leverian angelo v the republic 2023 tzhc 22406 8 november 2023

IN THE HIGH COURT OF TANZANIA BUKOBA DISTRICT REGISTRY AT BUKOBA ECONOMIC APPEAL No. 06 oF (originating from Economic case 2022 No.13 of 2019 in the District court of Biharamulo at Buharamulo) LEVERIAN ANGELO ... APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT 07d & 0&h November, 2023 OTARU. J.: Leverian Angelo, the Appellant herein, was charged before the District court of Biharamulo at Biharamulo for the following three counts;- Unlawful Entry into a Nationar park, contrary to section 21(1) and (2) of the Nationar parks Act, (cap. 282 R'E' 2002); Unlawful Possession of Government rrophy, contrary to section 86(1) and (2Xb) of the wildlife conservation Act, Act No. 5 of 2009 as amended by section 5g of the written Laws (Misc. Amendment No. 2) Act No. 4 0f 20L6 read together with paragraph 14 of the First schedule to and sections 57(1) of the Economic and organised crime contror Act (cap . 200 R.E. 2002); and Unlawfur possession of weapons in a Nationar park contrary to section 24(lXaXbXZ) ano 2g(2) of the Nationar parks Act (cap. 282 R.E. 2002). He was convicted and sentenced to a fine of T. shs. 100,000/- or a term of one year in prison upon defaurt, for the lst count; a term twenty (20) years in prison for the 2nd count and a fine of T. Shs. 10,000/- or one year in prison upon default, for the 3'd count. The Appellant filed this Appeal based on twenty (20) grounds of appeal, challenging the conviction as well as the sentence meted upon him. I shall not reproduce all the grounds as basically they revolve around the question of evidence and failure of the Prosecution to prove the case beyond reasonable doubt which also appears as the last ground in the list. The determination of this Appeal is thus based on that last ground that the case against the Appellant was not proved beyond reasonable doubt. At the hearing of the Appeal, the Appellant who appeared in person adopted his grounds of appeal as filed and added that he was arrested outside the National Park by militia and not the Park Rangers. He also insisted on the case being framed against him. He prayed for conviction and the sentence to be quashed, set aside and he be freed. On the other hand, Mr. Kamilius Ndunguru, learned State Attorney on behalf of the Respondent Republic supported both the conviction and the sentehce. He then prayed for the same to be upheld and the Appeal dismissed. Having heard the parties and read the record of Appeal, I find that there is one main issue for determination before the court; that is, whether the Appeal has merits. . I re-evaluated the evidence on record concerning the Appellant being arrested by militia outside the National Park, the same clearly shows that the Appellant was found within Burigi - Chato National Park by the Park Rangers who arrested him. They testified at the trial as PWl and Pw2. The 3'd count as well was proved via their testimonies. He was in possession of a bushknife and a knife. As the trial court had no reason to disbelieve these witnesses, so do I. Thus the lst & 3d counts were proved beyond reasonable doubt, as required. On the 2nd count, according to the Trophy Valuation Ceftificate (exhibit ,p2,), the Appellant was found in possession of 'reed buck meat'. There are several types of protected reed-bucks under the Wildlife Conservation Act (the Act), These are'Mountain reed-buck','Bohor reed-buck'and,southern reedbuck,. The same are listed under different categories. Mountain reed-buckis categorized under paft I of the lst Schedule to the Act.'Bohor reed-buck'and'southern reedbuck'are categorised under the 2nd Schedule to the Act. Consequently, these categories affect the sentence to be imposed on the offender. The Appellant was charged under the provisions of section 86(1) and (2)(b) of the Act (supra), under which the protected animals are featured under part I of lrt Schedule to the Act (supra) which lists Mountain-reed buck not reed-buck. Reed- buck is not listed under Part I of the l't Schedule. As such, the Appellant was not charged for,having been in possession of Mountain reed-buckbut of Reed buck- meatwhich does not feature in the cited Schedule. Consequently, as reed-buckis not a specific specie of the trophy which features in the cited Schedule, the charge against the Appellant was not proved. He ought to have been charged for a specific specie and evidence should have been given pointing on the specific trophy he was found in possession of, In the final analysis, I find this Appeal to be meritorious and I allow it. I hereby quash the conviction and set aside the sentence, as did my learned brother Matuma J' in the case of Alfaxad Mbiha v. Republic (DC) criminal Appeal No. 1B of 202L (HC Kigoma) (unreported). It has been over three years since the Appellant was convicted and he has fully seryed his sentences in respect of the 1rt and 3d counts. He is therefore to be set free forthwith in respect of the 2nd count, unless held for any other lawful cause. It is so ordered. 2023. Couft: Judlment read in Judge,s Chamber under the seal of the court, in the presence of the Appellant in person and Mr. Kanisius Ndunguru, learned State Attorney for the Respondent. The tight of appeal to the Court of Appeal is explained to the parties. 114,@ur* M.P. Otaru i. .. +i Judge :. 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