MAGIDI SITA BULUBA ECO APPEAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL REF. NO. 202408092000022491 MAGIDI SITA @ BULUBA ............................................. APPELLANT VERSUS REPUBLIC………………………………………………..…… RESPONDENT [Appeal from the Decision of the Resident Magistrate’s Court of Simiyu at Bariadi] (Hon. C.E. KILIWA PRM) dated the 11th day of June, 2024 in Economic Case No. 61 of 2023 ----------- JUDGMENT 26th September & 4th November, 2024. S.M. KULITA, J. This is an appeal from the Resident Magistrate’s Court of Simiyu at Bariadi. The appellant herein above was convicted and sentenced to serve the imprisonment of 2 (two) years’ for each of the two offences namely “Unlawful Entry into the Game Reserve” contrary to section 15(1) and (2) of the Wildlife Conservation Act [Cap 283 RE 2022], and “Unlawful Possession 1 of Weapons in the Game Reserve” contrary to section 17(1) and (2) of the Wildlife Conservation Act [Cap 283 RE 2022], read together with Paragraph 14 of the 1st Schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2022]. In the 3rd and 4th counts the Appellant was convicted and sentenced to 20 (twenty) years’ imprisonment for each offence of “Unlawful Possession of Government Trophies” contrary to sections 86(1) and (2)(c)(iii) of the Wildlife Conservation Act [Cap 283 RE 2022], read together with Paragraph 14 of the 1st Schedule to, and sections 57(1) and 60(2), of the Economic and Organized Crime Control Act [Cap 200 RE 2022]. The brief history of the case in a nut shell, as it can be gathered from the record is that; on the 27th day of August, 2023 the Conseration Rangers for Maswa Game Reserve, PW1 and PW2, while in patrol over the Game Reserve found the Appellant at Mto Guya area and that he had no permit from the Director of Wildlife. It is alleged that while there, the Appellant was found in Unlawful Possession of Weapons, to wit; 1 (one) Panga and 5 (five) trapping wires of which he failed to satisfy the authorized officers that the same were intended to be used for purposes other than hunting, wounding or capturing wild animals. The record further reveal that the culprit was also found in 2 possession of Government Trophies, to wit, one fresh tail of topi and two fresh heads of zebra, without permit. Aggrieved with both, convictions and sentences, the appellant lodged this appeal with 3 (three) grounds as follows; 1. That, the trial Magistrate erred in law and in fact to hold conviction while the prosecution side did not bring a chain of custody as exhibit. 2. That, the trial Magistrate erred in law and in fact to accept the inventory form as exhibit instead of the trophies as the charge sheet read over. 3. That the case at the trial court was not proved beyond all reasonable doubts. The matter was argued through oral submissions. The Respondent (Republic) is represented by Ms. Rose Kimaro, Learned State Attorney while the Appellant is unrepresented. In his oral submission in support of the appeal the appellant prayed for the grounds of appeal in his Petition to be adopted as the submission for his appeal. He concluded by praying for the appeal to be allowed and he, accordingly be acquitted. 3 In the reply thereto the Learned State Attorney, resisted the appeal. In her oral submission in reply to the 1st ground of appeal, the State Attorney, Ms. Rose Kimaro, stated that, contrary to the appellant’s allegation, the prosecution side tendered before the trial court, the chain of custody. She said that, it is PW4, a Police Officer, who had tendered it court, as it can be so read at page 16 of the trial court’s proceedings whereby the same was admitted as Exhibit P4. Submitting her reply to the 2nd ground of appeal the State Attorney stated that the trial court was not wrong to receive the inventory (exhibit P6) as substitutes for the physical exhibits, make one fresh tail of topi and two fresh heads of zebra. The Counsel said that under section 101(1)(a)(i) of the Wildlife Conservation Act, it was proper for the said exhibits to be tendered in a form of inventory as they are perishable in nature. She said that the said objects could have not been kept to the time of being tendered to court as exhibit without decaying. As for the 3rd ground of appeal which is concerned with proof of a case at the trial court, the State Attorney replied that it was proved beyond all reasonable doubts. Submitting on this, the Counsel stated that the record at 4 pages No. 9 and 11 of the trial court’s proceedings transpires that on the material date at about 0800 hours, the appellant was found by the Conservation Rangers who were in patrol at Guya area within Maswa Game Reserve. She said that, that is according to the testimonies of PW1 and PW2, the Conservation Rangers who arrested them while conducting patrol over that area. The State Attorney further submitted that the said witnesses (PW1 and PW2) also narrated that they found the culprit holding weapons, to wit, 1 (one) Panga and 5 (five) trapping wires. She went on submitting that the record reveal that the culprit/appellant was also found in possession of Government Trophies, that is, one fresh tail of topi and two heads of zebra. She averred that the record further transpires that the Appellant had no permit to hold those things. The Counsel further submitted that, in his testimony PW1, the Conservation Ranger, testified to have filled a Certificate of Seizure (exhibit P1) upon seizing the trophies, whose inventory was admitted as Exhibit P6. He also seized the weapons (exhibit P2 collectively). The State Attorney stated that PW1 also recorded the GPS coordinates for the point where the appellant had been found. He took it to the printing office at Butuli Camp where the witness (PW3) who is a Map Driver entered into a computer, the coordinates 5 that he was given by PW1 involving a place where the appellant had been found. The Counsel stated that, thereafter, PW3 extracted the GPS map (exhibit P3). The said map revealed the location being Mto Guya area, 3.6 Km from barricades of Maswa Game Reserve. The State Attorney further stated that the said exhibits P1, P2 and P3 were identified by PW2, a Conservation Ranger who was together with PW1 during the arrest of the appellant and seizure of the above mentioned exhibits. Hence, he corroborated the testimony of PW1. It is the submission of the State Attorney that, during trial the Prosecution side called PW4, a Police Officer who had filled a chain of custody (exhibit P4) regarding the movements of exhibits from the time they were received at the Police Station. She added that, the Wildlife Officer (PW5) testified to the effect that he had seen the animal heads and identified them being zebra’s. As for the tail, the State Attorney narrated that PW5 identified it being topi’s. She said that the record transpires the said witness made specifications/clarifications for the identities/particulars he had noted from the said trophies. 6 The Counsel added that the said witness (PW4) also filled the Trophy Value Certificate (exhibit P5). She further stated that, as the said trophies are easy to decay, she filled the Inventory Report (exhibit P6) for the disposal purposes. That was the end of submission by the State Attorney. The Appellant had no rejoinder, hence submissions from both parties ended up there. From the above submissions, the issue to be determined is whether the appeal is meritorious. Starting with the 1st ground of appeal, that the trial Magistrate erred in law and in fact to hold conviction while the prosecution side did not bring a chain of custody as exhibit. This allegation was disputed by the State Attorney. I took trouble to go through the original record. What I have noticed therein is contrary to the appellant’s allegation, as the record transpire that, during trial the prosecution side tendered the chain of custody. That was done through PW4, a Police Officer, as it can be so read at page 16 of the trial court’s proceedings whereby the same was admitted as Exhibit P4. As for the 2nd ground of appeal, that the trial Magistrate erred in law and in fact to accept the inventory form as exhibit instead of the trophies 7 themselves as the charge sheet read over. In her reply to this ground of appeal, the State Attorney stated that what has been done is a legal procedure in dealing with the exhibits which are perishable. There is no dispute that the trophies in dispute, to wit, two fresh heads of zebra and one fresh tail of topi, were tendered to the trial court as exhibits through inventory. As rightly submitted by the State Attorney, that is a procedure in dealing with the perishable exhibits as per section 101(1)(a)(i) of the Wildlife Conservation Act [Cap 283 RE 2022]. My analysis on the 3rd ground of appeal, whether the case at the trial court was proved beyond all reasonable doubts, is as follows; The appellant herein was charged with 4 (four) different counts as elaborated herein above. Two of them involved possession of trophies, one involved possession of weapons in the Game Reserve and one involved entry into the Game Reserve. I went through the records, as well as the submissions of both parties so as to ascertain status of the evidence, particularly on the proof of the case. As I have stated herein before that the charged counts which the Republic ought to have proved during trial are the following; “Unlawful Entry into the Game Reserve” contrary to section 15(1) and (2) of the Wildlife Conservation Act [Cap 283 RE 2022], and “Unlawful Possession of Weapons in the Game 8 Reserve” contrary to section 17(1) and (2) of the Wildlife Conservation Act [Cap 283 RE 2022], read together with Paragraph 14 of the 1st Schedule to the Economic and Organized Crime Control Act [Cap 200 RE 2022]. The 3rd and 4th counts were “Unlawful Possession of Government Trophies” contrary to sections 86(1) and (2)(c)(iii) of the Wildlife Conservation Act [Cap 283 RE 2022], read together with Paragraph 14 of the 1st Schedule to, and sections 57(1) and 60(2), of the Economic and Organized Crime Control Act [Cap 200 RE 2022]. According to the record as well as the submissions made by the State Attorney, the Conservation Rangers who testified as PW1 and PW2 before the trial court, the Appellant had been found at Mto Guya area which is within Maswa Game Reserve, and that he was in possession of two fresh heads of zebra and one fresh tail of topi, which are the Government Trophies according to PW1, PW2 and PW5. The testimonies of PW1 and PW2 also reveal that the Appellant was also found in possession of weapons, to wit; 1 (one) Panga and 5 (five) trapping wires. The record and submissions of the State Attorney further transpire that PW1 filled a certificate of seizure (exhibit P1) for the said trophies and weapons which was signed by PW2 as a witness, as well as the appellant herein. 9 The said submissions, as well as the record reveal that PW1 took the GPS coordinates for the scene of crime to the Game Reserve offices located at Butuli Camp where the witness (PW3) who is a Map Driver entered into a computer, the coordinates that he was given by PW1 for a place where the appellant had been found. The said PW3 extracted the GPS map (exhibit P3). According to him, the said map revealed the location being Mto Guyo area, 3.6 Km from barricades of Maswa Game Reserve. The record further transpires that the said exhibits P1, P2 and P3 were identified by PW2, the Conservation Ranger who was together with PW1 during the arrest of the culprit and seizure of the above mentioned exhibits. Hence, he corroborated the testimony of PW1. The record further reveals that the Wildlife Officer (PW5) testified to the effect that upon being called by Police from Bariadi Police Station for identification and valuation of trophies, he went thereto and saw two fresh heads of animals. He identified them being zebra’s. He also saw one fresh tail of which he identified it being topi’s. During trial the said witness also made specifications/clarifications for the identities/particulars he had noticed from the said trophies. The said specifications have been recorded in the lower court’s record. Apart from identifying the trophies PW5 also filled the 10 Trophy Value Certificate (exhibit P5). As well, for the disposal purposes PW5 filled the Inventory Report (exhibit P6) for the said trophies, as they are perishable in nature, hence easy to decay. According to the record, during trial the Prosecution called PW4, a Police Officer who had filled a chain of custody (exh. P4) regarding the movements of exhibits from the time they were received at the Police Station. For this evidence, the trial court was right to declare that the Appellant was actually found within the Game Reserve, holding the said trophies and weapons unlawfully, as he had no permit to do any of those things. Thus, the case at the trial court was proved beyond all reasonable doubts. In upshot, I find the appeal unmeritorious, hence dismissed. Decision of the lower court, that is, conviction and the sentences imposed, are hereby upheld. S.M. KULITA JUDGE 04/11/2024 DATED at SHINYANGA this 4th day of November, 2024. 11 S.M. KULITA JUDGE 04/11/2024 12