kerema mbeche mwita vs republic 2020 tzhc 2541 25 september 2020

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA CRIMINAL APPEAL NO 93 OF 2020 KEREMA S/O MBECHE MWITA APPELLANT VERSUS THE REPUBLIC RESPONDENT (Arising from the decision and orders of the district court of Tarime at Tarime Hon. Mugendi RM in economic case no 5 of 2019 dated 03.04.2020) JUDGEMENT 26th August & 25th September 2020 GALEBA, J. In this appeal, the appellant Mr. Kerema Mbeche Mwita, was charged on three counts of unlawful entry into the Serengeti National Park with one bush knife and two animal trapping wires for the 1st and 2nd counts respectively. He was also charged for unlawful possession of one head and two fresh hind limbs of a Red Duiker, which were government trophies, in respect of the 3rd count. According to the charge, the offences were committed on 13.02.2019 at Mto Mara area in the Serengeti National Park within Serengeti district in Mara region. Those acts, according to the prosecution, violated various provisions of the National Parks Act [Cap 282 RE 2002] (the NPA), the Wildlife Conservation Act No 5 of 2009 (the WCA) and the Economic and Organized Crime Control Act [Cap 200 RE 2002] (the EOCA). The appellant denied the charge but the district court convicted him on all three counts and sentenced him to 1 (one) year imprisonment in respect of each of the 1st and 2nd counts and twenty (20) years imprisonment in respect of the 3rd count. The appellant was aggrieved by the above orders. He filed five (5) heads of complaint corresponding to the five (5) grounds of appeal complaining, first that the trial court erred legally when it held that the appellant was found in possession of government trophies because he did not say anything on it while he denied to have been arrested in the national park with the trophies, secondly that the trial court erred by failing to discover that the case was fabricated against the appellant, thirdly that the trial court erred when it admitted exhibits of the prosecution side without there being any corroboration, fourthly that the trial court erred by relying on weak evidence of PW1 and PW2 who were both park rangers and lastly the prosecution failed to prove the case beyond reasonable doubt. When this appeal came up for hearing MR. YESE TEMBA learned state attorney was appearing for the respondent and the appellant fended for himself. The latter adopted his grounds as his submissions in support of the appeal. Mr. Temba started and the appellant rejoined briefly. Mr. Temba supported the appeal in respect of the 3rd count of unlawful possession of government trophies. He submitted that because the trophies themselves were not tendered and also because the prosecution did not tender evidence that the 2 inventory (EXHIBIT P3) was prepared in the presence of the appellant then that inventory was wrongly admitted and the same ought not to be relied upon. He submitted that the 3rd count was not established or proved. In this case, in order to prove that trophies were involved, either the physical trophies had to be tendered by a witness in court or in their absence an inventory drawn and tendered in accordance with law had to be tendered and admitted. In this case, the trophies were not tendered and as admitted by Mr. Temba the inventory which was admitted as exhibit P3 was irregularly prepared with likelihood that the appellant did not participate. In this respect I agree with Mr. Temba that the court ought not to have relied on EXHIBIT P3 because, there is no evidence that the appellant participated and was heard in preparing it see Said Lyangubi versus the Republic; Criminal Appeal no 324 of 2017 and Mohamed Juma Mpakama versus the Republic; Criminal Appeal no 385 of 2017. In the circumstances, EXHIBIT P3 is hereby expunged from the record and the offence of unlawful possession of government trophies was not legally proved against the appellant. The following part of this judgment will deal with the grounds of appeal in the context of 1st and 2nd counts only; that is whether the offences of unlawful entry in the national park and being found there with weapons were proved or they were not proved. The complaint in the 1st, 2nd, 4th and 5nd grounds of appeal is that the trial court was wrong to have convicted the appellant while he informed it that he was not arrested in the national park but in 3 his farm. The other aspect of his complaint was that the court was wrong for failing to note that the case was planted and fabricated against him and that he was convicted based on weak evidence. In responding to these grounds, though separately, Mr. Temba submitted that the evidence of PW1, PW2 and PW3 proved that indeed the appellant was found in the national park and he was found there with weapons and that the witnesses were all credible witnesses. Resolving these grounds is not difficult. At page 12 of the typed proceedings weapons were tendered by PW3 and admitted as EXHIBIT Pl without any objection from the appellant and the questions cross examining that witness did not touch on where he was arrested or on the weapons tendered. The other witnesses, PW2 and PW4 are the ones who arrested the appellant in the national park. The evidence they gave confirms that indeed the appellant was arrested in the game park and he was arrested there with the weapons tendered. In the circumstances, in relation to unlawful entry into and unlawful possessions of weapons in the national park, the 1st, 2nd, 4th and 5nd grounds of appeal are dismissed for want of merit. The 3rd ground of appeal is a complaint that in convicting the appellant the court did not call an independent witness. In reply to this ground Mr. Temba submitted that there is no legal requirement to call an independent witness. I agree with Mr. Temba; an independent witness is necessary where a search is involved in a dwelling house in terms of the proviso to section — 4 106(1) (b) of the WCA but not in every circumstance that an independent witness is a requirement. In the circumstance the 3rd ground of appeal is dismissed. Based on the above findings, this court makes the following orders that; 1. The conviction of MR. KEREMA S/O MBECHE MWITA in respect of the 3rd count of unlawful possession of government trophies is hereby quashed and the sentence of twenty (20) years imprisonment imposed upon him is hereby set aside and nullified. 2. The conviction of MR. KEREMA S/O MBECHE MWITA in respect of the 1st and 2nd counts of unlawful entry and unlawful possession of weapons in the nation park is hereby confirmed and the sentence of one (1) year imprisonment in respect of each count is upheld. 3. Consequently, the appellant shall only serve one (1) year imprisonment in respect of the 1st and 2nd counts from 03.04.2020, because the sentences were ordered to run concurrently. 4. This appeal is partly allowed and partly dismissed as indicated above. DATED at MUSOMA this 25th September 2020 Z. N. Galeba JUDGE 25.09.2020 Court; THIS JUDGMENT has been delivered before Z. N. Galeba JUDGE, today the 25th September 2020 in the absence of parties but with leave not to enter appearance following a directive to maintain social distance. Mr. Jovian Katundu, RMA is present. Z. N. Galeba JUDGE 25.09.2020 6