20190412 TZHC Mwanza

' IN THE HIGH COURT OF TANZANIA I (MWANZA DISTRICT REGISTRY) I I • ATMWANZA I ' ECONOMIC APPEAL NO. 346 OF 2018 J, (Appeal from the Judgment the District Court of Bunda at Bunda (Kasonso, PDMJ Dated 23 rd of:September, 2015 in Economic Crime Case No. 18 of 2015) I MAGU s/o GILYA@LUPILYA .............................. APPELLANT VERSUS · - - I- . THE REPUBLIC ................................................. RESPONDENT - I JUDGMENT OF THE COURT 03.04.2019 & 12.04.201.9 M. K. ISMAIL, J Magu s/o Gilya @ Lupilya, the appellant herein, was charged I with and convicted by the District Court of Bunda at Bunda of four I counts committed on 24 th August 2015 at or about 00.00 hours at I Walajoro area within Serengeti National Park in Bunda District, Mara I Region. The counts with wticsh he was charged and convicted of I- are: Unlawful entering in the National Park, contrary to section 21 (1) (a) and section 29 of the NLional Parks Act: unlawful possession of weapon in the National PaL contrary to section 24 (1) (b) and I (2) of the National Parks Act, Cap. 282 R.E. 2002; unlawful hunting in I 'I a National Park; contrary to se'ction 23 (i) of the National Parks Act, . ' 14 (a) of the 1st Schedule to an_d Cap. 282 R.E. 2002 and Paragr:aph· . I sections 57 (1) and 60 (2) of the Economic and Organized Crime I I ' Control Act, Cap. 200 R.E. l 2002; and unlawful possession of . government trophy, contrary Ito section 86 (1) (2) (c) (ii) of the Wildlife Conservation Act, NoJ 5 of 2009 and paragraph 14 (d) of the l st Schedule to and sectiot 57 (1) and 60 (2) of the Economic l ' and Organized Crime Control Act, Cap. 200 R.E. 2002. i He was; consequently, sentencldI to imprisonment for one year, one . I year, three years and twenty years in respect of the 1st , 2nd , 3rd and l 4th counts, respectively. The sent~nce ran concurrently. ,. Dissatisfied with the trial court's!' decision, he preferred this appeal, ' challenging both the conviction Iand the sentence meted to him. I The essential facts of the base I are, briefly, to the effect that, l . on the fateful day, ·at or abou't 00.00 hours, PW l and PW2 were I . I carrying out a routine patrol witjhin the Serengeti National Park at a place known as Walajori, withih' Serengeti National Park, in Bunda I !2 ,--- )/(j~-- I (~· District. Suspecting that illegal activities were going on in the Park, they laid an ambush along the snake road which is used as an illegal entrance an~ exit to and from the_ Park. It- is at that point in time, that the appellant was found in an unlawful possession of five pieces of semi dried meat and two tails of wildebeests which were equated with two killed wildebeests. The trophy, which was valued at TZS. 2,327,000/= was possessed by the Appellant unlawfully. Along with the trophy, the Appellant was found in possession of a· bicycle, a bush knife (panga) and a torch, all of which were believed to be his toS)IS for his _unlawful indulgence (Exhbit P.1). It is stated that the Appellant admitted that he neither had the . permission to enter the Park area nor was he authorized to carry --~ any weapon during his entrance. ' ., PW l and PW 2 stated in their testimony that after arresting the Appellant, they took him to KOU offices in Bunda where PW3, a Wildlife Warden, identified and evaluated the trophy and concluded that two wildebeests had been killed and the value of each of the felled wildebeest was USO 650.00. The combined value of both wildebeests was USD 1,300.00, equivalent to TZS. 2,327,000. : 3 The inventory form and thl, certificate of identification and I evalua-tion were collectively admitted as Exhiqit P 11. After closure of the prosetution case on 8th June 2015, the trial I court made a ruling that a prirha facie case had been made out, ' I essentially finding that the Ap·pellant has a case to answer. The Appellant's defence testimon~ is recorded at pages 11 and 12 of I the trial court's proceedings. Inhis defence, the Appellant denied that he was arrested in the ParJ area. He submitted that he was, on ' that fateful day, grazing his caAle near the Park boundary and that I I he was along with his two col,leagues namely; Doto s/o Kija and I Mabula s/o John. He said that their choice of the grazing area was I I informed by the fact that the 0rea is close to a river, a fact which motivated them to graze there\since it would be easier for them to take their cattle to the river to serve them water. The Appellant I I testified that as they were arguing, PWl and PW2 ordered them to I I get into a vehicle and his herds of cattle were impounded, only to . ! .. be released the following da~. He spent a night at Handajega ! Ranger post, before he was transferred to KOU Bunda. He was I I ( · arraigned in court the following day. His two colleagues who were _( arrested with him were released and so were their herds of cattle. · After conclusion of the proceedings, the trial- Magistrate composed and handed down the judgement, in which he found the Appellant was found guilty of all the counts charged and sentenced him to prison terms which were . ordered to run concurrently. The Appellant has preferred five grounds of appeal as follows: 1. That I, Appellant (sic) were not arrested in or within the . national park as was evidenced by the prosecution witness. Furthermore, there was no any independent witness to collaborate (sic) the evidence of P1 and P2 (sic) that the arrested trick (sic) place in or within the National Park. 2. That the evidence adduced before the lower court was full of cooked exhibit (sic) that PW l, PW 2 and PW 3 were the same people from the same office hence their evidence was fabricated one (sic). <·/1~- 5 ( '' 3. That the exhibit P-2 was wrongly tendered and admitted before the Court since • ifI was not tendered by the Expert• from the governm_ent chemist as required .by the law. 1 4. That the appellant con'v'.iction I (sic) and sentence was illegal I because prosecution do lacks (sic) legal basis and the trial I magistrate tried the case' at hand without the consent of the . I Director of Public Prosecution I (OPP) as the case fall (sic) under the Economic and Organized I Crime Control Act. I 5. That the trial magistrate ~rred on point of law and facts by believing and_ relying on tvidence produced by prosecution witnesses and ignored completely my sole deffence (sic) I presented in Court anyhow (sic). 1 • ·1 I The Appellant began his address in support of the first ground of I I appeal by laying blemishes to the trial court, saying that injustice I I was perpetrated on him since he did not commit the offences he ' was charged with. He submitted that he was feeding his cattle I . t outside the park area and, though they were three, his two other colleagues were neither arrested_, nor were they allowed to come ~/~--- I 6 I I I\. (( · and testify on his behalf, despite the trial court's undertaking to C- · issue summonses for their appearance in court . .On the second ground, the Appellant. submitted that evidence adduced by the prosecution witnesses was fabricated. His basis for this contention was that all witnesses came from. the same office, insinuating that they conspired and cooked evidence to implicate him. He believes that a different verdict would be arrived at _had the witnesses been sourced from different institutions. Submitting on the third ground of appeal, the Appellant was firmly ·of the position that PW 3 who tendered Exhibit P II - a Certificate of Identification and Evaluation of the Government trophy and Inventory Form - did not have the requisite expertise to . (~, ./ carry out the identification and evaluation of the government trophy. Because of lack of expertise, he was not skilled enough to state with precision that what is alleged to have been brought before him was a ·wildebeest meat. He wondered why the said trophy was not tendered in the trial court as one of the exhibits in support of the prosecution case. 7 (· Reacting on the first ground of appeal, the Respondent's Counsel stood by the trial cou_rt's decision, maintaining that the Appellant was arrested while on a hunting mission inside the Park, at a place known as Walojoro and that, according to PWl and PW2's testimony, he was arrested at midnight. She added that there was no possibility that an independent witness would be procured to testify. She concluded that the Appellant was not expected to be found in the restricted area. With regards to the second ground, the Respondent's Counsel said that the Appellant'~ reasoning is misconceived because PWl an·d PW2 are the people who effected the arrest, while PW3 comes from KOU Office in Bunda, adding that the latter was not involved in ,,7'., the arrest. She contended that the provisions of section 143 of the vt /'. Tanzania Law of Evidence Act, Cap. 6 R.E. 2002, do not impose any restriction on the number of witnesses who should testify, as long as they are able to prove the case beyond reasonable doubt. She .urged the Court to reject this point as well. 9 I 'I I On the third ground, the l~arned I ' Counsel for the Respondent I made reference to section 114 (3) of the Wildlife .Conservation Act, I . . . ' Cap. 283 R.E. 2002, which requi,res that an officer competent .to sign · . ' and certify should be an offic~r of the rank of a wildlife officer. The I I evidence on record is to the effect that PW3 is a Wildlife Warden. I This means that this officer ~as not competent to certify: She, therefore, supported this ground of appeal. ' I . . ' I As regards ground four of tre appeal, the Respondent was of the view that the Appellant's cbntention is baseless since the DPP's I I certificate and consent were filed and page 2 of the proceedings, . II . recorded on 30.03.2015, bears 0 testimony. She held the view that 1 I this ground of appeal should faill . ' I Submitting on the fifth ground, the Respondent's Counsel was of I a strong view that the Appellant\s defence was considered and this I is evident at page 8 of the judgment. She contended further that it I I was the Appellant's duty to bring, his colleagues as defence ' witnesses. She concluded by submitting that she believes the 'I prosecution proved its case beyond reasonable doubt on counts of \ ·-/~- lio I I I ', . r -( ,.,. · unlawful entry into the park, being in possession of weapons \. unlawfully, and unlawful. hunting. In a whole, she wound up her submission by urging the Court to. uphold the conviction and sentence in respect of all the counts except on count 4, in which its conviction and sentence were improper. I have decided to dispose of this appeal by starting with ground (i, three of the petition of appeal in which the Appellant took a serious exception to exhibit P2, the manner in which it was prepared, and the authority of the person who made it, i.e. PW3. The Respondent has been quick .to concede that indeed, the certification and evaluation the trophy did not conform to the provisions of section 114 (3) of the Wildlife Conservation Act, Cap. 283 R.E. 2002. She (/ '-., contended that the evidence reveals that PW3 is a Wildlife Warden. This means that this officer was not competent to certify and evaluate the trophy. For ease of reference the said provision states as follows: "In proceedings for an offence under this section, a certificate signed by the Director or wildlife officers of the rank of wildlife 11 I .I I I ·'. I I ( '" officer, shall be admissible in evidence and shall be prima i . I . facie evidence of the nidtters stated therein i~cluding the fact· . I . that the signature there6n . , is that of the person holding the ' I . office specified therein". \ I I There is no dispute that, though PW3 was a wildlife officer within I . . ' the meaning of section 3 of Gap. 283, he is of the rank of wildlife . I I warden. This is a rank different from that of a wildlife officer spelt out . I . in t.he quoted provision. It is alsJ clear that he is the maker of exhibit I P II whose preparation requires \that it conforms to the provisions of ' section 114 (3). It follows, the~efore, as rightly submitted by the I Respondent'·s Counsel, that the\ evaluation and certification in this I case was done by an incompetent I officer, and this violation I renders it a mere farce which cdnnot be relied upon. I \ It is common knowledge th:at evaluation and certification 1s I ' the trophy, in order to determine intended to ascertain the value 0f I I the appropriate sentence that should be imposed against a I convicted accused person. If thi~ process is flawed, passing of the 'I sentence which goes with the offence is, to say the least, irregular \ I I 12 I I I (: · and untenable. In this case, sentencing of the Appellant to a 20- year prison term in respect of the fourth count was based on Exhibit p II whose legality is utterly wanting. lt is my conviction that the sentence which is based on an illegal document is also illegal and it ought to be annulled. It was, therefore, a serious error for the trial court to allow admission of exhibit P II and use it as the basis for conviction and determination of the sentence in respect of the fourth count. Consequently, I allow this ground of appeal. While still on this point, one more thing needs to be looked into. This stems from the Appellant's submission that, whereas the rest of the exhibits were tendered in court, the trophy alleged to have been impounded from the Appellant was not tendered in court, to (':1 satisfy the trial court that the said trophy was ever impounded from the Appellant or at all. My scrupulous review of the proceedings and the judgment leaves no .doubt that the same was not tendered, and the trial court never bothered to ask for its whereabouts. I find this to be a serious irregularity that has left the prosecution's case to lose its spine on the last count in the charge. The prosecution bore the burden of convincing the trial court that B I . l '! indeed the Appellant was' apprehended while in unlawful I I . ., possession of a government trophy .. While the pLJrported evaluation and ce_rtification ' form. wa5 . prepared an·d uttered by _the 1 ' prosecution, the trial court ought to have been satisfactorily told as to what exactly happened to\' the impounded trophy. If the same ' was destroyed for fear of decdy, then the prosecution should have I stated so, while adducing evidJnce I of such destruction, including a I court order that preceded and '.sanctioned the destruction. I I In the absence of any traces of the alleged trophy, it is safe to I 'I assume that the same was nev~r in the possession of the Appellant and the Appellant's argumerit in this re~pect, is sound and ! 'I legitimate. The argument punches holes on the authenticity of exhibit P 11, and I am of a firm viJw that non-production of the said I ' trophy affected the weight of pr0secution's evidence on this count ' (see: Julius Billie v. Republic (1981) TLR 333 (HC)). I I I . ' Th~ Appellant's contention in the first ground is that, in the 1 absence of an independent witn ess to testify for the prosecution, l ' veracity of the testimony by PWl and PW2 is suspect, and the sole ' 14 '' I I I I I I \ I basis for this argument is that the duo is from the same office. He felt that there is a c;::hance that they would conspire ago-inst him and · fabricate evidence to incriminate him. This ground relates closely to I the second ground of app~al in which the Appellant casts I aspersion on the evidence adc;:iuced by the. prosecution witnesses. He believes that the same was fabricated on the ground that the· · trio served in tile same office. Jhe Respondent's rebuttal is to the I . effect that the ·arrest was done .at midnight and that PWl and PW2 I are the ones who arrested him. The timing of the arrest did not allow presence of an independent witness. She su~mitted further that I PW3 came from KDU Bunda, a distinct office from Serengeti National Park in which PWl and PW2 serve. t~ ·\,,· I find the Appellant's arguments novel and utterly fallacious. It is not the requirement of law tho'~ testimonies like these should be I corroborated by an independent I evidence. The provisions of the I Evidence Act, Cap. 6 R.E. 2002 only impose the burden of pro(?f to the prosecution in all cases of cri~inal nature and it doesn't matter ; who the witnesses are, or their number, as long as they are able to discharge the burden. In fact, section 127 of the said law is quite ! 15 I I I I I I - clear on who may testify in a case. Similarly, section 143 states, quite unambiguously, jjthat no particular number of witnesses shall· in any case be required for the proof of any fact". I_ also take cognizance that PW 3's employer is not the same as PWl and PW2's employer. It is factually wrong to allege that these three ' j came from the same office. But even assuming that they all came ( from the same office, that alone would not plummet the evidential value of their testimony. I find this contention perceived and lacking in merit, and I dismiss both grounds of appeal. The Appellant has .charged, in ground 3 of the appeal that the ·conviction and sentence are illegal for want of the consent of the Director of Public Prosecutions (OPP). This is in view of the fact that C, I,. count 4 of the charge is an economic and organized crime offence that only triable in the High Court, save where the OPP certifies and consents to prosecution in a subordinate court. The law imposes, under section 26 (1) of the Economic and Organized Crime Control Act, Cap. 200 R.E. 2002, a mandatory requirement that every trial in respect of an economic offence 16 offence should only be conducted upon the consent of the OPP. This provision is read together with section 12 (3) -and (4) of the same law. Subsection (3) provides as follows: "The Director of Public Prosecutions or any State Attorney duly authorized by him, may, in each case in which he deems it necessary or appropriate in the public interest, by certificate under his hand, order that any case involving an offence triable by the Court under this Act be fried by a court of a resident magistrate". Failure to abide by this mandatory requirement of the law has a dire consequence as observed by the Court of Appeal in Rhobi Marwa Mgare & 2 Others v. Republic, Criminal Appeal No. 192 of 2005 (Unreported). It was held: "It follows that in the absence of the DPP's consent and certificate of transfer of the economic offence to be tried by Tarime District Court, in terms of section 12 (3) and 26 (1) of the Act, the subordinate Court had no jurisdiction to try the case. The trial was thus a nullity and the ensuing conviction and 17 a!,· (} ( sentences are nothing but nullities. Even the proceedings before the High Court on first appeal were a nullity.". My scrupulous review of the court record .reveals that Consent · and a Certificate conferring jurisdiction to the trial court were issued on 30 th March, 2015, and they were both signed QY the State Attorney In charge, at Musom6. These twin documents were issued and filed in court before trial hearing began, thereby complying. with the requirements of section 12 (4) of the Act. This vindicates the learned Counsel for the Respondent who maintained that the same were filed in court and that no violation of the requirements of the law was committed to justify the Appellant's contention. Accordingly, it is my finding that this ground of appeal lacks legs on which to hold. In the fifth ground, the Appellant has taken exception to the way his evidence was treated. He is of a strong belief that the trial court based its findings on the prosecution evidence, ignoring his defence and this led to denial of justice. He maintained his innocence, blaming the trial court for not facilitating attendance of 1.8 .) . \ - I two of his intended witnesses who he alleges they were together on ',i. the fateful day. These 'witnesses' would prove that he did not commit any of the alleged otfences. This argument hardly sells to me. The Appellant's testimony in defence was taken into I consideration during the trial .court's evaluation and analysis of evidence. ·This can be found at. page 8 of the impugned judgment. The trial court found, in the end; that it did little or nothing to punch holes in the prosecution's case and this led to the trial court's conclusion that the prosecution presented a credible case. The Appellant ought to know that the duty of marshalling evidence to support the case lies with parties to the suit. It is too much of an ask to require the trial court to serve as an agent of a ·c· party and try and procure witnesses for the party. It was in the Appellant's interest to defend his case and that included calling witnesses of his choice. This ground is patently wanting and, I hereby reject it out of hand. I, therefore, agree with the Course! for the Respondent that the trial court directed its mind well and I find no basis for which to fault 19 . G" - the findings of the trial court, save for conviction and sentence in : . respect of the 4th count . . Before I pen off, I wish to point owt what I consider to be a serious irregularity that has marred the trial court's judgment. I do so even though such irregularity was not raised as a ground of appeal, and I apply the principle 1·aid down in the case of CPL Edward Molima v. Republic (CAT) Mwanza, Criminal Appeal No. 15 of 1989 (Unreported). The Court of Appeal had this to say: 11 As already pointed out, the appellant has not sought to challenge his conviction either in· his notice of appeal or the memorandum of appeal. We have asked ourselves whether it is proper for us to examine and consider propriety of the ( ~ conviction ... we are satisfied that if is elementary law that an appellate court is duty bound to take judicial notice of matters of law relevant to the case even if such matters are not raised in the notice of appeal or in the memorandum of appeal. This is so because such court is a court of law and not court of . . ... " part1es 20 ( A cursory glance at the impugned judgment reveals that the l, trial court did not enter a convictior:1 against the Appellant, i, 1 . ' consistent with the provisions of sections 235 (1) and 312 (2) of the • I i Criminal Procedure Act, (supraJ. This is a gross error which renders I I the judgment and the eventuql sentence invalid. This firm position has been emphasized in the recent judicial pronouncements made by the Court of Appeal of Tanzania. In Kelvin Myovela v. Republic, ' I Criminal Appeal No. 603 of 2015 ',(Unreported}, it was held: "It is not sufficient to find dn accused guilty as charged. ' Failure to enter a conviction renders a judgment invalid. In fact, there is no valid juqgment without a conviction I having been entered, as it is one of the prerequisites of a I ( ✓ valid judgment". I This decision followed in the footsteps of another decision in i Hassan Mwambanga v. Republic,i Criminal Appeal No. 410 of 2013 (Unreported), in which the Cou~t of Appeal laid the following i ! position: i 21 "It is now settled law that failure to enter a conviction by any trial court, is a fatal and irycurable irregularity, which renders the purported judgment and imp~sed sentence a nullity, and the same one incapable of being upheld by the High Court in the exercise of ifs appellate jurisdiction". C·.-· .. From these decisions, this kind of irregularity can only be cured by remitting file to the trial court with a direction that the said court should compose a new judgement, convict and sentence the accused person appropriat~ly. In the circumstances of this case, doing so would not only become a mere academic exercise, but it would also perpetrate (''.' an injustice on the Appellant who has served his jail term for a period exceeding three years. This is so, since the maximum sentence of 20 years that he is currently serving is in relation to a count which was neither proven sufficiently _nor was it based on a valid evaluation and certification. This means that the Appellant is left with a maximum sentence of three years imposed based on <;µ~-- 22 three counts whose proof and conduct has been left unscathed by this Court. The jail term ran from 23 rd September, 2015, when he was committed to prison. In the final analysis, I partly allow the appeal in as far as third I ground of appeal is concerned, quash th~ finding of guilt and set aside the senten·ce against the appellant. I order that the appellant be released from custody and set free forthwith unless he is held or detained for any other IGwful cause. It is so ordered. Date: 12/04/219 Coram: Hon. M. K. Ismail, J Appellant: Present in person Respondent: Ms. Gisela Alex, State Attorney 8/C: C. Misungwi Ms. Alex: The matter is for judgment delivery and we are ready. Appellant: I am ready for the judgment. Court: Judgment delivered in chamber in the presence of the Ms. Gisela Alex, State Attorney for the Respondent and in the presence of the App~Jl~fiff[cffrr~~t:4s. Misungwi B/C today 12th April, 2019. "~/ •, \ ·/---- -··-~-< ,,;[ I'~~ ,/?..,: o:;;..,,.. ,. . _., . . . . "'·,"' . . . ,<:'1-· \,. ' I/ J/ /' ,..., ,'; \.'·-,:,\\ . 1~~1 (t" 1 \/f\ ·\:~;l~ /("'/ 4;rw •f{, it -1.,.:,.,·.•. 1\!\ 1,.,,::1 \•,· l ~- 1 \ r-:;.~·.·:.".-.._½;. ~ '1\{. l '.;_ '~{'1, t •i,. \ I1 ii ·;;;·· '· .,.,· I '! -~p ) • I ,.l- \ I ,~\I\/• . \. \ \ f~;~r\ ·,1.:~"J-·}:7/.,t I JUDGE ,\ ,/ \~:\\ JI.,: ·,,,,· ~,/ \/~~I :l / Ji c'I ,;)C;;''°"' At Mwan'ta "--.:.:::.i)·'--- ,.,,,4ti - '-t~:. . \'•·, .·· •4 .. , . _ j~ ........... _ _ ~~.---::. ,. .~~--.. _ ~.(l \j,'\J t), 12th April, 20 r9::::::~;· ' 24