayed the same to be considered by the court. Mr. Swai supported conviction and sentence meted by the trial Court. He registered his general observations that, the prosecution managed to prove the case against the Appellant on the required standard, that is, beyond reasonable doubts. Thus, the trial Court correctly convicted and sentenced the Appellant. He then proceeded to submit against the four grounds of appeal raised by the Appellant. On the first ground of appeal, he submitted that, the trial Court considered and evaluated well defence case. He referred this Court to page 3 and 4 of 2 the judgment of the trial Court in which evaluation of defence evidence was done by the trial Magistrate. He submitted further that, after such consideration, the trial Court found the defence case did not shake anyhow a well-founded prosecution case. He also invited the Court to re- evaluate evidence in record if it will find evaluation done by the trial Court was not sufficient. He cited the case of Mosi Chacha Ihanga and Mukiri Chacha V, R Crim. Appeal No. 508 of 2019 as an authority that supports re- evaluation of evidence by the first Appellate Court. On the second ground of appeal, the learned State Attorney pointed out that Exhibit P2 includes bicycle, axe and knife. He then argued that, the allegations by the Appellant that Exhibit P2 was not read is unfound since the exhibit is not comprised any documentary evidence. He added that, the requirement to have an exhibit read after its admission is attached solely to documentary evidence. The learned state Attorney conceded that search and seizure in this case was not witnessed by an independent witness. He however argued that, this ground of appeal is merit less because the Appellant was arrested under circumstances in which it was difficult to procure presence of independent witness. He submitted that, the Appellant was arrested within Wembere Forest Reserve in Mpuma area in the course of ordinary patrol. He explained that, the Appellant's arrest was not pre-meditated as the game rangers did not have prior information that there is a person who will be found with weapons and government trophy in the game reserve. He added that, unauthorized persons are not allowed to enter into a game reserve. Thus, it is not easy to have an independent witness when search and seizure is 3 conducted in wildness. In this he cited a proviso to section 81(l)(b) of the Wildlife Conservation Act which mandates presence of an independent witness where search is conducted in a dwelling house and not in wildness. On the 4th ground of appeal, he submitted that the prosecution managed to prove the case against the Appellant within the required standards. He highlighted pieces of evidence that in his view, proves the case against the Appellant on the required standards. In this, he referred the Court to the testimony of PW1 who testified clearly that, the Appellant was found in possession of a government trophy and weapons in a restricted area. He submitted further that, the certificate of seizure and the weapons which were found in the Appellant's possession were tendered as evidence to substantiate oral testimony of prosecution witnesses. He argued that, according to section 100(2) of the EOCA, after a person is found in possession of government trophy, the burden of proof on the lawfulness of such possession shifts to that particular person. Thus the Appellant was duty bound to prove that he legally possesses the government that was seized from him. The Appellant failed to discharge such duty. Thus, the Court correctly convicted the Appellant. In his brief rejoinder, the Appellant prayed the Court to consider contradictions in the testimony of prosecution witness and allow his appeal. He alleged that, some witnesses stated that, he was found with dry pieces of sable meat while the others stated that, he was found with fresh pieces of sable meat. He is of the view that, with such contradictions the prosecution did not prove the case against him beyond reasonable doubts. I have considered grounds of appeal raised by the Appellant and his brief rejoinder, submission by the learned State Attorney and Court record. On the first ground of appeal in which the Appellant alleges that his defence was not considered by the trial court, judgement of the trial Court establish that, the Court considered Appellant's defence adequately. Hon. Trial Magistrate reproduced the entire defence entered by the Appellant at page 3 and 4 of his judgement. He considered the Appellant's defence to be weak and he explained what was lacking in defence case. He first pointed out that, he found the prosecution to have managed to establish beyond reasonable doubt that, the Appellant was found in possession of Government trophy and weapons without a valid license. He highlighted the fact that, after such proof by the prosecution, it was the duty of the Appellant to establish that he lawfully possesses the items. Hon. trial Magistrate expressly stated that, the Appellant produced ho defence on the unlawful possession of government trophy. Court record indicates that the Appellant's defence was to the effect that the case has been fabricated against him. He conceded that on 30th December 2021, he was at Mpuma area and he was arrested in a restricted area. According to him, at the time of his arrest, he did not have any government trophy and weapons in his possession. To his surprise on the following day, it was alleged that he had some sable meat and weapons. In brief he resorted to general denial. 5 It is trite law that, whoever allege must prove as provided by section 110(1) & (2) of Evidence Act, [Cap 6 R.E 2019]. Thus, it was the duty of the Appellant to prove that, the case against him was merely fabricated. Unfortunately, the Appellant did not avail the court with any evidence to that effect. He merely allege that the case was fabricated. His defence is weightless after the Prosecution has established that, he was found in possession of sable meat and weapons. Thus, the first ground of appeal is meritless. The second ground of appeal should not detain precious time of this court since the document which allegedly were not read are unreadable. Court record indicates that exh. P2 comprises of a bicycle, axe, and knife. The items are in the category of physical exhibit and not documentary. Thus allegation that the exhibit was not read is unfound. The third ground of appeal is also meritless because the arrest, search and seizure in this appeal was done in wildness where it was not easy to procure an independent witness. The fact that the Appellant was arrested in wildness has been admitted even by the Appellant during preliminary hearing. He admitted that, he had no permit to be in the game reserve. Ordinarily, it is not easy to find any independent witness in a restricted area. That is why, the law does not make it mandatory to have an independent witness for seizures effected in areas where it is not easy to find an independent witness. See the case of Emmanuel Lyabonga vs Republic (Criminal Appeal 257 of 2019) [2021] TZCA 152 (29 April 2021). 6 The 4th ground of appeal is also unmeritorious since the prosecution managed to prove the essential ingredient of the offence, which is being found with Government trophy without a permit and being found in possession of weapons in the game reserve without license. Such evidence can be seen in the testimony of PW1 Musantemi Yohana Shilonga, a wildlife ranger who participated In the arrest of the Appellant. PW1 tendered a certificate of seizure which was properly filled and signed by all who witnessed the search and seizure including the Appellant himself. The document was admitted without objection as to its contents and the manner it was procured. Even in his defence the Appellant did not state anything challenging the contents of the seizure certificate. Generally, the Appellant has not availed the Court with any evidence that managed to create doubts in prosecution's case. In such circumstances, I am of a considered view that, the prosecution managed to prove the case against the Appellant on the required standards and the appeal at hand is meritless. Despite the appeal being meritless, I considered proportionality of the sentence meted against the Appellant and the offence he committed. In this, I considered the gravity of the offence committed by the Appellant, his age 63years old at the time of arrest in 2022 now 65 and the punishment given to him. The Appellant was found in possession of six pieces of sable meat Evidence in record suggests that, the Appellant was merely a subsistence poacher as opposed to a commercial poacher. There is also no evidence that establishes Appellant's connection with any organised criminal group engaging in illegal wildlife trade or his involvement in any criminal syndicate dealing with such trade. In such circumstances, I am of a considered view 7 that, the Appellant ought to have been given a lesser sentence which is proportional to the crime he committed. Unfortunately, our Economic and Organized Crime Control Act, does not categorise punishments in accordance to gravity of the offence committed. Twenty (20) years imprisonment is a mandatory custodial sentence for a person convicted of economic offences as the Appellant in the appeal at hand. Thus, the Appellant was properly sentenced. The appeal is hereby dismissed. Dated at Tabora this 14th day of March 2024 Z.D. MANGO JUDGE 8