20190617 TZHC Mwanza

i . \ . I £: IN THE HIGHI COURT OF TANZANIA j IN THE DISTRICT REGISTRY I A/f MWANZA I HC. CRIMINAL APPEAL 181 OF 2018 I (Original EcononJic case No. 127 of ~016, of the District Court of_Serengeti at Mugumu) . I 1. NYAIBANDE MI<AMI@ NYARO~GE } 2. HINGE NYAMHANGA@MARWA I _ 3. I KW ABE NYAMHANGA@MARWA ............. ............................ APPELLANTS VERSUS THE REPUBLC ............... ............................................. ............................. RESPONDENT I I JUDGMENT 06/05/2019 & 17/06/2019 G. J. Mdemu, J; This appeal is a consolidated Jne from appeals No. 181 of 2018, 182 of 2018 I and 183 of 2018 by Nyaibande Mkal'.ni @ Nyaronge, Hinge Nyamuhanga @ Marwa and Ikwabe Nyamuhanga@ Marwa rkspectively. The three Appellants together with Jurna Meshack@Chacha and YohanalI Julius @ Mwegete were all charged in the 1 District Court of Serengeti with econ omic case No. 127 of 2016 on four counts to I . wit;-; unlawful entry into a National Park contrary to section 21(1) (a) and (2) and 29(1); unlawful possessions of weap)ns in a National Park contrary to section 24{1) (b )and (2) all of the National Park Adt, Cap. 282 in the first and second counts and I unlawful possession of government tr6phies contrary to section B6(1) and (2) ( c) of I . the Wildlife Conservation Act, Cap. 283 read together with paragraph 14( d) of the First Schedule to the Economic and Orkanized Crime Control Act, Cap. 200. I . Facts according to the prosecution case are such that, on the 6 t:h of December, 2016 at Kagatende area within Scre111Lti National Park, Mohamed Athuman, Moses Kayaga, PWJ and PW2 respectively, t~>gether with P,iulo Masiade and others wh.ile I I I ; . I on patrol, noted some footsteps of human beings. They followed those footsteps and in a distance while, surrounded and arresteL the Appellants in the National Park. I () " They were in possessio·n of one panga, two )pears, four animal trapping wires, one j leg of hippopotamus and four fresh pieces of Zebra. They had no authority to enter in the Natio·nal Park and also possessing weabons and gove;,nment trophies. . I. PW3, one Wilbroad Vicent valued the! said government trophy, that is, leg of I . hippopotamus and the four pieces of zebra meat. According to exhibit PE4, I' certificate of valuation, the estimated value was Tshs. 5,886,000/=. I • In their defence, all Appellants deniedl participation, though they do not object I to be arrested. Nyaiba·nde Mkami Nyaronge,tthe first Appellant stated to assist Hinge I Nyamhanga @ Marwa, the Second Appelladt -preventing his two cattle to enter the . I National Park. The Second Appellant admitted to have been arrested together with . ' the other App~llants. The third Appellant has a similar story to that of the first Appellant. • II Notwithstanding this defence, on 27 th of November, 2017, the learned trial I· Magistrate found them guilty and accordingly convicted them as charged. The I sentence was such that, in the first arid second counts, each Appellant was sentenced to one year imprisonment, whi!JI a prison term of 20 years was preferred in respect of the 3 rd count on unlawful 1Jossession of government trophies to all Appellants. Juma Meshack@ Chacha and Yohan,a Julius@ Mwegete who were the 4- th and j 5 th accused respectively, the record as per the judgment at page 12 indicate that, I they were all convicted. During mitigatio1r,. only the three Appellants entered their mitigation. The then 4 t:h and 5 th accused cpd not mitigate and the record is silent if they were sentenced because even their /wc1rrants of commitment of sentence are • missing in t:he record. I . tJ I .I ;. . .. As staled above, th~ three ApPellanl.s lile/i 111.:ir memorandum of .appeal eadl senat1m. Each Appellant filed 7 grounds ol appleal. 1he 1113111 complamt lil all the 21 ( grounds of appeal hinges on one thing, that the prosecution case was not proved. On 29 th of April, 2019 the three Appellants appea1ed each in person· to prosecute their I appeal. The Respondent Republic on that dat had the service of Ms. Maryasil~ta Lazaro, learned State Attorney: The first Appellant, in addition to the grounds of appeal which he prayed their adoption, observed that, they were arrested /while. cutting grasses and that those who took to their hills were the ones of whom the said Park Rangers were following them. He concluded th.at, the offences were nkver committed as even police officers never testified. On his part, the second A~dellant submitted that, the 4 th and 5 th accused who pleaded guilty were set at liblrty. He ·could not the.refore hold any justification for their conviction as they arJ not responsible. The third Appellant I simply pleaded reliance on the contents 01· his grounds of appeal. They all then prayed the appeal be allowed. · In reply, M~. Maryasinta Lazaro, learned State Attorney was very brief. She argued all 21 grounds of appeal in one majof point that, the Appellants did not cross examine prosecution witnesses, which mJans, the prosecution evidence remain I . uncontradicted. She added that, in their defence, all the Appellants did not deny to have been found in the National Park. TlJ evidence that all the Appellants were following their cattle in the National Park il evident that they were unlawful found in the National Park. She therefore on thLse premises, urged me to dismiss the appeal. j I In rejoinder, only the second Appell nt rejoined that, the trial Magistrate did not record their crDss examination. After hearing the parties and considered tl1e record, l should begin. with ju risd ict:i o ll issues. At page 3 of the p rocejL ings, con sent and ce rti fl ca te of transfer -----··1) . r , were duly filed. My concern to the consent and c)tilicate is not whether they were I - filed or not, but rather if there was any consent and certificate. Filing of the ( \ documents is one thing and authen-ticity and lalidity of the said consent and certificate is another thing. I have the following /observation after scrutinizing the I • two documents; One, they are not stamped with the official stamp of the office is~uing them.-This, in. my view raises, doubt if at ~~l they were issued by the relevant I authority. I Two, the two documents appears to have had been issued in respect of I I I contravention of paragraph 14 of the First; Schepule to the Economic and Organized I Crimes Control ~ct, and sections 57(1) and 60(l) of the same A~t. In my view, such a certificate and consent is defective for failure Ito mention a proper section in the Wildlife Conservation Act,- which the ApiJellant tolated as contained in the charge. I I In my view, a phrase "read together with" used in the charge, meant that, the I' Economic and Organized Criminal Control Act cannot be in a silo without the I provisions of th~ Wildlife Conservation Act/ contravened put in place. The said I consent and certificate are bad in law. The Dihrict Court of Serengeti therefore had I no jurisdiction to adjudicate economic case No. 127 of 2016. Proceedings and the i resultant judgment are null and void. Ordinar.ily, I would have ordered a retrial, but before I do that, I think l should consider thJ evidence on record if it would attract conviction in case a retrial is ordered. I In the instant appeal, it is not disputeb that the Appellants were found in the I' National Park. Both the evidence from the prosecution and defence has proved that I fact. As it is not disputed, the learned tri~I Magistrate was justified to find the . I I accus_ed guilty in the first count ~)f ·unl;=n/ful entry in the _Na~io1.1al. Park without · penrnt:. As this count does not require consent, the court had Jurisd1ct1on. I As to the second count on unlawfu/ possession of weapons in the National Park, this remain unproved because, ,1s th'c Appellcrnt ac.lni.its to be in tile Nation;:il b . I I I . r Park t:akint,r out of the Park. their cattle in a diflerc1it area stated by PW1 and PW2, ' . . I weapons such as trapping wires, are not connec'ted or incidental to the act of ' . ( · grazing cattle. The second count of unlawful possehion of weapons in the National· < I Park has also not been proved. I I I . On the third count of unlawful • possession ofI government trophy, I will have a I different line of thinking. The learned State Atforney in the first place did not specifically focus on this count. She had a generaliobservation that, as the Appellant I never cross examined, then, they are taken to have j allowed the prosecution case to proceed uncontradicted. I think failure to crq'ss examine. does not relieve the • I prosecution to prove their case at the standard 1:equired, that is, beyond reasonab_le . I doubt. I am also of the view that, in the circumstances of this case, that line of . ' thinking should be approached with care. The i·eason is one. Both the prosecution I . and the defence, none ctoss examined the ot:J1er. The Appellant remained silent when the prosecution witnesses testified. LikeJ,ise, the prosecution re.mained silent I when the Appellants were defending. f I The prosecution witnesses testified to/ have arrested the Appellants in the National Park in possession. of one leg of hippopotamus and four fresh pieces of Zebra. The Appellants, on the other hand sta~ed J to guard their cattle in a National ' Park. A fact relating to possession of govenjment trophies to be in the vehicle of Park Rangers on patrol got testified by Jumc!I Meshack@ Chacha and Yohana Julius @ Mwegeta, the then DW4 and DWS respectively. I I I I' In any case, whether the version of Dy\14 and DWS or of the three Appellants, i the prosecution never cross examined. By fpiling to do so, it means the defence case has weaken the prosecution case. This is ~o because the duty of the accused is to I raise reasonable doubt. See t!Jc case of Mali1zuku Hamisi vs. R. (1997) TLR 1 ' I Following that reasontible doubt raised, it means the prosecution case has not . I been proved beyond reasonable doubt. lt:I is also l"rire law that any doubt created ...... ~ - I I I I either frorn the prosecution or defence case, shou/d operate in favour of the .accused I I person. l therefore agree with the Appellants that the defence case was not ' (, " evaluated. / I That said, the evidence of PWl and PW2 who arrested the Appellants, has not . ! proved beyond reasonable doubt that the Appe,llants they arrested were ·found possessing weapons and government trophy. lrl those premises, I do not have any I I justification to disturb the finding of the learned trial Magistrate to find the . I I Appellant guilty in the first count of unlawful elltry in the National Park. Conviction I . I and sentence were lawful. / I ' · As stated, the evidence on unlawful pos:sessio·n of weapons and government ' trophy remain wanting. In those premises, I ~llow the appe~l partly by quashing ' conviction and the sentence of 20 years imprisonment in the third and fourth counts I of unlawful possession of government trophy./ I I Since the Appellants were convicted j on 27 th of November, 2017 on the J sustained count of unlawful entry in the Natidnal Park, and as the sentence_ was one year prison term, that sentence should have ;been completed. I consequently order ' release of the Appellants unless, for other rea'sons, lawful held. I order accordingly. ' .) !