NDITO SUKUMAWIKI JD

IN THE HIGH COURT OF THE UtlTED REPUBLIC OF TANZANIA IN THE SUB - REGISiTRY OF SHINYANGA

AT SHINYANGA CRIMINAL APPEA[ NO. 38 OF 2022 (Arising from Criminal Case No. . of 2020, Kishapu District Court)

NOITO SUKUMAWIKI APPELLANT Versus THE REPUBLIC •.....•....•.......•••..... i •••••••••••••••••••••••••••• RESPONOENT

JUDGMENT Date of Last Order: 06/09/2023 Date of Judgment: 31/01/2024 s. M. KULITA, l. This is an appeal from Kishapu Di trict Court, arising from the Criminal Case No. 1 of 2020. The appellant herein was convicted and sentenced to 20 (twenty) years imprisonment t,rm for Unauthorized Possession of Minerals, contrary to section 18(1)(4)(a) of the Mining Act [Cap 123 RE 2019], read together with Paragraph 27 of the 1st Schedule and Sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE2019]. II The story behind this matter in a nutshell, according to the record and the pleadings, is that the Appellant herein was found dropping from the bus at Nhunze Bus Stand in Kishapu. He had the luggage suspected to contain trophies in it. That, upon been suspected by Police, the Appellant was arrested and taken to Kishapu POli1e Station with the said luggage. It is alleged that the said luggage was searched there at the Police Station and the said trophies, as well as minerals, were recovered. On 17/12/2020 the Appellant was drugged to the District Court of Kishapu. He was found not guilty for unlawful Possession of trophies, hence acquitted. However, he was found guilty and convicted for Unlawful Possession of Minerals. That led him to be sentence6 the imprisonment term of 20 (twenty) years. Aggrieved with the said conviction and penalty, the appellant lodged this appeal relying on the following grounds; 1. That, sections 12(3) and 12(4) of the Economic and Organized Crime Control Act [Cap 200 RE 2019] were not complied with.

2. That, the punishment imposed is contrary to the provision of section 18(4)(a) of the Mining Act [Cap 123 RE 2019]. 2 3. That, the charge was not proved beyond all reasonable doubts.

4. That, the trial Magistrate exceeded his sentencing powers by imposing the sentence that exceeds 5 (five) years.

5. That, the minerals that he was holding were taken by Police, and that on the first date, 17/12/2020, he was not charged in respect of minerals, until 9 (nine) monthilater, that is 28/09/2021 when the minerals were incorporated into the substituted charge. The appeal was argued through oral ~ubmissions. While the Appellant was unrepresented, the Respondent (Rep~bIiC) was represented by Ms. Gloria Ndondi, State Attorney. In support of the appeal, the appellant prayed for his grounds of appeal to be adopted as the submissions for his appeal. In her reply to the third ground of appeal, Ms. Ndondi, State Attorney, submitted that the case at the trial court was proved beyond all reasonable doubts. She said that, it was evident by PW1, a Police Officer, that upon getting the information from the innocent people on the suspicious luggage I that the appellant was holding, he decided to arrest the Appellant and took him to Police. The State Attorney narrateo that, thereat the Police Station the luggage was searched by the Police Officer on duty, PW2. She said that, together with the trophies, the said inerals were also recovered. That, the said minerals were kept in a container which was stored in the same luggage with the trophies. The Counsel further submitted in respect of the 3rd ground that the Geologist from the Regional rineral Office (PWS) was consulted and went to the Police

Station on 11/12/2020 for identification of the minerals. She said that the Geologist actually went thereto, identified the minerals and filled a respective report on it (exhibit P3). The counsel further submitted that PW2 also tendered to court the Search Warrant and Certificate of Seizure (exhibit Pi). Ms. Ndondi stated that, in his defenT the Appellant admitted to have been found in possession of the said mineralS without permit. For those reasons, as narrated from the record, Ms. Ndondi concluded that, the count for Unlawful Possession of Minerals was proved beyond all reasonable doubts. In analyzing this ground of appeal I find it convenient to incorporate with the ground of appeal listed as No. 5 herein above which states that the minerals that the Appellant was holding were taken by Police, but it happened that on the first date Jhat he was taken to court, that is 17/12/2020, he was not charged in respect of minerals, until 9 (nine) months 4 later, that is 28/09/2021, when the minerals were incorporated into the substituted charge. Though this iSSUrwas raised by the appellant in his appeal, the Republic didn't enter a reply on it. According to the record, PW2, a Police Officer who conducted a search for the appellant's suspicious luggage on 10/12/2020 said that, apart from trophies, they also recovered minerals from it. That led them to consult the Regional Mineral

Office, hence the Geologist(PWS) went to the PoliceStation on 11/12/2020 for identification of th said minerals. According to the State Attorney, the said officer went thereto and identified them. He then filled a report (exhibit P3) for the examinatio I he had made. The question that triggers my mind on this issue is that, if that was the case, what made the Appellant not to be c arged for Unlawful Possession of Minerals, while it was alleged that hk had no permit to hold them, until 7 months later, while it was already eVi1ent that the said appellant was found in possession of minerals? The recori transpires that, after it was read on 17/12/2010, the original charge sher was substituted on 13/07/2021 in which the offence charged against tre appellant remained to be that of Unlawful Possessionof Government YOPhies. It had no count of Unlawful Possessionof Minerals. In the 2nd SUbjitution of the charge sheet which was s done on 28/09/2021, together with the count of Unlawful Possession of Government Trophies, the count involving Possession of Minerals was also incorporated. Doubt on this issue extends to the ftct that, the Appellant (DW1) admitted to be found in possession of minerals but he alleged that they were 6 (six) kilograms, not 9 grams stipulated i~ the charge sheet and averred by the Police. I went through the impugned judgment and noticed that, in her analysis on the

defense case, the trial Magistrate tried to show that, such evidence by the Appellant during trial weakened his defense, hence he be regarded innocent while it was not helpful to him. The State Attorney tried to show the same thing in her subm1issionduring the appeal. But, all in all, the implication here is that, even thbu9h the appellant was actually found holding minerals, there was somet~ing wrong by the Prosecution side in dealing with the said minerals. From the above stated analysis, the appellant was not supposed to be convicted for the doubts that I have stipulated herein above; First, for no reasons, there was a delay to charge the Appellant in Unlawful Possession of Minerals, Secondly, the amount of minerals that the appellant is alleged to have been found possessing beinJ mentioned to be 900 grams while the I 6 appellant himself stated that it was 6 Kg creates a rebuttable presumption that the said minerals were tempered. My finding on this is that, the said dell y of the Prosecution side in charging the Appellant with the case involving minerals, makes me to conclude that the prosecution evidence is tainted wit the elements of doubts. There might be something hidden in respect of thl amount of minerals alleged to have been found in possession of the appell!nt herein. That, the said exhibit might have been tempered. That can be a jason for the Prosecution at the

trial court to hesitate to charge the Ap I ellant for the count of "Unlawful .,> .' • Possession of Minerals'; until 9 mo ths later, and the samelnvolvtnq the amount of minerals that has been reduced from 6 kilograms to 900 grams. It is a principle of law that such doub s lead to the acquittal of the Accused Person on benefit of doubts. It is the duty of the prosecution side to prove its case beyond all reasonable doubts. This was held in WOOLMINGTON v. DPP [1935] AC 462, as well in MAGENDO PAULO AND ANOTHER v. R [1993] TLR 219. The above analysis is sufficient to disiose of this appeal in its entirely. That being the case, I am not going to deal with the remaining grounds of appeal. 7 I hereby find the appeal meritorious, hence allowed. The appellant to be released from the prison custody, unless he is held for any other lawful cause. if!- S.M. kULITA

JUDGE I 31/01/2024 DATED at SHINYANGA this 31st dalYof January, 2024. I tH-- S.M. KULITA

JUIDGE 31/0f/2024 8