manyangu hogo ngusa and simon machupa sagala vs republic 2020 tzhc 4024 4 december 2020

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA CONSOLIDATED CRIMINAL APPEALS NO 138 AND 143 OF 2020 1. MANYANGU s/o HOGO @ NGUSA 1st APPELLANT 2. SIMON s/o MACHUPA @ SAGALA 1st APPELLANT VERSUS THE REPUBLIC RESPONDENT (Arising from the decision and orders of the district court of Serengeti atMugumu, Hon. Semkiwa RM in economic case no 42 of 2019 dated 19.06.2020) JUDGEMENT 17h November & 4h December 2020 GALEBA, J. Mr. Manyangu s/o Hogo @ Ngusa together with Simon s/o Machupa @ Sagala, were jointly charged before the district court of Serengeti in economic case no 42 of 2019 and were both found guilty of having, on 14.05.2019, entered into the Grumeti Game Reserve and were found in possession of two (2) carcasses of the animal Impala. In respect of the 1st count the accused were sentenced to two (2) years imprisonment and on the 2nd each of them was sentenced to twenty (20) years i imprisonment or payment of fine of Tshs 17,160,000/=. The appellants were dissatisfied with both conviction and the corresponding sentences, hence these consolidate appeals in which they raised 4 grounds of appeal. The appellants' grounds of appeal are, first, that the trial court tried them without jurisdiction because it did not have the certificate from the Director of Public Prosecutions (DPP) to vest jurisdiction to that court to try the case, second, that the conviction in respect of the 2nd count was not proved because when the order to destroy the trophies was being made, they were not present and they did not sign the inventory and third, that the trial court erred in convicting and sentencing they while they did not call their key witnesses. They also complained, fourthly, that the trial court did not consider their defence and weigh it against the prosecution evidence. The issue is whether the individual grounds raised to challenge the decision of the trial court have any substance. At the hearing of this appeal over video link, the appellants prayed that the court be pleased to adopt their grounds of appeal as their submissions so that Mr. Isihaka Ibrahim, learned state attorney for the 2 respondent submits first in reply to the grounds, in order that the appellants would rejoin. In respect of the 1st ground of appeal Mr. Ibrahim submitted that the ground was misconceived because the certificate to confer jurisdiction in the trial court was presented to court before the hearing commenced. I have perused the record and as submitted by Mr. Ibrahim, on 20.11.2019 the certificate issued under section 12(4) of the Economic and Organized Crime Control Act [Cap 200 RE 2002] (the EOCA) to confer jurisdiction on the subordinate court to try the case from which this appeal emanates was filed in court and the original instrument is on record. In the circumstances, the trial court had jurisdiction to try the case and the 1st ground of appeal has no merit. In respect of the 2nd ground, Mr. Ibrahim submitted that the ground is misconceived because at page 30 of the proceedings, PW4 testified that the appellants were present when the orders to destroy the trophies were procured and they signed the inventory itself. I have perused the proceedings, it is true that F. 6443 DC Pius testified that the order to procure destruction of the trophies was obtained in the presence of the 3 appellants and I have perused the original record and indeed, it is shown that the two appellant signed the Inventory of Claimed Property which was admitted as EXHIBIT PE3. In the circumstances, the complaint of the appellants in the 2nd ground has no merit. In addressing the 3rd ground of appeal Mr. Ibrahim submitted that, the appellants were permitted to call their witness only that on page 38 of the typed proceedings they prayed to close their cases. Once again I have to agree with Mr. Ibrahim in this case. That is so because when the appellants were found with a case to answer on 03.04.2020 the 1st accused stated that he would not have any other witness except himself and the 2nd stated that he would call one witness. However later on 27.05.2020 the 1st accused stated that he does not have any more witness and he prayed to close his defence and the 2nd accused submitted that as his witness was nowhere to be seen he prayed to close his defence. With such record, the complaints in the 3rd ground become an afterthought. Based on the above the 3rd ground of appeal is hereby dismissed. In respect of the 4th ground of appeal, Mr. Ibrahim submitted that the defence of the appellants was analyzed in the 2nd paragraph at page 5 4 and the 2nd paragraph at page 6. I agree with Mr. Ibrahim that the trial court considered the defence and dismissed its authenticity. At page 6 of the judgment the court stated that it did not agree with the defence and convicted the appellants. Therefore I do not agree with this ground of appeal. In the circumstances, as all four (4) grounds of the two appeals have been dismissed, Criminal Appeals no 138 and 143 of 2020 by Mr. Manyangu s/o Hogo @ Ngusa and Simon s/o Machupa @ Sagala, have no merit and the same are hereby dismissed. Mr. Manyangu s/o Hogo @ Ngusa and Simon s/o Machupa @ Sagala shall continue to serve the sentence of twenty (20) years imprisonment that was imposed upon them on 19.06.2020 by the district court of Serengeti. The appellants have a right of appeal to the Court of Appeal of Tanzania. DATED at MUSOMA this 4th December 2020 Z. N. Galeba JUDGE 04.12.2020 5