20190805 TZHC Mwanza2

j- ( :, . " ' f l IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA HC. CRIMINAL APPEAL NO. 319 OF 2018 (Original Economic Case No. 21 of 2016 of the District Court of Sererigeti at Mugumu) . . ' 1. MASURE MASANJA @ MANUHARI } 2. MENG'ANYI MENG'ANYI@ SAMWELI .................... ;................. APPELLANTS VERSUS THE REPUBLIC ......................................... u .............................................. RESPONDENT JUDGMENT 1/7/2019 & 5/8/2019 G. J. Mdemu, J; . Masuke Masanja @ Manuhari ·and Meng'anyi Meng'anyi @ Samweli, the then 1 st and 3 rd accused persons respectively, in economic case No. 21 of 2016 ,appealed to this Court against conviction and sentence of twenty (20) years imprisonment for the 3rd, 4 th, 5 th and 6 th counts of unlawful possession of government trophies and one year imprisonment for the first count of unlawful entry in the National Park, and on the second count of unlawful possession of weapons in a National Park, the Appellants got sentenced to two years prison term each. According to the statement and particulars of offence in the charge, on 23 rd of January, 2016, the Appellants were found at Mto Gurumeti within Serengeti Nationi;tl Park by Park Rangers namely Nyalate Mnita. and . Ezekiel Kulwa PWl .and PW2 respectively . without permit. They . were also found in possession . of one spear, . one sword, two krtives, three animal trapping wires, three dried skin of zebr_a, one dried skin of buffalo, eight fresh pieces of buffalo, one dried skin of thomson gazelle, and one dry skin of wildebeest. They had no license to possess such weapons and · government trap.hies. On 24 1h of January, 2017, Wilbroad Vicent, PW3 valued the said trophies and ) prepared a valuation certificate (PE. 6) to that effect. With these evidences, the two Appellants together with Chacha Peter Nyagatare were charged jointly and together with unlawful entry in a National Park contrary to section 21(1) (a) and (2)- and section 29(1); and unlawful possession of weapons in the National Pa'rk contrary to section 24(1)(b) and 4(2) all of the National Parks Act, Cap. 282 in the first and second counts respectively. The 3 rd , 4 th , 5 th and 6 th counts booked to the Appellants were in respect of unlawful possession of government trophies contrary to section 86(1) (2) (b) of the Wildlife Conservation Act, Cap. 283 read together with paragraph 14 of the First Schedule to and the provisions of sections 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap. 200. On 23rd o·f May, 2018, the District Court of Serengeti found the Appellants ·guilty and accordingly convicted and sentenced them as stated above. The then 2 nd accused person one Chacha Peter@ Nangatare jumped bail and the case proceeded in his absence. Aggrieved, the two Appellants filed the following grounds of appeal; - 1. That the trial Magistrate erred in law and facts to found ·conviction ag[Jinst the Appellants by relying on weak evidence adduced by PWl, PW2 and PW3 which was uncorroborated. In addition to that, these witnesses were the same people from the same office and working hence, their· evidence needs more corroboration. See the case ·of PETRO MWANGORO KpTWA VS REP. (1977) ULR page 214. 2. That, the learned trial Magistrate ·erred in law and facts when he . . admitted the cooked evidence of PW3 also exhibit PE. 6 who was hot tendered by an expert from Government Chemist, it is impossible to identify the fresh or dried meat of animal by using color alone.- It needs further expertise. See· the case of SALUM HAL UNA VS REP. (1968) HCD 37. 3. That the Appellants' conviction and sentence was illegal because the ) prosecution side lacks legal basis and the trial Magistrate tried the case at hand without the consent Jr·om Director of Public Prosecutions as the casefa/1 under the Economic and Organized Crime Control Act, Cap. 200 RE. 2002. 4. That, the trial Magistrate erred in 'law and facts to admit exhibit PE. 5 which carry the weight to convict the Appellants and even the evidence which produ_ce by PWl and PW2 had Jailed to prove the AppellarJtS was found with government trophy and weapons, also there was no other witness who could to testify the scene such the police officer from . Mugumu police station apart from park rangers. 5. That, in view of above grounds of appeal, it is clear that the trial Magistrate erred in law and facts, he Jailed properly examine, consider and evaluate the evidence on record and reached on·wrong decision. Before me on 1 st of July, 2019, appeared the two Appellants unrepresented and Ms. Dorcas Akyoo, learned State Attorney arguing the appeal. In addition to the grounds of appeal, which he prayed their adoption, the first Appellant submitted that, the investigator who knows what happened was not called in evidence. He added that, had he testified, the Court _could not have convicted him. He thus prayed · the appeal be allowed. On his part, the second Appellant stated that, the evidence of PWl and ~W2 being from one office needed corroboration. In absence of that, the second Appellant submitted that, there is no evidence implicating him. He also· prayed the appeal be allowed. Ms. Dorcas Akyoo resisted the appeal. Submitting on the 1 st and 4 th grounds of appeal on corroborative evidence together, the· 1earned State Attorney submitted . . that, a·s the Appellants were arrested in the National Park, it is impossible to have j other independent evidence other than of those who appre!1ended the Appellants. f She added on this also that, the law does not restrict witnesses from one family/ office to testi.fy. I In the second ground of appeal on the requirement • , t9 have the certificate of I valuation prepared and be tendered by experts from the Chief Governme'nt Chemist, Ms. Dorcas Akyoo submitted that, the law does not permit such officers to deal with certification of government trophies. As to the 3 rd ground of appeal, it was her submissions that, at page 4 of the typed proceedings, consent and certificate were I duly· filed before trial of the Appellants commenced. It is on· these premises; the learned State Attorney prayed the instant appeal be-dismiss~d. In rejoinder, the first Appellant added that, the insrant case was fabricated against.them, that is why even the sketch map/plan was npt tendered in evidence. The second Appellant only rejoined by praying his being r~leased from prison. This was all on what parties said regarding this appeal. In this appeal, it is n9t disputed that, the Appellant~ were arrested,. charged convicted and sentenced with the offences as they appear: in the charge. As stated earlier on they all denied. The prosecution called three witnesses. Two are arresting officers and an expert who certified government trophies.'The issue is whether the prosecution evidence, as it ~s in the record, proved the six oounts beyond r~asonable doubt. ' I will begin with. ground three on consent of: the Director·• of Public Prosecutions and certificate of transfer. As submitted by the learned State Attorney, the consent and certificate got issued as recorded ~t page 4 of the typed · proceedings. The record reads; - ;,PP: Investigation is complete, we have consent and ~ertificate. · • ri Court: Consent and certificate duly filed. Sgd: I. E. Ngaile - DRM 20/2/2017" ; This ground of c;1.ppeal is therefore u~1founded and is accordingly dismissed. I· also agree with the learned State, Attorney that, in ground 1 and 4, in the circumstances of this case, it is not possibi'e to have other witnesses other than park ' rangers because the Appellant were. arrested in the National Park. Things could · have been different if the offence of unlawful possession of government trophies was committed outside the Natio~al Park:where the chance:of having independence witness is highly expected. In the instan't appeal, however, as complained by -the Appellant, evidence from investigators was relevant in the circumstances of this • t . case. I say so. because of what has been: noted in the charge and the evidence of · . witnesses. According to the particulars of thd offence in the charge, the Appellant were charged to have been fo~nd in the National Park without permit and in unlawful possession of weapons and government trophies on 23r:d day of January, 2016. However, the evidence from the prosecu~ion i11dicates the following; - One, the certificate of valuation expibit PE. 6 was prepared on 24 th of January, 2017 wh_ich is one year after the _arrest of the Appella~ts in the National Park ~n possession of such trophies. Two, at page 2 of the typed proceedings, the said trophies go't tendered in Court collectivejy as exhibits Pl to: P4 almost after one year. Where those exhibits were? Three, evidence . of PWl and: PW2 is to the effect ·that ' they arrested the Appellant in the National Park on 23 rd of January, 2017, contrary to what is in the charge that, the offence ;was committed on 23 rd of January, 2016. I ' What is ta~es from the· abo·ve is that, there is variance betvyeen the charge and . ' the evidence on record. When this happens in the prosecution case, i~ all means that, . j . s\ _) ----~:::---.-·----- -- the prosecution case has not been proved. In criminal law~ always prosecution is ) charged with a duty to prove their case beyond reasona_ble doubt. This duty is discharged by way of evidence. That is, the evidence should support the charge. By doing so, what is in the charge will be proved. In the instant case, the charge is framed to be on 23r<l of January, 2016. 1his is the date_ the Appellants committed the offence. The evidence from the prosecution that the offence was committed on 23rd of January, 2017 intends to prove another charge and not that facing the two Appellants. What the latter did therefore, have not been proved. Having said that, the appeal is allowed. Conviction is quashed and the sentence met by the trial court is accordingly set aside. I order· release ?f the two Appellants, unless, for lawful cause they are held thereat. It is so ordered. G.J. Mdemu Judge 5/8/2019 Dated at Mwanza this 5 th day of August, 2019. ) G. J. Mdemu -· J~dge 5/8/2019 6