NDAMILI MABULA vs Republic final final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF SHINYANGA) AT SHINYANGA CRIMINAL APPEAL NO. 33566 OF 2024 (Arising from decision of the District Court of Bariadi at Bariadi before M.M NYANGUSI -SRM dated 11th March 2023 Economic Case No.72 of 2023) NDAMILI MABULA @ NDALAH’WA ….….....................APPELLANT VERSUS THE REPUBLIC……………..…………..……………….…RESPONDENT JUDGMENT 16th January & 14th February, 2025 Massam, J:- The appellant herein above was charged before the District Court of Bariadi at Bariadi with two counts. One, unlawful possession of weapons in the National Parks C/s 24 (1) and (2) of the National Parks Act Cap 282 RE of 2002. Second, Unlawful Possession of the Government Trophies Contrary to Section 86 (1) and (2) (c)(iii) of the Wildlife Conservation Act [Cap 283 R: E 2022], read together with paragraph 14 of the First Schedule to; and Section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap 200 R.E 2022]. The briefs facts of the case are that, on 20th day of September, 2023 at ‘’Milima ya Rasta’’ area in Serengeti National Park within Bariadi District in Simiyu Region, was found in unlawful possession of weapons to wit; one panga, one knife and four trapping wires without the permit 1 and failed to satisfy the authorized officers that the same were intended to be used for purpose other than hunting, killing, wounding or capturing of wild animals. Likewise, on the same date and place was found in unlawful possession of Government Trophy to wit; three pieces of fresh meat of eland equivalent to one eland unlawfully killed valued at a total of USD 1700 equivalent to Tanzania shillings four million two hundred sixty-one thousand nine hundred (4,261,900) only the property of Tanzania without the permit from the Director of Wildlife. After the full trial, the appellant was found guilty with two offences, convicted and sentenced, to pay fine of Tshs. 100,000/= or to serve one year (1) imprisonment for first offence and to serve (20) twenty years’ imprisonment for second offence. Aggrieved therein, the appellant rightly lodged his appeal in this court with 4 (four) grounds as follows; - 1. That, the trial magistrate erred in law and in fact to hold conviction while the certificate and consent was curable defective. 2. That, trial magistrate court erred both in law and in fact when she failed to consider that the prosecution side failed 2 to establish the case beyond reasonable doubt no any trophies which brought in court as exhibit. 3. That, trial court erred in law and fact to pass a sentence while the prosecution side failed to produce the caution statement in court as exhibit. 4. That, the trial court erred both in law and in fact to hold conviction in contradiction and weak evidence adduced by the public witness thus left a shadow of doubts. During the hearing, the appellant appeared in person unrepresented, while the respondent was represented by Mr. Saguya Learned State Attorney and the matter was heard orally. In submitting his appeal, the appellant submitted that, he was aggrieved with decision meted by trial court, so he prayed this court to consider his grounds of appeal as it has merit. In response, the learned State Attorney for respondent strongly opposed the appeal and supported both conviction and sentence imposed by the trial court. With regard to the grounds of appeal submitted by the appellant. The respondent’s counsel Mr. Saguya State Attorney prayed to argue ground No 1 and 3 separately, while ground no. 2 and 4 will be answered jointly. 3 Stating with first ground of the appeal, the appellant complained that the trial court magistrate erred in law and fact to hold the conviction against him while the consent and certificate was curable defective. Mr Saguya thought that the appellant meant that the consent and certificate were incurably defective as opposed to curable defective. He added that it should be noted that the nature of case the appellant is facing, requires the consent to prosecute and certificate conferring jurisdiction to the subordinate court from Director of Public Prosecution because High Court has exclusive jurisdiction as Section 3 of the Economic and Organized Crime Control Act. Moreover, Mr Saguya submitted that the case at hand the consent and certificate were properly filed and received by the trial court and this is evidenced through page 1 and 2 of the trial court proceedings. Lastly, he prayed the first ground of appeal be dismissed for lack of merit. Responding on the second ground of appeal, where the appellant complained that the prosecution side failed to prove the case beyond reasonable doubt but also no any trophy which was brought as an exhibit, thus his conviction was based on contradiction and weak evidence. It was submission of Mr. Saguya that the four prosecution 4 witnesses and six exhibits proved the case beyond reasonable doubt. He added that it is the duty of prosecution to prove the case beyond reasonable doubt as it was held in the case of Jonas Nkinze Vs R [1992] TLR 213. Additionally, Mr. Saguya said that the four prosecution witnesses proved the case as PW1 and PW2 who are both park rangers they were in company with fellow conducting patrol at'' Milima ya Rasta'' located at Serengeti National Park, arrested the appellant. They found him with one machete, one knife and four trapping wires and had three pieces of eland meat without any permit. They filled certificate of seizure which was signed by PW1 and PW2 and the accused (now the appellant). Moreover, PW1 tendered the machete, knife and four trapping wires which were received as exhibit P3 collectively without objection. PW1 took GPS map code to show that the appellant was arrested in Serengeti National Park. PW1 tendered the certificate of seizure and GPS map which were admitted as exhibit P1 and P2 respectively.PW3 investigator said that on 20/09/2023 the appellant was arrested in Serengeti National Park with a machete, knife, four trapping wires as well as three pieces of meat. PW3 testified that the chain of custody was used during all stages and the same was tendered as exhibit P4 without any objection from the 5 appellant and concluded that the three pieces of meat were disposed after the court order. PW4 is a wildlife officer who identified and evaluated the trophy by mentioning the specific features which enabled him to conclude that it was an eland meat. PW4 filled trophy Valuation certificate which was admitted as exhibit P5 without objection from the appellant while the inventory was admitted as exhibit P6 (as a substitute) of the real exhibit which was destructed. Finally, he prayed the second and fourth ground of appeal be dismissed because are meritless. Coming to the third ground where the appellant is complaining that the caution statement was not produced as exhibit. Mr. Saguya responded that prosecution of any criminal case is an art which placed to the one who prosecute the matter, so in this case it could be awkward to tender a cautioned statement of the accused who disputed to commit the offence. Moreover, Mr. Saguya said that the prosecution evidence was sufficient to convict and sentence the appellant even without a caution statement and this ground also is baseless. Finally, Mr. Saguya prayed the whole appeal be dismissed as it has been brought without any good cause. 6 Upon going through the entire records and carefully considered the submission from both sides, there is no doubt that the appellant is challenging the conviction and sentence meted against him on the reasons that the prosecution did not prove its case against him beyond reasonable doubts. Therefore, the main issue to be determined by this court is to whether the prosecution proved the case against the appellant beyond reasonable doubt. Also it is a common legal principle that in criminal law the burden of proof lies to the prosecution and the standard is beyond reasonable doubts see Section 110 and 112 which read together with Section 3 (2) (a) of the Evidence Act [Cap 6 R:E 2019]. Also, the same principle was stated in the case of Woodmington Vs. DPP (1935) AC 462, the court held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. This is a universal standard in criminal trials and the duty never shifts to the accused, See also the case of Christian Kale & Another Vs. The Republic (1992) T.L.R 302 CAT and John Makorobera & Another Vs. The Republic (2002) T.L.R 296, where it was firmly held that the accused person should only be convicted of 7 an offence, he is charged with on the basis of the strength of the prosecution case not on the weakness of the defense case. Stating with first ground of the appeal, the appellant complained that the trial court magistrate erred in law and fact to hold the conviction against him while the consent and certificate was curable defective. I am aware that under section 3 of the EOCCA, the court with jurisdiction to try economic offences is the High Court. However, section 12 (3) of the EOCCA, provides that: "(3) The Director of Public Prosecutions or any State Attorney duly authorised by him, may, in each case in which he deems it necessary or appropriate in the public interest, by certificate under his hand, order that any case involving an offence triable by the Court under this Act be tried by such court subordinate to the High Court as he may specify in the certificate." The law, that is, section 26 (2) of the same Act, the EOCCA, provides further for a requirement of the consent from the DPP or a person authorized by him, before such an offence is tried. That section provides: "(2) The Director of Public Prosecutions, shall establish and maintain a system whereby the process of seeking and obtaining of 8 his consent for prosecutions may be expedited and may, for that purpose, by notice published in the Gazette, specify economic offences the prosecutions of which shall require the consent of the Director of Public Prosecutions in person and those the power of consenting to the prosecution of which may be exercised by such officer or officers subordinate to him as he may specify acting in accordance with his general or special instructions." I have keenly looked at the evidence on records. The instruments referred to in the above provisions, that is, the certificate conferring jurisdiction on the subordinate court to try an economic offence and the consent, were issued in accordance with law and good enough were filed and admitted by the trial court as reflected under page 01 and 02 of the trial proceedings. Respectfully, I agree with Mr Saguya that the consent and certificate were filed and admitted by the trial court. See the case of John Julius Martin and Another vs Republic, Criminal Appeal No 42 of 2020 CAT Arusha. From the above analysis. I find the first ground has no merit and it is dismissed. Responding on the second ground of appeal, the appellant complained that the prosecution side failed to prove the case beyond 9 reasonable doubt but also no any trophy which was brought as an exhibit, thus his conviction was based on contradiction and weak evidence. It was submission of Mr. Saguya that the four prosecution witnesses and six exhibits proved the case beyond reasonable doubt. PW1 and PW2 both park rangers with their fellow arrested the appellant in Serengeti National Park, with one machete, one knife and four trapping wires and had three piece of eland meat without any permit. Also, PW1 was the one who filled the certificate of seizure and took GPS map which were admitted as exhibit P1 and P2 respectively while the machete, knife and four trapping wires which were admitted as exhibit P3 while collectively. PW3 an investigator said that on 20/09/2023 the appellant was arrested in Serengeti National Park with a machete, knife, four trapping wires and three pieces of eland meat. PW3 said that the chain of custody was used during all stages and the same was admitted as exhibit P4. PW4 is a wildlife officer identified and evaluated the trophy by mentioning the specific features who concluded that it is an eland meat and filled in trophy Valuation certificate which was admitted as exhibit P5 while inventory was admitted exhibit P6 as substitute of the real exhibit. 10 I have scanned the submission from both parties and going through the trial records. The evidence adduced by prosecution witnesses, PW1, PW2, PW3 and PW4 revealed that the appellant was arrested in Serengeti National Park with weapons to wit one panga, one knife and four trapping wires and had three pieces of fresh eland meat without permit from Director of Wildlife and all exhibit certificate of seizure P1, GPS Map P2, weapons P3, Chain of custody P4, Trophy valuation Report P5 and inventory P6 were admitted without objection from the appellant which also proved the case. In the premises the case was proved beyond reasonable doubt as it was held case of Mohamed Haruna@ Mtupeni & Another vs. R, Criminal Appeal No. 25 of 2007 (unreported) where it was held that; "of course in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." From the above observations. I find the 2nd and 4th grounds of appeal have no merit and are hereby dismissed. Coming to the third ground where the appellant is complaining that the caution statement was not produced as exhibit. Mr Saguya 11 responded that prosecution side adduced sufficient evidence to convict and sentence the appellant even without a caution statement. I am aware that the law governing the recording of cautioned statements is the Criminal Procedure Act, [Cap. 20 R.E 2022]. The recording statement is provided for under section 50(1) of the CPA and failure to record the said cautioned statements in the manner prescribed by the law is fatal and will render such statements inadmissible. However, the prosecution side is not compelled to tender caution statement if they don’t wish to tender the same. I have gone through submission from both parties and trial records. Indeed, the caution statement was not tendered as exhibit. However, it is not mandatory to tender the caution statement as the prosecution is at liberty which exhibit to use and the one to left. Thus I join my hand with Mr. Saguya that it was not mandatory to tender the caution statement as exhibit because the evidence adduced by prosecution witness was sufficient enough to convict the appellant. From the above observations. I find the third ground of appeal too has no merit and it is dismissed. 12 Therefore, from the foregoing analysis, I am satisfied that this appeal has no merit. I dismiss this appeal, and uphold the conviction and sentence meted by the trial court. It is so ordered. DATED at SHINYANGA this 14th day of February, 2025. R.B. Massam Judge 13