20141006 TZHC Mwanza

- ., .. -,-- . IN-TM_E HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA . . · HIGH COURT CRIMINAL APPEAL NO~. 35 Of 2014 . ,·, (Original Cr, Case·No. 08 of 2013 of the District Court of Bundaat Bunda) i. NYAGETE MASASI @ MAGASI 2. GODFREY JAM!ES NYAMlNJA @ SIMA.NGO .~ ..... APPELLANTS. I VERSUS THIE RE,PUBLI·C _ ■ 11na111.e ■ a£11t II!• s ■ ·wr11,1111-111111-se 111111a11 ■ • 11 ■ 111111 acec11:111 ■ 1111t11ct1ei1 ■ 11 R.ESPONDE'NT REASONS FOR JUDGEMENT 04/09 & 6/10/2014 · SUMARI, J. On 4/9/2014 the appellant's appeal was argued and I allowed it instantly thereby reserving my reasons which I'm nci'(V giving. The appellant IN!yagete Masasi @ Magasi and Godfrey James Nyaminja @ Simango were charged of three counts namely; 1st count- Entering into a National Park without Written Permit c/s 21 (1) and (2) of . . . . the National Parks Act, Cap. 282 (R.E.2002)~ 2nd count- Unlawful Possession of weapons in the National Park c/s 24 (1) (b) and (2) of the . . ~~- . . 1 • ' National Parks Act, Cap. 282 (R.E.2002), and 3rd .. cou·nt- · Unlawful . Possession of Government. Trophy c/s ·s6 (1) ·and (2) (b) of the Wildlife Conservati9n Act No. 05 of 2009 read tog~ther with Pargraph 14 ( d) of the . First Schedule. to the Organized Crime_ Control Act, Cap. 200 (R:E.2002). ·They were both convicted a.nd sentenced to· serve a term of six months imprisonment· for the 1st count, one year imprisonment for the 2nd count and 20 years imprisonment for the 3rd count. He was dissatisfied with both '. conviction and sentence, hence this appeal . Mr. Rugai,:nukamu, and Mr. Kisigiro, learned Advocates opted argue the appeal generally.· It is Mr. Rugaimukamu's submission that preliminary hearing was not properly conducted as required by S. 192 (1) of CPA. He contended that though the section is there for accelerating case only, -it should not be neglected. . That after the . trial court entered a p!ea of guilty on 22/03/2013 no indication who read out the _facts of the case though at the end it is recorded that S. 192 (3) of CPA complied. He insisted that in the absence of who read out the facts of the case, there was a miscarriage of justice from the beginning. Criticizing the prosecution's evidence which alleges that the accused persons/appellants were found with four eiephant's tusks, one motor cycle, . one axe and one machete, he strongly contended that no seizure certificate to that effect. It was his views that, that was wrong under S. 22 (2) and (3) of the Economic Act, Cap. 200. Failure to have the said seizure certificate to him means that the alleged items were planted to appellants. He v:ehemently challenged the allegation that appellants admitted to have killed the elephants with a gun and that they showed where the gun Ai1 . 2 'fl~~---- . was and after the gun ·recovered they b~ought it to a Chairman of· the ' . village. He ·wondered why this Chairman is not a witness or the one kept the said gun. If any gun why was the said gun not tendered-in evidence? . He strongly contended that {t is not _true. that appellants were found with the alleged ·items in National Park.· His contention is thQt failure to bring the said piece of evidence weakened the prosecution case. He referred the case ~f Azizi Abdallah Vs. Rep. (199-1) TlR 71 & 72 (ii) & (iii) which reads:-· "(ii) the purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm or support that ~hich as evidence is sufficient and satisfactory and credible/ (iii) the general and well known rules is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to tf!stify on material facts. If such witnesses are within reach but are not called without sufficief)treason being shown, the court may draw an inference adverse to the prosecution.. ". He insisted that there was no evidence to warrant conviction therefore the appellant's appeal is subject to be allowed. On this · part Mr. Kisigiro, subscribed the submission by Mr. Rugaimukamu·. Mr. Kidando, learned State Attorney fully conceded to this appeal without further or additional submission. As correctly a·rgued by the Mr. Rugaimukamu for the appellants, there was no proof that the appellants were fou~f~in possession of the alleged items . Jit__~ · 3 . •, l • _i . • in the National Park of Serengeti. Under the circumstancE:s of this case the certificate of seizure was very important. It is surprising the certificate of . identification and valuation of trophie~ was· made available but not the certificate -of. s~zure. Apparently the trial court erred in convicting. the appellants in th.e absence-of such important evidence. But again we are told that the app~Uants admitted to have used the gun in committing the said offence and the same according to Pw2 was retrieved. However, this gun .is not part of evidence· in this case. Why? The pr9secution knows. Also it is surprising as correctly argued by Mr. Rugaimukamu that the alleged witnesses, independent ones_ who witnesses the recovery of the said gun, like the chairman was not brought to testify on" the aspect. All these were crucial issues which the trial magistrate ought to· have considered. Had it been she did so she could ended up acquitting the · appellants, hence the reasons why I allowed this appeal. Tuefee 4 I . I