kiyungi joel vs republic 2017 tzhc 2114 27 january 2017

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 144 OF 2016 (Original Criminal Case No. 26 o f 2013 o f the District Court of Manyoni District at Manyoni) KIYUNGI JO E L .............................................................. APPELLANT VERSUS THE REPUBLIC........................................................... RESPONDENT JUDGMENT 20/12/2016 & 27/01/2017 KWARIKO, J. Before the District Court of Manyoni District the appellant stood charged with two counts namely, Unlawful Hunting of Scheduled Animal Contrary to section 47 (a) and (c) of the Wildlife Conservation Act No. 05 of 2009 where it was alleged that on the 28th September, 2013 at about 11.00 hours at Kalulu open area within Manyoni District in Singida Region by using six snares the appellant unlawfully hunted one Warthog valued at Tshs. 720,000/= and one Duiker valued at Tshs. 400,000/=, all total valued at Tshs. 1,120,000/= the property of the United Republic of Tanzania. Secondly, the appellant was charged with Unlawful Possession of Government Trophy contrary section 86 (1) and (2) (c) (ii) of the Wildlife Conservation Act No. 05 of 2009 read together with Paragraph 14 (d) of the First Schedule to the Economic and Organized Crime Control Act [CAP 200 R.E. 2002] whereby it was alleged that on the same said date, time and place the appellant was found in unlawful possession of eight Kilograms of Warthog meat valued at Tshs. 720,000/= and four Kilograms of Duiker meat valued at Tshs. 400,000/= all trophies valued at Tshs. 1,120,000/= the property of the United Republic of Tanzania. Following the appellant's denial of the charge the prosecution brought three witnesses to prove the same. The evidence by the prosecution can be summarized as hereunder. On the material date and time, PW1, CHACHA ROBERT MAGIGE and PW3, EPHRAIM POLEPOLE were among game wardens who were on routine patrol when they found blood stains on the ground. This discovery raised their curiosity whereby they further traced the blood trails and found the appellant in an open area barbequing meat which they said was of Warthog and Duiker scheduled being wild animals. That, the meat weighed about eight kilograms of Warthog and four kilograms of Duiker. Upon interrogation the appellant admitted to have killed the two animals but had no valid licence either to hunt or possess government trophies. Thereby, the appellant was sent to police station and one ATHUMAN BAHATI, PW2 a game warden valuated the meat to be totally valued at Tshs. 1,100,020/=. The valuation report was prepared and tendered in court as exhibit PII. Whereas an inventory for the said meat and six traps were admitted as exhibits PI and PHI respectively. The appellant was delivered to police and charged accordingly. In his defence the appellant denied the allegations and said that while he was on his way from delivering report of a dead child to the father with his bicycle and the said father he got break down. That, while the other person proceeded with the journey he remained behind to fix his bicycle that is when he was arrested by game wardens. Later, other people were arrested but he was the only one charged while the rest being discharged. At the end of the trial it was found that the charge against the appellant was sufficiently proved, he was convicted and sentenced to twelve (12) months and seven (7) years imprisonment for the first and second counts respectively whereas the sentences were ordered to run consecutively. Upon being aggrieved by the trial court's decision the appellant filed this appeal predicating the same to the following four grounds of appeal. 1. THA T, the appellant did not plead guilty to the charge. 3 2. THA T, the witnesses who adduced evidence before the court were totally different from the ones who appeared during preliminary hearing (sic). 3. THA Tf the appellant was not given chance by the prosecution side to call his witnesses. 4. THAT, when the appellant was granted bail his co-accused was acquitted and upon inquiry the prosecutor told him that the file was misplaced. At the hearing of the appeal at first the appellant opted for the respondent Republic to start to respond to his grounds of appeal. Thus, in response to the grounds of appeal Ms. Magesa learned State Attorney appeared for the respondent Republic where she opposed the same as follows; As regards to the first ground of appeal Ms. Magesa was of the view that since the appellant did not plead guilty to the charge that is why the prosecution fielded in witnesses to prove the same. In the second ground of appeal it was Ms. Magesa's submission that the court record does not show that the witnesses earlier mentioned did not testify. She argued that even though that was the case the law allows the prosecution to call additional witnesses whenever necessary. Thirdly, it was contended that the appellant was not denied opportunity to call witnesses since he had informed the trial court that he had one witness to call but later told the court that he no longer wished to call them. And in the fourth ground of appeal Ms. Magesa argued that the records shows that in this case there had been only one accused person hence the complaint that a co-accused was released is baseless. In conclusion Ms. Magesa forcefully contended that the prosecution case was proved beyond reasonable doubt against the appellant. That, the witnesses proved that the appellant was found in possession of Warthog and Duiker meat that he was barbequing after he had killed the animals, and upon interrogation he said he had no licence to hunt wild animals and possess government trophies. That, the appellant was found in possession of animal trapping gadgets and did not oppose the same during the trial. She prayed this appeal to be dismissed. In his rejoinder the appellant insisted his innocence and said the witnesses found him with honey and took away his bicycle and that they failed to say if he had any weapon to kill the animals. That, he was found together with his colleague one HAMISI JUMA who was released and that he was found outside game reserve area. He said the trial Magistrate forced him to admit the offence while the witnesses implicated him with the traps. Having been heard and considered the rival submissions this court is poised to decide the issue whether this Appeal has merit. The court will first decide the grounds of appeal raised by the appellant before deciding whether the prosecution case at the trial was proved beyond reasonable doubt as none of the grounds of appeal touches on that important issue. As regards the first ground of appeal this court agrees with the learned State Attorney that it is because the appellant denied the charge that the witnesses were called to prove the same. Hence nowhere it was indicated that the appellant had pleaded guilty to the charge. This ground of appeal is baseless. In the second ground of appeal first of all the original record shows that at the time a preliminary hearing of the case was conducted no any witnesses were listed for the prosecution and the defence side. This court is of the view that the trial court ought to have required the prosecution to mention their intended witnesses so that they can be listed which way would informed the appellant what to expect at the trial. Therefore, it was unprocedural to omit to list witnesses for the prosecution side which failure took the appellant by surprise when the three prosecution witnesses came testify in court. 6 Hence it is not known how the three witnesses came to give evidence in court since there is not even summonses in the court file to show that they were called to testify in court. This omission vitiated the proceedings. The second ground of appeal has merit. In the third ground of appeal this court finds that the same is non- meritorious since although the appellant had indicated to have one witness apart from himself but on the date he gave his defence on 19/01/2015 he informed the court that he had failed to trace his witness. He thus informed the court after he had given his evidence that was all about his defence and the defence case was closed. Coming to the fourth ground of appeal the court is in further agreement with the respondent's counsel that from the start to the end there was only one accused person in respect of this case at the trial who is the appellant herein. Therefore, it is out of context when the appellant is now complaining that his co-accused was acquitted when himself was granted bail. Now, as to whether the prosecution case against was the appellant proved beyond reasonable doubt this being first appellate with legal mandate to revisit the evidence on record has found some shortcomings in relation to the evidence adduced by prosecution witnesses. These are as follows; Firstly, there is contradiction as to where the appellant was really found by game wardens. In evidence while PW1 said the appellant was found at Wembere open area, PW3 said he was found at Kakulu open area which is mentioned in the charge. Therefore, this contradiction creates doubt as to allegations leveled against the appellant which go to the very foundation of the case against him (see also SAID MOHAMED MATULA V R [1995] T.L.R3. Secondly, even if the appellant was found in possession of meat but it was not proved that the same was that of Warthog and Duiker. This is so because no any witness came to prove that any of the animals were really in existence and were killed by the appellant. No any remains of hooves, skin or heads were tendered in court to prove that the animals were really killed. It is the considered opinion of this court that even if meat is perishable item but skins could have been preserved to be tendered as exhibit of the killing of wild and scheduled animals. And the said meat was not scientifically analysed to prove it's original if at all it was to be relied upon. Further, PW2 who came to tender valuation report of the said meat did not explain how he concluded that the meat belonged to Warthog and Duiker. Hence, even if the appellant was found barbequing meat the same might have been of any other animal including non-protected ones like cow or goat. After all the witnesses said the appellant was found in an open area hence possibility to possess meat of non-protected animals cannot be eliminated. 8 Thirdly, as the witnesses testified that the appellant was found in possession of wild animals' meat but there was no any certificate of seizure issued and tendered to prove that assertion. This was in contravention of the law under section 38 (3) of the Criminal Procedure Act [CAP 20 R.E. 2002]. In the case of PAULO MADUKA & FOUR OTHERS V R, Criminal Appeal No. 110 of 2007, the Court of Appeal of Tanzania held that failure to issue certificate of seizure in respect of items allegedly found in possession of accused person is fatal to the prosecution case. Fourthly, since the witnesses said the appellant admitted the allegations there ought to be his written confession to prove the same. In this case not even a police officer came to testify to explain how they received the appellant and what he said upon interrogation. Hence, if he had admitted the offence before the game wardens at the police where he was allegedly delivered his statement would have been taken and exhibited during the trial. Therefore, contrary to what Ms. Magesa learned State Attorney said the foregoing shows that the prosecution case was not proved beyond reasonable doubt against the appellant. Consequently, this appeal has merit and it is allowed, conviction is quashed and the sentence imposed to the appellant is set aside. 9 It is finally ordered that the appellant be released from custody unless he is otherwise lawfully held. Order accordingly. RIKO JUDGE 27/01/2017 Judgment delivered in court today in the presence of the Appellant and Ms. Taji learned State Attorney for the Respondent Republic and Mr. Mahmoud Court Clerk. ARIKO JUDGE 27/01/2017 ^ Court: Right^f Appeal Fully Explained. ‘ > • ■;.ra* A A 1 27/01/2017 10