20161129 TZHC Mwanza

-, ' -~ ',:.. ',_ ,' . ' .., .!J .,. :~ i· ,. IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA HC. CRIMINAL APPEAL NO. 44 OF 2017 (Original Criminal Case No. 69 of 2016 of the District Court of Tarime District at Tarime) MWERA KIBAKI @ MWITA AND OTHERS---------------APPELLANTS VERSUS THE REPUBLIC -------------------------------------------RESPONDENT _{ JUDGEMENT . , i Ebrahim, J.: . - -- The appellants herein aggrieved by conviction and sentence imposed against them have preferred an appeal to this Court raising six (6) grounds of appeal. The genesis of the grounds of appeal is on contradictions on evidence, failure to give weight to the defense evidence and failure to prove the case beyond reasonable doubt. The appellants were convicted and subsequently sentenced at Tarime District Court on 3 offences namely; One, entering into the National Park without a written permit c/s 21(1) and (2) and 29(1) of the National Parks Act, Cap 282 R.E. 2002; two,· unlawful possession of weapons in the 1 National Parks c/s 24(1)and (2) of the National Parks Act, read together ..... with paragraph 14(c) of the 1st Schedule to the Economic and Organized Crimes Control Act, Cap 200, R.E. 2002; and three, unlawful possession of government trophies c/s 86(1) and (2) (b) of the Wildlife Conservation Act No. 05 of 2009 read together with paragraph 14(d) of the 1st Schedule to the Organized Crimes Control Act. It was alleged by prosecution side that on 17th November 2016 at 1800hrs the Appellants were found by police at the bush within National Park. Upon being searched, they were found in possession of five trapping _ _ wires, one .knife, one spear, two dry skins of -Topi, 2-dried Topi valued at USD 800 each (Tshs. 3,468,800/-) and 5 ·pieces of dried meat of Topi. After hearing the evidence from both parties, the trial Magistrate convicted the appellants and imposed a pay fine of Tshs. 200,000/- or serve one year imprisonment for the 1st offence; fine of Tshs. 300,000/- or one year imprisonment for the 2nd offence; and for the 3rd offence a fine of Tshs. 30,468,800/- or 20 years imprisonment. At the hearing of the appeal, the appellants were represented by Mr. Kipeja, learned advocate; and the Republic was represented by Ms. Mwandambo, learned State Attorney. 2 Mr. Kipeja began by arguing the 4th ground of appeal that the trial magistrate did not consider the defense evidence. He expounded that the appellants told the Court that they were not apprehended by Game Reserve Police of Serengeti national Park but Kenyan Police at Nyaruru area on lih November 2016 for grazing. He expounded further that on 18th November 2016 the Appellants were taken to Tarime Police ·station and charged with the offences that they were convicted with. However, the same was not considered in the judgement. He referred to the case of Hussein Idd & Another V Republic [1986] TLR 166 on the effect of - non-consideration of defense case. He stated that the said defense was not disapproved as they were not cross examined. Referring to the case of Saguda@Salukuka and Another V R, Criminal Appeal No. 4228 of 2013, Mr. Kipeja insisted that it was prosecution case that was supposed to prove the case. Arguing the first ground of appeal, Mr. Kipeja stated that both PWl and PW2 gave general description but did not explain which appellant was found in possession of what with what. Basing on the principle enunciated 3 in the case of Said Hemed V R [1987] TLR 117 (CA), he was of the view that conviction should base on the weight of prosecution case. Mr. Kipeja argued further on the chain of custody referring to the case of Miraji Malumbo Malumbo V DPP Zanzibar, Criminal Appeal No.299/2008 that there is no complete recording, hence from 17th November 2010 to 22th November 2016, there is doubt on the exhibits. Again on the valuation, Mr. Kipeja stressed that the evidence does not show how did PW3 derived to the value of Tshs. 3,468,800/-. He referred to the case of Daudi Chacha @Marwa V R, Criminal Appeal No. 100/2014 (HC) (Unreported). As for ground no 2. of appeal, Mr. Kipeja submitted that in so far as count no 3 is concerned, Nyemela (Topi) is found at Part II of the Wildlife Conservation Act and that the cited section in the charge sheet does not provide for such animal. Thus section 86(1)(2)(b) of Act No. 5 provides for animals in Part I of Cap 283. He submitted further that Paragraph 14(d) of the 1st schedule of Cap 200 no longer exists. He referred to the case of Munisi Mario Nkya V R [1989] TLR 59 (HC) on the principle that it is wrong to refer to non- existing law. 4 Finalizing on ground no. 3, Mr. Kipeja was of the firm view that the evidence of PWl and PW2 should have been corroborated with the evidence of PW4. He thus prayed for the appeal to be allowed. Supporting the conviction and sentence, Ms. Mwandambo told the Court that the Appellants' conviction based on the direct evidence and exhibits that they were found with. Rebutting ground no. 4 of appeal, Ms. Mwandambo argued before the court that the Appellants relied on the defense of Alibi that they were at Kenya during the defense time and they never complied with the requirement of the law of giving notice as provided in section 194(4) of CPA. To cement her argument, she invited the Court to visit the case of Sirari Juma Kocho V R [1994] TLR, 206 at pg 209. She argued further that prosecution evidence was never controverted which amount to admission of facts as held in the case of Cyprian Athanas Kibogoya V R, Criminal Appeal No. 88/1992. On the contradictions raised in ground 1 of appeal, Ms. Mwandambo said that the Appellants were found at Mijungu and not Kenya as they said and neither of them cross-examined on the issue. Hence it is an afterthought. As for chain of custody, Ms. Mwandambo explained that only 5 six days passed and PW3 evidenced to have examined the exhibits at the police which is the custodian of all exhibits. She explained further that under section 114(3) of Cap 283, PW3 is authorized officer and has powers to evaluate the exhibits and fill special forms. Moreover as for the value, according to the law, the value is the market value of the whole animal. Hence there was no contradiction. On the corroboration, she argued that the witnesses were direct, credible witnesses and there was no need for corroboration. Conviction did not base on circumstantial evidence. She argued grounds no. 5, 2 and 6 together that there was no any contradiction because the trial magistrate based his decision on the evidence before him. Further section 86(1)(2)(b) was properly invoked and as for section 14(d), there is no any amendment that has revoked powers of DPP. She asked for the appeal to be dismissed. In rejoinder, Mr. Kipeja insisted that it was misdirection for the trial magistrate not to consider the defense evidence. Even if there was no notice, the magistrate ought to have discussed the defense of Alibi and accord no weight. He added also that prosecution did not cross examine the Appellants oni their defense of Alibi. He reiterated that TOPI is not on 6 the 2nd schedule but 1st schedule of part II and Para 14 (d) has been deleted. He reiterated their prayer. In determining this appeal I find that it befitting that I start with ground two of appeal that conviction based on a defective charge. In so doing I went through the charged sheet as admitted by Hon. Mpaze on 21st November 2016. Looking at the second count, the appellants were charged for unlawful possession of weapons contrary to se~~c;,ns 24(1) and (2) ·of - -- ---the·· National Park Act, Cap 282 R.E. 2002 read together with paragraph 14(c) of the 1st Schedule of Economic and Organized Crime Control Act, Cap 200, R.E. 2002. Going through section 24 of the National Park Act, it reads: ''24.-(1} No person shall, save under and in accordance with a permit in writing signed by an authorised officer, within any national park- {a} dig, lay, or construct any pitfall, net, trap, snare or other device whatsoever, capable of killing, capturing or wounding any animal; {b} carry or have in his possession or under his control any weapon in respect of which he fails to satisfy the Trustees or any authorised officer that it was intended to be used for a purpose 7 other than the hunting, killing, wounding or capturing of an animal". According to the charge sheet the appellants were charged and convicted under section 24(1) of the National Park Act. The said section has paragraphs (a) and (b) which specify the particular offence. Thus the correct paragraph that the appellants were supposed to be charged with is section 24(1) (b) of Cap 282. Section 24(1) of the said Act does not disclose any particular offence that the appellants are said to have been charged with. Infact there was no offence known in law that the appellants were charged with. Section 135(a) (i) and (ii) of the Criminal Procedure Act, Cap 20 R.E. 2002 provides what a charge sheet should contain. The section reads: "135(a) (i) A count of a charge or information shall commence with a statement of the offence; (ii) the statement of offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence and, if the offence charged is one created by enactment, shall contain a reference to the section of the enactment creating the offence. 8 [Emphasis supplied] .I There is no doubt that offence that the appellant was charged with is a creature of statute. That being the case therefore, under the National Park Act, section 24(1) doesn't provide for a complete offence that appellants can be charged with. In my view the offence is hanging and it does not pin down a person who had been intended to have committed the offence. That goes contrary to the ambit of section 135(a)(ii) of the Criminal Procedure Act which is couched in mandatory terms. Again goes the 3rd count where the appellants were charged with the unlawful possession of Government Trophies c/s 86(1)(2)(b) of the Wildlife Conservation Act of 2009 read together with paragraph 14(d) of the 1st schedule of the Economic and Organized Crime Control Act, Cap 200, R.E. 2002. I wish to point out here on the argument by Mr. Kipeja that paragraph 14 (d) of the 1st Schedule of Cap 200 has been deleted and there remained paragraph 14 alone. With respect that is not true. The new paragraph 14 still contains sub paragraph (a) to (d) with addition and subtraction of other sections referred to in Cap 283. 9 The above notwithstanding, section 86(2)(b) of the Wildlife Conservation Act, Cap 283, R.E. 2002 reads that: "A person who contravenes any provisions of this section commits an offence and shall be liable on conviction- (b) where the trophy which is the subject matter of the charge or any part of such trophy is part of an animal specified in Part I of the First Schedule to this Act, and the value of the trophy exceeds one hundred thousand shillings, to a fine of a sum not less than ten times the value of the trophy or imprisonment for a term of not less than twenty years but _ not exceeding thirty years or both". Further, as correctly observed by Mr. Kipeja, Topi is not an animal specified in Part I of the First Schedule to the Act. Rather Topi is specified in Part II to the Act. It follows again that the section of the law used to convict the appellants as it appears in the charge sheet is different with the offence that the appellants were alleged to have committed. As a result the penalty ascribed to the offence does not tally with the offence committed. Undoubtedly, the charges that the appellants were charged with in terms of count no. 2 and three were defective. Court of Appeal had in the 10 l t I • case of Juma Samwel V The Republic, Criminal Appeal No. 350 of 2013, ' citing with approval the case of Khatibu Khanga V R, Criminal Appeal f No. 290 of 2008 declared a charge to be incurably where the charge sheet does not disclose the offence. Much as in the cited case the appellant pleaded guilty, the principle is the same as the appellants were convicted on a non- existent offence. It follows therefore that the proceedings in respect of the 2nd and 3rd Counts are a nullity as the appellants pleaded to a defective charge; hence the trial was also defective. Since the offence is read together with a paragraph in the schedule in the Economic and Organized Crime Control Act, it is obvious that the they cannot be read in isolation and that the offence qualifies to be under Cap 200 if it is correctly established under Cap 283. As for the 1st count, I have thoroughly followed the evidence on record and found out that the appellants' defense of Alibi was an afterthought as they conveniently established it on the day of their defense. Moreover, there was overwhelming evidence against them that they entered into the national park without a valid permit. I therefore uphold their conviction in respect of the first count only. 11 For all purpose and intent, the appeal is allowed to the extent that ,, I conviction and sentence in respect of the 2nd and 3rd counts against the appellants are quashed and set aside. As for the 1st count the sentence shall be calculated from when they were initially sentenced by the District Court on 29.11.2016. Accordingly ordered. ' ''\, ,·· --~·.}\ ' Judge . ·. I I ~ 12