20171213 TZCA Mwanza

· IN THE COURT OF APPEAL OF TANZANIA \eb GE.,'\., l \l ATMWANZA (CORAM: LUANDA. J. A.• MMILLA. J. A.• And MKUYE. J. A.) CRIMINAL APPEAL NO. 471 OF 2015 MANDELA MASI KINI @ KASALAMA .................... ................ APPELLANT VERSUS THE REPUBLIC ........................................................... RESPONDENT (Appeal from the decision / Judgment of the High Court of Tanzania at Mwanza) (De-Mello J.) Dated the 30 th day of September, 2015 In HC. Criminal· Appeal No. 37 of 2015 JUDGMENT OF THE COURT sth & 13th December, 2017. MKUYE, J .A.: This is a second appeal. The appellant MANDELA MASIKINI@ KASALAMA along with another person who was subsequently acquitted were charged with the offence of unlawful possession of Government trophy contrary to section 86(1) and (2) of 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. All the accused denied the charges and. at the end of the trial the appellant was found guilty, convicted and 1 sentenced to pay a fine of Tshs. 78,400,000/= or to 20 years imprisonment, while the other one was acquitted. Being aggrieved by· his conviction, the appellant preferred an appeal to· the High Court but it was dismissed. Still protesting his innocence, he has brought to this Court an appeal which consists of two grounds in which we think, his complaint is based on the strength of evidence on which his conviction was based. The facts leading to the case can be briefly st~ted: On 23/10/2013, PW1 AZIZI BARECHE and PW2 KALIST BUTARE KAMALIZA, both game wardens, while working under the Programme known as Operation Tokomeza, received information/tip regarding people who wanted to transport government trophy by means of a motorcycle, blue in colour, with Reg. No. T. 466 BFR. PW1 testified that, on the same day the two game wardens together with a police officer Goodluck went at Kiloleli village and set a road block. At about 08.30 hrs. they saw a motorcycle carrying two passengers. When they stopped it, it did not stop. They chased it by using a motor vehicle they had and managed to stop it at a distance of 300 metres and found the two persons, including the appellant who was a passenger holding a luggage. PW1 and his fellows opened it and found a lion skin in the said luggage. The skin was taken to PW3 EDWIN MWOYA, a wildlife warden, 2 for examination and he certified it to be a lion skin valued Tshs. 7,840,000/= and the certificate thereof was tendered in trial court as Exh. P3. In defence each accused denied involvement or rather possession of the lion skin. Whereas the appellant pointed a finger to the 2nd accused while claiming he was merely given a lift; the 2nd accused said he was just hired by the appellant who came with a luggage and he agreed to ferry him at the fare of Shs. 5,000/=. When the appeal was called on for hearing the appellant appeared in person and fended for himself as he was unrepresented; whereas the respondent Republic enjoyed the services of Mr. Castuce Ndamugoba, learned Senior State Attorney, assisted by Ms Darcus Akyoo and Mr. Morris Mtoi both learned State Attorneys. When invited to elaborate his appeal the appellant opted to let the learned Senior State Attorney to address the Court first and reserved his right to make a reply later if need arises. From the outset, Mr. Ndamugoba declared his stance that he was supporting both conviction and sentence. Submitting· in support of his stance, Mr. Ndamugoba contented that there was sufficient evidence from material witnesses PWl and PW2 (the game wardens) and PW4 3 ,- (police officer) that the lion skin was seized from the appellant. Apart from that, he contended, the evidence of PWl, PW2 and PW3 was corroborated by DW2 ( co-accused) who testified that the appellant ·was found with the lion skin. He went on to submit that the evidence of an accomplice was admissible under s. 142 of the Evidence Act. He countered the complaint by the appellant that the lion skin was seized without a search warrant in that it was not a requirement under the Wildlife Conservation Act. He added that since PWl and PW2 were game officers and not police officers such requirement did not cover them. He referred to us the case of Abdallah Said Mwigereza Vs. Republic, Criminal Appeal 258 of 2013; and Omary Mohamed China & 3 Others Vs. Republic Criminal Appeal No. 230 of 2004 (both unreported). As to the complaint that the judgment lacked points of determination, Mr. Ndamugoba argued that the judgement complied with s. 312 of the CPA as shown at pg. 33 para 1 and 2 of the Record as the issue was framed and reasons for the judgment were given. He, therefore, prayed to the Court to dismiss the appeal. In rejoinder, the appellant had nothing substantial to comment but he insisted that he just asked for lift from DW2. 4 The issue to be determined by the Court is whether there was strong evidence to mount conviction against the appellant. On our part, we wish to preface by declaring that we agree with Mr. Ndamugoba's line of argument. We say so because PWl, PW2 and PW4 whom we find to be material witnesses explained clearly about what transpired on the fateful date. PWl and PW2 explained that on 23/10/2013 they got information that there was a person who was arranging to transport government trophy by a motorcycle in blue colour with Reg. No. T.466 BFR. In collaboration with PW4, Police officer they set a trap (road block) and at 08.30pm they saw a motorcycle in blue colour carrying two passengers. When they stopped them, they refused. They chased them and arrested at a distance of 300 metres while appellant was holding a luggage. Upon opening the said luggage they saw a lion skin. When appellant was asked for a permit he had none. The said skin was examined and certified by PW3 to be a lion skin valued at Tshs. 7,840,000/= as per Exh. P3. (The said lion skin and motorcycle were admitted and marked as Exh. Pl and P2). This evidence was corroborated by the evidence of DW2 ( co- accused) who testified that he was hired by the appellant who had a luggage to transport him from Kaloleli to Kisanda; and how they were arrested by the police officers who after opening the said luggage they found a lion 5 skin. His evidence was admissible under section 142 of the Evidence Act. (See Pascal Kitingwa Vs. Republic (1994) TLR 65; Humphrey Swale & 7 Others Criminal Appeal No. 188 of 2011) (unreported) DW2's evidence was also corroborated by the evidence of DW3 who had incidentally gone to hire DW2's motorcycle and saw the appellant with luggage asking for a fast transport from DW2 and he agreed for a fare of 5,000/=. From the evidence of PWl, PW2 and PW4 whom we find to be credible witnesses which is supported by DW2 and DW3 we hasten to say that the appellant was found in unlawful possession of the government trophy; to wit a lion skin. His defence that he was just given a lift by DW2 purporting to show that the luggage belonged to DW2 does not hold water in view of the credible evidence by PWl, PW2 and PW4 who arrested him with the luggage containing a lion skin, the evidence of DW2 whose motorcycle was hired by appellant; and DW3 who saw when the appellant who carried a luggage hired motorcycle from DW2 and left after the appellant paid a fare of shs. 5,000/=. Of course, we have noted that the first appellate Court upheld the trial court's decision on the basis that the appellant was recently found in possession of a stolen property. With due respect, we think that the doctrine of recent possession was inapplicable in this case. That doctrine 6 applies to theft cases. What was required in the present case was to prove as to who was found in unlawful possession of the government trophy. The appellant's complaint that there was no search warrant, we think, has no basis. On this, we are guided by our earlier decision in the case of Abdallah Said Mwingreza (supra) where we stated as follows: - •~.. even if the seizure certificate were to be ignored still there is sufficient evidence from PWl and PW3 which proved that the applicant was found with the pistol and seven rounds of ammunition. We will leave the issue of the certificate of seizure at that .. " Even in this case, we are settled in our mind that lack of certificate of seizure does not or cannot in anyway shake the strong evidence of PW1, PW2 and PW4 that the appellant was found in unlawfully possession of government trophy, to wit, a lion skin. With regard to the complaint that the judgment did not have points for determination, we agree with Mr. Ndamugoba that, that is not true. In the first place it is a requirement of law under section 312 of the 7 CPA for the judgment to contain among other things the point(s) of • determination. The provision reads: 11 Every Judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Act be written by or reduce to writing.... And shall contain the point or points for determination, the decision thereon and reasons for the decision, and shall be dated and signed by the presiding officer as of the date on which it is pronounced in open court" In this case, as was rightly submitted by Mr. Ndamugoba, it is clearly shown at pg. 33 of the record that the trial magistrate framed the issue for determination which is that "••• whether all accused person was {sic) found in unlawfully {sic) possession of the aforesaid government trophy." Thereafter the trial magistrate proceeded to determine the issues raised. We do not see why the appellant brought such complaint. Given all the circumstances of the case, we are satisfied that the appellant was convicted on the basis of the strength of the evidence which was adduced by PWl, PW2, PW3 and PW4 for the prosecution and corroborated by the evidence of DW2 and DW3 who testified for the defence. 8 • With regard to sentence meted against the appellant, we as well agree with Mr. Ndamugoba that it is according to Part I of the First Schedule to the Wildlife Conservation Act which provides for a sentence of fine of the value of subject matter times ten or imprisonment of not less than 20 years and not more than 30 years. For that reason, the punishment was within the am bits of the law. Consequently, we find the appeal devoid of merits and therefore, we dismiss it in its entirety. DATED at MWANZA this 13th day of December, 2017. B. M. LUANDA JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL I certify that this is a true copy rt the original. ~couRT OF APPEAL 9