Criminal Appeal No

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 12410 OF 2024 (Originating from the decision of the District Court of Liwaie at Liwaie in Criminal Case No. 12 of2022) OMARY MOHAMED BANDU..... .............. .APPELLANT VERSUS THE REPUBLIC..... ............... ......RESPONDENT JUDGMENT 28* June and 3Cri July2024. DING'OHI, J. The appellant, Omari Mohamedi Bandu, was charged and ultimately convicted on a single count of unlawful possession of a Government Trophy contrary to section 86 (1) and (2) (c) (iii) of Wildlife Conservation Act Cap 283 R.E. 2022 read together with Paragraph 14 of the first schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act Cap 200 R.E. 2002 as amended by Section 16 (A) and 13 (b) respectively of the written Laws (Miscellaneous Amendment) Act No. 3 of 2016. It was speculated that on 29th November 2022 at Nyera - Kiperere Forest Reserve at Liwaie District in Lindi region the appellant was found in unlawful Page 1 of 17 possession of a Government Trophy, to wit thirteen (13) pieces of Hartebeest meat carried in his motorcycle, valued at Tanzania Shillings 1,507,993/= the property of the Tanzania Government without a permit from the Director of Wildlife. The appellant pleaded not guilty to the charge. In an attempt to prove the charge, the prosecution side brought a total of four witnesses to wit; Kelvin Method Kessy (PWl), Isack George Mollel (PW2), G-3573 Detective Corpl. Marijani (PW3) and H-8899 PC Steven (PW4). They also tendered the following exhibits namely; Certificate of Seizure (Exhibit Pl), a motorcycle with engine Number SL15FMI*CA392328* (Exhibit P2), a trophy valuation certificate (Exhibit P3), a caution statement (Exhibit P4), a chain of custody record (Exhibit P5), and Drawn order (Exhibit P6). Materially, the prosecution evidence against the appellant was to the effect that on 29th November 2022, the wildlife officers led by PWl were in patrol at Nyera-Kiperere Forest Reserve in Liwale District within Lindi region. While patrolling, they found the appellant in possession of thirteen (13) pieces of Hartebeest meat carried in his motorcycle (Exhibit P2). The appellant was there arrested and on search the Wildlife officers seized from him the trophy per a certificate of seizure (Exhibit Pl) which was signed by the appellant Page 2 of 17 arid witnessed by officers. In due course, the appellant was taken to Liwale police station for further interrogation and investigation. Upon arrival at the police station, the exhibits were handed over to H-8899 PC Steven (PW4) an exhibit keeper. Subsequently, Isack George Nolle! (PW2) was summoned to identify the alleged wild animal meat and. make a valuation. Since the trophy was a perishable exhibit, an order (Exhibit P6) was issued for the destruction of the said trophy. The appellant was then arraigned before the trial court. In his defense, the appellant denied having committed the offense. On his case side, he paraded a total of four witnesses to support him. He avowed that on the material day, he was at his farm in Kiangara village. On his return, he passed the Nyera-Kipelele Forest Reserve path. While moving, he saw a motor vehicle packed on the way and some people emerged and ordered him to stop. Subsequently, those people took one bag from the car that had the meat and gave it to him on an allegation that they considered all people who were passing to or found within the forest reserve to be criminals. The appellant was then taken to Dwale police station for further interrogation, and on 12th December 2Q22, he was arraigned before the trial court. From the above shred of evidence, the trial court was satisfied that the prosecution side had proved the charge against the appellant beyond a Page 3 of 17 reasonable doubt. The appellant was found guilty of the offense charged. He was sentenced to serve an imprisonment term of 20 years. Unhappy with the trial court's findings on conviction and sentence, the appellant preferred this appeal armed with eight grounds for his grievance. The grounds of appeal are grammatically and structurally flawed as follows; 1. That, the trial magistrate erred in law and fact in convicting and sentencing the appellant while he pleaded not guilty when the charge was ready and explained o ver him. 2. That, the trial Magistrate erred in law and fact in convicting and sentencing the appellant while failed to contact enquiry following the appellant's objection of the admission of the prosecution exhibit which is contrary to the law. 3. That, the trial Magistrate erred in law and fact in convicting and sentencing the appellant by totally ignoring the evidences produced by the appellant's side (witness) which form a chain and match with the allegation against the appellant to be the one who is not conducted the incident as what as our law of the land said. 4. That, the trial Magistrate erred in law and fact in convicting and sentencing the appellant of the offence charged without considering Page 4 of 17 that the exhibit produced before the trial court for the purpose of convicting the appellant were totally denied and ignoring by the appellant and his witnesses testified it before the trial court just it is not belong and founded by the appellant at the scene of the crime and some of the appellant's witness testified by seeing nothing carried by the appellant rather than see one of the prosecution witness carrying the exhibit and forcing the appellant to be in itspossession but the trial magistrate totally disregarding or ignoring on it. 5. That, the trial Magistrate erred in law and fact convicting and sentencing the appellant without considering that the whole evidences produced before the trial court by the prosecution sides were fabricated against the appellant regarding that the whole case were not proved beyond reasonable doubts hence the whole evidences were totally opposed by the appellant's side. 6. That, the trial Magistrate erred in law and fact in convicting and sentencing the appellant twenty years (20) in jail without regarding that the caution statement made by the appellant as testified before the trial court by PW3 was due to severe and seriously torture made against the appellant as regarding that they also denied to gave the Page 5 of 17 appellant a medical reports for fearing the appellant to take it as exhibits before him, but the trial magistrate take it as a maximum consideration as the evidence for convicting the appellant. 7. That, the trial magistrate erred in law and fact in convicting and sentencing the appellant by totally ignoring the denied the whole evidences produced by the appellants witness if it takes it in a maximum consideration it is a strong enough and watertight for the appellant to withdraw him from the offence charged. 8. That the trial magistrate erred in law and fact in convicting and sentencing the appellant without regarding that he is the first offender, and the offence charged is appropriate with sentence or fine. Hence to convict him twenty years (20) in jail without appropriate with fine Is against the law. When the appeal was called on for hearing, the appellant appeared in person, unrepresented. Mr. Edson Lawrance Mwapili, learned State Attorney represented the Respondent. On being allowed taking the floor the appellant opted to hear from the respondent first. Against the appeal, Mr. Mwapili argued collectively against the l:5t and 5th grounds appeal on the burden and standard of proof in criminal cases. Page 6 of 17 He then proceeded to argue against the 2nd, 4th, and 6th grounds of appeal over the issue of tendering of the exhibits. He proceeded to argue for the 3rd and 7th grounds which the appellant complained that the trial court did not consider defense evidence properly in its decision. Further, the complaint under the 8th ground of appeal that the trial court failed to give the appellant an option of payment of a fine after conviction. On the kick-off, Mr. Mwapili started from the bottom, which is the 8th ground of appeal by the appellant. It is the learned advocate's stance that the charge faced by the appellant in the trial court has no option of a fine. He supported his stance by citing the provisions of section 60 (2) of the Economic and Organized Crime Control Act Cap 200 R.E. 2002. He also cited the case of the Director of Public Prosecutions vs. Papaa s/o Olesikaladai @ Lendemu & Another (Criminal Appeal No. 48 of 2020) [2023] TZCA 12. According to the learned State Attorney, the appellant was not required to be given an option of payment of a fine but in a proper case, the fine would be ordered as an additional penal measure. Regarding the 3rd and 7th grounds of appeal, Mr. Mwapili was of the view that the trial magistrate considered the evidence of all witnesses including that of the appellant, and to ascertain the same. The learned State Page 7 of 17 Attorney referred the court to pages 14 and 15 of the trial court judgment where the evidence of all witnesses was analyzed and evaluated, and in the end, the appellant was found guilty. In opposing the 2nd, 4th, and 6th grounds of appeal, Mr. Mwapili submitted that the trial court proceedings revealed that overall six exhibits that were tendered by the prosecution side it is only two exhibits that had been objected to by the appellant but the remaining four exhibits were not objected. In addition, according to Mr Mwapili, the hearing of the objection over the admissibility of those two exhibits was done in compliance with the Exhibits Management Guideline. To support his arguments, he cited the cases of Director of Public Prosecution vs. Sharif s/o Mohamed @Athumani & Others (Criminal Appeal No. 74 of 2016) [2016] TZCA 635 and Makumbi Ramadhani Makumbi & Others vs. Republic (Criminal Appeal No. 199 of 2010) [2013] TZCA 360. Regarding the 1st and 5th grounds of appeal, the learned State Attorney submitted that as per a series of witnesses who testified before the trial court and the exhibits that have been tendered by the prosecution side, it shows that the case was proved beyond reasonable doubt that the appellant has Page 8 of 17 committed the offense and he was properly convicted and sentenced by the trial court. In his rejoinder, the appellant had nothing to elaborate on his grounds of appeal. He only prayed that his grounds of appeal per the petition of appeal be adopted as part of his submission. I have carefully and respectively considered the submissions of both parties after I conscientiously went through the trial court proceedings and judgment. The issue that will lead to the determination of this case is whether the appeal has merits. Starting with, I will initially discuss the grounds of appeal filed in court in the same way as the learned State Attorney did, that is from the last to the first, and consolidate them into categories. Starting with the 8th ground, the appellant's main complaint is that since he was the first offender, he was not only eligible for a prison sentence without an option of a fine. I think this issue should not take much of my time. As rightly submitted by Mr. Mwapili, section 60 (2) of the Economic and Organized Crime Control Act Cap 200 R, E. 2002 does not provide for an option of a fine to a person convicted of the kind of offense. For ease of Page 9 of 17 reference, section 60 (2) of EOCCA as amended by Act No. 3 of 2016, reads that; "60 (2) Notwithstanding provision ofa differentpenalty under any other law and subject to subsection (7), a person convicted of corruption or economic offence shall be liable to imprisonment for a term of not less than twenty years but not exceeding thirty years, or to both such imprisonment and any other penal measure provided for under this Act; Provided that, where the law imposes penal measures greater than those provided by this Act, the Court shall impose such sentence," From the above-cited provision, there is no way the appellant could have been ordered to pay the fine for the offense he was convicted of because the law provides for the minimum penalty of twenty years imprisonment and the maximum penalty of thirty years or both such imprisonment and any other penal measure and not otherwise. As the offence of this case was committed on 29th November 2022 after the amendment of section 60 (2) of EOCCA, the sentence imposed by the trial court to the appellant was legally in accordance with the law for the time being in force. See; Jovina Damian James & Another vs. Republic Page 10 of 17 (Criminal Application No. 73/01 of 2022) [2024] TZCA 86, and Mt. 59505 Sgt Aziz Athuaman Yusuf vs Republic (Criminal Appeal 324 of 2019) [2022] TZCA 718 From the above positions, the economic offenses involving unlawful possession of the Government Trophy as charged with the appellant in the trial court are not finable. Under the circumstances, I find that this ground of appeal is without merit as well. I accordingly dismiss it. I will now turn to the complaint founded on the 3rd and 7th grounds of appeal. It is alleged that the trial court in its judgment did not consider the defence evidence by the appellant. The law is clear that failure to evaluate the defense evidence or an improper evaluation of the defense evidence undoubtedly leads to biased decisions resulting in miscarriage of justice. In the case of John Mghandi @ Ndovo vs. Republic (Criminal Appeal 352 of 2018) [2019] TZCA 331, the Court of Appeal quoted with the approval the decision of the case of Moses Mayanja @ Msoke vs. The Republic Criminal Appeal No. 56 of 2009 it was held that: "it is now trite law that failure to consider the defence case is fatal and usually vitiates the conviction” Page 11 of 17 I have carefully gone through the trial court's judgment, particularly on page 14,1 found that the appellant's evidence and the evidence of other witnesses of his side were properly analyzed by the trial court before it arrived at its decision. For ease of reference, I find it apt to reproduce the words found on page 14 of the trial court judgment as a hint to show that his evidence was thoroughly considered and analyzed. It reads in part that; "The accused in his defence he explained on how he was hospitalized at Liwale District Hospital. His story was supported by DW2 and DW3...... This court also consider the story ofDW4 and DW5. What DW4 and DW5 testified was different story as what the accused (DW1) testified." The question that I am asking myself, Is what kind of analysis the appellant required, more than that. The appellant was required to show which kind and/or part of his evidence was not considered or analyzed. What I can see is that the appellant's complaint comes because the trial court decision was made against him. In the recent case of Ramadhani Seif @ Mashoto vs. Republic (Criminal Appeal No. 17 of 2020) [2024] TZCA 487, the Court of Appeal observed inter alia that: "It is a well-established principle that considering defence evidence and disregarding it after a proper scrutiny or Page 12 of 17 evaluation is one thing and failure to consider the evidence at all in the evaluation or analysis is another. The appellant cannot register a complaint that his defence was not considered simply because the decision was made against him. There must be evidence that the defence evidence was not considered at all by the trial court, which was not the case in this appeal. * It is for the foregoing reasons, that I feel constrained to hold that, the appellant's complaint on that aspect has no basis both in law and in fact. I accordingly dismiss it. Moving to the 2nd, 4th, and 6th grounds, the issue is whether the exhibits were properly tendered. The appellants main complaint is that; the trial court did not consider the appellant's objection against the admissibility of the prosecution exhibits. There is no doubt that in this appeal the exhibits that were tendered and admitted in the trial court as mentioned earlier are only six which are a certificate of Seizure (Exhibit Pl), a motorcycle with engine Number SL15FMI*CA392328* (Exhibit P2), a trophy valuation certificate (Exhibit P3), a caution statement (Exhibit P4), a chain of custody record (Exhibit P5), and drawn order (Exhibit P6). Out of those six, only two, Page 13 of 17 the appellant objected that they were not to be admitted. Those objected exhibits are Pl and P4. I have scrutinized the trial court proceedings meticulously. I am satisfied that I would have no material to fault the procedure applied by the trial magistrate toward admitting the exhibits. The appellant was allowed to be heard, per the Exhibits Management Guidelines, published by the Judiciary of Tanzania in September 2020, before the exhibits were admitted. The proper procedure to be followed when the court is requested to admit an exhibit and where there is an objection is reduced on page 10 of the Guidelines as follows: n2.4.3. Steps in Tendering Exhibits Step 1: Ensure a witness has laid foundation evidence for tendering an exhibit, (i.e., witness explains how the exhibit is connected to the case and how it came in his possession). Step 2: Ensure the exhibit is shown to the opposing party for comment. Step 3: Whether or not there is an objection, the exhibit will be shown to a magistrate orjudge to see and inspect. Step 4: Where there is an objection, the party who seeks to tender that exhibit has to be accorded an Page 14 of 17 opportunity to respond; in case a new point is raised by a party proposing to tender it, then the party objecting will re-join. " Step 5 (i): Where there is no objection, the judge or magistrate may admit the exhibit provided it has passed the admissibility test. Step 5 (ii): Where there is an objection, the presiding judge or magistrate will rule on the admissibility of the exhibit." In the instant matter as shown on pages 17 and 24 of the trial court typed proceedings, as soon as the appellant objected that a caution statement (P4) should not be admitted in court as an exhibit, the trial magistrate conducted a trial within a trial, as required by the law, and gave a Ruling to that effect. I am of the view therefore that the learned trial magistrate traveled through the right procedure towards admitting exhibit P4. The complaint by the appellant on that is therefore without merit. It is hereby declined. There is yet another complaint. The appellant is of the view that the charge against him at the trial court was not proved beyond a reasonable doubt. I have respectfully considered that complaint. I would share with the Page 15 of 17 mind of the appellant that, it is a cardinal principle of the law that the burden of proof in a criminal case lies on the prosecution to establish the guilt of the appellant beyond reasonable doubt. See; Matibya Ng'habi vs. Republic (Criminal Appeal No. 651 of 2021) [2024] TZCA 34. In the instant case, as correctly submitted by Mr. Mwapili the prosecution side has managed to prove their case to the required standard. Having revisited the evidence adduced before the trial court, I found that the prosecution through their witnesses have managed to establish that the appellant committed the offense charged because there was a series of events/stories from when the appellant was arrested ready-handed in possession of the trophy, taken to the police station where he recorded the cautioned statement before he was taken to the trial court. In the cautioned statement the appellant confessed to having committed the offence. As done by the trial court I would not doubt that piece of evidence as well. This ground also fails. In fine, I find that the entire appeal by the appellant is devoid of merit. It is hereby dismissed. page 16 of 17 DATED at MTWARA this 30th day of July 2024 s.r; ding'ohi JUDGE 30/07/2024 COURT: Judgment delivered this 30th day of July 2024 in the presence of Mr. Mwapili, SA for the Republic and the appellant in person. DING'OHI JUDGE 30/07/2024 Page 17 of 17