20190527 TZHC Mwanza

IN THE HIGH COURT OF TANZANIP. /_. ATMWANZA · \ CRIMIN.AL APPEAL NO. 394 Of 2017 [Appeal froin the Judgment of the District Court of Bunda/ Economic Case No. 111/201~ Hon. G.E Mariki-Senior Resident Magistrate] · SHIDA KIBALO @ KINDAMDA ................................... APPELLANT VERSUS REPUBLIC ■-11 ■■ I • ii RE e 111111c11·'111E ■ ti11111 ■ ■ 11 ma Bloti a 11e I! 111111 • 11 •ti• ■ ■ 1 • • .~ & ■ ■■ ■ ■■■■ RESPONDENT 1111 JUDGMENT !f" April 2019·& 2/h Ma½ 2019 M.M. SIYANI, J. On 21 st .October, 2016, the appellant was arraigned at the District Court of Bunda sitting at Bunda, for three counts namely; Unlawful entry into the National Park contrary to section 21 (1) and (2); Unlawful possession of weapons in a National Park contrary to section 24 (1) (b) and (2) (both of the National Parks Act Cap 282 Revised Edition 2002) and Unlawful possession of Government trophies contrary to section 86 (1 ), (2) (b) of the Wildlife Conservation Act No.· 5 of 2009 read together with paragr?ph 14 ( d) of the First Schedule to the Economic and Organized Crime Control Act, Cap. 200 of the Revised Edition, 2002. 1 \ \ Upon conclusion of the case, the appella·nt was convicted and sentenced ( - as follows; on each of the first and second count, he was sentenced to pay a fine Tshs 20,000/= or in case of default, serve a term of one (1) . - year imprisonment anda term of twent:y (20) years imprisonment was imposed to the appellant in respect of the third count. The sentences however; were to run concurrently. Aggrieved by both conviction and sentence, the appellants preferred the present appeal with the following six (6) grounds:- 1. That the appellant was not arrested within Serengeti National Park and there was no independent witness to collaborate the prosecutions claim. 2. That the trial magistrate erred in law and in fact to convict the appell21nt basing on weak evidence from PWl and PW2 who were witnesses from the same working station. 3. That the trial Court erred in law and in fact in admitting exhibits P2 and PJ which were not tendered by an expert from the Government Chemist as required by law. 4. That the consent of the Director of the Prosecutions was not proved by the prosecution side. 5. The trial Magistrate erred in law and in facts to rely on prosecution evidence while ignoring the appellants defense. .uncorroborated evidence from PWl and PW2 2 - (· For clarity and better understanding of what transpired at the trial court, I find it prudent that I may I appreciate the facts of the case at this stag·e, albeit briefly. Evidence tendered during trial of this shows that around 3:00hrs on 20 th October 2016, PW1 Emmanuel Ngowo while accompanied with PW2 Fred Sweba, all Serengeti National Park rangers, were patroHihg around Andajega ~rea in that National Park, when they arrested the appellant walking in the Park. Upon being searched, the appellant was found with one knife, three carcasses of Impala, one carcass of eland which was cut into pieces and one carcass of dikdik. His interrogation revealed that the appellant had neither permit to enter the Park nor possess weapons and Gove_rnment Trophies. As such these charges were prepared against him as stated earlier on. When the appeal was called for hearing on 9th April, 2019, the appellant appeared in person and unrepresented. On being a chance to address the court in respect of his appeal, the appellant adopted the contents of his petition and left if for the court to determine his fate. On the other side Ms MwanahawaChangalethe learned State Attorney who appeared for the Respondent, support the findings of the trial court. In her oral address, Ms Changale contended that the ·first and second grounds of 3 appeal of appeal were baseless because the iaw under section 143 of · ·· ( the Evidence Act Cap .6 RE 200i does not set a particular number of. witnesses for the purposes of proving an offense. In view of the learned . . State Attorney, testimonies. from the procured prosecution's witnesses, . were sufficient and so proved the changed offenses to the required standards. On the third ground of appeal, it was argues that the PW3 being a wild life officer, was a competent witness to prepare and tender exhibits as in terms of section 114 (3) of the Wildlife Conservation Act Cap 283 RE 2009, any wildlife officer can do so. With regard to the fourth ground of complaint, it was submitted that '.there was a consent from the Director of Public Prosecutions and once filed in ·a proper court, the law requires no proof of the same. The learned State Att_orney went on to argue. in respect of the last ground of appeal on failure by the trial court to consider the defence case that. the same was considered at page 7 and · 8 of the Judgment. In disposing this appeal I will start with the first and second grounds of . . appeal which in my view,• if answered in affirmative will dispose of the entire appeal. The general complaint under these ground is that the trial 4 court erred in law arid in fact to· rely on uncorroborated testimor:ies of 0 PW1 and PW2 which in his view, did not prove that the appellants were arrested inside the National Park with the alleged weapon and Government trophies. Both the learned State Attorney and the appel.lant appears to be in agreement that the duty in criminal cases is on the prosecution side to prove the offense charged. In this case, the · . . •prosecution side was therefore bound to prove; One that the appellant illegally entered and so was arrested within the National Park and two; that upon such arrest, he was found in possession of a weapon and Government trophies. Apparently, when the appellant was arrested by PWl and PW2 on 20th . · October 2016, it was alleged that he was found with a knife and some Impala and dikdikcarcasses .. The key prosecution's-witnesses were PWl and PW2. All these witnesses testified to have arrested the appellant within the National Park with a knife (Exhibit Pl) _together with an Impala and dikdick carcasses (Exhibit P2. In his defense at the trial court, the appellant denied to have neither arrested within the Park nor to have been found with the Government trophies. In my considered opinion, the fact that the appellant denied to 5 have been arrested with the Impala and dikdik carcc1sses, presupposed -.(~- · ·· that they denied to have been found in possession of the Government trophies. Does the above prosecution evidence prove that they were found with the alleged trophies? If I should be direct to the point, I would say no. The prosecution side did not discharge mandatory legal duty under the provision of section 22 (3) (ii) of the Economic and Organized Crime Control Act Cap 200 RE 2002 by preparing and tender in court a certificate of seizure which would prove that those exhibits were actually seized from the appellants. In terms of that provision, there is a mandatory duty for a · certificate of seizure to be prepared immediately after any property connected to a crime is seized. That section provides that: 22 (3) Where anything is seized after a search conducted pursuant to this section/ the police officer seizing it shall- (i) N/A (ii) issue an official receipt evidencing such seizure and on which the value of the property as ascertained and bearing in addition to his signature/ the signature of the owner of the premises searched and that of at least· one independent person who witnessed the search [Emphasize supplied] 6 I am aware that that provision dlrects a police officer to prepare such ·a ( certificate.·Howevei- under section 21 (2) of the Act, even a public officer like PWl and PW2 are, when conducting an investigation, referred to· as . .. police offic_ers. That section provides that:- 21(2) Where in accordance with any other written law the investigation of any economic offence or category of economic offences/ ·1s ordinarily conducted by public officials other than police officer~ then for the purposes of this Act. the, term . . ''police officer" shall include any public officials in the discharge of functions in pursuance of this Act. [Emphasis added] Guided by that pr<?vision, it is pertinent therefore that PW1 arid PW2 .. when seizing exhibits Pl,· P2 and P4 were duty bound to prepare and issue an official . receipt evidencing . such seizure. I am· also kinly. aware of the decision Court of appeal· of Tanzania decision in Mandela Maskini @ Kasalama· v. Republic, Criminal Appeal No. 471 of 2015 (CAT) (unreported) which found that even where a certificate of seizure has not been tendered still the Court may . . continue to rely on the other strong evidence of the prosecution. Much as I am subscribing myself to that decision, I am nevertheless, of the 7 I. ' view that that Mandela ·Mask!ni's case is distinguishable to the ·( present one .. The principle of law is that each case has to be decided depending on its own set of facts and- circumstances. See the case of KimbuteOtiniel v. Republic, Criminal Appeal No. 300 of 2011 andNgasaNhabiV.Republic, Criminal Appeal No. 94 of 2008, (CAT) (Both unreported). In that case of Mandela .Maskini @ Kasalama v. Republic (supra), the Court was satisfied that although there was no certificate of seizure tendered in court during trial, there was sufficient evidence to prove that the appellant was arrested with the exhibits in issue and in finding out that there was such strong evidence in that case, the court stated the following:- From the evidence of PWl/ PWZ and PW4 whom we find to be credible witnesses which is supported by DW2 and DWJ we hasten to say that the appellant was found in unlawful possession of the government trophies; (o wit a lion skin. His defence that he was just given a lift by DWZpurporting to show that the luggage belonged to DW2 does not hold water in view of the credible evidence by PWl/ PW2 and PW4 who arrested him with the luggage containing a lion skin tfJe evidence pf DW2 whose motorcycle was hired by appellant; and DWJ who saw when the 8 L · appellant who carried a -luggage hired motorcycle· fron; Dl!'I,< and . . left after the appellant paid a _fare of Sh~. ~000/= ✓ . ( The court went on to say that:- . •~ .. Even in this case/ ·we· are settled in our mind that lack of certificate of seizure does not or cannot in anyway shake the strong evidence of PWl/ PW2 and PW4 that -the appellant was found in unlawfully possession of government trophle~ to wit a . lion skin.,✓ Back to the matter" at hand the question is, .was there such a strong evidence in this case to prove that the exhibits in issue were truly seized from the appellant? In my view, the.re is no such evidence'. The record is clear that the appellan~ denied to have been arrested within the premises of the Serengeti National_ Park as alleged by PWl and PW2. It is well known that the duty of the appellant, as the criminal suspect, ·was not to prove their innocence but rather to create doubt which is reasonable in the eye of law. In the contrary however, it was the duty of the· _prosecution to prove beyond reasonable doubts that the appellant was arrested in the premises of Serengeti National· Park. I believe,· had . . PW_l and PW2 prepared a certificate of seizure as required under section 22 (3) (ii) of the Act, it would have provided enough evidence that the appellant was truly arrested in that National Park and also that the 9 exhibits in issue were seized from him. That was· not done. As such, ( given the fact that PWf and PW2 are the only. witnesses to be relied upon by the prosecution in disproving the appellants defence that they were not arrested in that area, I hold that there is no any other strong evidence to prove the case against the appellant and therefore that the certificate of seizure was necessary in this case. In Julius Matama @ Babu @ MzeeMzima ·v. Republic, Criminal Appea'I No. 137 of 2015, (CAT) (Unreported) the Court of Appeal of Tanzania emphasized on the necessity of preparing a certificate of . seizure where any property is seized by the arresting officer. In that case the Court, referring the provision of section 38 (3) of the Crimi_nal Procedure Act, Cap 20 Revised Edition 2002, which is a replica to section 22 (2) (ii) of th~ Act, stated that:- ''. . . ·.Ipso jure, this section is coached in mandatory terms, . . . . entailing that they must be complied with. In fact, it intends to . . achieve the point that where physical evidence is to be used in a criminal trial there must be evidence establishing an adequate foundation on where and how the object being offered in evidence is indeed the object that it is claimed to be. " 10 'I All said ·and done; and for what I have endeavored to state above, I am ( of the view that certiAcate of seizure in the present case was of utmost important. Since it was neither prepared nor tendered at the trial and since I have said that there is no ahy. other cogent evidence by the prosecution to stand against the appellants in the absence of that certificate·, I hold that the trial court's conviction against the appellant was notjustified. In conclusion, I would like to note though by way of passing that, both a certific:ate transferring Jurisdiction to Bunda !District Court and Consent of the State Attorney In charge to allow prosecution of the appellant, ~ere issued on 21 st October 2016 against the 9ppellant who was said to have contravened section 14 (d) of the first schedule of the Economic and Organiz~d crime Control Act (supra). In my considered view, that was wrong because by time the alleged offences were committed and . when the learned State Attorney issued con~ent the charge and transfer ·jurisdiction to Bunda District- Court, section 14 (d) (supra) which the appellant was alleged to have contravened was no longer in existence, following the amendments done through the Written Laws (Misceflaneous Ame·ndments) Act, No. 3 of 2016 which came into operation on ih July 2016. 11 . I ·- ( Apparently, the consent and certificate transferring jurisdiction to the trial court being defective as such, the remedy would be to order re trial. Howeversince there is no evidence that the appellantwas arrested with the alleged weapon and Government issuing such order will be allowing the prosecution side to correct its errors. In the circumstances and after all that has been said above, I find addressing the remaining grounds of appeal, an academic exercise which I am not prepared to perform. It suffices here to say that the appeal has merits and so the same is hereby allowed with an order for immediate relea~e of the appellant from the prison forthwith unless otherwise held for some other lawful cause. Order accordingly DATED at MWANZA this 2ih Day of May, 2019 M.M. SIYANI JUDGE 12