20190709 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY) AT MWANZA HC: ECONOMIC APPEAL NO. 163 OF 2018 (Arising from Economic Case No. 48 of2016 the District Court ofSerengeti at Mugumu) MASEBOKA S/O CHACHA@MANENO ........................ APEELANT VERSUS THE REPUBLIC ■■■■■■■ I ■■■■■■■■■■■■■■■■■••························ RESPONDENT JUDGMENT Last order: 04.07.2019 Judgment date: 09.07.2019 A.Z. MGEYEKWA, l The appellant, MASEBOKO S/O CHACHA @ MANEN, was charged in the District Court of Serengeti at Mugumu with three counts. The 1st count, Unlawful Possession of Government Trophies c/s 86 (1) and (2)(c), (ii) of the Wildlife Conservation Act, 5 of 2009 read together with Paragraph 14 (d) of the First Schedule to and section 57 (1) and section 60 (2) of the Economic Organized Crime Control Act, Cap.200 [R.E 2002]. The appellant was alleged that on the 14th day of August, 2016 at about 16:00 hrs at Singisi Village within Serengeti District in Mara Region )'as found in unlawful possess·ion of 5 pieces dried meat and dried skin of Warthog valued at Tshs, 981,000/= the property of the Government of the United Republic of Tanzania. 1 The 2nd count is Unlawful Possession of Government Trophies c/s - I 86 (1) and (2), (ii) of the Wildlife Cl:onservation Act, 5 of 2009 read together with Paragraph 14 (d) of th~ First Schedule to and section 57 (1) and section 60 (2.) of the Econo~ic Organized Crime Control Act, th Cap.200 [R.E 2002]. The appellant w~s alleged that on the 14 day of I August, 2016 at about 16:00 hrs at Singisi Village within Serengeti 1 District in Mara Region was found in unlawful possession of 0.25 liter of Lion fat valued Tshs. 10,682,000/= t~e property of the Government of the United Republic of Tanzania. The 3rd count is Unlawful Possession of Government Trophies c/s 86 (1) and (2), (ii) of the Wildlife chnservation Act, 5 ·of 2009 read together with Paragraph 14 (d) of the First Schedule to and section 57 (1) and section 60 (2) of the Economic Organized Crime Control Act, Cap.200 [R.E 2002]. The appellant wa~ alleged that on the 14th day of August, 2016 at about 16:00 hrs at Singisi Village within Serengeti District in Mara Region was found in unlawful possession of 1 Elephant I Tusk valued 32,000,000/= the property of the Government of the United Republic of Tanzania. The appellant on the 1st count wa convicted to pay a fine of Tshs. 9,810,000/= or serve twenty (20) years imprisonment. On the 2nd count, the appellant was sentenced to serve twenty (20) years imprisonment and in the 3rd count to serve twentyl (20) years imprisonment. The appellant was dissatisfied with the conviction and sentence; hence, this appeal. 2 In his petition of appeal, the appellant challenged his sentence on six grounds. In the first ground, the appellant complained that the trial court had erred in law and fact to convict and sentence the appellant based on contradictory evidence of PW1, PW2, and PW3 as PW1 and PW2 claimed to have searched the appellant's house and PW3 claimed to search the house one Masumbuko trying the case at hand without obtaining the consent of the DPP. The second complaint is that the trial Magistrate admitted wrong evidence that the appellant was arrested at Singisi Village while he was arrested at Issenye Village. The third ground, the appellant complained that trial Magistrate was convicted and sentenced based on cooked evidence of Park Rangers and the Singisi Chairman as a witness during the search was not called to testify in court. The fourth ground, the appellant, was denied his rights to call witnesses. The fifth ground the appellant complained that the exhibits tendered in court were wrong as the Government expert did not prove if those exhibits were Government trophies and in the sixth ground, the appellant blamed the prosecution for failure to prove the case beyond a reasonable doubt. At the hearing, the appellant appeared in person unrepresented while and Ms. Flyregete, the learned State Attorneys, represented the respondent. Having not much to say the appellant prayed for this court to allow the Republic to start to submit. 3 In submitting the learned se ior State Attorney on his part 1 supported the conviction and sentenc~ for the reasons to be advanced I herein. I st I Submitting in support of the 1 \ground of appeal, Ms. Flyeregete submitted that the appellant complained that the trial court convicted him based on contradictory evidence.I She argued that PWl and PW2 were altered that someone is foun~ in possession of Government trophies, they searched the house\ Maseboka Chacha while PW4 • mentioned Masumbuko house. Ms. Flyergete stated that although there was a contradiction concerning the ~ames of the appellant but the I Government trophies; 3 trapping wires, 5 pieces dried meat and dried skin of Warthog, 0.25 liter of Lion oil alnd 1 elephant tusk were found in the house of the appellant. PW4 also! narrated the same save for the ' name of the appellant. She prayed for this court to disregard this ground of appeal. I As to the 2nd ground of appeal, tlhe learned Senior State Attorney 1 submitted that the prosecution evidence was reliable as the appellant was caught in possession of GovernmJnt trophies and not with pombe I as he claimed. Ms. Flyeregete submitted further that the prosecution l evidence was heavier enough to grant conviction; therefore, this ground 1 be disregarded. Concerning the 3rd ground of appeal, Ms. Flyeregete submitted i that the number of witnesses who testified before the court is not l l important because it depends on the credibility of a witness. She said I that it was not necessary for the Village Chairman to testify what l I 4 matters is the appellant was founci in possession of Government - l I trophies, and the valuation report whi ch was prepared by PW3 verified 1 l that the appellant was caught in posse:ssion of the Government trophies. I She concluded by stating that this ground has no merit. I relation to the 4th ground of appeal, Ms. Flyeregete submitted that the appellant lamented that he wJs not given an opportunity to call witnesses. Ms. Flyeregete referred this court to page 35 of the court l proceeding, where the appellant said his witness cannot be found and j prayed to close his case. She prayed for this court to disregard this ground of appeal. i As to the 5th ground of appeal, Ms. Flyeregete refuted that the Government expert did not prove that the properties alleged to be caught in his possession were Govertment trophies. She stated that PW3 was an expert, evaluated the Go~ernment trophies the same were tendered and marked as exhibit P2.! She prayed for this court to disregard this ground of appeal. I In his rejoinder the appellant prayed for this court to consider his grounds of appeal and stated that thJ trial court did not resolve the contradiction which was made by PWl lnd PW2. PWl testified that they searched his house and found 3 piec~s of meat, but PW2 said they found him in possession of 5 pieces of meat. The appellant argued that the Village Chairman one Jumanne M~ganyi was not called to testify l 1 where the appellant was caught as he is claiming that he was caught at ! 5 Issenye Village and not Singisi Village. 1He concluded by arguing that he was not given an opportunity to call witnesses. I On my part after a careful analysis of the totality of evidence on record, the grounds of appeal filed by the appellant and the submissions I by both sides. I will begin with ground ·number six. The complaint under this ground is complaining that the prosecution side failed to prove the case against the appellant beyond reasonable doubt as required. In determining these grounds of appeal, I should state at the ' outset that in the course of determining these grounds, I will be guided by the canon of the criminal cases which places on the shoulders of the I prosecution, the burden of proving the guilt of the appellant beyond all reasonable doubt. The question, in this case, will be "Whether the ' evidence adduced by the prosecution was strong enough to ground a conviction for the offence charged. " I I have found that the prosecution case tendered three exhibits which were intended to prove the case Ito the standard required by law. These exhibits are the Government trophies which include 5 dried pieces of Warthog meat, 1 dried skin of Warthog and 0.25 liters of Lion fat; I were admitted and marked as Exh.P.E.1, Government tusk was admitted and marked as Exh.P.E.2 and the Valµation Report of trophies which I was admitted and marked as Exh.P2. However, I have noted that 3 trapping wires, as stated by PW1 and PW2 were not tendered in court I I and the charge sheet does not include the 3 trapping wires. Additionally, the search receipt and the certificate of seizure were not tendered in I I court. 6 The fact that the charge sheet does not specify that the appellant was caught in possession of the 3 trapping wires while PW1 and PW2 testified that the appellant was caught in possession of 3 trapping wires, its creates doubt as to whether the appellant was caught in possession of trapping wires as the same were not tendered in court. Equally significant is the fact that there was no search receipt and certificate of seizure to establish in whose possession the alleged properties were found. Failure for the prosecution to tender the search receipt and the certificate of seizure means the chain of custody was broken in handling the purportedly seized property from the time of seizure to the time of tendering them before the trial court. It is the requirement of the law that a certificate of seizure is required to be prepared immediately after any property connected to a crime is seized. The police investigators ought to have complied with the mandatory provisions of section 22 (2) (3), (ii) of the Economic and Organised Crime Control Act Cap.200 [R.E 2002] by preparing the certificate of seizure which could have shown the person from whom the said items were recovered. Section 22 (2) (3), (ii) provides that: "Where anything is seized after a search conducted pursuant to this section, the police officer seizing it shall- (ii) issue an official receipt evidencing such seizure and on which the value of the property as ascertained and bearing in addition to his signature, the signature of the owner of the premises searched and that of at least one independent person who witnessed the search [Emphasize supplied]. 7 In the absence of the search receipt and certificate of seizure adds more injury to the already inadequate ~vidence of the prosecution. Since PWl, PW2 and PW3 were the principal witnesses, and their evidence was relied upon by the prosecution in disproving the appellants' defence. Therefore, failure to issue a· search receipt and certificate of seizure caused a miscarriage of justice as stated in the case of Nyangete Masasi and Another v -R Crim. Appeal No.35/2014, the same cement that the case was not proved beyond a reasonable doubt. Similarly, in the case of Julius Matama @ Babu @ Mzee Mzima v Republic, Criminal Appeal No. 137 of 2015 CAT (unreported) the Court of Appeal of Tanzania emphasized. the necessity of preparing a certificate of seizure where the arresting officer seizes any property. In that case, the Court referred to the provision of section 38(3) of the Criminal Procedure Act, Cap. 20 [R.E 2002] which is a replica to section 22(2) (ii) of the Act, stated that: "... Ipso jure, this section is couched in mandatory terms, entailing that they must be complied with. It intends to achieve the point that where physical evidence is used in a criminal trial there must be evidence establishing an adequate foundation on where and how the object being offered in evidence is indeed the object that it is claimed to be." Given the above circumstances, this ground has merit. In my view, ground number six suffice to dispose of the entire appeal, but the fate of the appellant in these circumstances has made me travel through the records of the court to find if there is any strong evidence to ground conviction on the appellant. 8 I have examined the evidence in the record, and I noted that when the prosecution prayed to tender the Elephant tusk as an exhibit, the accused objected. The court proceeded to admit and marked it as an exhibit P.E.2. In such circumstances, the trial court was required to conduct a trial within trial which was not done. Also, PW1 testified that they searched the appellant's house and the search order was signed by the Village Chairman one Jumanne Makindi, Emmanuel Mashaga and Julius Njogola but the order was supposed to be signed by the appellant too although the same was not tendered in court. Additionally, as rightly stated by the appellant the testimonies of PW1, PW2, and PW3 were contradictory as PW1 and PW2 claimed to have searched the appellant's house, and PW3 claimed to search the house one Masumbuko. Likewise, PW1 testified that they searched the appellant house and found 3 dried pieces of Warthog meat while PW2 and PW4 testified that the appellant was found in possession of 5 dried pieces of Warthog meat. All the contradictions were required to be resolved in favour of the appellant. I went further to scrutinize the charge sheet, and I found that the conviction of the appellant was based on a defective charge. It is in the record that the 1st count; Unlawful Possession of Government Trophies c/s 86 (1),(2)(b)(ii) of the Wildlife Conservation Act No.5 of 2009 which reads together with paragraph 14(d) of the 1st Schedule of the Economic and Organized Crime Control Act, Cap.200[R.E 2002].Section 86(2)(b) of the Wildlife Conservation Act, Cap. 283 [R.E 2002] reads that:- 9 ' . 'J4 person who contravenes an) provisions of this section commits an offence and shall be liable on conviction. (b) Where the trophy which is the isubject matter of the charge f or any part of such trophy is part df an animal specified in Part I of the First Schedule to this Act nd the value of the trophy exceeds one hundred thousand shillings, to a fine of a sum not I less than ten times the value of thki trophy or imprisonment for a term of not less than twenty yJars but not exceeding thirty years or both" As per Part I of the First Schedule to the Act the animal, namely Warthog, is not specified in the said PahI I instead the animal Warthog is specified in Part III to the Act. Therefo~e, it follows that the provision of law which was used to convict the /appellant in the 1st count was t defective. It is a legal requirement thatla charge sheet to be valid under the law, it must draw in accordance 1th the provisions of section 132 and 135 of the Criminal Procedure Act; Cap.20 [R.E 2002]. The section requires that apart from a statement !of the specific offence charged i every charge or information must contain such particulars as may be necessary for giving reasonable inforrhation as to the nature of the offence charged. Additionally, section 1'35 requires the charge sheet, in general, to conform to the forms set oLt in the second schedule to the I Criminal Procedure Act Cap.20 [R.E 2002]. As a result the penalty ascribed to the offence does not tally wi~h the offence committed. ! Guided by the above provision a~d authorities, I am of the view . I that the prosecution case has failed to! prove the case to the standard j required by law therefore, I hold the tr'ial court's conviction against the 10 •• appellant was conducted contrary to the law, and which occasioned failure of justice on the part of the appellant. Under the circumstances, I allow the appeal. I quash the conviction and set aside the sentence. I order the immediate release of the appellant from prison unless he is lawfully held for other lawful purposes. Order accordingly. DATED at Mwanza this 9th day of July, 2019. A.Z Mg,wa JUDGE 09.07.2019 Judgment delivered on 9th day of July, 2019 in the Court Chambers in the presence of both parties. A.ZMlkwa JUDGE 09.07.2019 11