20190220 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA ( . IN THE DISTRICT REGISTRY . · ATMWANZA HC. CONS. CRIMINAL APPEALS NO. 118 & 119 OF 2018 (Original Economic Case No. 13 of 2016 of the District Court of Serengeti at Mugumu) SAMO S/0 MOKOGE @ ·KIMITO } ! . ~ ~ CHEGERE WAISERO @ MARWA . . .. ..................... ... APPELLANTS VERSUS THE REPUBLIC ....·............................................. ,11,, ■ RESPONDENT JUDGMENT · 22/01 & 20/02/2019 RUMANYIKA, J.: Pursuant to my order of 22/01/2019 consolidated with No. 119/2018 the 2 appeals are against the 29th August, 2017 conviction and sentence of the district court of Serengeti at Mugumu, for 3rd to 5th counts 25 years term in jail and counts one and two, 1 and 2 years respectively. Sentences ran concurrently. They are Samo s/o Makoge @ Kimito and Chegere Waisero @ Marwa (hereinafter the 1st and 2nd accused) respect.ively. Earlier on so together and jointly charged. The first count is about Unlawful Entry into the National Park under Section 21 (1) (a) and (2) and 29 (1) of the National Park Act, J. Cap. 282 Vol. VII of the Laws as amended by the written laws ( (Miscellaneous Amended) Aot No. '11/2003, the 2nd courit is about Unlawful Possession of Weapons in the National Park Contrary to Section 24 (-1) (b) and (2) of the National Park ~ct, Cap. 282 (R.E. 2002), 3rd count is about Unlawful Possession of Government Trophies. Contrary to Section 86 (1) and (2) ( c (ii) of the Wildlife Conservati9n Act, No. 5 of 20<;)9 read together with paragraph 14 ( d) of the first schedule to and Section 57 (1) and· Section 60 (2) of the Organized Crime Control Act, (Cap. 200 R.E. 2002), and the 4th count is about Unlawful Possession of Government Trophies Contrary tq Section 86 (1) and (2) (c) (ii) of the Wildlife Conservation Act, No. 5 of 2009 re ad together 1 with i paragraph 14 (d) of the first schedule to and Section 57 (1) and Section 60 (2) of the Organized Crime Control Act, (Cap. 200 R.E. 2002). It is cruci 91, for better understanding of what transpired at the trial court, that I may, at this stage, reproduce facts of the case, albeit briefly. I th It was the prosecution case that on the 16 day' of April, 2016 at about 15:30, PW1 Majuto Omari Chikawe a park ranger accompanied with PW2 Patrick Gibson Cherewa a fellow park ranger both working for Serengeti National Park within Serengeti District in Mara Region, were patrolling around Korongo Robo area, where they saw 1two (2) people in the bush. They surrounded and arrested them. One of the people introduced himself Samo s/o Makoge and. the other one Chegere Waisero Marwa residents of mbali mbali village. The appellants were in possession of a knife, a sword, a spear, three trapping wires and government trophies to wit: 15 dried pieces of zebra meat, one dried skin of wjldebeest and one 2 11 dried skin of Eland "pofu • They asked the accused persons if they had any permit but had none. They took them together with the exhibits to Mugumu Police Station and opened case MUG/IR/1185/2016. Consequently, they were charged as stated earlier. The eight (8) ground of appeal may boil down only to one ground essentially. The district court improperly evaluated the evidence. ! Appellants appeared in person, w~ile the respondent/republic was represented by Ms. Lilian Meli learned state attorney. During the hearing, appellants had nothing to add to their rt?spective petitions of appeal. But briefly points:- (1) the charge offence was not proved beyond reasonable doubt as to ascertain conviction against them. (2) that, DPP's sanction was tendered in court as to legalize the economic case being tried by the lower court as per requirement of the law. (3) that, no notice of seizure was tendered to establish that the appellants was found in possession of the alleged exhibits such as PEI collectively amongst other. (4) that, inventory note being a crucial and material ·document to prove possession of the alleged trophies • I was not tendered nor established against the I appellants. 3 I I (5) that, nothing important as sketch map showing boundaries of the civil a'nd that ;~f the National 'Park was tendered so to establish it. (6) that, without prejudice to the f~regoing, exhibit PEI I was doubtful as its claim ofI custody was not established. (7) that, appellant's defence was not considered at all, in I that circumstance the whole case was vitiated. I '' . ' (8) that, contrary to the law,· the burden of proof was shifted from prosecution case appellants. On her part, Ms. Lilian Meli submitted that ground no. 7 of appeal commonly implies evidence was ignored. That really the trial court ignored their defence cases but only summarized the ·evidence. The learned state I attorney supported the appeals mainly on the ground that the omission I rendered the _proceedings vitiated. That ,the only remedy under Section 388 (1) of the CPA, Cap. 20 R.E. 2002. (Failure of justice), this court may order a "retrial". It cannot be said that the prosecution case was proved beyond reasonable doubt. Stressed the learned state attorney. ; I I have thoroughly considered the rival submission~ by both parties also the proceedings and decision of the trial court. j will begin with ground (3) of the appeal which, in my view if determined in the affirmative, it would suffice to dispose of the entire 'appeal. No notice of seizure was I • • tendered to establish that the appellants was found in possession of the 'i 4 I ' I alleged exhibits (PEI collectively)? Amongst others (above named a knife, spear, a sword and three tr-apping wires) Its production t~erefore did not meet requirements of the law. The law requires a certificate of seizure to be prepared immediately after any property connected to crime was seized. (Sectio~ 22 (3) (ii) of Economic and Organized Crime Control Act, (Cap. 2002 R.E. 2002): ; " 22 (3) where anything is seized after a search was conducted pursuant to this section, the police officer I seizing it shall - (i) .. N/A .. I (ii) Issue an official receipt evidencing such seizure and on which the value .of the propercy as ascertained and bearing in addition to his signature of the owner of the premises searched and that of at least one indepen·dent person 1 witnessed the search [Emphasize supplied]. The provisions mandatorily direct a police officer to prepare such a certificate. I am also aware that PWl and PW2 were not police officers. They had no legal obligation to prepare such a certificate. I am saying so because under section 21 (2) of the Act (supra), even p'ublic officers like . ' . PWl and PW2 were, when conducting investigations, referred to as police i officers. 5 " ... 21 (2) where in accordance with any other written law 1 the investigation of ,any economic offence or category of economic offence; is ordinary conducted by public officials other than police officers, then for the purposes of this Act the term "police officer" shall include any public offidals in the discharge of function in pursuance of this Act (Emph asis added] 1 I II Not only that, but also I have in mind gists of th.e case of Julius Matama @ Babu @ Mzee Mzima Vs. Rep., Criminal Appeal No. 137 of 2015 CAT (unreported). Whereby the Court of Appeal of Tanzania emphasized on the necessity of preparing a certificate '.of seizure by an arresting officer. In that case, the court referred to provisions of Section 38 (3) of the <;:riminal Procedure Act Cap. 20 R.E" ioo2. A replica ofSection 22 (2) (ii) of the Act:- " ... I pso jure, this section is coached in mandatory 1 terms, entailing that they must be complied with, infact; it I intends to achieve the point that where physical evidence is to be used in a criminal trial, there must be evidence to establish an adequate foundation on where and how the object being offered in evidence is indeed the object that it is claimed to be ..... " All said and done, I am of the view that a certificat~ of -seizure in the 1 present case was of utmost importance. Since it was neither prepared nor tendered at the trial, and since I have said that there is no any other 6 '- {- cogent evidence by the prosecution to stand against the appellants in the absence of that certificate, I· will twld that the conviction against appellants was not justified. In the circumstances, I find merits in the appeal. I allow it and order immediate release of the appellants from prison. Unless were otherwise held for some other lawful cause. Ordered accordingly. Right of appeal explained. · s. JUDGE 12/02/2019 Delivered under my hand and seal cif the court in chambers. This 20th day of February, 2019 in the presence of the appellant and in the absence of the respondent. M.A. MOYO DEPUTY REGISTRAR 20/02/2019 7