20190703 TZHC Mwanza3

j IN THE HIGH COURT OF TANZANIA IN THE DISTRICT-REGISTRY. AT MWANZA "t-,'l,ll'>ll' HC. CRIMINAL APPEAL NO. 307 OF 2018 " (Ohginal Economic Case No. 52 of 2016, the District Court of Bunda) MWITA''ISOKERO @ SEMO ........................................ ................................ APPELLANT VERSUS THE REPUBLIC .................................... :.... ~ ................. :............ 1 .................. RESPONDENT JUDGMENT 09/5/2019 & 03/7/2019 G. ]. Mdemu, L . This appeal is from the decision of the District Court of Bunda in Economic Case No. 52 of 2016 in which the Court found 'the Appella:nt guilty in all the three . ' counts. According to the charge, the Appellant was charged ,with unlawful entry into a Game Reserve, unlawful possession of weapons in a Game Reserve both contrary to the provisions of sections 15(1) and (2) and, the provisions of sections 17(1) and (2) all ·of the Vvildlife Conservation Act, Cap. 83 for the fi'rst and second counts respectively. The third count booked to the Appellant was unlawful possession. of government trophies contrary to. section 86(1) (2) ( c) of tlie Wildlife Conservation Act, Cap. 83 read together with paragraph 14-(d) of the, First Schedule to the Economic and Organized Crime Control Act, Cap. 200. According to the particulars of offence, and the evidence on record, on 26 th of July, 2016, the Appellant was found at Rubana river into Ikorongo/Grumeti Gc1me ' Reserve by Regatini and Dilei Kasenge Kasini, PWl and PW~ respectively while on patrol. He had no permit. When searched, the Appellant was found with a bicycle caiTying fresh n1eat of topi, t\f\lo knives, one machete, one spear and 5 animal tr 9 pping wires. I\ .~ . ' . . The same date, PW2 one William- Malya valued the said trophies and tendered· - the certifi'C9te of valuation (P4J With this evidence, the Appellant was accordingly . •''./ charg~d. Though denied the charge, the CoJrt found him guilty and acc~rdingly was . ,. ' convicted in ail the three counts. In the; judgment dated 4 th of January, 2017, Rugemalila, RM, sente11ced th.e Appellant fo a fine of Tshs. 200,000/= or eighteen (18) months imprisonment in the first c~unt; Tshs. 150,000/= or two (2) years prison term in the second count; and t'-'Yen_ty (20) years imprisonment in the third I count of unlawful poss·ession of government trophy. The Appellant was aggrieved by that decision hence, the present appeal got preferred by filing five grounds of appeal as follows:- . 1. That, the appellant was not arrested in or within the game reserve as was the evidence adduced by prosecution witnesses. Furthermore, I there was no any independent witness to corroborate the evidence of PWl and PW3 that they arrested h{m in or within the game reserve. 2. That, the exhibit P2 and evidence of PW2 was wrongly tendered before the Court since it was n:ot tendered by Expert from the 1 governrnent chemist as required by the law. I I 3. That, the evidence adduced before .the lower Court was full of cocked exhibit, that PWl, PW2 and PW3 were the same people from the same office, hence their·evidence was fabricated one. 4. Thal~ ·the appellant conviction and, sentence was illegal because· the prosecution side lacks legal basis and trial magistrate tried the case at hand without the consent from t;he Director of Public Prosecutions (DPP) as the case fall under the Economic and Organized Crime i I Control Act. Cap: 200 R.E 2002. 5. That, the trial inagistrate erred on point of law an_d fact by believing . . . a_nd relying on evidence produced by ·prosecution witnesses and ignored completely my sole defen.~e JJresented in Court anyhow. On the .9 th of May, 2019, the ap1:ieal came for hearing. On that day; the Appellant appeared· in person whereas the Resporident Republic was represented by Ms Maryasinta Lazaro, learned State Attoi;-ney. 1)1 addition to the grounds of appeal .. ' filed, which he prayed their adoption, the Appellant submitted briefly that, the case is a framed one and that, he was not arrestjed in the game reserve as alleged by the prosecution witnesses. He stated to have been arrested at home .. With those few remarks, the Appellant urged me to allow the appeal. . ' I Ms. Maryasinta Lazaro, learned State Attorney in reply, did not support the appeal in the first and second counts of unlawful ent1:y in the game reserve and unlawful possession of weapon·s in the game reserve respectively. She however supported the appeal in the third count of unlawful possession of government trophies. She submitted on defects in a charge of unlawful possession of government trophies in the third count such that, ii1 section 86(1) (2) ( c) of the Wildlife Conservation Act, Cap. 83, there are items. (l)(ii) and (iii) of which the present charge has not been specific. She thought under the premises, the Appellant was not '' . properly charged, thus rendering the charge defective. In the fourth ground of appeal, the learned. State Attorney submitted that, the ' Director of Public Prosecutions issued consent but it has not shown the law contravened. She added that, mentioning the Economic and Organized Crime Control Act alone in the consent is improper and in this, the court had no jurisdiction. On those pren1ises, she urged me to order a retdal. From the outset, the }earned State Attorney guided on two things. One: is that, the charge in the first and second counts relating to unlawful eritry in the game reserve and unlawful possession of weapons respectively have b~en proved. She did not however subi11itted on what evidence on record convinced her to believe so. She only said to support conviction and ?entence on the two counts. I .think this is not-_ enough. Constructively and impliedly, she left the matter to Court. The second aspect what Ms Maryasinta submitted as a guide to this court is that, as the consent of Director of Public Prosecutions did not mention the law contravened apart from the Economir and Organized Crime Control Act, Cap. 200, the said consent is defective and therefore the District Court of Bunda lacked jurisdiction for want of consent. She thus urged me to order a retrial on those irregularities without guiding the Court on principles regarding retrials. My take to the learned State Attorney- is that she submitted o_nly in ground 4 of the petition of appeal by the appellant regarding want of consent of the Director of Public Prosecutions before commencement of trials. She did not therefore submit on grounds 1, 2, 3 and 5 of the appeal. That said, I agree with the position of the learned State Attorney that, consent of the Director of Public Prosecutions and certificate o(transfer which do not embody the contravened provisions in the Wildlife Conservation Act, Cap. 83, in the instant appeal are bad in law and defective. There is no consent_ of Director of Public Prosecutions and certificate of transfer so to speak coined on the Economic and Organized Crime Control Act, Cap. 200 alone without embracirig in the contravened provisions in the Act establishing the offence, in this case, the Wildlife Conservation Act, Cap. 83. As rightly submitted by the learned State Attorney, there is no consent of the Director of Public Prosecutions so sought. The route she has taken is to order a retrial. I wi}l come to this route after having considered the evidence on record. ( " In all the grounds of appeal save for -the. 4 th ground, the main complaint is whether the evidence on record h·as· proved the three counts of unlawfui entry, unlawful possession of weapo11s and government trophies. In the evidence, I nqted some contradictions regarding the government trophy allegetj to be found in . . possession of tl~e Appellant. One is rhe testimony of PV\11 which have a different set of facts. He testified as hereunder:- "We found them with /(mzigo" one bicycie (make phonex) fresh meat of "topo': two knives, one spear, one machete, 5 trapping w.ires" With regard to Government trophy, as noted above, P\i\11 simply stated "meat oftopi". Two, on_his part, PW3·who was with PWl during arrest,.his is as follows;- "After arresting them we found them, with a bicycle car7ng fresh meat of "topi'' cut into pieces. They had also two knives, one machete; one spear and 5 anirnal trapping wires. They introduced_ themselves as Juma Makuru Juma and Mwita Jsokelo Semo. The meat was cut into 2 hind legs, fore leg and head connected to the neck" With the evidence of PW3, the description of trophies differs maternally with that of PWl. It is therefore doubtful if the said pieces named by PW3 were in "mzigo" named by P\i\11. These two sets of evidence, each on different account, While the two witnesses were together, cannot be und.errated. The learned trial Magistrate did not first, observe and identify the contradictions and second, never attempted to resolve them. The case of Mohamed Saidi Matula Vs R, (1995) TLR 3 is relevant on this. This takes that, the Appellant was not found with such trophies. If this is the case, the defence of the Appellant that he was arreste~i at Maliwa Village cannot be ignored. 1 ' In the upshot, on those premises, l iL~sitate to ord~r a re.trial as guided by the learned· State Attorney. Accordingly, the Jppeal is allbwed-. Th~ conviction is thus quashed and the sentences met in all the t~ree counts are hereby set aside. I further . . I . . order release of the Appellant from custod_Y, unless lawful held. It is so ordered. 6