SASA MBEHO NYENYE ECO APPEAL BARIADI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL REF. NO. 202407082000018790 SASA MBEHO @ NYENYE ............................................. APPELLANT VERSUS REPUBLIC………………………………………………..…… RESPONDENT [Appeal from the Decision of the Resident Magistrate’s Court of Simiyu at Bariadi] (Hon. M.M. NYANGUSI SRM) dated the 17th day of April, 2024 in Economic Case No. 83 of 2023 ----------- JUDGMENT 23rd October & 15th 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 Konoki Ngusa @ Sayi who was convicted and sentenced in absentia regarding absconding bail, were collectively charged with two counts, to wit, “Unlawful Possession of 1 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)(c)(iii) of the Wildlife Conservation Act [Cap 283 RE 2022], read together with Paragraph 14 of the 1st Schedule to, and sections 57(1) and 60(2) of 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 23rd day of October, 2023 the Appellant herein and his co-accused, Konoki Ngusa @ Sayi 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 1 (one) Knife and 4 (four) trapping wires. The record further reveals that the culprits were also found in possession of Government Trophies, to wit, 2 (two) fresh hind limbs 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 1 (one) year imprisonment term or to pay a fine of Tsh. 100,000/= for the 1st count which is “Unlawful Possession of Weapons in the National Park” 2 and 20 (twenty) years 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 which can be summarized as follows; 1. That, there was no chain of custody tendered to court as exhibit. 2. That, the original case was not proved beyond all reasonable doubts. 3. That, in composing its Judgment, the trial court did not consider the defense evidence. The matter was argued through oral submissions. The Respondent (Republic) was represented by Ms. Rose Kimaro, Learned State Attorney while the Appellant was 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. In her oral submission in opposing the appeal, the State Attorney, Ms. Rose Kimaro, submitted in respect of the 1st and 2nd grounds of appeal collectively, 3 that the case at the trial court was proved beyond all reasonable doubts and that during trial the chain of custody was tendered to court as exhibit. She justified her argument by stating that the record at pages No. 5 and 14 of the proceedings transpires the Park Ranger (PW1) stating that on the material date at about 0830 hours, while in patrol with his fellow Rangers including PW2 along River Mbalageti, they saw the human footprints. Upon following them they found the appellant and his fellow culprit who is at large. The counsel further stated that, according to the testimonies of PW1 and PW2, the Park Rangers who arrested the culprits while conducting patrol over that area, they found them holding weapons, to wit, 1 (one) Knife and 4 (four) trapping wires. She continued to narrate that the testimonies of PW1 and PW2 in the record further transpire that culprits were also found in possession of Government Trophies, to wit, 2 (two) fresh hind limbs of wildebeest, without permit. The Counsel further submitted that, in his testimony PW1 testified to have filled a Certificate of Seizure (exhibit P1) for the said trophies and weapons. She said that the said exhibit P1 was signed by the culprits and his fellow Park Rangers as witnesses. That was also stated by PW2 in his testimony. 4 It is the submission of the State Attorney that, PW1 did not only seize the trophies, which are two fresh hind limbs of wildebeest, whose inventory was admitted as Exhibit P5, but he also seized the weapons (exhibit P3 collectively). The State Attorney stated that PW1 also recorded the GPS coordinates for the point where the culprits had been found. He took it to the Control Room which is the printing office and the map (exhibit P2) revealed that the location was along River Mbalageti area which is within 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 aforementioned exhibits. Hence, he corroborated the testimony of PW1. It is the submission of the State Attorney that during trial the Prosecution side called PW4, a Police Officer who was the Investigator of the case and the one who had filled a chain of custody (exhibit P6) regarding the movements of exhibits from the time they were received at the Police Station. 5 She added that, the Wildlife Officer (PW3) holding a Bachelor Degree in Wildlife Management and 10 (ten) years’ experience in job, testified to the effect that he had seen the trophies and identified them being the hind limbs of wildebeest. He identified it for its color being greyish brown, and that they are upper thigh in shape. The Counsel added that the said witness (PW3) also filled the Trophy Value Certificate (exhibit P4). She further stated that the said trophies are easy to decay, hence PW4 filled the Inventory Report (exhibit P5) for the disposal purposes. Further submitting on the proof of a case at the subordinate court, the State Attorney, stated that the evidence in the trial court’s record is clear that the Appellant herein, and his fellow culprit who is at large upon absconding bail, were actually found at River Mbalageti area within Serengeti National Park, and that they were unlawfully holding the alleged weapons and the government trophies. Submitting a reply to the 3rd ground of appeal, the State Attorney, Ms. Rose Kimaro, stated that the defense case was considered in the impugned judgment as it can be seen at page 5, last paragraph, whereby the trial Magistrate analyzed the 1st Accused person’s (Appellant’s) evidence and 6 came up with the conclusion that the Accused failed to raise doubts on the prosecution case. The State Attorney concluded her submission by praying for the appeal to be dismissed for being unmeritorious. The Appellant had no rejoinder. Hence, submissions from both parties ended up there. From the aforesaid submissions, the issue to be determined is whether the appeal is meritorious. Starting with the 3rd ground of appeal in which the appellant alleged 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, what the trial court did in respect of the defense evidence is not analysis per se, but she just referred to what the Appellant had stated in his defense without commenting anything on it. She just narrated that the Appellant alleged to have been arrested at his farm by the Park Rangers and taken to their camp, after they asked him if he had seen the Motor Cycle passing over there, the question 7 of which he replied that he had not seen it. On this testimony by the Appellant, the trial Magistrate just concluded that, the Accused/appellant had made a total denial of the allegations. She never explained the fate of the said testimony vis-a-vis proof of the case against him. However, it is a position of the law that, this being the 1st appellate court has powers to step into the shoes of the trial court and re-evaluate the evidence that had been adduced before it. This was also stated in EDSON SIMON MWOMBEKI V. R, Criminal Appeal No. 94 of 2016, CAT at Mwanza, page 14 last paragraph. Therefore, inspite of the fact that, in composing her judgment, the trial Magistrate waived to analyze the defense evidence, still, that ground cannot exonerate the appellant from conviction if this court will find that his defense was weak to attack the prosecution case. Fate of the strength of the defense case will be known in my analysis on the standard of proof of the prosecution case, whether it was beyond reasonable doubt. As for the 1st and 2nd grounds of appeal collectively which are concerned with the proof of a case at the trial court, whether it was beyond all reasonable doubts, the following is my analysis; according to the submissions of the 8 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 trophies”, contrary to sections 86(1) and (2)(c)(iii) of the Wildlife Conservation Act [Cap 283 RE 2022], read together with Paragraph 14 of the 1st Schedule to, and sections 57(1) and 60(2) of 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 River Mbalangeti area within Serengeti National Park, and that they were in possession of Government Trophies, to wit, 2 (two) fresh hind limbs of wildebeest whose inventory was admitted as exhibit P5. They were also in possession of 9 weapons (exhibit P3 collectively), to wit, 1 (one) Knife and 4 (four) 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 trophies and weapons which was signed by PW2 as a witness, as well as the appellant and his co-accused, Konoki Ngusa @ Sayi 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 to ascertain 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 scene was within the National Park at River Mbalangeti. 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. According to the record, procedures for dealing with the wildebeest limbs which is a perishable trophy, was properly adopted, whereby a Police Investigation Officer, D/Cpl. Kalson (PW4), who, upon receiving the case file from the Head of Criminal Investigation (OC-CID), 10 called PW3 (Michael Shirima), the Wildlife Officer so as to identify and evaluate the trophies which had been handled at the police station by the arresting officers and received by the D/Cpl. Lucas. The said witness (PW3) who holds a Bachelor Degree of Science in Wildlife Management from Sokoine University, identified them being the wildebeest hind limbs. He explained the specific marks for the identification that he had made. He then filled the Inventory Form (Exhibit P5) as the said trophies are perishable in nature, hence they were supposed to be disposed. PW3 also filled the Valuation Report/Certificate (exhibit P4) for the said trophies. As in the investigation, the exhibits, including the trophy and its inventory, involved some movements from one place to another, the Police Investigation Officer (PW4) used to fill the Chain of Custody (exhibit P6) 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 From the above analysis, I find the 1st and 2nd grounds of appeal with no merit as well. Back to the issue of defense evidence, of which I am in a position to analyze regarding the trial court waiving the role, my view is that the Appellant’s testimony that he was just arrested by the Park Rangers when he failed to tell them if he had seen a motor cycle upon been so asked, does not make sense. They are just mere words with no proof, and that the same do not attack the Prosecution testimonies that he was found within the National Park and that he was holding the alleged weapons and trophies. In upshot, I find the appeal unmeritorious, hence dismissed. Decision of the Resident Magistrate’s court for Simiyu, that is conviction and the sentences imposed against the appellant and his fellow culprit, are hereby upheld. S.M. KULITA JUDGE 15/11/2024 12 DATED at SHINYANGA this 15th day of November, 2024. S.M. KULITA JUDGE 15/11/2024 13