PURUGWA MMARA LUTABIGE ECO BARIADI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL REF. NO. 202408142000023008 PURUGWA MMARA @ LUTABIGE ................................. APPELLANT VERSUS REPUBLIC………………………………………………..…… RESPONDENT [Appeal from the Decision of the Resident Magistrate’s Court of Simiyu at Bariadi] (Hon. C.E. KILIWA PRM) dated the 10th day of June, 2024 in Economic Case No. 9 of 2023 ----------- JUDGMENT 26th September & 4th November, 2024. S.M. KULITA, J. This is an appeal from the Resident Magistrate’s Court of Simiyu at Bariadi. The appellant herein above together with one Purugwa Mmara @ Lutabige together with one Mashaka Gabe @ Sati who was convicted and sentenced in absentia regarding absconding bail, were collectively charged with two 1 counts, to wit, “Unlawful Possession of Weapons in the National Park” contrary to section 17(1)(b) and (2) of the National Park Act [Cap 382 RE 2002] and the offence of “Unlawful Possession of Government Trophies” contrary to sections 86(1) and (2)(iii) of the Wildlife Conservation Act [Cap 283 RE 2022], and sections 57(1) and 60(2), read together with Paragraph 14 of the 1st Schedule to the Economic and Organized Crime Control Act [Cap 200 RE 2019]. The brief history of the case in a nut shell, as it can be gathered from the record is that; on the 27th day of October, 2023 the Appellant herein and his co-accused, Mashaka Gabe @ Sati, who is at large, were found in Unlawful Possession of Weapons in Serengeti National Park within Bariadi District in Simiyu Region without permit. The said weapons were 2 (two) Knives, 1 (one) Panga and 10 (ten) trapping wires. The record further reveals that the culprits were also found in possession of Government Trophies, to wit, one fresh head of wildebeest, without permit. Upon the matter being heard and fully determined by the trial court, the Appellant and his co-accused who is at large, were convicted and sentenced to 2 (two) years imprisonment term for the 1st count which is “Unlawful Possession of Weapons in the National Park” and 20 (twenty) years 2 imprisonment for the 2nd count which is “Unlawful Possession of Government Trophies”. Aggrieved with both, convictions and sentences, the appellant herein lodged this appeal with 3 (three) grounds as follows; 1. That, the trial Magistrate erred in law to convict and sentence the Appellant while the caution statement was not tendered to court as exhibit. 2. That, in composing its Judgment, the trial court ignored to make analysis for the defense evidence. 3. That, the original case was not proved beyond all reasonable doubts. The matter was argued through oral submissions. The Respondent (Republic) is represented by Ms. Rose Kimaro, Learned State Attorney while the Appellant is unrepresented. In his oral submission in support of the appeal the appellant prayed for the grounds of appeal in his Petition to be adopted as the submission for his appeal. He concluded by praying for the appeal to be allowed and he, accordingly be acquitted. In the reply thereto the Learned State Attorney, resisted the appeal. 3 In her oral submission in opposing the appeal, the State Attorney, Ms. Rose Kimaro, submitted in respect of the 1st and 3rd grounds of appeal collectively, that the case at the trial court was proved beyond all reasonable doubts. She justified her argument by stating that the record at page 11 of the proceedings transpires that on the material date at about 0700 hours, the appellant and his fellow culprit who is at large were found at Bulele area within Serengeti National Park. She said that, that is according to the testimonies of PW1 and PW2, the Park Rangers who arrested them while conducting patrol over that area. The State Attorney further submitted that the said witnesses (PW1 and PW2) also narrated that they found the culprit holding weapons, to wit, 2 (two) Knives, 1 (one) Panga and 10 (ten) trapping wires. She went on submitting that the record reveal that the culprits were also found in possession of Government Trophy, that is, one fresh head of wildebeest. She averred that neither the Appellant nor his fellow culprit had the permit to hold those things. The Counsel further submitted that, in his testimony PW1 testified to have filled a Certificate of Seizure (exhibit P1) upon seizing the trophy, which is a fresh head of wildebeest, whose inventory was admitted as Exhibit P6. He also seized the weapons (exhibit P3 collectively). The State Attorney stated 4 that PW1 also recorded the GPS coordinates for the point where the culprits had been found. He took it to the printing office and the map (exhibit P2) revealed that the location was Bulele area which is within the Serengeti National Park. The State Attorney further stated that the said exhibits P1, P2 and P3 were identified by PW2, a Park Ranger who was together with PW1, his fellow Park Ranger, during the arrest of the culprits and seizure of the above mentioned exhibits. Hence, he corroborated the testimony of PW1. It is the submission of the State Attorney that during trial the Prosecution side called PW3, a Police Officer who had filled a chain of custody (exhibit P4) regarding the movements of exhibits from the time they were received at the Police Station. She added that, the Wildlife Officer (PW4) testified to the effect that he had seen the animal head and identified it being wildebeest’s. He identified it for its color being greyish brown, its horns are sharp curved towards each other, making a semi-circle. He also identified the same for the facial hairs called check shaggy mane with white bid. The Counsel added that the said witness (PW4) also filled the Trophy Value Certificate (exhibit P5). She further stated 5 that as the said trophy (fresh head of wildebeest) is easy to decay, PW4 filled the Inventory Report (exhibit P6) for the disposal purposes. Further submitting on the proof of a case at the subordinate court, the State Attorney, stated that section 143 of the Evidence Act [Cap 6 RE 2022] provides that there is no specific number of witnesses for proof of a particular fact in a case. It is thus her submission that, absence of a witness to appear and tender the Applicant’s caution statement during trial, did not lower credibility of the prosecution case. She said that there was no need to tender it to court as exhibit nor to call the recording officer for that purpose. Submitting a reply to the 2nd ground of appeal, Ms. Kimaro stated that the defense case was considered in the impugned judgment as it can be seen at page 6 whereby the trial Magistrate wrote that the appellant defended that he was taken by the Park Rangers’ vehicle while he was moving on foot towards the same direction for the reason that they were just lifting him. But, instead, they took him to the Police Station where he was then charged for this case. The State Attorney submitted that, in her analysis the trial court found the said defense not sufficient to exonerate the Accused (appellant) from conviction. The Counsel concluded that, it is thus untrue that the defense case was not considered in the impugned judgment. 6 Further replying on this ground of appeal, the State Attorney submitted that, even if that is the case, still, this being the 1st appellate court has the powers to step into the shoes of the trial court and re-evaluate the evidence that have been adduced at the trial court. The State Attorney concluded by praying for the appeal to be dismissed for being unmeritorious. The appellant had no rejoinder, hence, that marked the end of submissions from both parties. From the aforesaid submissions, the issue to be determined is whether the appeal is meritorious. Starting with the 2nd ground of appeal, the appellant herein alleged in his petition of appeal that in composing its Judgment, the trial court ignored to make analysis on the defense evidence. On the other side the Republic resisted this allegation by submitting that the same was considered. This led me to go through the impugned judgment. In it I have noticed that the trial court made analysis on the defense testimony. I can see it at page 6 of the said judgment in which the presiding Magistrate stated that the appellant did not attack the prosecution evidence that he was found in possession of weapons and government trophy in the National Park. It is further read on 7 that said page that the Appellant was supposed to raise doubts on the evidence that had been adduced against him. The Magistrate narrated that the appellant’s defense that, he was lifted by the Park Rangers’ vehicle while moving on the same direction with them, and that they took that opportunity to take him to the Police Station instead, is not justifiable to challenge the reason for his arrest in respect of the matter at hand. Further, even if that could be the case, still, that ground cannot exonerate the appellant if his defense was weak to attack the prosecution case. I say so because, this being the 1st appellate court has the powers to step into the shoes of the trial court and re-evaluate the evidence that have been adduced at the trial court. It is a position of the law as per EDSON SIMON MWOMBEKI V. R, Criminal Appeal No. 94 of 2016, CAT at Mwanza, page 14 last paragraph. As the impugned judgment transpires that analysis of the defense case was actually done, and that I find it justifiable, this court cannot re-conduct the same. I therefore find this ground of appeal unmeritorious, hence dismissed. As for the 1st and 3rd grounds of appeal collectively, they are concerned with the proof of a case at the trial court, whether it was beyond all reasonable 8 doubts. According to the submissions of the State Attorney the case at the trial court was proved at that required standard while the Appellant said that, it was not. I went through the records, as well as the submissions of both parties so as to ascertain status of the evidence, particularly on the proof of the case. The Appellant is alleged to have been found in “unlawful possession of weapons in the National Park” which is contrary to the law as per sections 17(1)(b) and (2) of the National Park Act [Cap 382 RE 2002]. As well, he is alleged to have been found in “unlawful possession of the Government trophy”, contrary to sections 86(1) and (2)(iii) of the Wildlife Conservation Act [Cap 283 RE 2022], and sections 57(1) and 60(2), read together with Paragraph 14 of the 1st Schedule to the Economic and Organized Crime Control Act [Cap 200 RE 2019]. According to the Park Rangers who testified as PW1 and PW2 before the trial court, the Appellant and his fellow culprit who is at large regarding absconding bail during trial, the two had been found at Bulele area which is within Serengeti National Park, and that they were in possession of one fresh head of wildebeest, which is a Government Trophy. They were also in 9 possession of weapons, to wit; 2 (two) Knives, 1 (one) Panga and 10 (ten) trapping wires. As rightly submitted by the Learned State Attorney, the record further transpire that PW1 filled the certificate of seizure (exhibit P1) for the said trophy and weapons which was signed by PW2 as a witness, as well as the appellant and his co-accused, Mashaka Gabe @ Sati who is at large. The said submission, as well as the record reveal that PW1 took the GPS coordinates for the scene of crime for the purpose of printing a map so as to ascertain the location at which the culprits had been found. That, upon reaching at the Control Room, the map (exhibit P2) was actually printed out and it was found that the premise was within the National Park at the area called Bulele. PW1 signed on that said map. For this evidence, the Appellant’s allegation that he was not found at that said premises lacks evidential value. Thereafter, the arresting officers took the culprits and the exhibits to Bariadi Police Station whereby the same were handled to the Storekeeper, Cpl. Lucas. According to the record, procedures for dealing with the wildebeest head which is a perishable trophy, was properly adopted, whereby a Police 10 Investigation Officer, D/Cpl. Bwire (PW3), who, upon receiving it from the Storekeeper, Cpl. Lucas, called PW4 (Michael Shirima), the Wildlife Officer to identify and evaluate the trophy. The said witness (PW4) who holds a Bachelor Degree of Science in Wildlife Management from Sokoine University, identified it being the wildebeest head. He provided the specific marks for the identification he had made. He then filled the Inventory Form (Exhibit P6) as the said trophy is perishable in nature, hence it was to be disposed. PW4 also filled the Evaluation Report/certificate (exhibit P5) for the said trophy. As in the investigation, the exhibits, including the trophy and its inventory, involved some movements from one place to another, the Police Investigation Officer (PW3) used to fill the Chain of Custody (exhibit P4) for the movements of the said exhibits, which is the appropriate procedure. The above scenarios, as they have been so prescribed from the record and the submissions, transpire that the Appellant and his co-accused who is at large, committed the charged crimes. Thus, the case at the trial court was proved beyond all reasonable doubts. 11 The appellant alleged that the trial court was wrong to convict and sentence him while there was no caution statement tendered to court as exhibit. For this allegation, it seems the Republic (Police) had taken the appellant’s caution statement but they didn’t tender it to court nor had they called the Recording Officer to testify before the court on it. But, the Evidence Act [Cap 6 RE 2022] provides at section 143, that there is no specific number of witnesses required for proof of a particular fact in a case. Therefore, absence of a witness to appear and tender the Appellant’s caution statement during trial, is not fatal, even if the same was actually taken as alleged. As for the matter at hand, that has not lowered strength of the prosecution case during trial. As long as the other evidence that had been adduced were sufficient to prove their case, the prosecution side could have not taken trouble to present that other evidence. From the above analysis, I find the 1st and 3rd grounds of appeal with no merit as well. 12 In upshot, I find the appeal unmeritorious, hence dismissed. Decision of the lower court, that is conviction and the sentences imposed, are hereby upheld. S.M. KULITA JUDGE 04/11/2024 DATED at SHINYANGA this 4th day of November, 2024. S.M. KULITA JUDGE 04/11/2024 13