20141027 TZHC Mwanza

IN THE- HIGH COURT OIF TANZANIA . -AT MWAINZA fliIGHl 'COURT CRIMINAL APPEAL NO. 37 OIF ·2014 . {Original Econo1J7ic Case . No. 1 of 2010 of the.District Court of Serengeti . District · atMugumu) MAGOIGA S/0 MAGUTU WANSIMA .......... ~ .................. APPIELLANT VERSUS THE ':REPUBLIC ■ e1111 ■ e•••• ~:a.1cc1111 •1111t11 ~ • • ea,1111111 c 1111111• 1111111cI!a1111111111 mti ■ 11 ■ 111111.R·IESPONDENT ,:;nJDGIMIENT BUIKUKtUl, 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 E_conomic and Organized Crime Control Aq:, 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. .t . . ,0 • _:. -y - ·:,<t· ! 1("::.\ Ji) 1,, P- . rf) . .. ·~\v-- VLt CC:L/J ,f~-- _. The prosecution's evidence was that, on 13th May, 2010 at around 13.00 hours, a police officer D/C Mauzi .· and four park rangers of the Serengeti National Park .(SENAPA), Renatus Izack Aaron (PW1), Steven Mutalemwa (PW2), Thadeus Manongwa and mainland Mapunda, were driving from SENAPA to Mugumu 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 r~sin bag. According to . PW1 and PW2, as a soon as the appellant saw their car, he· immediately t_hrew the baggage and took to his heels. _They then stopped the car and started chasing him. Within a dist~nce 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 t_ook the appellant to -Mugumu police station where he was remanded and later on arraigned in court. th While the case was at the hearing stage at the .trial court, on 28 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-- i i ' I sentenced in absentia on 13th June, ~013. Luckily enough, the appellant · ·was re arrested and on 8th Octoper, 2013,. he was bro~ght in. court. · According ·to· the reco·rd,. 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 Nation.al 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 co'urt 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:- "Trull½ I didnt know what I was doing.· Prays (sic) the court~ mercy_ and forgiveness. I wont repeat again. I still have pending economic 3 . . cg.-~- .-:-... . ~t:. .._~ ·.• ,. .... ..... 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. 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 witnes~ ·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. <S>12) @o (\) ~)___ . ! . On his part, the appellant -adopted his grounds of appeal as C cd'ntained in_ hi~ petition of appeal and added that, in his .testimony, PW3 · did not_ take i~to consideration the evide_nce tendered_ by the polic~: _ Mr. Kajungu gave his reasons why he did not support the appeal to be as follows: fkst:, with regard to the prosecution witnesses, Mr. Kajungu _ argue_d that,-PW1 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. t)~~/l7 . , -('~ ·_n /~-:( . _ ~ / , Ljc e:,,G \ , \._ _,1 ---_____ _ The appellant had queried as to why the two· material prosecution f-.· '·,, _witnesses, i ;e police officer D/C ~auzi and Thadeus Manongwa ".Vere not -called . to testify, relying_ on the case o( Aziz AbdaUah . V. Republic, . (1991] TLIR 71. It is trite that, all persons shall be competent to testify . unless the court considers that they are prevented from understanding the q1,.1estion 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 PW1 and PW2 when the appellant was arrested 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 that person who has act~-- 6 ~ ---y? r~i . I ),I) __j) . . . · ~~[{c~_ C[;l. /VfJ ~ - :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 locu~ on that day: They saw the . . . . appellant. PW1 chased and 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 W!3S 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 relia_ble witnesses in cases of unlawful assembly of a large number of persons. rftt!- ~- -1(). ~. N~--l_ __ Convictions can be based on evidence of a single eye · witness if his .,L. - \...-_ 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 ap·peal has no merit. - The two prosecution witnesses, are witnesses of the truth. They testified on what they saw. PW-1 arrested the appellant, searched. him and found the trophies. He then took him to Mugumu police station. PW2 was the driver of the ca·r. 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 11 th 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 relevan_t 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 relev~mt fact, and _whether it was previous or s~bsequent th~reto. 8 Renatus Izack, tende'red in court Exhibit Pl, the two pieces ofthe leopard skin. PW3, one Athuman Kit~nana, a game warder informed the cou~ . . th that, on 14 May 201_0 at 7.00 am upon instructions, he pro~eeded to_ Mugumu po"lice station. While there, he identified two dry skins of a leopard. He also told the court how he valued th~ trophies, and signed the certificate of Government troph_ies. This certificate was tendered in court by PW3 and was admitted as ExhibE1t 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 P1 without any objection from the appellant. I fail to understand how· the issue of tendering the bicycle becomes an issue in the first place. 10 - 10:)/Y/ 1 r:-~ ·(\ f/(} o- ~~ ~ · Il,/\ lA.)· /__ , .-t v lt1__, - - - Under the circumstances, I find that, the appeal is lacking in merit. I accordingly dismiss it in terms of conviction and sentence. I uphold the - decision of the District Court. Order accordingly. Delivered at: Mwanza This 27th October, 2014 11