20170818 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 240 OF 2016 (Originating from the Decision of the District Court of Ulanga Mahenge in Economic Case No.06 of 2015). OMARY s/o MSHAMU MBANGU ................. APPELLANT VERSUS THE REPUBLIC. ■ 11 ■ ••• ■ •• ■ ■ ■ ■ •• ■ ■ ••• ■• ■ ■ ••• ■ ■• ■ •• ■■ •••• RESPONDENT Date of the last Order Hfh August 2017 Date of Judgement 1Efh August 2017 JUDGMENT SAMEJI, K. R. l At the District Court of Ulanga at Mahenge, the appellant, Omary Mshamu Mbangu and Steven Mbangu were charged with unlawful possession of Government Trophies contrary to Section 86 (1), (2) (c) (ii) and (3) of the Wildlife Conservation Act No. 5, Cap 283 [R.E. 2002] read together with paragraph 14(d) of the first Schedule to and section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, Cap. 200 [R.E.2002]. The trial court after considering the evidence tendered before it, found the accused persons guilty and sentenced the appellant to fifteen (15) years imprisonment in default to pay a fine of Tshs 27,900,000/=. The second accused person since he was 16 years old he was sentenced to three (3) strokes of cane. 1 Being aggrieved with both conviction and sentence, the appellant lodged a Petition of Appeal with seven (7) grounds, which after being consolidated can essentially be said to challenge the trial court's decision on the aspect that the charge against him was not proved to the standard required by the law. That is beyond reasonable doubt. Briefly, the evidence, which the trial Magistrate relied upon in convicting and sentenced the appellant shows that, on 12th March 2015, DWl (55 years old) and DW2 (16 years old) at around 1200hrs in Tululu Dam Luhembero village within Ulanga District, Morogoro Region were found in possession of Government Trophies, to wit roasted hippopotamus meat valued Tshs 2,790,000/= without permit or license. To prove the charge against the appellant before the trial court the prosecution side summoned four (4) witnesses. PWl- Ayubu s/o Jerevael a game warden, who arrested the appellant; PW2 - Christopher s/o Racki, a game warden, who also was in patrol and arrested the appellant; PW3 - Namsifu s/o Johanass, a game warden, who identified the meat and estimated its value and signed the trophies evaluation certificate. The defence side had two witnesses, the accused persons, DWl and DW2 who denied to have committed the offence. During the hearing of the appeal the appellant appeared in his personal capacity unrepresented, while Ms. Florentina Sumawe, the learned State Attorney represented the respondent, the Republic. 2 In his submission the appellant being a layperson he did not have much to say but only prayed the Court to adopt the grounds of appeal, as submitted in the Petition of Appeal. In her response, Ms. Sumawe, while supporting the appeal noted that the trial court erred in law and fact for sentencing the appellant without observing some of key procedures in handling criminal cases of this nature. She said, after she went through the record of the case she had observed a number of irregularities in the trial court proceedings and non-compliance with the legal requirement on the part of the prosecution side. She thus prayed the Court to be allowed to highlight some of those defects and irregularities. In explaining some of the noted defects and irregularities, Ms. Sumawe gave example of ground number four of the appeal and stated that, there was no any witness who was called to testify that what the appellant was found with was a hippopotamus meat. She admitted that, currently they do not have Laboratory Experts for the wildlife, but the person who is required to identify and verify the meat of this nature is the Wildlife Officer or a Game Reserve Officer. She argued that in the case at hand the Wildlife Officer or even Game Reserve Officer were not called to examine the said meat and verify if the same was from the hippopotamus. She challenged that, PW3 who was said to verify the meat and signed the evaluation certificate his qualifications and expertise was not indicated anywhere in the record of the case. She said the prosecution has totally failed to prove the offence to the required standard as even trial court was not sure that 3 the cooked and roasted meat the appellant was found with was the hippopotamus meat. Ms. Sumawe also pointed out that, in conduct of this case the inventory was not issued. She said it was not proved before the trial court that the meat that was submitted before the court was the same meat the appellant was arrested with. She as well indicated that even the seizure certificate and chain of custody were not tendered by the prosecution side. She nodded that generally all the necessary procedures in conduct of this case were not followed. Finally Ms. Sumawe added that the trial court also committed another omission as the trial Magistrate sentenced the appellant without first convicting him as per the requirement of section 235 (1) of the Criminal Procedure Act. She said in normal circumstance where the conviction is not entered the Court may consider to remit the file to the trial court for conviction, but she noted that in this case even if this Court will find the need to send the file back for conviction, still there is no enough evidence to prove the charge the appellant was charged with. She however left the matter into the hands of the Court to decide. In considering submissions advanced by parties, the record of proceedings and the entire appeal together with the trial Court Judgment, which is a subject of this appeal, I am convinced that the main issue for determination in this whole appeal is whether the charge against the appellant was proved beyond all reasonable doubt. 4 I have thorough perused the record of the case and confirmed all the irregularities pointed by Ms. Sumawe. The prosecution side in this case they did not follow the required procedure at all and some of these procedures they skipped are mandatory. For instance, the failure the by prosecution side to comply with section 38 (3) of the Criminal Procedure Act, Cap. 20. [R.E.2002] is fatal. The said section provides that:- " Where anything is seized in pursuance of the powers conferred by subsection (1) the officer seizing the thing shall issue a receipt acknowledging the seizure of that thing, being the signature of the owner or occupier of the premises or his near relative or other person for the time being in possession or control of the premises, and the signature of witnesses to the search, if any'~ [Emphasis added]. In the case at hand, as clearly submitted by Ms. Sumawe this mandatory requirement of the law was not complied. See the case of Paulo Maduka and 4 Others v Republic, Criminal Appeal No. 110 of 2007 at page 18. It is also on record that in conducting investigation on the roasted meat that was seized the Wildlife Officer or a Game Reserve Officer were not involved and if involved were not called to testify before the trial Court The act of the prosecution side not to summon these witnesses is contrary with the legal requirement and the authorities enunciated by the Court in the cases of Separatus Theonest V Republic, Criminal Appeal No. 138 of 2005; Riziki Method V Republic, Criminal Appeal No. 80 of 2008 5 Court of Appeal, (both unreported). Specifically in Azizi Abdallah V Republic (1991) TLR 71 the Court stated that:- " ... the general and well known rule is that, the prosecutor is under prima facie duty to call those witnesses, who from their connection with the transaction in question, are able to testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution" Following the conduct of this case the Court is entitled to draw an inference adverse on the prosecution, because even PW3 who was said to have identified and verified the meat his qualifications and experience was never disclosed. Furthermore, it is evident that in the testimonies of prosecution witnesses there are major contradictions and inconsistencies. Surprisingly, in his Judgement the learned trial Magistrate did not evaluate the said contradictions in the prosecution evidence. In the case of Mohamed Said Matula v Republic (1995) TLR 3, the Court of Appeal held that:- " Where the testimonies by the witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible; else the court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the root of the mattel' Going by the above principle it is my considered view that, the contradictions and inconsistencies in the prosecution witnesses which were 6 not addressed by the trial court affect the entire case, because the contradictions herein were to establish as if the appellant was found with the said meat and if yes, whether the said roasted meat is of hippopotamus or otherwise. This in my view goes to the very root of the case. See the case of Msafiri Hassan Masimba v Republic, Criminal Appeal No. 302 of 2015, (Unreported). The involved contradictions have since created doubts, which should be resolved in favour of the appellant, as in the cases of George Ndumbaro Vs the Republic, Criminal Appeal No. 294 of 2009, Court of Appeal of Tanzania, at Iringa (Unreported) and Nung'uniko Gidule Vs the Republic, Criminal Appeal No. 223 of 2008, Court of Appeal of Tanzania, at Iringa (Unreported). All these observed irregularities, omissions and errors are contrary to fair trial and the due process of the law and are unacceptable. As such the trial was not fairly adjudicated. See cases of Remebisele s/o Edison V R (1967) HCD No. 72 which was referred in Salimu Hussein v. Republic, Criminal Appeal No.3 of 2011, Court of Appeal, (unreported). It is also on record that the trial Magistrate omitted some of the key procedures in the conduct of this case. The first one is to the effect that though the 2nd accused person was a child of 16 years old, where a special procedure under the Law of Child Act 2009 was supposed to be observed, but in this case all those procedures were not followed. Secondly, the trial Magistrate sentenced the appellant without first convicting him as per the requirement of section 235 (1) of the Criminal Procedure Act. As it was 7 clearly submitted by Ms. Sumawe, the remedy for the trial court not convicting the appellant is for this Court to remit the file back to the trial court to enter conviction properly. However, due to all irregularities, omissions and weight of prosecution evidence on this matter, I am constrained to take that move. The prosecution evidence in this case is shallow and tinted with exaggerations and inconsistencies, hence unreliable to form a sound conviction. In conclusion the case against the appellant was not proved beyond reasonable doubt. In the event and for the above stated reasons, this appeal is hereby allowed, the conviction is quashed and sentence set aside. The appellant is to be released from prison forthwith unless lawfully held. It is so ordered. DATED at Dar es Salaam this 18th st 2017 . ..... JUDGE Delivered in Court Chambers in the presence of the appellant and Ms. Florentine Sumawe, the learned State Attorney for the Respondent, the Republic. R. K Sameji JUDGE 18/08/2017 8