20181123 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY) ,,_ . \\ . ATMWANZA '"' ~ . HC. CONSOLIDATED CRIMINAL APPEAL NO. 297 and 298 and 299 OF 2017 {Arising from the Economic Case No. 3B/2015 of District Court of Serengeti at Mugumu) 1. MICHAEL S/O BUKURU @NZIGO BUSIGWA •••••••••••••••••••••.•••••••••••••••••••••••••••••••••• 1 ST APPELLANT 2. MESHACK PHILIMON KALIHOSI @NKURUNZINZA ............................. 2No APPELLANT 3. JUMA S/O KITOCHO MAHENDE @ KITOCHO •••••••••••••••..••••••••••••••••••••••••••••••.•••• 3RD APPELLANT VERSUS THE REPUBLIC •••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT JUDGMENT Last order: 03.10.2018 Judgment date: 23.11.2018 A.Z. MGEYEKWA, l In the District Magistrate Court of Serengeti at Mugumu, Michael S/0 Bukuru @ Nzigo Busigwa, Meshack Philimon Kalihosi @Nkurunzinza and Juma 5/0 Kitocho Mahende @ Kitocho (hereinafter referred as the appellants) were jointly and together charged with two counts namely; 1st count, Unlawful entering into a 1 Serengeti National Park without written permit c/s 15 (1) and (2) of the Wildlife Conservation Act No. 5 of 2009. On 2nd count, Unlawful •·Possession of Government Trophy c/s 86 (1) and (2)(b) of the Wildlife Conservation Act No. 05 of 2009 read together with Paragraph 14 (d) of the First Schedule to the Economic Organized Crime Control Act, Cap.200 [R.E 2002]. The appellants on the first count was convicted to serve 1 year imprisonment for the 2nd count to serve a term of 25 years imprisonment. The appellants were dissatisfied with both conviction and sentence, hence this appeal. At the hearing the appellants appeared .in person unrepresented while and Mr. Mamti, the learned Senior State Attorneys appeared for the respondent. The appellants being dissatisfied by the decision of the District Court of Serengeti at Mugumu knocked the gates of this court with 5 grounds of appeal. Having not much to say the appellants prayed for this court to admit their grounds of appeal. In reply, the learned Senior State Attorney on his part did not support the appeal for the reasons to be advanced herein. Mr. Mamti opted to combine the three grounds of appeal. 2 Concerning the first ground of appeal Mr. Mamti submitted that the appellants contended that they were denied their rights to be heard and that the count was biased by not convicting the four accused. The learned Senior State Attorney stated that in the trial court proceedings there were four accused and one was acquitted after he was found not guilty therefore the decision of the trial Magistrate was not bias since he decided the matter evaluated the evidence and the prosecution evidence was not substantial enough to convict the fourth accused. The learned Senior State Attorney submitted further that the appellants were charged with an offence of unlawfully entering in the Game Reserve without a permit and were found in possession of Government trophies. PW3 submitted a caution statement, and the appellants did not object the same was admitted by court and marked as exhibit PE2 for the second accused, and another caution statement was admitted and marked exhibit PE3 for the 4th accused and in their caution statement they stated on how they entered the Serengeti National Park and hunted the elephant's trophies. Regarding the second ground of the appeal the applicant claimed that the case proceeded without the presence of their advocate. The learned Senior State Attorney stated that it true on 30.11.2016 their advocate did not show up and the case was adjourned and in the next hearing date it was the same the advocate did not appear without stating any reason, therefore, it was right for 3 the magistrate to proceed since they were given enough time for their advocate to join the appellants but he did not show up, therefore, this ground is baseless. Concerning the third ground of appeal the Senior State Attorney contended that the defence case was considered, he refereed the court to page 5 and 6 of the Judgment and stated that the Magistrate evaluated both sides evidence, and he considered the defence case but their evidence was not heavy to render the Magistrate to decide on their favour. About the additional grounds of the appeal the learned Senior State Attorney submitted that the chain of custody was clearly established since PW1 the one who issued the trophies after being caught he send the trophies to the Maliasili for evaluation, the Police officer labeled the trophies and PW1 was able to identify the exhibit by its registration number and the trophies were tendered in Court with the same numbers and the number proved that the exhibit was the same one caught with the appellants. The learned Senior State Attorney prayed for this court to dismiss the appeal. I have given due consideration to the argument of both sides. Now I proceed to determine the appeal. I should state at the outset that in the course of determining this case, I will be guided by the canon of the criminal cases which 4 places on the shoulders of the prosecution, the burden of proving the guilt of the appellants 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 have opted to start with the fourth ground of the appeal, which relates to exhibits tendered in court. The onus of proof in criminal cases, that the accused committed the offence for which he is charged with, is always on the shoulders of the prosecution and not on the accused person. This is a long established principle in criminal justice and has no much difference with what is reflected under Section 110 of the Evidence Act. Justice of Appeal Msoffe in the case of Nathaniel AlphonCe Mapunda and Benjamini Alphonce Mapunda V. Republic [2006] T.L.R. 395 held: •~s is well known, in a criminal trial the burden of proof always lies on the prosecution ... And the proof has to be beyond reasonable doubt There must be credible evidence linking the appellants with the offence committed'~ I have found that the prosecution case tendered four exhibits which were intended to prove the case to the standard required by law. These exhibits are two trophieswere marked as exhibit Pl, caution statement of the 2nd accused marked as exhibit P.E.2, caution statement of the 4th accused marked as exhibit P.E.3 and certificate 5 of identification and valuation of trophies which was admitted and marked as exhibit P.E.4. PW1 prayed for the court to tender an exhibit which he remembered that it was labeled Police Case No. MUG/IR/346/2015 but the learned counsel for the accused (present appellant) objected that the Exhibit Pl and P2 were wrongly tendered and admitted in court. He stated that the tusks were not labeled and there was no exhibit number, and there was no police force No.145 accordingly to Police Order PGO 229. He insisted that the procedures to admit exhibit must have adhered, the objection was overruled. It is my view that the objection of the learned counsel altered that the exhibit Pl was not labeled and PW1 did not object that it was not labeled that means the exhibit Pl was wrongly admitted since it was not confirmed that it was labeled. The trial court admitted four exhibits in total however among the tendered exhibit the certificate of seizure was not among them. The certificate of seizure ought to have been tendered as part of the proof that the government trophies, exhibit Pl, SMG with 12 bullets, axes and torch were seized from the appellants. I have noted that the SMG with 12 bullets, axes and torch were not tendered before the court. Moreover, the chain of custody was not established, where the evidence was kept, from 12/12/2014 when the incident occurred to 28/11/2016 the date the government trophies were tendered in 6 court. The law requires a certificate of seizure to be prepared immediately after any property connected to a crime seized. As per section 22 (2) (3), (ii) of the Economic and Organised Crime Control Act Cap.200 [R.E 2002] which directs preparation of a certificate of seizure after any property connected to a crime is ceased. That section provides that: " 22 (3) 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]. I am aware that the provision directs a police officer to prepare such a certificate and PWl and PW2 were not police officers but are referred to as police officers and therefore they had a legal obligation to prepare the chain of custody certificate as provided under section 21(2) of the Economic and Organised Crime Control Act Cap.200 [R.E 2002]. The section provides that: " 21 (2) Where in accordance with any other written law the investigation of any economic offence or category of economic offences, is ordinarily conducted by public officials other than police officers, then for the purposes of this Act the term ''police officer" shall include any public officials in the 7 discharge oF Functions in pursuance oF this Act. [Emphasis added]. The evidence, in this case, was not strong enough to prove the case since the appellants, first of all, have denied the fact that they were arrested within the Serengeti National Park as stated by PW1 and PW2. It was the duty of the prosecutor to prove beyond reasonable doubt that the appellants were arrested in the National Park. Additionally, PW1 testified that the appellants were caught in possession of weapons, government trophies, the SMG with 12 bullets, axes, and torch. But the items were not tendered nor marked as exhibits. Furthermore, the seizure of the said items was significant to justify that that the weapons were found in possession of the appellants. As I have pointed earlier that the chain of custody was not established and taking to account that some of the appellants were not caught in the Serengeti National Park with weapons but seizure was neither established nor a certificate of seizure was prepared contrary to section 22 of Economic and Organization Crime Control Cap.200 [R.E 2002]. PW1 and PW2 were required to prepare a certificate of seizure as per the requirement of section 22 (3) (ii) of the Act. The certificate of seizure could be a collaborated evidence that the appellants were truly arrested in the Serengeti National Park and that the exhibits in question. It could prove that the exhibits were seized from the appellants, but that was not the case. Since 8 PW1 and PW2 were among the main witnesses and their evidence was relied upon by the prosecution in disproving the appellants' defence therefore failure to issue a certificate of seizure caused miscarriage of justice as stated in the case of Nyangete Masasi and Another v R Crim. Appeal No.35/2014, the same cements that the case was not proved beyond reasonable doubt. I am satisfied that there was no substantial evidence to prove the case against the appellants in the case of Julius Matama @ Babu @ Mzee Mzima v Republic Criminal Appeal No. 137 of 2015 CAT (unreported) whereby the Court of Appeal of Tanzania 1l 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. " Following the above provision, I am of the view that certificate of seizure in the present case was of utmost importance, but it was neither prepared nor tendered at the trial court. 9 Guided by the above provision and authorities, I am of the view that the prosecution case has failed to prove the case to the standard required by law by tendering before the court cogent evidence against the appellant, in the absence of the certificate of seizure, I hold the trial court's conviction against the appellants was conducted contrary in accordance with the law, and which occasioned failure of justice on the part of the appellants. Under the circumstances, I allow the appeal, quash the conviction and set aside the sentence. I order the immediate release of the appellants from prison unless they are lawfully held for other lawful purposes. Order accordingly. DATED at Mwanza this 23 rd November 2018. A.ZMJLkwa JUDGE 23.11.2018 Judgment Delivered in Court Chambers in the presence of both parties this date 23.11.2018. A.ZJyekwa JUDGE 23.11.2018 10