NA TZHC Mwanza6

IN THE HIGH COURT OF TANZANIA AT MWANZA HIGH COURT CRIMINAL APPEAL NO. 37 OF 2014 (Original Economic Case No, 1 of 2010 of the District Court of Serengeti District atMugumu) . MAGOIGA S/0 MAGUTU WANSIMA ..... ·........................ APPELLANT VERSUS THE REPUBLIC ........ ■■ •• I • • • • • • • ■ I •• ■■ •••••••••••• I ■ ••••••••••••••• RESPONDENT JUDGMENT BUKUKU, J.: In the District Court of Serengeti at_ Mugumu, Musoma Region, the appellant, Magoiga Magutu Wansima, was charged with, and convicted of the offence of unlawful possession of Government trophies contrary to section 86 (1) and (2) (c) of the Wildlife Conservation Act, No. 5 of 2009 read together with paragraph 14(d) of the first schedule to, and section 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R.E. 2002. He was sentenced to pay a fine of T.shs. 50,000,000/= or serve 20 years imprisonment. He now appeals against the conviction· as well as the sentence. The prosecution's evidence was that, on 13th May, 2010 at around u 13.00 hours, a police officer D/C Mauzi and four park rangers of the Serengeti National Park (SENAPA), Renatus Izack Aaron (PWl), Steven Mutalemwa (PW2), Thadeus Manongwa and mainland Mapunda, were driving from SENAPA to Mugi.Jmu town. As soon as they were approaching a place called Tabora B prison, they saw in front of them, the appellant riding a bicycle, and was carrying something in a resin bag. According to PW1 and PW2, as a soon as the appellant saw their car, he immediately threw the baggage and took to his heels. They then stopped· the car and started chasing him. Within a distance of 20 feet, they caught and arrested him. They then took him to where he threw the bag, and proceeded to search the same. According to PW1 and PW2, in the bag they found two dry leopard skins. They then took the appellant to Mugumu police station where he was remanded and later on arraigned in court. · While the case was at the hearing stage at the trial court, on 28 th January, 2011, the court was informed that, on 11/01/2011, the appellant had jumped from the lorry while being returned to remand prison from the court, .and had disappeared while in police custody,. as such, judgment was delivered without the appellant defending himself. He ·was convicted and ./NL- ~~ sentenced in absentia on 13th June, 2013. Luckily enough, the appellant 0 ,, was re arrested and on 8th October, 2013, he was brought in court. According to the record, on the day he was brought in court, the court was informed that, while the. appellant was at large, he committed other offences of unlawful entry into the National Park, unlawful possession of weapons in the National Park and again, unlawful possession of Government trophies hence, charged again in court on 31 st July 2013, in Economic Case No. 62 of 2013. The court was further informed that the appellant was charged at the Mugumu Urban Primary Court for the offence of escaping while under lawful custody, and had admitted all the facts read over him. He was then sentenced to serve one year imprisonment. When the appellant was asked whether the facts as narrated by the prosecutor are correct, he admitted by saying:- "Tn.1/I½ I didn't know what I was doing. Prays (sic) the courts mercy and forgiveness. I won't repeat again. I still have pending economic case No. 62/2013/~ 3 With the above admission, the trial court committed the appellant to serve . his sentence as delivered on 13th June, 2013, which was to commence immediately. l The appeal was argued orally. The appellant appeared in person, unrepresented. Mr. Kajungu, Learned State Attorney appeared for the respondent Republic. He did not support the appeal. In summary, the grievance of the appellant as contained in his petition of appeal is that, the trial magistrate convicted and sentenced the appellant based on weak evidence of the prosecution, to Wit:- (i) That the prosecution did not" call the material witnesses i.e D/C Mauzi and Thadeus Manongwa. (ii) That no independent prosecution witness from the locus testified. (iii). That no official permission or documents were tendered by the prosecution. (iv) That, the alleged bicycle which the appellant rode was not tendered in evidence to prove and corroborate the points of the matter._ On his part, the appellant adopted his grounds of appeal as ·,· U 1 .- contained in his petition of appeal and added that, in his testimony, PW3 did not take into consideration the evidence tendered by the police. Mr. Kajungu gave his reasons why he did not support the appeal to be as follows: First, with regard to the prosecution witnesses, Mr. Kajungu argued that, PWl and PW2 who were both park rangers, testified. There is also the testimony of PW3, who is also a park ranger, and who did the valuation of the trophies and who tendered in court Exhibit P2. It is thus Mr. Kajungu's submission that,· the non testification of other witnesses did not water down the prosecution case. He thus surmised that, the testimonies of the three prosecution witnesses were· competent and credible. Submitting further, Mr. Kajungu is of the opinion that, considering that the· appellant had escaped_ under lawful custody while he was in remand, it shows that he was guilty. Mr. Kajungu further argued that, the appellant admitted to have been facing another charge of entering into the national park. For that reason, Mr. Kajungu prayed that the appeal_ be dismissed since it has no merit. The appellant had queried as to why the two material prosecution witnesses, i.e police officer D/C Mauzi and Thadeus Manongwa were not called to testify, relying on the case of Aziz Abdallah V. Republic, [1991] TLR 71. It is trite that, all persons shall be competent to testify unless the court considers that they are prevented from understanding the question put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. In fact, the only disqualification given about witnesses is inability to understand the question or give a rational answer tO it. Even children, under special circumstances, can be competent witnesses. It is not disputed in this particular case that, D/C Mauzi and Thadeus Manongwa did not testify. These two were with PWl and PW2 when the appellant was a_rrested with the trophies on the fateful day. Now can it be said that these two were the material witnesses in this case without whom the court may draw an adverse inference to the prosecution case as suggested by the appellant? I think with due respect no. I will tell why. Evidence consists of statements made by a witness or contained in a document. In case of oral evidence, only tt)at person who has actua~ 1 ~l&:-- 6 perceived something by that sense by which it is capable of perception, should make the statement about it and no one else. In this particular case, both PW1 and PW2 were at the locus on that day. They saw the appellant. PWl chased arid apprehended the appellant and searched the bag. PW2 was the driver of the car which they were using, and which the appellant also boarded after he was arrested. For that matter, these two witnesses are in my considered view, enough to prove the case against the appellant. The rule now accepted · in all systems of jurisprudence is that, evidence should be weighted, not counted. Even if there is only one witness, and the court is satisfied that he is speaking the truth, it is sufficient; the fact that there are a number of witnesses, means nothing if the court thinks that they are not speaking the truth. It is trite that, no particular number of witnesses shall .in any case be required for the proof of any fact. In the olden days, quantity rather than quality was emphasized. There is no rule of law of evidence that no conviction can be based unless a certain number of witnesses have identified a particular accused though it· may be prudent to insist on at least two reliable witnesses in cases of unlawful assembly of a large number of persons. rflJ1 Convictions can be based on evidence of a single eye witness if his credibility is not shaken in any manner. It is quality not quantity that counts. Evidence is weighted but not counted. From the above therefore, I find this ground of appeal has no merit. The two prosecution. ·witnesses, are witnesses of the truth. They testified on what they saw. PWl arrested the appellant, searched him and found the trophies. He then took him to Mugumu police station. PW2 was the driver of the car. He saw the whole incident as to how the appellant was apprehended. To make matters worse, the appellant was reported to have escaped under unlawful custody on 11th January, 2011 when he was being ferried back to remand police from the court, and that, he had committed another similar offence. It is trite that, the conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. 8 In this particular case, the act of the appellant jumping out from the police van and disappearing, creates an inference of guilt, as rightly submitted by Mr. Kajungu, Learned Sate Attorney for the respondent Republic . .To add salt into wound, when the appellant was re- arrested, he pleaded guilty, not only to the charge facing him, but to the other charges that were facing him. All this goes to show that, the prosecution has proved its case on the standard required, i.e. beyond reasonable doubt. The other issue raised by the appellant is that, there was no prosecution witness who came from the locus in quo to testify how he threw the bag containing the trophies. With due respect, there is no law compelling the prosecution to call a witness from the crime scene. What is required is for the prosecution to prove its case beyond reasonable doubt. It is immaterial where the witnesses came from. What ·is required is to satisfy the court beyond reasonable doubt that, indeed it is the a·ppellant. who committed the offence, and nothing else. This ground of appeal has no merit. It is equally dismissed. As far as tendering of exhibits is concerned, I think this ground. need not detain me. From what I have gathered from the proceedings, PWl, • . ~- 9 Renatus Izack, tendered in court Exhibit Pl, the two pieces of the leopard skin. PW3, one Athuman Kitenana, a game warder informed the court that, on 14th May 2010 at 7.00 am upon instructions, he proceeded to Mugumu police station. While there, he identified two dry skins of a leopard. He also told the court how he valued the trophies, and signed· the certificate of Government trophies. This certificate was tendered in court by PW3 and was admitted as Exhibit P2 without objection from the appellant. This being an official document, together with the trophies tendered as Exhibit Pl, the appellant cannot claim that no official documents were tendered in court. This ground too is dismissed. Finally, the appellant claimed that, the alleged bicycle which he was riding on the fateful day was not tendered as evidence. With due respect, I think the appellant here has missed the point. The issue in dispute is not the bicycle. The issue here is whether the appellant was found with the trophies. The trophies were tendered in court and admitted in court as Exhibit Pl without a·ny objection from the appellant. I fail to understand how the issue of tendering the bicycle becomes an issue in the first place. 10