MASELE MASUNGA KISELE ECO BARIADI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL REF. NO. 202407292000021156 MASELE MASUNGA @ KISELE ....................................... 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 13th day of March, 2024 in Economic Case No. 59 of 2023 ----------- JUDGMENT 25th October & 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 was convicted and sentenced to pay a fine of Tsh. 100,000/= or to serve 1 (one) year imprisonment term for each of the two counts of “Unlawful Entry into the Game Reserve” contrary to section 15(1) and (2) of the Wildlife Conservation Act [Cap 283 RE 2022], and 1 “Unlawful Possession of Weapons in the Game Reserve” contrary to section 17(1) and (2) 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 2022]. In the 3rd and 4th counts the Appellant was convicted and sentenced to 20 (twenty) years’ imprisonment for each offence of “Unlawful Possession of Government Trophies” contrary to sections 86(1) and (2)(b)(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 2022]. The brief history of the case in a nut shell, as it can be gathered from the record is that; on the 26th day of August, 2023 the Conservation Rangers for Maswa Game Reserve, PW1 and PW2, while in patrol over the Game Reserve found the Appellant at Mto Mabata area. Upon asking him for a permit from the Director of Wildlife, he had no it. It is alleged that while there, the Appellant was found in Unlawful Possession of Weapons, to wit; 1 (one) Panga, 1 (one) knife and 8 (eight) trapping wires of which he failed to satisfy the authorized officers that the same were intended to be used for purposes other than hunting, wounding or capturing wild animals. The record further 2 reveals that the culprit was also found in possession of Government Trophies, to wit, 7 (seven) dry ribs of giraffe and one horn of Water buck, without permit. Aggrieved with both, convictions and sentences, the appellant lodged this appeal with 3 (three) grounds as follows; 1. That, the trial court erred in law and in fact to hold conviction while there was no evidence from the Magistrate who had ordered for the disposal of trophies, as to where and when the same were disposed, and that, the Appellant was not called to witness the Magistrate issuing the disposal order. 2. That, the trial Magistrate erred in law and in fact to ignore his defense that he was arrested at the village area, and not within the Game Reserve. 3. That the case at the trial court was not proved beyond all reasonable doubts. The matter was argued through oral submissions. The Respondent (Republic) is represented by Ms. Rose Kimaro, Learned State Attorney while the Appellant is unrepresented. 3 In his oral submission in support of the appeal the appellant prayed for the grounds of appeal in his Petition to be adopted as the submission for his 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 reply to the 3rd ground of appeal, the State Attorney, Ms. Rose Kimaro, stated that the case at the trial court was proved beyond reasonable doubt. She referred this court to the proceedings of the lower court which reveal that on 26th August, 2023 at about 0500 hours, the appellant was found by the Conservation Rangers who were in patrol at Mto Mabata area within Maswa Game Reserve. She said that, that is according to the testimonies of PW1 and PW2, the Conservation Rangers who arrested him at that said area. The State Attorney further submitted that the said witnesses (PW1 and PW2) also narrated that they found the culprit holding weapons, to wit, 1 (one) panga, 1 (one) knife and 8 (eight) trapping wires. She went on submitting that the record further reveals that the culprit/appellant was also found in 4 possession of Government Trophies, that is, 7 (seven) dry ribs of giraffe and one horn of Water buck, without permit. The Counsel further submitted that, in his testimony PW1, the Conservation Ranger, testified to have filled a Certificate of Seizure (exhibit P1) upon seizing the trophies, whose inventory was admitted as Exhibit P6, and the weapons (exhibit P2 collectively). The State Attorney stated that PW1 also recorded the GPS coordinates for the point where the appellant had been found. He took it to the printing office where the witness (PW3) who is a Map Driver entered into a computer the coordinates that he was given by PW1 involving a place where the appellant had been found. The Counsel submitted that, thereafter, PW3 extracted the GPS map (exhibit P3). The said map revealed the location being Mto Mabata area, 3.6 Km from barricades of Maswa Game Reserve. The State Attorney further stated that the said exhibits P1, P2 and P3 were identified by PW2, a Conservation Ranger who was together with PW1 during the arrest of the appellant and seizure of the above mentioned exhibits. Hence, he corroborated the testimony of PW1. 5 It is the submission of the State Attorney that, during trial the Prosecution side called PW4, a Police Officer who had filled a chain of custody (exhibit P4) regarding the movements of exhibits from the time that they were received at the Police Station. She referred this court to page 14 – 16 of the trial court’s proceedings. She added that, the Wildlife Officer (PW5) who is an expert in wildlife matters testified to the effect that he had seen the trophies at Bariadi Police Station upon been called to identify them. The counsel stated that in his observation PW5 identified them being 7 (seven) dry ribs of giraffe and one horn of Water buck. She further stated that the record transpires the said witness made specifications/clarifications for the identities/particulars he had noted from the said trophies. She referred the said specifications made by PW5 being that, the ribs are longer as compared to those of other animals, and that they have spines as they approach the backbone. As for the horn he identified it being water back’s. The reason behind was its appearance, that it has spirals and that it bends towards back side. The Counsel added that the said witness (PW4) also filled the Trophy Value Certificate (exhibit P5). She further stated that, as the said trophies could 6 have not stayed longer, since they are easy to decay, PW5 filled the Inventory Report (exhibit P6) for the disposal purposes. For this submission, the State Attorney sought for the this 3rd ground of appeal to be dismissed for having no merit, as the case at the trial court was proved at the required standard. Submitting on the 1st ground of appeal, the State Attorney disputed the allegation that the prosecution side did not state as to where and when the exhibits/trophies were disposed, and that, the Appellant was not called to witness the Magistrate issuing the disposal order. On it, the Counsel submitted that the Appellant was called to the District Court and witnessed the disposal order for the trophies being issued and filled in the Inventory by the Magistrate at the District Court. The Counsel added that the Appellant himself also signed at the back of the inventory (exhibit P6) to have witnessed the said task on 26th August, 2023. Ms. Kimaro, State Attorney added that the record further transpires that, even during the Preliminary Hearing, among the facts that the Appellant had agreed as per section 192(3) of the Criminal Procedure Act, was that, he was taken before the Magistrate where an order for disposal of exhibit was issued. 7 As for the issue of not calling the Magistrate who had issued the disposal order, the Counsel stated that it was not necessary as already there was a witness, PW5, who had appeared to prove the said fact. She added that, according to section 143 of the Evidence Act, there is no particular number of witnesses required for proof of a particular fact of the case. Replying the 2nd ground of appeal, Ms. Kimaro submitted that the Appellant’s defense, including his argument that he was arrested at the village area, and not within the Game Reserve, was considered in the trial court’s judgment, only that the same was found to be unmeritorious. That was the end of submission by the State Attorney. The Appellant had no rejoinder, hence submissions from both parties ended up there. From the above submissions, the issue to be determined is whether the appeal is meritorious. My analysis on the 3rd ground of appeal, whether the case at the trial court was proved beyond all reasonable doubts, is as follows; The appellant herein was charged with 4 (four) counts as elaborated herein above. Two of them involved possession of government trophies, one involved possession of 8 weapons in the Game Reserve and one involved unlawful entry into the Game Reserve. I went through the records, as well as the submissions of both parties so as to ascertain status of the evidence, particularly on the proof of the case. As narated herein before that the charged counts which the Republic ought to have proved during trial, are the following; “Unlawful Entry into the Game Reserve” contrary to section 15(1) and (2) of the Wildlife Conservation Act [Cap 283 RE 2022], and “Unlawful Possession of Weapons in the Game Reserve” contrary to section 17(1) and (2) 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 2022]. The 3rd and 4th counts were “Unlawful Possession of Government Trophies” contrary to sections 86(1) and (2)(b)(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 2022]. 9 According to the record as well as the submissions made by the State Attorney, the Conservation Rangers who testified as PW1 and PW2 before the trial court, the Appellant had been found at Mto Mabata area which is within Maswa Game Reserve, and that he was in possession of 7 (seven) dry ribs of giraffe and one horn of Water buck, without permit. Those things are the Government Trophies according to PW1, PW2 and PW5 who are experts in wildlife matters. They are employees of the Conservation. The testimonies of PW1 and PW2 further reveal that the Appellant was also found in possession of weapons (exhibit P2), to wit; 1 (one) panga, 1 (one) knife and 8 (eight) trapping wires. The record and submissions of the State Attorney further transpire that PW1 filled a certificate of seizure (exhibit P1) for the said trophies and weapons, which was signed by PW2 as a witness, as well as the appellant herein. The submissions, as well as the record particularly the evidence of the arresting Conservation Rangers, PW1 and PW2, reveal that PW1 took the GPS coordinates for the scene of crime to the Game Reserve offices where the witness (PW3) who is a Map Driver entered into a computer, the coordinates that he was given by PW1 for a place where the appellant had been found. The said PW3 who is also an expert in map drawing, the 10 profession that he acquired at Land University in Dar es Salaam, extracted the GPS map (exhibit P3). According to him, the said map revealed the location being Mto Mabata area, found at 8.5 Km from the barricades of Maswa Game Reserve. The record further transpires that exhibits P1, P2 and P3 mentioned above were identified by PW2, the Conservation Ranger who was together with PW1 during the arrest of the culprit and seizure of the above mentioned exhibits. Hence, he corroborated the testimony of PW1. The record further reveals that the Wildlife Officer (PW5), who is the holder of 1st degree in Wildlife Management from Sokoine University, testified to the effect that, upon being called by Police from Bariadi Police Station for identification and valuation of trophies, he went thereto and saw 7 (seven) dry ribs of giraffe and one horn of Water buck. As rightly submitted by the State Attorney that during trial PW5 also made specifications/clarifications for the identities/particulars he had noticed from the said trophies. The said specifications have been recorded in the lower court’s record that that the ribs are longer as compared to those of other animals, and that they have spines as they approach the backbone. As for the horn he identified it being 11 water back’s for its appearance, that it has spirals and that it bends towards back side. Apart from identifying the trophies PW5 also filled the Trophy Value Certificate (exhibit P5). As well, for the disposal purposes he filled the Inventory Report (exhibit P6) for the said trophies, as they are perishable in nature, hence easy to decay. According to the record, during trial the Prosecution called PW4, a Police Officer who had filled a chain of custody (exhibit P4) regarding the movements of exhibits from the time they were received at the Police Station. For this evidence, the trial court was right to declare that the Appellant was actually found within the Game Reserve, holding the said trophies and weapons unlawfully, as he had no permit to do any of those things. Thus, the case at the trial court was proved beyond all reasonable doubts. As for the 1st ground of appeal, that the prosecution side did not state as to where and when the trophies were disposed, and that, the Appellant was not called to witness the Magistrate issuing the disposal order, I have the following observation; the State Attorney, Ms. Rose Kimaro, disputed this allegation. Upon going through the record, I have noticed that the Appellant 12 was actually taken to the District Court of Bariadi and witnessed the issuance of the disposal order for the trophies in question by the Magistrate who also filled the Inventory (exhibit P6) for that purpose. The said exhibit P6 is also read at the back of it transpiring that the Appellant himself also signed to have witnessed the said role being done by the Magistrate on 26th August, 2023. Not only that, but the record also transpires that, even during the Preliminary Hearing, among the facts that the Appellant had agreed as per section 192(3) of the Criminal Procedure Act, was that, he was taken before the Magistrate where an order for disposal of exhibit was issued. As for the issue of not calling as a witness the Magistrate who had issued the disposal order, as rightly stated by the State Attorney, Ms. Rose Kimaro that, it was not necessary, as already there was a witness, PW5, who appeared to prove that said fact for the prosecution. According to section 143 of Tanzania Evidence Act [Cap 6 RE 2022], there is no particular number of witnesses required for proof of a particular fact in a case. This was also held in a case of YOHANIS MSIGWA V. R [1990] TLR 148. Therefore, each party to the case, including the prosecution side are at liberty to choose any witness whom they think fit to prove a particular fact(s) 13 in its case. I thus find this ground of appeal with no legal weight, hence dismissed. In his 2nd ground of appeal, that the trial Magistrate erred in law and in fact to ignore the Appellant’s defense that he was arrested at the village area, and not within the Game Reserve, the appellant tries to show that the said testimony was not considered in the trial court’s judgment. In her reply to this argument, the State Attorney resisted. Upon going through the impugned judgment, I came to note that, in her judgment, the trial Magistrate analyzed this issue, which was part of the appellant’s defense during trial. As it can be read on page 6 – 7, the trial Magistrate, rightly found it weak to exonerate the appellant from conviction. The said Magistrate correctly stated that, there was strong evidence from the prosecution side, including the GPS coordinate map (exhibit P3) tendered by PW3, as well as the oral testimonies of the arresting officers (PW1 and PW2) which prove that the appellant was arrested at Mto Mabata area, which is within the Game Reserve premises. Hence, this ground of appeal cannot stand. 14 In upshot, I find the appeal unmeritorious, hence dismissed. Decision of the Resident Magistrate’s Court of Simiyu, that is, conviction and the sentences imposed, are hereby upheld. S.M. KULITA JUDGE 15/11/2024 DATED at SHINYANGA this 15th day of November, 2024. S.M. KULITA JUDGE 15/11/2024 15