MASALU KIJA SILYA ECO BARIADI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL REF. NO. 202405172000013251 MASALU KIJA @ SILYA ................................................ APPELLANT VERSUS REPUBLIC………………………………………………..…… RESPONDENT [Appeal from the Decision of the Resident Magistrate’s Court of Simiyu at Bariadi] (Hon. M.M. NYANGUSI SRM) dated the 23rd day of November, 2023 in Economic Case No. 25 of 2023 ----------- JUDGMENT 28th August & 15th November, 2024. S.M. KULITA, J. This is an appeal from the Resident Magistrate’s Court of Simiyu at Bariadi. The appellant herein above together with one Malimi Maduhu Sekeni who was convicted and sentenced in absentia regarding absconding bail, were collectively charged with two counts, to wit, “Unlawful Possession of 1 Weapons in the National Park” contrary to section 17(1)(b) and (2) of the National Park Act [Cap 382 RE 2002] and the offence of “Unlawful Possession of Government Trophies” contrary to sections 86(1) and (2)(c)(iii) of the Wildlife Conservation Act [Cap 283 RE 2022], read together with Paragraph 14 of the 1st Schedule to, and sections 57(1) and 60(2), of the Economic and Organized Crime Control Act [Cap 200 RE 2019]. A brief history of the case in a nut shell, as it can be gathered from the record is that; on the 10th day of May, 2023 the Appellant herein and his co- accused, Malimi Maduhu Sekeni who is at large, were unlawfully found in Possession of Weapons at Nyankoromo area in Serengeti National Park, within Bariadi District in Simiyu Region, without permit. The said weapons were 1 (one) Panga, 1 (one) Knife and 2 (two) animal trapping wires. The record further reveals that, at that same place the culprits were also found in possession of Government Trophies, to wit, 1 (one) fresh tail of wildebeest, 1 (one) fresh hind limb of wildebeest and 1 (one) fresh head of wildebeest, without permit. Upon the matter being heard and fully determined by the trial court, the Appellant and his co-accused who is at large, were found guilty on all two counts. They were accordingly convicted and sentenced to 1 (one) year 2 imprisonment term or to pay a fine of Tsh. 100,000/= for the 1st count which is “Unlawful Possession of Weapons in the National Park” and 20 (twenty) years’ imprisonment for “Unlawful Possession of Government Trophies” which is the 2nd count. Aggrieved with both, convictions and sentences, the appellant herein lodged this appeal with 3 (three) grounds which can be summarized as follows; 1. That, the trial court failed to evaluate the evidence adduced by the prosecution side. 2. That, the trial court accepted and acted upon the weak and contradictory evidence of the prosecution side. 3. That, the trial court wrongly convicted and sentenced the Appellant while there was nothing tendered to court as exhibit. The matter was argued through oral submissions. The Respondent (Republic) was represented by Ms. Rose Kimaro, Learned State Attorney while the Appellant was unrepresented. In his oral submission in support of the appeal the appellant prayed for his grounds of appeal in the Petition to be adopted as the submission for his 3 appeal. He concluded by praying for the appeal to be allowed and he, accordingly be acquitted. In the reply thereto the Learned State Attorney, resisted the appeal. In her oral submission in opposing the appeal, the State Attorney, Ms. Rose Kimaro, started to submit on the 1st ground of appeal which states that the trial court failed to evaluate the evidence adduced by the prosecution side. The Counsel stated that, contrary to the Appellant’s allegation, the trial Magistrate evaluated the evidence that had been adduced before her for the 1st count, that is “Unlawful Possession of Weapons in the National Park”. However, the counsel admits that there was no sufficient analysis on the evidence for the 2nd count which is “Unlawful Possession of Government Trophies”. On this, the State Attorney argued that, the trial Magistrate said nothing in her judgment on the exhibits that had been tendered to court in connection with the trophies in question. The Counsel mentioned the said exhibits being; Valuation Report for the trophies (exhibit P5), Inventory Report Form (exhibit P6), and chain of custody (exhibit P4). Ms. Kimaro further stated that the said fault by the presiding Magistrate is curable. She said that, this being the 1st appellate Court has powers to step 4 into the shoes of the trial court proceedings and re-evaluate the evidence that had been adduced at the trial court. She said that, as for the matter at hand, upon regarding the said mentioned exhibits as well, the prosecution evidence at the trial court becomes sufficient to prove the offence of “Unlawful Possession of Government Trophies” which is the 2nd count. Submitting the reply to the 2nd ground of appeal, Ms. Rose Kimaro, State Attorney, submitted that the case at the trial court was proved beyond reasonable doubt. She said that the prosecution evidence at the trial court was neither weak nor contradictory as alleged. Further submitting on it the State Attorney stated that the lower court’s proceedings transpires the Park Ranger (PW1) stating that on the material date and time, while in patrol with his fellow Rangers including PW2 at Nyankoromo area within Serengeti National Park, they found therein, the appellant and his fellow culprit who is at large. The counsel further stated that, according to the testimonies of PW1 and PW2, the Park Rangers who arrested the culprits while conducting patrol over that area, they found them holding weapons, to wit, 1 (one) Panga, 1 (one) Knife and 2 (two) animal trapping wires. She further narrated that the 5 said culprits were also found in possession of trophies, to wit, 1 (one) fresh tail of wildebeest, 1 (one) fresh hind limb of wildebeest and 1 (one) fresh head of wildebeest, without permit. The Counsel further submitted that, in his testimony PW1 testified to have filled a Certificate of Seizure (exhibit P1) for the said trophies and weapons. It is the submission of the State Attorney that, upon seizing the trophies, whose inventory was admitted as Exhibit P6, PW1 also seized the weapons (exhibit P3 collectively). The State Attorney stated that PW1 also recorded the GPS coordinates for the point where the culprits had been found. He took it to the Control Room which is the printing office and the map extracted therefrom (exhibit P2) revealed that the location was Nyankoromo, the area which is within Serengeti National Park. The State Attorney further stated that the said exhibits P1, P2 and P3 were identified by PW2, a Park Ranger who was together with PW1, his fellow Park Ranger, during the arrest of the culprits and seizure of the aforementioned exhibits. Hence, he corroborated the testimony of PW1. It is the submission of the State Attorney that during trial the Prosecution side called PW3, a Police Officer who was the Investigator of the case and 6 the one who had filled a chain of custody (exhibit P4) regarding the movements of exhibits from the time they were received at the Police Station. She added that, the Wildlife Officer (PW4) who is an expert in Wildlife matters, testified to the effect that he had seen the trophies and identified them being 1 (one) fresh tail of wildebeest, 1 (one) fresh hind limb of wildebeest and 1 (one) fresh head of wildebeest. The Counsel further stated that the said witness, PW4, gave the particulars for the identification he had made for the said trophies. She added that the said witness (PW4) also filled the Trophy Value Certificate (exhibit P5). She further stated that the said trophies are easy to decay, hence PW4 filled the Inventory Report (exhibit P6) for the disposal purposes. Further submitting on the proof of a case at the subordinate court, the State Attorney, stated that the evidence in the trial court’s record is clear that the Appellant herein, and his fellow culprit who is at large upon absconding bail, were actually found at Nyankoromo area which is within Serengeti National Park, and that they were unlawfully holding the alleged weapons and the government trophies. 7 Submitting a reply to the 3rd ground of appeal, the State Attorney, Ms. Rose Kimaro, stated that the Appellant and his fellow culprit were found with the alleged weapons and trophies and upon regarding nature of each of them, they were admitted and marked as exhibits P1 to P6. She averred that, it is not true that there was no exhibit tendered to court during trial. The State Attorney concluded her submission by praying for the appeal to be dismissed for being unmeritorious. The Appellant had no rejoinder. Hence, submissions from both parties ended up there. From the aforesaid submissions, the issue to be determined is whether the appeal is meritorious. Starting with the 1st ground of appeal in which the appellant alleged that, in composing its Judgment, the trial court failed to evaluate the evidence adduced by the prosecution side. In her reply submission the State Attorney stated that she has noticed that fault on the issue of trophies, but for the weapons the impugned judgment shows that the analysis was properly done. I went through the original record, particularly at pages 5-6 of the impugned judgment and noticed that, save for the issue of Trophies of which the trial 8 Magistrate did analyze in partial and the State Attorney so admits in her submission, the evidence that had been adduced before the trial court in respect of weapons, was fully analyzed whereby the Magistrate stated that the culprits including the appellant herein were actually found within the National Park with weapons without permit. The said weapons were mentioned as among the exhibits that had been tendered to court during trial. As for the testimony involving the trophies whose analysis looks to be partially done, the Magistrate just said at page 7 that PW1 and PW2 testified to have found the culprits possessing one tail, one head and one hind limb of wildebeest but the appellant denied the allegation, stating that he was just found grazing nearby the National Park. The Magistrate said nothing more in her analysis on this issue. Actually such statements by the Magistrate cannot be regarded as analysis but mere statements as to what had been stated before the court in respect of trophies. However, this being the 1st appellate court has the powers to step into the shoes of the trial court and re-evaluate the evidence that had been adduced before the trial court. This position of the law was also stated in EDSON 9 SIMON MWOMBEKI V. R, Criminal Appeal No. 94 of 2016, CAT at Mwanza, page 14 last paragraph. In doing so, I went through the trial court record, particularly on the evidence of PW1 and PW2 in which I did notice that, among the things that the culprits had been found possessing are the trophies of which the Wildlife Officer (PW4) who is an expert in Wildlife matters identified them being 1 (one) fresh tail of wildebeest, 1 (one) fresh hind limb of wildebeest and 1 (one) fresh head of wildebeest. The said witness, PW4, gave the particulars/descriptions for the identification that he had made for the said trophies. PW4 also testified to have filled the Trophy Value Certificate (exhibit P5) for the said items. He also filled the Inventory Report (exhibit P6) for the disposal purposes as the said trophies are easy to decay. The Police Investigation Officer who testified as PW3 stated that upon been assigned to investigate the case he called PW4, the Wildlife Officer, to go to the Police Station to identify and evaluate the trophies. PW3 then signed on the chain of custody (exhibit P4) for the movements of the said trophies in handling the investigation. For this analysis by the High Court, the offence of “Unlawful Possession of Government Trophies” which is the 2nd count has been proved in affirmative. 10 The above analysis answers the 2nd grounds of appeal as well, in which the appellant alleged that the trial court accepted and acted upon the weak and contradictory evidence of the prosecution side. The picture that I can get from the said allegation is that, the Appellant wants to show this court that the case at the trial court was not proved beyond reasonable doubt. From the analysis that I have made in resolving the 1st ground of appeal, it is my finding that the Appellant was actually found in unlawful possession of Government Trophies as charged. As for the count of unlawful possession of weapons in the National Park, of which the trial Magistrate rightly made its analysis in her judgment, I have this to say; the lower court’s proceedings transpire the Park Rangers (PW1 and PW2) stating that on the material date and time, while in patrol at Nyankoromo area within Serengeti National Park, apart from the said trophies they also found the appellant and his fellow culprit, holding weapons, to wit, 1 (one) Panga, 1 (one) Knife and 2 (two) animal trapping wires. The said weapons were admitted to court and collectively marked as exhibit P3. The record also reveals that the culprits failed to justify before the Park Rangers who had arrested them (PW1 and PW2) on their legality to hold those things. 11 For those reasons, I find the trial court was right to convict the Appellant and his fellow culprit on all two counts that they had been charged with. The case at the trial court was therefore proved in affirmative. As for the allegation that, the trial court wrongly convicted and sentenced the Appellant while there was nothing tendered to court as exhibit, I have this to say; the record is vivid that the Appellant and his fellow culprit were found with the alleged weapons and trophies and that those things were tendered to court as exhibits, either physically or through their respective legal documents depending on their nature. For example, the trophies had to be tendered to court through the inventory that had been prepared for them as they are perishable in nature, that they could have not stayed longer. All in all, a total number of 6 (six) exhibits were tendered to court by the Prosecution side during trial, whereby the weapons, which were physically tendered to court were admitted as exhibit P3 collectively, while the trophies, through inventory, were tendered and admitted as exhibit P6. Apart from the weapons and trophies the record also transpires that the prosecution side also tendered a seizure certificate for those things (exhibit P1), Trophies 12 Valuation Report (exhibit P5), Chain of Custody (exhibit P4) and the GPS Map for a premise where the culprits had been found (exhibit P2). It is thus not true that there was no exhibit tendered to court during trial. I find this ground of appeal unmeritorious too. In upshot, I find the appeal unmeritorious, hence dismissed. Decision of the trial court, that is conviction and the sentences imposed against the appellant and his fellow culprit, are hereby upheld. S.M. KULITA JUDGE 15/11/2024 DATED at SHINYANGA this 15th day of November, 2024. S.M. KULITA JUDGE 13 15/11/2024 14