KUEYA SHIWA MSOLINI V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL NO. 125 OF 2023 KUYEYA SHIWA @ MSOLINI …….…............................. APPELLANT VERSUS REPUBLIC ………………………………………..…………… RESPONDENT [Appeal from the Decision of District Court of Bariadi at Bariadi.] (Hon. C.E. Kiliwa SRM) dated the 27th day of April, 2023 in Economic Case No. 40 of 2022 ----------- JUDGMENT 7th & 13th June, 2024. S.M. KULITA, J. This is an appeal from Bariadi District Court. The appellant herein, namely KUYEYA SHIWA @ MSOLINI, together with one MABULA NGINO NILA who had absconded bail during trial, were convicted and sentenced to 2 (two) years imprisonment for “Unlawful Possession of Weapons in the 1 National Park” which is contrary to section 24(1)(b) of the National Park Act [Cap 282 RE 2019]. The two were also convicted and sentenced to 20 (twenty) years imprisonment for “Unlawful Possession of Government Trophies” contrary to sections 86(1) and 2(b) of the Wildlife Conservation Act No. 5 of 2009 as amended by Act No. 4 of 2016, read together with Paragraph 14 of the 1st Schedule and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2022]. It is alleged in the facts of the case that on 16th July, 2022, at about 1315 hours at Milima ya Nyaroboro, in Serengeti National Park, the Conservation Officers noticed the presence of the human foot prints in it. That, upon making a follow up, they managed to find and arrest the Appellant herein and the said Mabula Ngino Nila whom they found unlawfully possessing the weapons, make two knives, two pangas and three animal traps. It is further alleged that the appellant and his fellow were also found in unlawful possession of Government Trophies, to wit, four dry tails of Wildebeest. Aggrieved with both conviction and sentences, the Appellant herein preferred an appeal relying on the following four grounds; 1. That, the chain of custody tendered to court is doubtful. 2 2. The prosecution evidence that the Appellant was arrested at the scene is weak. 3. There was no independent witness called during trial by the Prosecution to prove on the purported search. 4. That, the case at the trial court was not proved beyond all reasonable doubts. During the hearing of appeal, Ms. Rose Kimaro, State Attorney, appeared for the Respondent, while the appellant appeared in person, he was unrepresented. In his submission in support of appeal, the Appellant prayed for the contents of his Petition of Appeal to be adopted as the submissions for his appeal. He concluded by praying for the appeal to be allowed and he be found nnot guilty, hence acquitted. In her reply thereto, the Respondent’s Counsel, Ms. Rose Kimaro, State Attorney, conceded the appeal. The reason behind according to her is that, the Consent by the Regional Prosecution Officer for Simiyu Region to consent the District Court to entertain the case was made under the wrong provision, 3 to wit 26(1), instead of 26(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2022]. The Respondent’s Counsel added that, save for that said fault, the evidence that had been adduced by the Prosecution side during trial is strong and sufficient to convict the Appellant and his fellow, hence sought for retrial of the original case instead of dismissal. On it, the counsel submitted that the fact that the evidence is vivid that the convicts were found in the National Park possessing the alleged weapons which were tendered to court and collectively admitted to court as exhibit P3, as well as the trophies whose inventory was admitted as exhibit P6 collectively, there can’t be a reason for the prosecution to fill in the gaps in case the matter will be tried de novo. She added that, apart from the said position in the prosecution case, there is a chain of custody involving the movements of exhibits before they were tendered to court which means that there was no element of tempering them. The State Attorney further stated that, the act of absconding bail by the second convict one Mabula Ngino Nila implicates that the two committed the said crimes. 4 The Respondent’s Counsel, Ms. Rose Kimaro, State Attorney, concluded by guiding the court to the case of FATEHALI MANJI V. REPUBLIC [1966] EA 343, that in such a scenario that the evidence in the record attract conviction against the accused persons, the court should order Retrial. The Appellant had no rejoinder. From the above submissions, I have the following observations; there is no dispute that for citing section 26(1) instead of 26(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2022] in the consent is fatal, as the said section 26(1) is for the consent made by the DPP (Director of Public Prosecution), not for the consent made by the Regional Prosecution Officer. Thus, the Prosecution side in the trial court moved the said court under the wrong provision. Hence, the whole trial conducted by the District Court against the convicts, including the appellant herein is a nullity. That being the case, even its resultant judgment and all subsequent orders thereafter are also a nullity, hence quashed. As for the Respondent’s prayer on the issue of retrial, position of the law is that, that should be done only if the record of the trial court transpires sufficient evidence on the prosecution case, which is likely to convict the 5 Appellant/Convict if the matter is remitted back thereto for that purpose. Otherwise there should be no retrial, as by making such an order the prosecution will be in a likelihood of filling in the gaps to clear the faults that sustains in their previous case. In a case of ADAM SELEMAN NJALAMOTO V. R, Criminal Appeal No. 224 of 2016, CAT at DSM it was held; “We are mindful that where the trial court fails to direct itself on an essential step in the course of the proceedings, it does not, in our view, automatically follow that a re-trial should be ordered, even if the prosecution is not to blame for the fault. Clearly, of course, each case must depend on its particular facts and circumstances’’. In order to ascertain whether this court should thus order a retrial, the guidance of the case of Fatehali Manji Vs. R [1966] E.A. 343 was regarded, particularly on the below quote; - "In general, a retrial may be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency 6 of evidence or for purposes of enabling the prosecution to fill in gaps in its evidence at the first trial. Each case must depend on its own facts and an order for retrial should only be made where the interests of justice require it" The question is, in the case at hand, are there no gaps that the prosecution will fill when retrial is ordered? The answer is not far to fetch. Firstly, the record transpires that Exhibit P5, the Inventory Report which was tendered to court by the Wildlife Officer namely Michael Shirima (PW4) after he had examined the four tails alleged to have been found in possession of the convicts, as well as his oral testimony before the court show that the said tails were dry. The question that triggers my mind is, how comes the persons who have been arrested in the National Park, a place where the animal lives being found with a dry tail? Basically, I expected them to have been found with the fresh tails, meaning thereby they have killed the animals by using the traps that they had and took the said tails. In that sense, I don’t expect the said tails to be dry. For the tails to be dry, it means the said animals had been killed a long time back. Can it be wrong if one says that the said tails were just planted by the said Park Rangers who arrested the convicts? Otherwise the Prosecution had to come with evidence that the 7 convicts had been in the National Park for number of days before the arrest, or they had gone into the National Park with those tails from their respective homes, things which do not make sense. In fact, there is no such evidence in the record. Secondly, PW4 who is the expert in wildlife matters, apart from testifying that he identified the trophies being the wildebeest’s dry tails and filled the inventory (exhibit P5), he said nothing in his testimony on the estimated period of time that had passed since the said animals had been killed. Be it noted that PW4 examined the said trophies on 17/07/2022, just a day after the arrest of the convicts on 16/07/2022. There is thus a possibility that the said tails were just planted to the convicts. Thirdly, the said doubts that prevail in my mind extend to the weapons, to wit, two knives, two pangas and three animal traps that the convicts are alleged to have been found possessing while arrested, that, the same might be planted as well. I don’t find them being peculiar things that the Wildlife Conservation office cannot have. It is obvious that, for the nature of their job of conserving the park, including patrol, it happens that they sometimes find such weapons abandoned by the poachers, and thus forfeit them. Hence, there is no doubt that they are always in possession of such weapons. 8 Under that circumstance, ordering retrial will make the prosecution to fill in those said gaps. Hence, the said order cannot be granted. Be it noted that, among the Appellant’s complaints in his Petition of Appeal is that the prosecution case was not established at the required standard. As long as there are trial defects as shown above, ordering retrial will give chance for the prosecution to fill in the gaps, the act which will be against the dictates of the law as per the cited case of Fatehali Manji (supra). On that account, I refrain to order retrial. Thus all convicts in the Economic Case No. 40 of 2022 Bariadi District Court are hereby acquitted. I accordingly allow the appeal. The Appellant herein should be released from prison forthwith, unless he is held for any other lawful cause. S.M. KULITA JUDGE 13/06/2024 DATED at SHINYANGA this 13th day of June, 2024. 9 S.M. KULITA JUDGE 13/06/2024 10