20190710 TZHC Mwanza

. ,, l . . j • IN THIE H~GH COURT Of TANZANIA 1 ATMWANZA ·1 CONSOlIDATfD . CRIMINAL . I NO. 296 &. 306.OF .2018 APPEALS [Appeal from the Judgment of the District Court of Bunda/ Economic Case No_. 10/2017✓ Hon.'J.J; Rugemalila t Resident Magistrate] ' . !_ . I • and (2) (both of the National Parks Act Cap 282 Revised Edition 2002) ! and Unlawful possession of Government t_rophies contrary to section 86 • I I (1), (2) (b) of the Wildlife Conservation Att No. 5 of 2009 read together i I with paragraph 14 of the First Schedule t9 the Economic and Organized I I 1 . . I . Crime Control Act, . Cap. 200 of the Revised I Edition, 2002. 10 days -later that is on 26th January 2017, the charge·sheet was substituted to add two· . . - - I' . . . more accused person. The counts however, remained the same. . . I I· . I. Upon conclusion· of the case, the appellants were convicted and sentenced as follows; on ea Ch of the first and secon~ count, they~ e sentenced to pay a fine Tshs 100,000/= and 200,000/= i - e s ~ , ~ ~ of default, serve a term of two (2) year i~~~~-A~~r term of twenty (20) years imprisonment w a \ i ~ ~ ' ) _~llants in respect . . (, "-\. ~-> ~ ,"\"' . . r ~~ . . of the third count. The sente_ ne:es howev~, w~·~e to run concurrently. Aggrieved, each of~tw~ ~PP.e~r~ferred his own appeal against both convicti0f.i;,;ruJ\s~~~ Jppeal by Omoro John@ Orose .. <··~ ·)1 )/. . ·1 . . . was re~J~t~J~'-Cl ~ritni~13eal No.296 of 2018, that of Zablon Chimba@ .at.~~\ c· . - ·1N: 306 Of2018F Z karta was regbr-e~ nmma IAppea f' ·. . . • or convenience how~~,,Jt wa)ordered that the two appeals be consolidated. In this -~. I . Judgment therefore Omero John @ Orose will be referred as the 1st appellant and Zablon Chimba @ Zakaria as the 2nd appellant. Despite being filed separately, the two petitions~ contained ten (10) similar grounds of appeal which may properly boil. down to nine (9) as follows: ' 2 ♦ I (1) That the case was not proved beyond reasonable doubts (2.) That the lf!dgment-delivered by honorable court. do~s not contain points .for: determination and reasons for .the decisions. (3) That the learned trial Magistrate failed in totality to consider the defense evidence in a whole. failure to tak~ . into consideration ' . "' { 4) That the learned trial Magistrate erred in law(and in fact for that t?~e appel(a~·'!Jts . ~ave t·~ "'./ never entered into Serengeti National Paik:~ '-- V / {5) That the learned trial Magistrate e'i'~n\awj,;{f;;i:tad as the appellants were not propel/y_1/deotifie~~ , \\ ~ ~~~\_~- (6) _That t~e lea~ned tria~tstrate wrong{r;admitted the prosecution eviden~eqOt~ ~~ {7) That the learn4 trial Magistrat~isdirected himself when I, ,/,, • • A,/ tVOI\ into accoOpt lr-.reIevant mauers /~\,, ( /be1ng . among u ,e reasons 1,t,, ·• ,,..JhlA\ \>-,.. ,,,!,_/: w,,J..',l,,,/4 "' JICJ, eu er lnt0 un,aIr--r-esL1n::, , (8) Tha~earne?J~E&Magistrate erred in law and in fad - ~ whfn./Je{:/~;i?to consideration that failure to object -admiij!;itt._'{_oes not legalize evidence which was wrongly :_( admitted\ "'v · . · . \} . . {9~Jl learned trial Magistrate ~rred in law and in fact when-he failed to mentioned names of the prosecutioni . • i . witnesse~ identities or their qualifications as proper person to testify in this case. When the consolidated appeals came for hearing, the appellants appeared in person and unrepresented and on being given an opportunity to argue 3 .their appeals, both had nothing to state\ apart from merely adopting the contents of their petitions and left itfor the court to determine the fate of .. . .I . . their ·appeals. The respondent/Republic enjoyed the service of Ms. . . . . . . . I . . . . . . . . Mwanahawa Changale, the learned ·State Attorney who hasten~d to support conviction and sentence imposJd against the appellants by the trial court.· --~··~"' '~~~/ ', /) ·Before embarking on what was s u b ~ ~teci{:ounseJs and the merits of the appeal, I find it p,91~ent'r'-.~1:iat--I..~r:ate albeit briefly, what . . ~ \ h~· ~->. transpired at the trial court. T.he,recor~ows~ 13th January 2017 Paul . Achieng (PW1), a Park R~tSeren~ational Pa~k, while in the . l·\ ~,,/ Gompany of Benedi~MaJ~ng·a, Deus/Kis6bo, Helena Sarungi and Edson . '·"'-~-~- . . a·1 so P . K1w1a 1~R. • 9r-", a,ers," were.,gi I troI aIong W. arang1. nver ' . norma·1 pa . w1"th".m Sere(~~\~R:~~~ly saw htman footsteps. Curiosity made thef trace thefame~The footsteps were heading towards the bushes ·_. i nx\L_ .i) · ., s i d e ~ . Then they heard . votes of people talking. They surrounded the area and ordered those in the bush to surrender. That . I . way the appellants were arrested. With th~m, the appellants were found with 20 pieces of dried buffalo meat, two ahimal trapping wires, one knife and a panga. Through interrogation it wal revealed that the appellants I I had no permit either to enter the park or to possess those weapons and LI trophies. 5imilar test(mon_ies came from Nodrick Lim.uongope (PVV3). In- the next day, the appellants and the all~ged 20 dried pieces of a buffalo meat, werebro~ght before one William! Malya (PW2), a ~ildlife officer . ;· . . · stationed at Bunda. According to· PW2, ¥ing a holder of a diploma and I I • bachelor degree in wildlife management with nine (9) years exper_ience 1 in identification and va;u3tion of trophie~, he identifi~'Z~ 20 piece of . . . . I ~ .. ~ - / ) dread meat to be those of.buffalo and p!ilepared cr:va1uat1~efBoth . toge-ner th· e weapons and troph.Ies t· wI·th. a \).~ \t~ ~b,t.fi' ce,,.iri~~f iten 11cat·10n an d valuation of trophies were tendere1N~~\By the prosecutor · and admitted as exhibit Pl aa<il~\e~~ ·A.~ charged, convicted and sentenced ~s~t~rli~> Like th learned trial magistrate, Ms Changale,~.ie_~ve.).t~tim0~~ PW1 anJ PW2proved to the r.equired .y•;'.. ~""I- --~· I . :off~e charged. She contended that . in reaching its stand~j' \:\ . ·. -·~ V I ' ·. concfo~urt gave reasons on eaGh of the four points framed for determinatio~, which was the complaints Lth regard to the first, second and eighth grounds of appeal. On the third aground of appeal, the learned State Attorney conceded that I the trial court failed to consider the defen~e case. That notwithstanding, I 5 i l ... . . it wa~ argued that, such an omission can be redr~ssed as this being a first appellate court can step into the shoes. of the trial court and reconsider the evidence tendered. On the question of where the appellants were arrested and whet~er they were properly identified; a complaint in the fourth and fifth grounds of appeal, Ms Changale argued that evidence te~dered by the prosecution, indicated that t~e incide~appened within the National Park during a broad day tim€. Th~l'GQ~w~the .'f\ ,, ' '-;/ 11 · of t h,e witnesses ered1.b:l.ty . ,:>ljrite_\I\\'Qmey and th.e Iearne~d~c /.,r--..___:> .prayed th·Is . court to do the same by referringA~~~.odl~ky ,Kyando Vs "-~'-V Republic (2005) TLR 369. ~> Through the sixth ~nd, d ~ concern by the appellants was that the trialt'oowtr~\~mitted the prosecution's evidence. Ms cangafe.su~~d}haJ'$l2was complied and the exhibits tendered ~d -~~a:, ~~t-,h·\ b.. ct· f t'h . II t H t. th· wer\a m1cted,1} o~o Je 10n _ram · e appe an s. er response o . Is . grourt~s well the seventh ;:tnd ninth ground were the appellants complained that the trial court t9ok into account irrelevant matters and legalized evidence which were wrongly admitted. In the same vein, the appellants complained that the particulars of prosecution's witnesses were not disclosed in the Judgment. It was 6 . . r submitted that failure to so.was not an irregularity neither does it-make . - . - I -- - the said Judgment a nullity. In conclusion, Changale prayed the appeal to be dismissed as nothing existed to fault the manner the trial court handled the case. ·. . . .. . I °'· I have thorough;y considered the grounds of app~and what was . "" ._j_" . \ _ " submitted to me by the learned State Attorney v1s\°a-~v.1s-.the proeeedings ~ \\')~V A.· // and the decision of the trial court. In disposing~this aP,peifV'1ill address ~~~ \\ the first ground of appeal in con~at10~~,6f the grounds. I believe if determined in t~-eaffJIITl~e \:.the,.Jirst ground will suffice to .dispose . of .the entire appeal. ~L'V that ground was .that lYTh0'm~a,Under the case was not p ~ ~ y i l b l e doubts. As noted earlier the appellants \~rged for~atering intJ _the National Park without a permit~t11~p0S~~eapons in: a National Park and Unlawful pos'2sion ~~~ent trophies. In the last two counts, it was alleged thatt~~&\ were found with weapo~s and trophies. ~ . The law under section 22 (3) (ii) of the Economic and Organized Crime - - - l - - - Control Act Cap 200 RE 2002 dictates as mandatory procedure, preparation of certificate of seizure after lany property connected to a crime is ceased. That section thus provide} 7 22 (3) Where anything /s seized .after a. search conducted . . 1 pursua_nt to thissection the police officer seizing .it shall (i)N/A .(ii) issue an official receipt evidencing such seizure and on .which the value ofthe propertyJ~ ascertained and bearing· in addition to his signature, the signature of the_owner of the premises searched and ! that of .at. least one independent person . who _witnessed j t~~~arch~ '"" · [Emphasize supplied] _ \~ ~~ - ' ~~:> - Guided by the above provision, it is pefl:ii'l~~~~at PWl and PW3 when seizing exhibits Pl and P2 vy~~\und~~e~are and issue an official receipt evidencing({c?sei~),~~are that the provision directs a police offirer to~ephuc-h r{ certificate. However under·. section 21 (2) o f f \ e A~public officer like PWl and PW3 ·are, when ~ N g a~igation iri 1 relation to economic crimes, ~~Yr~ 1 refeyedto.,as ~~1~e.'R:'1ce_rs. _For easy of reference, I have reproduce~ th_e L( f \ . \~>( h d conten~gn 21 Was ereun er: . "Y 21(2) Where in accordance with any other written law the 1 investigation of any economic offence or category of economic I • • I • offences, is ordinarily conducted by public officials other than I police officers/ then for the purposes of this Act the term "police officer" shall include anv public officials in the discharge of I functions in pursuance of this Act [Emphasis added] 8 . . A settled principle· of law is that even where a· certificate of -seizure has not been tendered still the Court may continue to rely on the other strong · evidence ·of the prosecution. See Mandela Maski°ni @ Kasalama . v.. · Republic, Criminal Appeal No. 471 of 2015 (unreported). Much as I am subscribing myself to that decision from the apex court of the land, I am . "'· nevertheless, · of the view that that Mandela ~ini's case is . ·distinguiShable with the circumstance in this cas~sein)he,i;;;?er's .. \\ '-. . ~v case, the Court was satisfied that althoug~ere¥'~rtificate of seizure tendered in court during t-ria~~ffi\ent evidence to .. . . <;\ ~ ~0 . prove that the appellant was...-ar.reste(:1'.with t~exhibits in issue and in finding out that there wafC ~Bn~ce in that case, the court stated the followin!l); ~) fl Fr~'.'7~iden~Wl, PW2, and PW4 whom we find to be -~-r~i([i~~-'-which is supported by DW2 and DW3 we hasten · t\ \\ v .·. · . . to -say that 7e appellant ~as found ~n UfJlawful possession of the · g~t/ophies; to wit a lion skin. His defence that he was Just given a lift by DW2 purporting to show that the luggage belonged to DW2 does not hold water in view of the credible evidence bvPWl, PW2 and PW4 who_ arrested him with the luggage containing a lion skin, the evidence of DW2 whose motorcycle was hired bv appellant: and DW3 who saw· when the appellant who 9 carried a luggage hired motoicy:c!e from DW2 and left after the_ appellant paid a fare ofShs. 5,0001=_ ' [Underlined . Emphasis. supplied] Having stated the position of the law with regard to the duty imposed to those responsible for inv~stigation of economic crimesJo issue certificate of seizure where any property connected to the case .,., is re½overed, where / . . . .· . ' ·-.. < \_ ·\<" '·, ;/ .... no such certificate was issued in compliatJce tO\~CtioJr-22"(J) of the < ' / ' . . . '\, ~ ·, ',. -, \ \ .. :, .. .-<· i ·- - ·•,,,_ • Economic and Organized Crime Contr9LJ\ct, th~\question that any court ~ • 1- -~ \ ' ',,' . ' ~ . \ of 1aw should satisfy itself bef9re. conclytjing tfi~i-the accused were . \., : ' ·, \ '\ ,. . .. - actually found in possessic~rrc5f the alle~ed p'r~perties, is whether or not . / . /.,____ ··--... "./- . " _ there is other ~rang /~vide~ce t~?" pr9ve •What the certific~te of seizure /< '~\-. ,-, '. would have proved"had;Jh~ s,une been prepared and tendered in court as /. ''(_\ \\, "-----., .. ' " ' '~..... .·,",. '"~,:·.\ \'\.,_/;'\,. exhjbit. . ./<:~;'~'""' In ~\\View~ ~h~~ i~',~b such evidence in this case ap~rt from PW1 and \ \ . ~ . PW3 ~v~enc:ethat the appellants were arrested inside· the· National Park ,,,.,~'- •. :,::: ,, . with weapons and Government trophies. The record is clear that the appellants denied to . have been arrested within the premises. of the Serengeti National Park as alleged by PWl and PW3. It is well kn9wn that the duty of the appellants, as the criminal suspect, was not to prove their 10 I' . t . I . innocence _but rather to create doubt whic~ ~s reasonable in the eye of I law. In the contrary however,. it was the duty of the prosecution to prove • • • I ,I beyond reasonable doubts that the appellants , were arrested in the . I . ' . premises of Serengeti . National Park. I believe, I had PWl . and PW3· prepared a certificate of seizure as required under section 22 (3) (ii) of .· . . .i- A . I . .~ ~ the Act, it would have provided enough evidence that tliB.appellants were . 1 tru_ ly arrested in that National Park and also that !~ib~~iss/e~ere · \~\ "'"' v sei~ed from them. That was not done. As ~~J~ that PW1 and PW3 were the only witnesses to;~_d--un0n b)t~e ·prosecution in ~\-~~-~) disproving the appellants d e y th:t\~~-!'ot arrested in that a~ea, I hold that there 1s no_ any ,_er sy:0ng~v1cle11ce to prove the case against /? \\ v~1.v . the ap-pe'Hant and tnereforithat the...,eertificate of seizure was necessary . +,~/I in this case. .n i w I In ~ m a ~ Babu .@ Mzee Jzima v. Republic, Criminal \\ )) . . . i . Appeal~f 2015, (Unreported) the Court of_ Appeal of Tanzania. emphasized on the necessity of preparingi a certificate of seizure where . ' . any property is seized by the arresting • officer. I In that case the Court, referring the provision of section 38 (3) of the Criminal Procedure Act, . I cap 20 Revised Edition 2002, which is a replica to section 22 (3) (ii) of I the Act, stated that:- : . 11 . . Ipso jure/ this section is coa~hed in mandatory tt3rm~ entailing th~t th~y must be complied with. ·In fqct ·it _intends to qchieve the point that where physical evidence is to be used in a crfminal · trial,· there must be evide_nce establishing an adequate. foundation on .where and how the object. being offered in evidence is indeed the objed that it is claim;:,.. ,2 ·. The above alone would have sufficed to detrmine t~e fate oft~ppeal. However, I find it necessaty to address the n~_gl1£o~ai on how the trial court admitted exhibitsz)a~~\. The trial court proceedings shows it w~P~~ not the witness who tendered au the exhibits intis v~h~ord shows when PW! was testifying in court o~~r~/stopped shortly before tendering the exhibits ~~umed'late::?t was the ,prosecutor who tendered the afleg7::.d~~~Ss}on~~)knife, one knife and two animal trapping . r):~~'\\ . . wiresl found witttEQ!ppellants. For reference purppses, the proceedings . indi~~wing: · · Public Prosecutor: I pray to tender in court one bush knife/ one knife and two animal trapping wires be admitted as exhibit 1 st Accuse_d objection: I do not identify them. 2"d Accused objection: Absent ,:;rd Accused: Absent l2 I I f _4fh Accused: NIL I COURT: • Admitted. and Marked as exhibit I P1 collectively. . Sdg J.J Rugemalila - Resident Magistr~te 27/4/2017.,. I In the same fashion, it was the prosecutor: who tendered the certificate of identification and valua.tion of trophies before he pfece~ded to do the _· . , _· A~ ","~ /.'> same for the 20 pieces of the alleged dried buff~!~.- meat. "Ms~ahgale . {\'----:~ ,y . found nothing wrong with this procedure On<itle~asqm-tfuaftheoappellants With respect and despite ~ that thvpe;lants did not object the admissibility of the~~.·e. -~~, x~~ ~.a~f the considered view that, the ~< 7 )\ )~ . . . trial court w .rnlgl)fa9mitfeQ._~~ch exhibit as evidence on the simple r.eason · that a Publi~-.Pr~cJt-0r_beii;ig not a witness, did not have mandate to ~t'h·~· ten d\\ ··~-~.~rt QI th DPPV ,M_ . p· b e same\A~~ : . n e · · S 1rza1 · tr a kh h"@ S I ad.. H · JI and ~ ~ \ r s , Cnmmal Appeal 493 o: 2016, the Court of Appeal of Tanzania fatii~lwith a question of who should tender exhibit, observed the following: The test for tendering the exhibit therefore is whether the witness has the knowledge and he possessed the thing in 13 . . < ( question at some point in time, albeit shortlv. So, a possessor:or . . I . a custodian or an actual owner or .alike ate legally capable of tendering the intended.exhibits in que~tion provided he has the knowiedg;e of the thing in questio~~. [Underlin~cf Emphasis . supplied] While there is.no hard and fast rule as to who should fu?lder an exhibit in t.h. e tna . I of a case, bu..t borrowmg fl . . a Iea f rom ·t\,ae1ove ~h ~~ t h . ."t,({)t . au :,,1on( 1 /1 Is I . obv1ous. ca'Z~ th· at on Iya person who •has been ~II d -~~t·~~t~/d w, pess caq, en ·er an exhibit.· The Pros.ecutor being not ~ e s ~ ~ ~ o t have legally -~<' ~~~0 tendered exhibit. Exhibit Pl, P2 alld~were therefore wrongly admitted• as evidence and the reme~ e1Cp~~ame, which I according ·. '. do. ~ /; . "\ <~~ ' . ~ All said a n ~ f . l ~ n a t I have endeavored to state above, in ~f· ~~~t· f.··. t tlh tth II t ~ absrce Ot a'e'er.tffi~ 0 seizure . 0 prove .;. a •· e appe an S were , OU n d 1 iiiside\_ereng.ej. ti)ational Park with weapo ns and Government trophies; ·-~ I and havi~g~xp~nged ·from the records all the exhibits, it is cle~r that l ~othing remains to warrant the appellants 1conviction. With that in mind, bn the reinaining grotinds of . it will be an academic exercise to delve appeal of which I am not prepared to bo as it will serve no useful purposes. 14 . ,I . . ··, In the circum·stances and .for the reasons stated, the prosecution faiied to . discharge its.duty to prove the case which ii the subject of this appeal to the required standards. I therefore find mjrits on the appeal Of which ; allow it and order an i~mediiite release jf the appellan~ from prison forthwith unless otherwise held for some lawful cause, · 15