magembe so mbunda malongo another vs the republic 2023 tzhc 22449 9 november 2023

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 100 OF 2023 (Originated from Criminal Case No. 107 of2023 of the District Court ofBunda at Bunda) MAGEMBE S/O MBUNDA @ MALONGO...................... 1st APPELLANT MASHAKA GIGITA NYANGAKA..................................2nd APPELLANT VERSUS THE REPUBLIC............................................................. RESPONDENT JUDGMENT 07* & osf’ November, 2023 M, L. KOMBA, J.; Appellants herein were arraigned at Bunda District Court charged with two counts to wit; unlawful introduction of domestic animals into the National Park and disturbing the habitat of the component of biological diversity as criminalized under relevant laws. Brief facts of case during trial goes like this; on 2nd October, 2023 at Mbuga za Rwashangi which is within Serengeti National Park in Bunda District, Mara Region both appellants were alleged to introduce domestic animals in National Parks (452 herds of cattle) without permit from the Director of Page 1 of 13 Wildlife or Warden or any authorized personnel and they too disturbed the component of the biological diversity. Appellants denied the charge, the fact which attracted full trial. Prosecution paraded four (4) and two exhibits to substantiate charges leveled against appellants during trial. At the closure of prosecution case, the trial Magistrate found prosecution managed to prove the offences beyond reasonable doubt and appellants failed to shake prosecution evidence. Following that finding, the trial Magistrate convicted appellants on both counts and proceeded to pronounce punishment. On the first count, the Magistrate sentenced each accused to pay fine of 10,000/ or to serve one-year imprisonment. On the second count, each accused was sentenced to pay fine to the tune of 5,000,000/ or serve three years imprisonment. Further, the trial Magistrate refrain from ordering forfeiture for reasons adduced in the judgement. Appellants were dissatisfied by the decision of trial court hence this appeal with two grounds that; 1. That the trial court errored in law and fact by convicting and sentencing the appellants while the prosecution failed to prove the charge leveled against the appellants beyond reasonable doubts. Page 2 of 13 2 That the trial court errored in law and fact by failing to take into consideration the water tight evidence adduced by the accused persons together with their witnesses. When this appeal placed for hearing, appellants were represented by Mr. Paulo Mng'arwe, an advocate who submitted that in the two counts which appellants were charged none of the prosecution witnesses testified on the second count about disturbance to the habitat of the component of biological diversity as claimed in the charge sheet. He said, the trial Magistrate raised the issue suo motto as featured in page seven (7) of the judgment that the issue was not presented by prosecution and it was his position that the second count was not proved by prosecution. Furthermore, it was his submission that exhibit Pl were prepared in isolation of 1st appellant who was present at the scene when seizure was affected as he was with the said cows. He said the action by prosecution was contrary to section 38 (3) of Criminal Procedure Act, Cap 20 R.E 2022 (Cap 20) which insist importance of involving the owner of the property claimed to be involved in commission of the offence. Mr. Mng'arwe succumbed further that, DW6 testified in court that game rangers arrested cows and the 1st appellant and surrendered them at police Page 3 of 13 station and they were received by herself. He maintained that Exh Pl was illegally procured and need to be expunged. Submitting on the second ground he said appellants testified in court how their cows entered in the Serengeti National Park. He said they took cow to the river for them to drink water, the said river is the border between the National Park and the village. He said it was rangers who forced cows to enter into the National Park and their action was followed by misunderstanding among the rangers and appellants action which forced rangers to fire on air to make the situation calm. From that fracas, he said the 2nd appellant run away but the 1st appellant was arrested on the scene. He said all these were revealed by Dw6 who is police and decided to tell the truth. He was of the position that if trial court would analysed properly evidence would have seen huge doubt as created by defence and prayed the same to benefit appellants. He prayed this court to allow the appeal, quash conviction and sentence against appellants and order whatever deem fit. In resisting this appeal, respondent was represented Mr. Isihaka Ibrahim, State Attorney who registered his position against the appeal, presenting that the offence was proved beyond all reasonable doubts serve for the Page 4 of 13 second count. It was his submission that the offence under the first count has two ingredients; first introducing domestic animal in the National Park and two; absence of permit from the Director of National Park. Elaborating how the offence was proved, Mr. Isihaka submitted that PW1 and PW2 found domestic animals in the National Park without the owner as owners run away. Their testimony was collaborated by the testimony of PW3 (Andrew Ngulya) a conservation ranger who draw the coordinates of the National Park in the sketch which was admitted as Exh P3. He said PW1 and PW2 were credible witnesses. He said the Exh. P3 was not objected and no efforts were laboured in cross examination when PW3 was testifying in court in order to shake the credibility or create doubts as was said in Salim Mohamed © Mndia vs. The Republic, Criminal Appeal No. 321 of 2021 CAT at Dodoma at page 9 on 3rd paragraph that when the exhibit was not objected means its contents was not objected too. It was his further submission that there were Exh P4 and P5 which were letters introducing appellants as owners of cows who were found in the National Park. The letter explain appellants were grazing in the National Park and that during cross examination it was revealed that the contents Page 5 of 13 were from the appellants as the village chairman was just recording what was narrated by the appellants, it was his position that Exh P4 and P5 in a way was admission and it supports prosecution case and this court ought to note that prosecution case was proved as was in Mabala Masasi Mongwe vs. Republic, Criminal Appeal No. 161 of 2010 CAT at Dar es salaam. State Attorney further submitted that defence by appellants had contradictions hence failed to shake prosecution case. Elaborating more on this, he said letters from the appellant revealed the appellants cows was 460 but 1st appellant in his testimony said his cow was 468 and the 2nd appellant said he had 260 cows in the group of 460 cows which were seized. That contradictions show that they were not sure how many cows was out on that day or in other words they did not know how many cows were claiming. He said, the submission by counsel for appellants about Exh Pl (certificate of seizure) is an afterthought as he was in court and he did not object the tendering. However, he said, appellants run away from the scene so game rangers failed to issue receipt but tendering of exhibit followed all procedures. Page 6 of 13 Insisting that prosecution managed to prove their case, State Attorney presented that DW6 was not at the National Park but she said she was at police post when DW1 (1st Appellant) was surrendered to police post but she did not record the statement of the 1st appellant and she did not even tender detention register to prove that appellant was actually detained. Previously counsel requested for DW6 and detention register but later on he dropped his prayer of detention register. State Attorney prayed this court to draw adverse inference on detention register as it might be proved that 1st appellant was not detained. On the 2nd ground he submitted that prosecution managed to prove the offence as sketch map proved cows were found in the National Park and the Exh Pl and P2 prove they were domestic animals in the National Park that's why they were convicted. About DW6 he said, she was witness but she was not at the National Park and her failure to produce detention register creates doubts. She cemented that being the police does not mean everything should be true. He maintained that the offence was proved and prayed this court to uphold decision of the trial court. Mr. Ng'ware had a short rejoinder that State Attorney admits that the second count was not proved at the trial. Because they were charged Page 7 of 13 together then he submitted that the two counts were not proved. Further, he said they objected tendering of Exh P3 and condemned State Attorney was misleading this court and prayed his submission not to be considered. Having carefully considered the submission by both parties, I will now embark on determination of the grounds of appeal fronted by the appellant. In doing so, I will analyse each ground as filed while noting that general principle is that the criminal offence must be proved beyond reasonable doubt as it is the most requirement in all criminal charges. In John Makolebela vs. Kulwa Makolobela and Another [2002] T.L.R. 296 the Court held that: 'A person is not guilty ofa criminal offence because his defence.is not believed; rattier, a person is found guilty and convicted of a criminal offence because of the strength of the prosecution evidence against him which establishes his guilt beyond reasonable doubt'. Starting with the first ground on proving the offence beyond reasonable doubt, it was undisputed by both side that second count was not proved as presented by the counsel for appellants that none of the prosecution testified on disturbance to biological diversity. The same was conceded by the State Attorney. In the second count counsel for appellants complained Page 8 of 13 that Exh P3 was wrongly procured as appellants did not sign as 1st appellant was at the scene, State Attorney maintained that appellants run away so there was nobody to issue certificate. I have read proceedings of the trial court and found DW6 Sgt Hawa of Bunda Police station testified in court as follows; 'On 2/10/20231 was at CRO with Cpi Aneth and DC Richard at 12:45 pm conversation ranger brought 1st accused at the station he was alleged of entering into National Park.' When cross examined by State Attorney one Isihaka this witness said; 'I was not involved in the arrest and transporting of the 1st accused. 2 (two) conversation rangers brought 1st accused at the police station.' From the testimony of DW6, she received 1st accused at the police station and was sent there by conservation rangers. And PW1 informed the trial court that they reported the matter to Bunda Police Station on the date mentioned by DW6. From the record and testimony of DW6 I find conservation range was with 1st accused. And if that was so he was supposed to fill in Exh P3 to prove that cows were arrested from him. That was not done. Page 9 of 13 State Attorney Mr. Isihaka submitted that Exh P3 was not objected when tendered. I found Exh P3 was objected basing on section 38 (3) of Cap 20 and ruling was delivered concerning the same exhibit. I read through objection and the ruling and find submission by State Attorneys focused on independent witness and the ruling was directed on that angle of independent witness without addressing other requirement of receipt to have signature of the owner of that thing or occupier of the premise. Guided by wisdom in the Stephen Paulo & Charles Bosco vs The Republic, Criminal Appeal No. 455 of 2016 CAT at Mwanza. I find the exh P3 was illegally procured as procedures as stipulated under section 38(3) was not adhered and the remedy for such exhibit is to be expunged as I hereby do. After the removal of the said exhibit what is left with prosecution, Mr. Isihaka submitted that there was Exh P4 and P5 which are letters introducing appellants as owners of cows who were found in the National Park and the fact was conceded by both appellants. Basing on the remaining exhibits, cows were found in the National Park and they belong to the 1st and 2nd appellants herein. From the remaining exhibits, cow owned by 1st appellant were 200 while cows owned by 2nd appellants were Page 10 of 13 260.1 shall not dwell much on where about of the rest of cows as the issue for my determination and which I have set the position of this court is that, cows owned by appellants were found in the National Park. I find prosecution managed to prove the first count only as found in the first ground of appeal and therefore the first ground is partly allowed. On the second ground Mr. Mng'arwe was of the position that it was conservation rangers who forced the cow to enter into National Park and one of the appellants was arrested at the scene. Relying on testimony of DW6 he said the defence creates doubts. Mr. Isihaka, the State Attorney was of the position that DW6 was not at the National Park when everything took place. I find the defence by the appellants and other defence witnesses were somehow considered, but relying in the findings in Mabala Masasi Mongwe vs. Republic (supra) and Mohamed Haruna @ Mtupeni and another vs. Republic, Criminal Appeal No. 25 of 2007 I find the prosecution managed to prove the offence as the defence by appellants (then accused) carries the prosecution case to the extent as discussed in the first ground of appeal. Page 11 of 13 From the analysis, the first count was proved and second count was not proved. So far as the second count was not proved then the sentence pronounced by the trial court is hereby set aside. Further, this court finds that cows were seized on 2/10/2023 as they were introduced in the National Parks contrary to the law. I shall not disturb the order of the trial court on the relies of the cows as the offence was not proved. However, the said cows have been kept in good condition to the extent there were 5 new born calves who were declared during trial. I find and my wisdom directs the keeper of the cow must be remunerated and therefore I order the following; 1. The cost for up keep of each cow regardless of the size and age shall be Tanzanian shillings seven hundred (700/) per day from the date they were seized which was 02/10/2023 to the date of judgement as pronounced by the trial court which was 26/10/2023. Payment should be done within 30 days from the date of this judgment. (No party is expected to complicate the process so as to cause delay) 2. The Handajenga camp/ area order concerning cleaning the area where cows were kept remain undisturbed. Page 12 of 13 It is so ordered. Dated at MUS is 09th Day of November, 2023. M. L. KOMBA JUDGE Right of Appeal e Judgement Delivered today in chamber in the presence of both appellants who appeared in person while Republic was represented by Mr. Jonas Kivuyo and Ms. Joyce Matimbwi both being state Attorneys. UK M. L. KOMBA JUDGE 09 November, 2023 Page 13 of 13