20141215 TZHC Tanga

IN THE HIGH COURT OF TANZANIA . ATTANGA CRIMINAL APPEAL NO. 1 OF 2014 (Originating from Handeni District Court in Economic Case No. 13 o/2013) MACHAKO ATHUMANI .......... ~.~ ..................... APPELLANT · . VERSUS THE REPUBLIC ............. ~ ................... ~ ......... RESPONDENT JUDGMENT Msuya J, . . . . . . · The appellant, Machako Athumani was char-ged. tried . . . . .. .· . . . _- . and . convicted for the offence of unlawful possession of Government trophy contrary to section 86(1) of tl;te Wildlife ·conservation Act No. 2009 read together .with paragraph.· 14(d) of the first schedule and .section 57(1) of the . . Economic and Organized Crime Control Act (Cap. 200 R.E. 2002) in Handeni District 9ourt. It. was alleged that on· 23 rd . day .of. October, 2013 ·at . Viaboni·. area within. the District of·· Handeni lll. Tanga. 1 I/ region; the appellant was found in· unlawful possession of f Less~r · Kutlu meat valued at Tshs. 4, 179,448/= . the · 1 · property of the United Republic.of Tanza!}ia. -~() The appellant denied the charge but the trial ·court was · satisfied that the appellant committed. the• offence, convicted him and sentenced him to pay a fine · of Tshs. 41,794,480 / =, or 20 years in jail default. Dissatisfied with both conviction and . sentence the appellant. preferred .this appeal . under the . fallowing · . grounds. One, . that the Learned Senior · Resident Magistrate erred in law and in fact by convicting and sentencing the appellant of the offence under the economic and organ_ized_. crime control Act for having bee_n found with cow meet and not government trophy. Two, that the Learned Senior. Resident Magistrat~ : erred in law and fact by admitting into evidence app.ellant's :. . . cautioned statement which was not freely arid voluntarily. . . . . obtained.by a police officer. Three, that the· Learned Senior Resident· Magistrate. ·misdirected himself· by endorsing conviction. upon the 2 r/. I appellant person basing on contradictory testimonies of prosecution witnesses~ Four, that the Learned Senior Resident Magistrate . . . the ·provisions of·__ .-- erred in law by failing to properly observe . . section 192 of the Criminal. Procedure Act, as he failed to draw a memorandum of undisputed facts. ·Fifth, that the Learned Senior Resident Ma..gistrate . . . .erred in fact and law by faiiing to appreciate the evidence. of _the defence side which proved that ·at the time of his arrest the accused was found in possession of a cow meat arid not ·· - a government trophy, Briefly, it was established 1n record that on the· material· day, Ombeni Zakaria Mbise (PWl), F~6092 Abdulkarim (PW2) and G.9406 PC Nassoro (PW3) were: on . . . . . . . ·. a . . .. · patrol at Vibaoni area, - they saw the appellant. riding a ·motorcycle which carried_ two plastic container {exhibitl). · The _witnesses suspected him and _stopped him. . The .· witnesses introduced themselves . . and searched . the . . . ·appellant's container. · Inside the· containers,·•·th¢re ·~as a - wild m~at. · Tliis led them to arrest the appellanL ·_ · The . . . . . . . . · _appellant was taken _at Handeni police station.· F2993 D / CP Mgeni. (PW 4) police officer from Handeni police post, 3 /JP confirmed the incident and testified further tha.t he was ,fl·.o. assigned to record a caution statement . of the appellant.. . The caution statement was admitted in evidence as exhibit PS to justify that the appellant admitted to have committeci · . · the offence. . . . . . Moreover,· inventory form showipg that the trophy was · ceased ftorri the appellant was tendered and admitted as exhibit P2. And the certifi~ate of valuation of that tro_phy was tendered and admitted as exhibit P3. · · In his defence, the appellant admitted to have been .. : . . . . . found with. a meat ·in the· two plastic containers. but . . . · testified further that the meat was a cow me~t ~d not a ·. government trophy. The trial court analyzed tlie ev1dence of both prosecution and defence and was satisfied that the appellant committed the offence and hence convicted him and sentenced him accordingly. Aggrieved, the appellant preferred the present appeal. Parties were ordered to argue .the appeal by ·.way of ·· . written submissions. Mr .. Mlawa. consolidated the first and fifth grounds of · appeal arid argued them together. In his submissions Mr. Mlawa contended that the · evidence of the appellant, 4 t' ... }I . - ~=-'-"-~...:..;;::~ ....:::.. ·- • l· . ·-t I '1 I _:/ r/ f ' . . together With his witnesses indicates that the meat found ' . with him was a cow meat and not of 0 . a. wild animal.. He added that the purported game animal with which the appellant was found to be in possession did not belong to the class of skin animals. The Learned Counsel also submitted that · this . Economic case was· heard by the Handeni District Court without a certificate of transfer from the DPP as required under section 12(3) of the Economic and Organized Control · Act. He supported his point by citing a case of Mwita and Others V.R. (2012) 2 EA 232 to the effect that the consent of DPP was of paramount importance. He concluded the . point by stating that Handeni District Court had no jurisdiction to entertain the case. As regards to the issue of caution statement, Mr .. Mlawa submitted that since the appellant ·told the trial court that when he was arrested he was beaten by arresting police officers, then the trial court ought to have not relied on that piece of evidence for the reason that it . was. involuntary recorded. He added that the trial court ought to have conducted a trial within a trial. 5 r · _:r~'";'-'I'rF Ir '· . .I ~/ I. :11/. - if - I fI As regards to contradiction of prosecution witnesses, .: I - V/ - Mr. ~.1lawa submitted that the evidence on record indicate --0 that· PC. Abdulkarim {PW2) testifie~ that _.when. _the .. '• . appellant was arrested he was taken at the police st"ation, the motorcycle was driven by a police officer -arid at police post the appellant and the meat of the wild anim:11_ were - put. in a police van• and_ that PC. Nassoro (PW3) testified . . . . .. -_- • . . . ·that -the appellant was taken in a police vari without the.-- meat. -Mr. Mlawa stated further · that the -evidence- of Ombeni Zakaria -(PWl) indicates that he identified the meat . . to be of a game animal "swala" while the evidence - of PW3. indicated that it was a meat of a common duker gazelle._ ·_ Mr·. Mlawa added that the evidence differed_ from the meat described in ·the charge _sheet· as that of a lesser -kudu. The- Learned Counsel urged .the court_ to. resolve · . . . ·. . . such contradiction in favour of the appellant. As regards to the issue of non compliance with the provisions of section 192 of Criminal. Procedure -Act, . the - . . . . . . . . . . .. Learned_ Counsel insisted that the trial _magistrate was ·_ . a . . . . · required under the provisions of section 192(3) to draw inemorari.dum of undisputed facts. He cited the· case of Republic (2010) 1 Ea 342 to . support· his · ·. O proposition~. Mr. Mlawa also attacked the serttence and submitted that since the offence. which - the appellants was c·harged. _.and convicted was not a schedule offertce, then in terms· of· · · the provisions of section 170 of the Criminal Procedure Act that sentence is illegal on account that the District C-cnirt is - . empowered to impose a sentence of a fine not exceeding • twenty million.and a sentence imprh,onment not exceeding. five years. · For those reasons, Mr. Mlawa urged the court to , . allow the appeal and order the confiscated_ appellant's motorcycle T. 921 BPL be returned to him. In . response, Mr. Magumbo Learned ·State Attor11ey submitted that the appellant was arrested in possession of . -· the -wild meat of an animal known as lesser kudu/com_mon · . . . . . dicker .. He supported his_position by referring.this·co·urt to• th.e evidence of PW4 F.2993 D/C Mgeni who tendered the caution statement of the appellant· to the effect that the appellant admitted that he ·. was carrying · the common dicker meat. ·He added that, that meat is a government . trophy · ·whi~h the appellant was_not required to be .irt possession.· 7 · " / / as pro\ri.ded for under section 14(d) of the Ec~momic a:nd. // 1 / Orga-nized Crime Control Act (Cap. 200 R.E. 2002) and.·· · I ,() section 86( 1) of the Wildlife conversation Act . . As regards to the issue of jurisdiction · of Handeni · District Court, Mr. Magumbo submitted in terms of the provisions of section 12(3) of the Economic and· .Organized Control Act (supra) Senior State Attorney Iri~. . . . charge of Tanga was authorized by DPP to file a certificate · . . . · on his behalf indicating that DPP consented the case to be : tried by that subordinate court. · In that . regard Mr. Magumho · submitted that the complaint .that•. Handeni · District Court had no jurisdiction is not justified.. As regards to the issue of calling Biharnas Williaril. t6 . ·· . prove that the meat was a government· trophy, the Learned State Attorney. submitted that it was. not necessary as th~ • . . provisions ~of section 143 of the. Evidenc·e: Act· (Cap. 6 . . . . . . . . . . R.E. 2002). qoes not require . a number of witnesses. to· .. . prove a case. Mr. Magumbo added that the ·evidence oh record· together with exhibits Pl-investigotry form, P2~two . . . plastic container and the appellant's caution· statement . . . proves . beyond reasonable . doubt that the· appellant · · committed the offence. 8 . l/. I I .· . I . . As· regards to contradiction, · the Learned State · f/ Attorney submitted that the contradictions are ~in.or as it · 0does not shake the root of the case.· He supported his .• · · . . position with the decision in the cctse of Mohained Said · Matula V.R (1995) T.L.R. 3 to the effect that such contradiction was minor. As regards to the issue of . not _preparing _the · · ..memorandum of agreed facts, the Learned · Counsel concided that the same ·was not prepared but submitte~ •· · that the omission did not lead to faiture of just:ice. As regards to the issue of sentence, the Learned _State· . . . . . . Attorney· submitted that the sentence was proper- as the · trial· court determined the case in terms of the prQvisions -· . . . "of section 12(3) of the Economic and Organized Control . .· . . . . . . Act. (supra). ·And that the fine was calculated in ·terms of . the provisions of section 114( 1) of the Wildlife ConservatiOJ:?- · . . . . Act- No. 5 of 2009 which direct that the fine should be -- . . . . assessed . basing on the value of a trophy. In coriclusiort, . . .· .he·: . urged the court to dismiss the appeal. Let me start with the issue of jurisdiction . .. . as the .. same_ : ·. . . . . go to the root_ of the matter~ A_s correctly observed by -the Learned State Attorney. The provisions of .section 12(3) 9 . 1 l /l~f the Economic and Organized Control.Act (Cap. 200 /· ' '. R.E. 2002) was complied with, when the certificate: of ·Ponsent to the Handeni District Court to entertaiq this·case . was issued by. Senior State Attorney in charge .of ·Tanga ·· .· · zone. In that regard, .the issue that the District Court. ·of Handeni · entertained the case without jurisdiction. has no· merit. . . . ·- .·. . Next 1s. about contradiction .of the prosecution. · . witnesses. As correctly submitted by Mr. Mlawa the evidence· of prosecution witnesses does not indicate in . . . . . certainty terms the kind of meat the appellant_was found irt ·. . . possession. PW2 testified that the appellant was arrested in possession of a meat of common dicker ..· PW 1 testified . that.the appellant was arrested with a meat of wild animal_ called "swala" ~ This piece ·of evidence is contradictory· to ·offence with charged, as in the charge sheet; it is indicated that. the appellant was found in .possession of lesser kudu . meat. Such contradiction leads me to . associate with the . submissions of Mr. Mlawa that an ex-pert witpess ought to.·. have bee_n summoned to clear such discrepancies .. · · In view of that since the evidence· on re·cord .does· not prove the charge that _the appellant was . found. 1n 10 ,.. t·, r"",.Y.•~c I ·:r7,;. ··tcf .·. I: . . · ...· . · .... ;/., .possession of lesser kudu . meat, then I am of. the settled r- ~ . view that the appellant raised a doubt· by testifying that . .(~Auch meat was a cow meat. ·From the above · analysis, the appeal· · has merit. . . . . . Appellant's conviction is hereby quashed. The· sentence . imposed ·_against him is set aside. The appellant should be given his confiscated motorcycle and be release_d forthwith from jail unless withheld for other lawful cause~ It is so ordered. SUYA, 'JUDGE .15/12/2014. · 11 .. Date: 15/12/2014 Coram: P.C. Mkeha, DR . Appellant: Present . Respondent: Ms. Akyoo C/clerk: Sarah Court: Judgment is delivered in the presence of the parties.· ·£/ ·P.C .. M A,.rif . lS/12/2014 ·