20180925 TZHC Mwanza

' 1 IN THE HIGH COURT Of TANZANIA IN THE DISTRICT REGISTRY ATMWANZA HC. CRIMINAL APPEAL NO 381 AND 382 OF 2017 {Original Criminal Case No. 138 of 2014 of the District Court of Serengeti at Mugumu) RYOBA S/O SARIRO @ MWITA SAMSON MWITA@ MAHENDE ................... a ■ . . : . . . ; •• u ••• APPELLANTS VERSUS THE REPUBLIC ■ aa••···••a••···••111111 ■■ ••••11~11a ■■■■ ••····•lill ■■ ~---·····~- RESPONDEN.T JUDGMENT 15/08 & 25/09/2018 RUMANYlKA, J.: By its historical background, appeal numbers 38 and 382 of 2017 by order of this court and reasons consolidated, and as such now determined are against conviction and custodial sentence of 15 (fifteen) years essentially. Appeal, with regard- to the other but 1~ appellant abated on· 13/08/2018 as was reportedly dead .. \(vith respect to 4 counts, the particulars of offence would read thus; . 1 st· count; that Ryoba Sariro ·@. Mwita, Samson Mwita @ Mahende in this appeal the 1st and ·2 nd appellants respectively did on 15/11/2014 at 1 . .. .. : Itaro area in Serengeti Nationa Park (the N/P) district of Mara unlawfully . entered the N/P. 2 nd count; that having so entered the P/N, the two were at the same time unlawfully found in possession of weapons namely a knife, machete and an axe. All intended for illegal poaching. 3 rd count; that the appellant on the same date, time and place were jointly and together found in unlawful possession of government trophies. Namely elephant ivory weighed 52 kgs worth 22,500,000/=. The· property of government of Tanzania. 4 th count; that at unknown date and time but in Serengeti N/P, the appellant unlawfully killed four (4) elephants valued at Shs, 90,000,000/=. The property of Tanzania government. The 8 grounds of appeal revolve around 8 ( eight) brief points:~ (a) that the trial court improperly evaluated the evidence. (b) that the appellants were not convicted. As no specific provisions of the law were cited. (c) that the appellants were excessively · sentenced. ( d) the trial court determined the economic case without consent and certificate of 2 '(' transfer by the Director of Public :,:) Prosecutions (the DPP). ( e) though convicted there was no . . appellants' confession statements~ (f) that the appellant's cautioned statement were improperly recorded and admitted in evidence. (g) that no boundaries of the N/P were established in evidence. (h) that the prosecution case was not beyond reasonable doubts proved. The appellants appeared in person. Mr. Juma Sarige learned state attorney appeared for the respondent/Republic. -The survivor 2nd appellant submitted that no investigations officer appeared in court to corroboratively substantiate the charges. Leave alone the alleged justice of the peace. That is all. Mr. Juma Sarige learned state attorney readily confessed and submitted that indeed the learned trial magistrate did not name provisions · of the law under which he convicted the appellants. That the omjssion vitiated the proceedings, subsequent .conviction . arid sentence. That . the - records be remitted back for the trial magistra_te to do t_he needful or else a 3 trial de novo be ordered ( cited the case of Masalu luponya Vs. Rep., Criminal Appeal No. 129B of 2015 (CA)) unreported. That is all. To start with, the issue is whether the appellant was found having unlawfully entered the ·N/P. The answer is in the affirmative. National Parks are creatures of statements and geographically established which needed_ to be proved. Much the appellant had denied the allegations. It is not a question of mere allegations as alleged by the public witnesses. None· of - the PWs located the N/P _ boundaries in terms of GPS readings;_ longitudes/latitudes or something. So that now, one may have convincingly held that indeed the appellant was found, but not beyond boundaries of the N/P. The 1st count was not proved beyond reasonable doubts. The sentence of 15 years therefore had no legal basis. The three public witnesses may have, been on ordinary patrol, they found appellants and seized trophies and weapons fine! But no seizure note was ever tendered in court as exhibit. Much as with the patrol, a planned one, they should· have anticipated,_ and had reason to anticipate pres~nce in the N/P of some illegal poachers_ and exhibits. Much as the appellant denied all. Count numbers 2 - 4 therefore were not proved. Leave alone beyond reasonable doubts. Now that the prosecution case was not beyond reasonable doubts proved; it follows therefore that order of retrial or as the case may be . . remitting the records to the trial court for entering a_ conviction proper would, with greatest respect be uncalled for. 4 Conviction and sentence is quashed and set aside respectively. :) Appeal is, for avoidance of doubts allowed in its entirety. Unless was legally held further, the appellant be released from prison immediately. Ordered accordingly. Right of appeal explained . .S.M. JiN ~UDGE 24/09/2018 Delivered under my hand and seal of the court in chambers this 25 th day of September, 2018 in the presence of 2nd appellant and in absence of the respondent. rkll -~_J · M.A. rJ.o~ DEPUTY REGISTRAR 25/09/2018 5