20181015 TZHC Mwanza

,, IN THE HIGH COURT OF TANZANIA I AT MWANZA I APPELLATE JURISDICTION· .CRIMINAL APPEAtl NO. 122 OF 2018 ; I { Originating Criminal No. 103 of 2014 of the District Court of Serengeti District at Serengeti) I I .• .• II MARWA CHACHA @ ROMANI. .................................. APPELLANT II VERSUS I THE REPUBLIC ................................................... RESPONDENT . , I . JUDGMENT ·, Hearing concluded .... 13/08/2018 I Judgment delivered .. 15/10/2018 GWAE, J In the District court of Serengeti at Se~engeti, the appellant named above I i stood charged with, tried and convicted of three offences, namely, l unlawfully entry to the National Park c1is 21 ·of the National Park Act Cap 282 as amended by the Written Law (1iscellaneous Amendments) Act 11 of 2003, unlawful possession of weapons in the National Park c/ s 24 (1) ' (B) and section 2 of the National Pa~k Act (supra) and ~f unlawfully I . possession of Government trophies· c/~ 86 (1) (2) (b) of the Wildlife .· Conservation Act, No. 5 of 2009 read tog~ther with paragraph 14 ( d) of _the ~ l I first schedule and section 57 (1) and 60 (2) of the Economic and Organized . ' Crimes Control Act,. 200 R. E, 2002, ' Initially, the prosecution alleged that ion the ZO th day of September I 2014, the appellant and another perso~ called Gai s/ o Maga be @ Sabai ' were found having entered Serengeti National park, with a knife and two - I . animal trapping wires and while· therei1 they were found in possession of two pieces of fresh meat of wildebeest and fresh skin of wildebeest valued ' at Tshs. 975,000/ = the lawful projperty of the United Republic of I Tanzania. I I Aggrieved· by the trial court decision, the appellant filed this appeal whose I 1 petition of appeal lists a totai of five grou nds of appeal, to wit; I ' seizure 1. That, there was no certificate of 2. That, there was no evidence bf chain of custody of the exhibits ' tendered namely; knife and animal trapping wires (PE2) 3. That, the contents of Certificate of Valuation (PE3) were read I . after its admission 4. That, the appella_nt was nor incorporated in the valuation _ 5. That, the trial court did not con'.sider the appellant's defence I i I I 2 ' At the hearing of the appellant's appeal, the appellant fended himself while I the Republic was represented by Mr. ',~arumuna, the learned senior state I attorney. 1 ' Supporting his appeal, the appellant ~argued that he was arrested while ' standing at the area adjacent to the National Park but was not in I possession of any Government Trophy.I I I In his .reply the appellant's submission, the learned counsel for the . ' Republic, opposing the appeal, argued in respect of the 1st ground that ' failure to produce certificate of seizur~ and inventory does not invalidate l I . the offence of being found in unlawful possession of government trophy I provided seized weapons and government trophies were tendered in court for evidential value. 'I I I rd In respect of the 3 ground of appeaf, learned state attorney submitted I that the government trophies were tkndered in the presence of the I appellant he however admitted that the I ' contents of the certificate of I valuation (PE3), as per trial court, were ~ot read over to the court, to the • ..,_ · appellant in particular. \ _ ~ '' - 'I .3 Finally, the respondent's representative argued that the appellant's defence was considered by the trial court magistrate when comp9sing his respectful judgment. In his rejoinder, the appellant strongly reiterated that he was not present during the purported tendering of the prosecution exhibits and the trial . . court's admission thereof. · In determining the 1 st ground of appeal, I think it is prudent to keenly look at the record to ascertain if the certificate of seizure and inventory were produced during trial or during preliminary hearing. After I have carefully looked at the trial court, I have observed that neither certificate of seizure nor inventory that were produced in court as exhibits in support of the prosecution case. It is usually the practice of investigation particularly in the offence of being found in unlawful possession of government trophies like in the present (3 rd count, the investigation machinery used to seek inventory from the courts to dispose of those subject to decay or those which are perishable. It is however really wanting in law that an accused should be incorporated in the destruction exercise vide an order of a court of law at the stage of /. preliminary hearing. This is in conformity of the provision of law, this I position of law was rightly stre~sed by the Court of Appeal sitting at Tabora . I Registry in an appeal "Emmanuel Saguda and another v. Republic, I Criminal Appeal No.433B of 2013" where it was held and I quote part of the decision; "The Government trophies found fn possession of the appellants I . were required to be tendered in courts as exhibits. This was not done. Instead a certificate of yaluation and inventory form were tendered and admitted in court. The appellants did not have an opportunity to raise an objectidn". In our case it is even worse to find the 1ppellant was not only denied his I presence during destruction and filling of inventory if any but during trial I also the same was not produced. This purported omission by the prosecution goes to the root of the ca~e particularly in the offence of unlawful possession of government trophies (Two pies of fresh meat of wildebeest and one skin of the same anim~I. I I think there ought to be tangible evi_dence as to the said government trophies, if it were not possible to producJ 2 pieces of fresh meat and skin of wildebeest, the prosecution ought to c6mply with requirement provided under section 353 (2) of the Crimin;I Pr~cedure Act, Cap 20 R. E, 2002 ~)~ - I where if exhibits were subject to decay there ought to be sufficient evidence to that effect for instance \producing inventory, for easy Of . reference section 353 (2) of CPA is. herer below reproduced: "353 (2) If anything which has been tendered or put in evidence in I - any criminal proceedings before any court is subject to speedy and natural decay the court may, at Jny I. ·stage of the proceedings or . at any time after the final disposa~I of such proceedings, order that it I be sold or otherwise disposed of Ibut shall hold the proceeds of the sale and, if unclaimed at the expir:ation ·of a period of twelve months I after the final disposal of such proceedings or any appeal entered in respect thereof, shall pay such prdceeds into the general revenues of the Republic". . I I In our preseht case there is neither inventory that· was produced to substantiate that the alleged government trophies were actually found in - . . I . possession of the appellant and another,! seized and then destroyed due its decay nor oral evidence give by any prosecution witnesses for its failure to produce inventory. I I If the learned Resident Magistrate carefully assessed the evidence before him, he could have not arrived at the co~clusion that the offence in the 3m count was sufficiently proved. Emphasis las to objective assessment of the evidence adduced by both sides ha: blen consistently made in various l)fwf2. -. ·I I ~· 1 courts; decisions for in instance in Jona s Nkize v. Republi (1992) T. L.R I 213, held inter alia t~at: "While the trial Magistrate has to look at the whole evidence in· answering the issue of guilt, s!ch evidence must be there first, including evidence against the accused, adduced by the prosecution; the general rule in ~riminal prosecution that the onus I of proving the charge against the accused beyond reasonable doubt lies on the prosecution, is: part of our law, and forgetting or ignoring it is unforgivable, and is (a peril not worth taking". I ' Probing the trial court judgment, to my established view, I think the trial 1 court ought not to ignore this very vital requirement as correctly raised by the appellant. This ground of appeal is foLnd meritorio~s. Having taken this . ' . ' view, guilt of the appellant in respect of the offence in the 3rd count is I . found to have not been sufficiently established unless there was only contention of failure to tender a certifijte of seizure. Owing to the above finding, it suffices thbrefore to hold that the appellant was rightly convicted for the offences in the 1 st and 2 nd count unlike in the rd l 3 count. It follows therefore; the appellant's convictions and sentences in respect of the 1 st and 2 nd I count are confirmed while conviction and ~nt: - 7 ... sentence in respect of the 3 rd count are hereby quashed for the reason stated herein above For the aforegoing rea_sons, the appelllnt's appeal is Partly allowed, the trial court decision on the count of unlawful possession of Government Trophies (3 rd count) is hereby is heleby quashed and set aside. The conviction and sentence in respect of Jhe 1st alld 2nd count are upheld. Since the appellant was convicted and Jentenced on 28.4 2016, therefore, it is. certainly that he must have finis~ed serving one year sentence in respect of the 1st and 2nd count whoJe sentence were ordered to run concurrently. He shall therefore be relelsed from prison forthwith unless withheld therein for different lawful causl. · 8