MALISAWA MZUNGU KIBELA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF SHINYANGA) AT SHINYANGA CRIMINAL APPEAL NO. 13249 OF 2023 (Originating from Economic Case No. 66 of 2023 Bariadi District Court) MALISAWA S/O MZUNGU @KIBELA…............................APPELLANT VERSUS THE REPUBLIC……………..…………..…………….…….…RESPONDENT JUDGMENT 18th June & 26th July, 2024 MASSAM, J:. The appellant herein above was charged before the District Court of Bariadi at Bariadi with two counts. One, Unlawful Possession of Weapons in the National Park contrary to section 17 (1) (b) and (2) of the National Parks Act [Cap 292 R.E of 2002]. Second, Unlawful Possession of the Government Trophies contrary to section 86 (1) and (2) (b) of the Wildlife Conservation Act No. 5 of 2009, read together with paragraph 14 of the first schedule to, Section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act (CAP 200 R.E 2019). 1|Page The briefs facts of the case are that, on 5th day of September, 2023 at Nyankoromo area in Serengeti National Park within Bariadi District in Simiyu Region, accused/appellant was found in lawful possession of weapons to wit; -one panga and two animal trapping wires without the permit and failed to satisfy the authorized officers that the same were intended to be used for purpose other than hunting, killing, wounding or capturing of wild animals. Meanwhile, on the same date and place, the accused/appellant was found in unlawful possession of Government trophy to wit; -one fresh head of warthog, equivalent to one warthog unlawful killed at a total of USD 450, equivalent to Tanzania Shillings One Million One Hundred Twenty- Five, and Two Hundred and Fifty (1,125,250/=) only the property of Tanzania Government without the valid Permit from Director of Wildlife. After the full trial, the appellant was found guilty with two offences, convicted and sentenced, for first count to pay fine in tune of 100,000/= in default to serve one (1 year) imprisonment and for second offence to pay fine in tune of 1,000,000/= in default to imprisonment of 20 years in jail. 2|Page Aggrieved therein, the appellant rightly lodged his appeal in this court with 4 (four) grounds as follows; - 1. That, the trial court erred both in law and in fact to hold conviction in insufficient evidence which adduced by the public witness. 2. That, the trial court erred both in law and in fact to accept inventory form as exhibit instead of bringing the trophies in court as the charge read over, thus left a shadow of doubts. 3. That, the trial Magistrate court erred in law and infact to hold conviction while game rangers arrested me when I was grazing cows. 4. That, the trial magistrate court erred in law and in fact to pass sentence without calling any independent witness who witnessed if it is true that I possessed the said government trophies. During the hearing of this appeal, the same was argued orally and the appellant appeared in person unrepresented, while the respondent was represented by Mr. Saguya learned State Attorney. 3|Page In submitting his appeal, the appellant contended that, the trial court did not do justice when convicted him, hence prayed to be left free. In response, the learned State Attorney for respondent strongly opposed the appeal and supported both conviction and sentence imposed by the trial court. With regard to the grounds of appeal submitted by the appellant, the counsel chooses to combine grounds no. 1, 2, and 3 to urge it jointly while ground no. 4 to urge it separately. In submitting that grounds of appeal no. 1, 2 and 3 where the appellant complained that he was convicted by insufficient evidence, also the court erred by accepting the inventory instead of bringing the said trophy to the court as he was not found with that trophies but he was grazing, in replying the same Mr. Saguya submitted that prosecution side proved the offence against appellant through the evidence adduced by four witnesses. He stated that the testimony of PW1 revealed that he was park ranger and on the fateful date he was in his normal patrol with his fellow rangers, he saw three persons but they managed to arrest only one person with one head of warthog, two trap wires and one bush knife. Appellant introduced to them as Malisawa and PW1 identified the appellant to the court. He argued further that PW1 took GPS map to the area where they found appellant, 4|Page they signed certificate of seizure and appellant signed it by finger print, all exhibits were tendered to the court, and appellant did not object the same. Moreover, Mr. Saguya stated that the evidence of PW2 was the same with that of PW1, he added that he identified the appellant to be the one who was found in that scene. Again, he stated that PW3 was the valuer, who identified that trophy, evaluated the same and filled valuation report, which was not objected by the appellant when prayed to be tendered to the court as exhibit. It was submission of Mr. Saguya, that PW4 was the investigator who was called by PW3 to evaluate that trophy and he told the court how the movement of exhibit was conducted through chain of custody. Also the same witness was the one who took the appellant to the court, and the the tendered inventory was used on behalf of the said trophy as per PGO 229 para 25. As the said trophy was destroyed after the order of the court after the same be found spoilage. Arguing in support of 4th ground of appeal, which appellant complained that he was sentenced without calling any independent witness who witnessed when he was arrested if he was found in possession of the 5|Page said Government trophy the Learned State Attorney argued that, the scene of crime was National Parks so no independent persons could be found. Also he submitted further that, the law is very clear that it is not fatal to the cases which was heard without independent witness he cemented his submission with the case of Tongora Wambura Vs. DPP, Criminal Appeal No. 212 of 2006. Lastly, he prayed this court to upheld conviction and sentence given. In his rejoinder, the appellant prayed this court to let him free. This court after been heard the submission from both sides it is in view that the appellant is challenging the conviction against him on the reason that the prosecution did not prove the case against him beyond reasonable doubts. Therefore, the main issue to be determined by this court is to whether the prosecution proved the case against the appellant beyond reasonable doubt. It is a common legal principle that in criminal law the burden of proof lies to the prosecution and the standard is beyond reasonable doubts see Section 110 and 112 which read together with Section 3 (2) (a) of the Evidence Act [Cap 6 RE 2019]. 6|Page Also in Woodmington Vs. DPP (1935) AC 462, the court held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. This is a universal standard in criminal trials and the duty never shifts to the accused, See also the case of Christian Kale & Another Vs. The Republic (1992) T.L.R 302 CAT and John Makorobera & Another Vs. The Republic (2002) T.L.R 296, where it was firmly held that the accused person should only be convicted of an offence, he is charged with on the basis of the strength of the prosecution case not on the weakness of the defense case. The term beyond reasonable doubt is defined in case laws, see Magendo Paul & Another Vs. Republic (1993) TLR 219 where the Court held that: "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favor which can easily be dismissed." I now turn, to consider the submission of both parties, appellant argued that the trial court did not do justice when convicted him as he was convicted by the insufficient evidence, trophies which alleged to be found 7|Page with was not brought to the court and no independent witness was called. On his part Mr. Saguya argued that the prosecution proved the case beyond reasonable doubt, through prosecution witnesses where by PW1 and PW2 said that they arrested the appellant in National Park in possession of one head of Warthog, two trap wires and one bush knife. PW1 took GPS map to the area where they found appellant, they signed certificate of seizure and appellant signed it by finger print, all exhibits were tendered to the court. Moreover, Mr. Saguya added that PW3 was the valuer, who identified that trophy, evaluated the same and filled valuation report. Additionally, he submitted that PW4 was the investigator and he said how the movement of exhibit was conducted through chain of custody, the same witness took the appellant to the court, and the inventory was used on behalf of the said trophy which was destroyed after the order of the court. After going through the submission of both parties and court records this court found out that the testimony of PW1 and PW2 showed that the appellant was arrested in National Park with one bush knife, two animal trapping wires and in unlawful possession of one fresh head of warthog. PW3 produced inventory to the court which was not objected by the 8|Page appellant while PW4 as investigator said how the movement of exhibit was conducted through chain of custody which was tendered to the court as exhibit P6 without objection and so, from such analysis, this court is in support with the submission from the prosecution side that they managed to prove their case beyond reasonable doubt as it was in the case of Mohamed Haruna @ Mtupeni & Another Vs. R, Criminal Appeal No. 25 of 2007 CAT (unreported) where it was held that; "of course in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." On the ground that, the court erred in admitting inventory form as exhibit instead of trophies. Mr. Saguya argued that PW3 was the valuer, who identified that trophy, evaluated the same and filled valuation report, while PW4 was the investigator said how the movement of exhibit was conducted through chain of custody and the inventory was used on behalf of the trophy which was destroyed after the order of the court. At this point, it is important to note that, the procedure of admitting an inventory as exhibit was done properly and procedure of chain of 9|Page custody was adhered and hence there was no need of tendering trophy as exhibit in the court of law as the same was destroyed after being found spoiled.For more clarity, the rationale of chain custody when comes to exhibits was explained in the case of Chacha Jeremiah Murimi and 3 Others versus Republic, Criminal Appeal No. 551 of 2015, where the court held that chain of custody when comes to exhibits is very important to prove origin and custody of the exhibits up to the time such exhibits are taken to court. The aim is to prove that such exhibit was not tempered anyhow. Responding to the ground that the trial court convicted the appellant without independent witness. Mr. Saguya submitted that, the law is very clear that it is not fatal to the cases which was heard without independent witness. This court is in support with the prosecution submission that there are many decided cases from court of appeal which support that it was not fatal the accused person to be convicted without calling of the independence witnesses, see the of Tongora Wambura v DPP, Criminal Appeal No. 212 of 2006 CAT Arusha where the court held that ‘’As to why there was no independent person to witness the arrest, that, in our considered view, depend on the particular circumstances of 10 | P a g e each case. However, it should be emphasized that the absence of such people, perse, did not render the operation illegal or the prosecution case fatal’’. Being guided by the authority above and submission of the both parties. This court is in the view that the absence of independent witness in this case does not render the prosecution case fatal because the evidence adduced by other witnesses proved the case beyond reasonable doubt. In view of the aforesaid, this appeal has no merit. I uphold the conviction and the sentence given to the appellant and I do not find cogent reasons to disturb the findings of the trial court. I accordingly dismiss the appeal. It so ordered DATED at SHINYANGA this 26th day of July, 2024. R.B. Massam JUDGE 11 | P a g e