20190619 TZHC Mwanza

JN THE HIGH COURT Of TANZANIA

IN THE DISTRICT REGISTRY

AT MWANZA HC. CRIMINAL APPEAL 295 Of 2018 ' (O'r.iginal Economic case No. 110 of2016, of the District Court of Bunda) ' . MAB!SA GITANO@ MABISA ............... :................................... :.................. APPELLANT

VERSUS I.HE R.EPUBLC ......................·..................... :......... ., ................................... RESPONDENT.

IUDGMENT 08/05/2019 & 19/06/2019 G. J. Mdernu, J; The Appellant Mabisa Gitano Mabisa was charged in the District Court of Bunda, in economic case _No. 110 of 2016 with three counts to wit; unlawful entry into a Game Reserve contrary to section 15(1) and (2) and unlawful possessions of weapons in a Game Reserve contrary to section 17 ( 1) and (2) all of the Wildlife Conservation Act, Cap. 282 in the first and second counts and unlawful possession of government trophies contrary to section_ 86(1) and (2) ( c) of the Wildlife Conservation Act, Cap. 283 read together w.ith paragraph 14-( d) of the First Schedule to the Economic and Organized Crime Control Act, Cap.

200. The offence got committed on 18 th of October, 2016 at Bashati area into Ikorongo/Grumeti Game Reserve within Serengeti District. On that fateful day, Zakayo Richard, Nyachina · Kitakilo Nyashiwa, PW1 and PW2 respectively, Juma Gilinate and Nyikendo Mligo while_ on patrol, saw the accused cycling a motor cycle in the Gave Reserve. They pursued him and upon his arrest, he was found possessing one spear and fresh meat of Zebra. ln al!, he had no pe!'mit.

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I I I ! . PW~~ one Daniel Lukurnay valu<.:d · Urn s~tid trophies and according to certificate of valuation (P4), total valL1e of the tr<>p:hies was Tshs. 2,580,000/=. The ( a~cused denied, nevertheless he was found gL;ilty a.~1d upon conviction, a sentence at I a tune of Tshs.200,000/= or two years irnprisorrn)ent was entered in the first cind . • .. I ' second counts respectively and to twenty (20) yea,rs imprisonment in respect of the •. I third count of unlawful possession of governmei1t trophies. This was on 22 nd of March, 2017. I Aggrieved, an appeal to this Court got preferred 111 which the Appellant I i lodged fine grounds of appeal as follows;- : I I . I • I 1. That, the trial Magistrate erred in law pnd fact to found conviction • and sentence against the appellant b} relying on weak evidence· . . I adduced by PWl and PW2 which• was uncorroborated, I in addition to I that this witnesses were same peoplr( ji°om the same ojjice and . ' working hence their evidence needs more I corroboration. See the case of PETRO MWANGORO KETWA VS REP. (1997) ULR, page 214.

2. That, the learned trial Magistrate err'ed in law and fact's when he I • I admited the cooked evidence of PW3 qlso exhibit PW4 who was not I tendered by an expert from govern,~ent chemist it impossible tq I identify the meat qf animal by using· a color only it needs further I • ' exp·ertise. See the case of SALUM HALUNA VS REP. (1968) HCD No. I • I 37 l I' I I • 3. That, the appellant convictzon and S((ntence was illegal because the I 1 prosecution side lacks legal basis an,d the trial magistrate tried th.e ' cuse at hand without the consenlfrorri Director of Public Prosecutions I I as the case fall under the Economic a,r1cl Oryunizec/ Crirne Control Act, I Cap.

200. RE. 2002. f 4. That, tile -t~'iul Magistrute misdirected /Ji111self when he •v..iropped (he Criininal I~rocedure Act in block blunkeL.· u11cl threw away when he shifted the.burden of proof to the defence {i.Jppe!lant), it is known and accurate then alwoys the burden· of proof' lies on prosecution side, hence iri the case of EMMANUEL KAHAMA VS REP (HCM) MWAI<ASU J. ·criminalappeal No. 6 of 1983. TLR at page 81.

5. That, the trial Magistrate erred on point of law c;,znd fact by behaving and relying on evidence produced hy_ pi·osecution witnesses and ignored completly my sole defence presented in. Court anyhow. • I . The Appellant in person, and Ms. Maryasi.nta Lazaro, learned State Attorney for the . Respondent Republic appeared . . before me on 8 th of May, 2019 arguing the appeal. The Appellant left to Court to take into account his grounds of appeal in determining his appeal. He had nothing useful to add. • J 1 Ms. Maryasinta Lazaro, learned State Attorney resisted the appeal. She argued each ground seriatim. In grourid one, the learned State Attorney submitted that, the only persons on patrol on that material day we.re PWl and PW2. The fact that they are from one office does not waterdown their testimony and that, requirement of corroboration is immaterial. In the second ground of appeal on exhi~it P4, the certificate of valuation, Ms. Maryasinta stated that it does not require an expert from the chief Government Chemists. What is required in valuation accohling to the learned State Attorney is compli;rnce of section 114(3) of the Wildlife Conservation Act, Cap. 283, that it should be signed by a Director and or Wildlife Officer. In the instant case, exhibit PW4 was signed by a Wildlife Officer and is the one who tendered it. She could not observe any merit to this ground of

appeal. '. , ' . As lo consent of the Director o!' -Pt.iblic Pr6secutions, in the 3 rd ground of cippea!, Ms. Maryasinta observed that, at page one qf the typed proceedings, consent I .·' .• ,.-vas filed. She therefore found this ground of 3ppcaJ baseless. Reg;1rding the 4- th ground of appeal on shifting the burden of proof to the .Appellant,· Ms. Maryasinta. observed that, at· page 4- of the judgment, the_ trial Magistrate evaluated the evidence ·on record and fou.nd strength in the prosecution . case. She added that, the defence _case was considered and the Court found to have no basis. The learned State Attorney concluded on this ground by submitting that, the Appellant was also duty bound to explain on how he.entered , . in a Game Reserve. This was also her observation regarding the fifth groqnd of appeal. In rejoinder, the Appellant stated that he' was arrested. on a differen·t place and not at Ikorongo/Grumeti Game -Reserve as testified by the prosecution witnesses. He concluded that the case w_as not _proved thus, prayed the appeal be allowed. This was all from the parties. 1 have gone through the record and also considered the submissions of the leaned State Attorney together with grounds o.f appeal as raised by the Appellant. One fact which is not disputed is that, the Appellant was arrested y PWl and PW2. What is disputed is the version of the Appellant that he was

not arrested at Ikorongo/Grumeti area as ·testified by PWl and PW2 and also that he was never found possessing a spear and the said government trophies. In resolv_ing this, I will bridge the five grounds of appeal into two. One is want of consent of the Director of Public Prosecutions _and two, that the prosecu~ion case was not proved. Regarding consent ~f the Director of Public Prosecutions, l agree. with Ms. Maryasinta Lazaro that, the said consent got flied in Court as observed at page one ' of the proceedings of the trial Court as here_under:- 4 I I ' . . "Prosecutor: I pruy Lo file rn11se11t und certiJicute )i'"<J1n t:he Director of Public Prosecutions. . Cour:t: Prayer granted Consent and certificale ji~om the Director of • I PublicProsecutions duly filed in Court. II i My concern to the ccrnsent and certificate· .,is not whether they were filed or not b·ut rather if thete was consent and certificate. Filing is one thing and authenticity and validity of the said consent and .'certificate is another thing. I have I · the following observation after scrutinizing th·e two document;; One, they are not . I stamped with the official stamp of the office iss;u-ing them. This in my vie\N raise.s doubt if at all they were issued by the relevant authority.

I I I Two, the two do.cuments appears to· 1 have had issued in lespect -of I contravention of paragraph 14-( d) of the Fidt Schedul'e to the Economic and . i Organized Crime • Control Act, and sections 57(1) I and 60(2). of the same Act. In my • view, such a certificate and consen·t is defectiye for failure to mention a proper section in the Wildlife Conservation Act, which:the Appellant violated as· contained 1 in the charge. I reproduce the third count in the charge for easy of reference as 1 ' hereunder:- I

I I I "3 rd Count ./

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STATEMENT OF OFFENCE ' UNLAWFUL POSSESSION OF GOVERNMENT TROPHY: Contrwy to section 86(1) and (2)(c) of the Wildlife Conservation Act, No. 05 of 2009 I read together with paragraph 14(d) of the ftrst schedule to the Economic and Organized Crime Control Act Cap. 200 (R. E. 2002).

I I I In my view, a phrase "read together with" means, the Economic ad Organized Criminal Cont_rol Act cannc~t stand in itse(f without the provisions of .the Act I • contravened. The said consent and certificat~ are bad in law. The District Court of I Bunda therefore had no jurisdi:ion to a:jusate economic case No. 110 of 2016. j-------- I Proceedings and the resultant·jlidgmcnt Jl'e nu/ and )oid. Ordinarily, lam minded to I order a retrial, but before· I do that, 1 think l should c.onsider the evidence on record. I ( if it would attract convicticrn in c~sc a retrial is orderld. I ,·I Regarding proof of the· prosecution case, l' agree with the learned State ' · Attorney that in terms of section 114(3) of the· Wildlife Conservation Act, a Director . . and Wildlife Officers are competent exp·erts to v1Iue and certify trophies. I also ., share her concern that, as PWl and P\t\12 arrested,' the Appellant, the.fact that they ' are from the same office is ir/elevant. What ~s irnportant 1s the weight ai1d. credibility of the testimony received by the_ trial \ourt. In this, I will consider the I . following:- I I One, in his defence and during his sub1hission at the bar, the Appellant I I consistently stated to have been arrested iat Rubana area different from I lkorongo/Grurneti. He also st_ated to have been, arrested on 17 th of October, 2016 ' and not on 18 th of October, 2016 as alleged by PWi and PW2. The learned trial ' Magistrate considered this and found to be baseless. In my view, the defence of the ' Appellant raised reasonable doubts as required by law. Under the ciro1mstances ' Jurna Gilimate and Nyikando MHgo who were ~vith PWl and PW2 could have also been assembled in evidence to clear that doubt,:I

I I I Two, PWl and PW2 have different acq'ounts regarding identification of the I motorcycie. PWl testified that the Appellant was found with a motorcycle without registration number but with Chasis No. LAl:IPCJ 0109RB07123. On his part PW2 simply ~tated it w~s "Toyo". Three, there is i~sue of tendering of ~xhibit. According ' to the record, the Appellant objected all exljibits during tendering. The Court not ' only admitted those exhibits regardless objection made, but also the prosecution ' . were not given opportunity to give explanati'on . ' on Lhe objected exhibits. It was not a ' fair trial. 1

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I I I :1 . ·. · · Four; Exhibit 1'4, certificate of vciiuation i;ci"nte>:in tniph1es the description of . which differs materially with the testimony.of PWl alnd PW2. The latter two stated. that· the Appellant was found with one foreliinb.of z"Jra connected to side ribs head and neck. Exhibit P4 tendered by PW3 have the foiloJing component:· . ''.Two sided ribs; one forelimbs, H.ead and NeJ dll connected eijuivalent to one Zebra." From the analysis above, the prosecution case has contradictions. it raises some dciubts which convinces me to believe the sto~y of the Appellant in his defenc€ that he was arrCsted by four men in a ·different ar~a: As such, the prosecution case was not proved. In the final analysis unresolved contradiotions and inconsistencies of the .prosecution case as demonstrated above has .created I doubts, which as the legal piisition is, should favour the Appellant. I therefo)e refrain from orderingTetrial and instead, l allow the appeal by quashing convictio!, and setting aside the sentence in . I . all the three counts. I order release of the Appellant unless \awful held. l order accordingly. G. J. Mden1tl · Judge I 19/06/Z01t9 I Dated at MWANZA this 19 th 'day of jqne, 2019. . l G. J. Mden1u Judge I 19/06/2019 7