20190401 TZHC Mwanza2

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA HC. CRIMJNAL APPEAL NO. 165 OF 2018 (Original Economic Case No. 01 of 2017 of the District Court of Serengeti at Mugumu) 1. SABAi MGOSI@ MARWA } !: ::~~::s~A;~~::: ~~1~7A . . . . . . . :· ·. . :·· · ·. . . . . :APPELLANTS VERSUS THE REPUBLIC ............................................................ :.............._... RESPONDENT JUDGMENT 13/2/2019&01/04/2019 G. J. Mdemu, J; In economic case No. 01 of 2017, in the District Court of Serengeti, Sabai Mgosi Marwa, Magabe Nyafsawa @ Chacha and Mwikwabe Bhoke @ Msabi, the First, Second and Third Appell~nts respectively were jointly and together charged with three counts, to wit; unlawful en,try into the National Park contrary to the provisions of section 212(1) ( a) and (2) and section 29(1) of the National Park Act, Cap. 282, unlawful possessions of weapons in the National Park contrary to the· provisions of section 24(1) (b) and (2) of the National· Park Act, Cap. 282 a·nd unlawful possession of governme.nt trophies contrary to· the provisions of section 86(1) and (2) of the Wildlife Conservation Act, Cap.283 read together with paragraph 14 of the First Schedule. to and sections 57(1)' and 60(2) of the Econop1ic and O_rganized Crime Control Act Cap: 200. · According to the charge, on or about the 4 th of January, 2017, the three ') Appellants were found within Mto Balangoja .in Serengeti National Park without permit while in possession of two spears, one machete, two knives, _four animal trapping wires and two legs offresh meat of hartebeest valued at Tshs: 1,417,000 /=. According to the testimony of Nyakire Mruta and Deus Gilbert Mwakajegeke, PWl and PW2 respectively, while in their ordinary patrol, they found the three Appellants in the National Park possessing such weapons and trophies with.out permit. At their trial that commenced on 05 th of January, 2017 to 24 th of November, 2017, the Court found the three Appellants guilty as charged and accordingly convicted and sentenced them to a fine of 500,000 /= Tshs or one year imprisonment, a fine ofTshs 100,000/= or one year imprisonment and to twenty (20) years imprisonment for the first, second and third counts respectively. This was on 27 th of November, 2017. Aggrieved by both conviction and sentence, the Appellants filed a joint petition of appeal comprising of five grounds of appeal which are ~ridged into the following main points; One, that the Court relied on uncorroborated weak evidence of prosecution. Two, that the pr<?secution exhibits were wrongly admitted ·in evidence and three, that trial commenced without consent of the Director of Public Prosecutions. At the hearing of the appeal on 13 th of February, 2019, the three Appellants appeared in person to prosecute the appeal whereas the Respondent Republic enjoyed the service of Ms. Maryasi_nta Lazaro, learned St~te Attorney. In addition t~ the grounds of appeal, the First Appellant submit_ted that t~e Appellants were not identified and no any exhibit was ever j_~2 ..-.:...=_~ ---, . tendered for proof thereof. He thus blamed the Court for relying on false ~, ) evidence of the prosecution. On his part, the secorid Appellant made an observation tha_t they were ·arrested outside the boundary in the course of protecting their maize from wild animals. He added that, it is not true that Park Rangers found the . Appellants in the National Park. He therefore found that there is no evidence to connect all the Appellants with_ the offence charged. The third Appellant had n·othing useful save for reliance on the grounds of appeal as contained in the petition of appeal. Ms. Maryasinta Lazaro in reply,. raised three legal issues for consideration. First, the charge was preferred under the wrong provisions of the law. The proper provisions to be invoked according to her was section 86(1) (2) ( c) (ii) of the Wildlife Conservation Act, Cap. 2'83 and not section 86(1) (2) (b) as c_oached in the charge. The latter according to Ms. Maryasinta is applicable where the value of the trophy is below Tshs. 1,000,000 /= She thus found the charge in that count to be qefective. Her_ second legal observation was on exhibit P3, the certificate of valuation which was not signed by the Director or a person of the rank of Wildlife Officer. She found this to contravene the provisions of section 114(2) of the Wildlife· Conservation Act, Cap. 283. She urged me, under those · circumstances, to expunge it in evidence. Third, it was her observation that, the certificate of transfer issued relates to contravention of paragraph 14 of the First schedule to the Economic and Organized Crimes Control Act, Cap. 200 without specifying sub paragraphs. In this, she thought it was not c~rtain of which offence the Court was to adjudicate. In that sense, she concluded on 3 her legal points that there was no certificate of transfer issued, thus the Court ·) had no jurisdiction. As to the offence of unlawful entry in the game reserve as coached in the first· count, the learned State Attorney ·observed that, the evidence is watertight and she invited me to dismiss the appeal on this ground, while on the irregularity pointed, she declined to support conviction and sentence in the third count. The three Appellants had nothing to rejoin. This mqrked the end of submissions from the parties. Having considered submissions of the parties and the entire record, I . think I should begin with .the issue of consent· of the Director of Public Prosecutions as raised by the Appellants. ·Their complaint is that, there is no consent issued before their trial commenced. Ms. Maryasinta did not submit on the issue of consent but rather on tne certificate of transfer. Her main concern on the certificate was on lack of. specifications of which sub- paragraphs the Appellants contravened in paragraph 14 of the First Schedule to the Economic and Organized Crime Control Act, Cap. 200. She appeared to suggest, which I agree, that as it was not specified in the certificate which sub- paragraph the Appellants .violated, is as good· as there was no certificate of transfer. That means, the Court had no jurisdiction to adjudicate on count three in the charge regarding unlawful possession of government trophy'. On the complaint of the Appellants regarding consent, much as the . learned State Attorney attacked the certificate of transfer alone by not being specific which sub-paragraph in paragraph 14 ·of Cap. 200 the Appellant contravened, the same line of argument can be attached t_o the consent. The latter, as_ was to the certificate, suffers the same anomaly, that is, it is not 4 specific which sub-paragraph in paragraph 14 of Cap. 200, consent was issued ;) for. It is trite law that, in terms of the provision of section 12(3) and 26(1) of Cap. 200 and GN No. 284 of 20J 4, the issue of consent and certificate of transfer are mandatory requirement which must be observed and complied_ with . . I agree also with the observation of the learned State Attorney that, as the charge got framed under wrong provisioris of the law in the third count, the same is defective as stated in various Court's decisions. The three, that is, the defective charge and failure of the certificate of transfer and the consent to specify relevant prqvisions of paragraph 14 of the first schedule to Cap. 200, renders the trial a nullity in respect of the third count. With regard to the ground_ that, the prosecution evidence with respect to the first and second count on unlawful entry and possession of weapons in the National Park, Ms. Maryasinta found that the evidence is watertight. She could not however provide analysis regarding the said eyidence in support of her argument. In the proceedin~s, there is the testimony of Nyakire Mruta and Deus Gilbert Mwakajegeke PW1 and PW2 respectively. The two witnesses were consistent that they found the three Appellants in the National Park while in . . possession of two spears, two knives, one machete and four trapping wires. These form the contents of the· charge in_ the second count. The Appellant never objected when they were tendered in court. The learned trial Magistrate believed these two witnesses and as fowid at page 6 and 7 of his judgment, • • • I found all the· Appellants guilty as charged. I therefore agree with the observation of Ms. Maryasinta that, there is no need of disturbing the finding -5 . . \ _) ----=;==------~---·~---- --- -- ._---.,. .I of the learned trial Magistrate in respect of the first and second count. I have _) not detected anything useful in their defences to contradict the evidence of PWl and PW2. All said and done, I allow the appeal in respect of the third count on unlawful possession of government trophy. The appeal in respect of the offences of unlawful entry in the National Park and unlawful possession of weapons in the National Park is accordingly dismissed. As the sentences were ordered to run concurrently, the sentence ·of 20 years in respect of the third count is accordingly set aside. The remaining sentence of one year met on the 27 th of November,· 2017 must have bee·n completed as of now. I therefore order release of the Appellants from custody unless lawful held for some other reasons. It is so ordered. G. J. Mdemu Judge 01/04/2019 . Dated <;1t MWANZA this 01 st day of April, 2019. Judge' 01/04/2019 6