20191025 TZHC Dodoma

"ORIGINAL" IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA CRIMINAL APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 91 OF 2018 (Originating from the District Court of MANYONI Economic Case No. 34 of 2016) SHIMIYU LUBANDIKA @ MAHONA ..............1 ST APPELLANT DOTTO MACHIA @MANGOMBE .................... 2ND APPELLANT PILIPILI NG'WANIMAGUTA BUPILIPILI ............................................... 3RD APPELLANT VERSUS THE REPUBLIC............................................ RESPONDENT JUDGEMENT Mansoor, J: 25TH OCTOBER, 2019 1 "ORIGINAL" The appeal arises out of the judgment dated 23/11/2017, passed by the District Court of Manyoni in Economic Case No. 34 of 2016. At the District Court, the appellants were convicted with the offence of unlawfully hunting of a scheduled animal contrary to sections 47 (a) (aa) of the Wildlife Conservation Act, No. 5 of 2009 read together with paragraph 14(a) of the First Schedule to and section 57 (1) and (60) (1) and (2) of the Economic and Organized Crimes Control Act, Cap 20 200 (R: E 2002). They were also convicted for the offence of unlawful possession of Government Trophies contrary to sections 86 (1) (2) (c) (ii), (3) (b) of the Wildlife Conservation Act, no. 5 of 2009 read together with paragraph 14(a) of the First Schedule to and section 57 (1) and (60) (1) and (2) of the Economic and Organized Crimes Control Act, Cap 20 200 (R: E 2002). 2 "ORIGINAL" They were also convicted with the offence of unlawfully dealing with the Government trophies contrary to sections 80 (1), 84 (1) and 111 (1) (a) of the Wildlife Conservation Act, no. 5 of 2009 read together with paragraph 14(c) of the First Schedule to and section 57 (1) and (60) (1) of the Economic and Organized Crimes Control Act, Cap 200 (R: E 2002). The 1st appellant Shimiyu Lubandika who was the 2' accused at trial, and one Elias William Maganga (1st accused) were separately charged with the fourth and Fifth counts of unlawful possession of weapon c/s 103 of the Wildlife Conservation Act No. 5 of 2009 read together with section 57 (1) and (60) (1) of the Economic and Organized Crimes Control Act, Cap 200 (R: E 2002). Section 57 (1) and (60) (1) of the Economic and Organized Crimes Control Act, Cap 200 (R: E 2002), and fifth count was unlawful possession of 3 "ORIGINAL" weapon without license contrary to section 4 (1), (2) and section 34 (1) and (2) of the Arms and Ammunition Act, Cap 223 R: E 2002. The three appellants herein above were sentenced to serve three years imprisonment for the 1st count. They were all sentenced to serve 20 years jail sentence for the 2nd count. For the third count, the three appellants were sentenced to pay THz 65,670,000 which is twice the value of the trophy or to serve jail sentence of three years. Shimiyu Lubandika, the 1 " appellant herein was sentenced for the fourth count to pay THz 300,000 a fine, or a jail sentence of three years, he was also sentenced for the fifth count to pay a fine of THz 1,000,000 or serve a jail sentence of three years. The sentences were ordered to run consecutively. "ORIGINAL" The appellants were aggrieved with the conviction, they filed an appeal contesting the conviction; they raised the following grounds of appeal: That Section 10 (2) of the Criminal Procedure Act was not observed as the investigation team did not issue a receipt when they received the trophies; That Section 38 (3) of the Criminal Procedure Act was also violated with regards to the seizure certificate; That Section 22 (3) (ii) of the Economic and Organized Crime Control Act, Cap 200 was not observed; prosecution evidence was not reliable; The prosecution failed to prove the case beyond reasonable doubt. 5 "ORIGINAL" 6. The accused were convicted on the weaknesses of their defense not the strength of the prosecution case. At the hearing of the appeal, the appellants were unrepresented, and they simply adopted their grounds of appeal as presented in their joint petition. The respondent was represented by Mr. Salim Msemo, the State Attorney. Succinctly, the facts of the case is as summarized in the appeal preferred by one Rubeni Lazaro Mafuta @ Mbunde in DC Criminal Appeal No. 16/2018 already decided by this Court on 09th May 2019. I shall repeat the facts herein. Daudi Thomas Mahenge, a Game Warden who testified for prosecution as PW2, said, he was informed that there are people at Manyoni who are selling elephant's tusks. He pretended to be the buyer, and he was given the telephone number of one Rueben Mbunde. He and Reuben agreed to "ORIGINAL" meet on 23/05/2016, but this could not materialize. He was called again on a different mobile number on 24/5/2017 by Rueben Mbunde asking him to meet at Kisingisa Village in Manyoni. PW2 agreed to buy the 2 elephants tusks for THz 130,000. They agreed to meet at Kisingisa at 22.00 on 24/05/2017. PW2 with Paul Mwazirubi, Thomas Santi, Isaac Nanyaro went to Kisingisa Village by motor cycles; they met Ruben who took them to where the trophies were. They met 8 other people to where the trophies were. One Shimiyu Lubandika (Appellant No. 1 herein) was the in charge of the group selling the trophies, him and one Doto Machia @ Mang'ombe (2nd Appellant herein) handed over to PW2 a bag with two elephants tusks, then they planned the arrest but all seven people ran away and they managed to apprehend only Shimiyu Lubandika. The trophies were 7 "ORIGINAL" seized. Shimiyu Lubandika confessed at the police station that he has a gun, a gun also was seized. The other 2 accused who ran away were apprehended on 16/06/20 17 at Kisingisi Village. The accused in the original case at Manyoni District Court were Rubeni Lazaro Mafuta © Mbunda, Elias William Maganga, Shimiyu Lubandika Mahona, Dotto Machia Mang'ombe and Pilipili Ngw'ani @ Maguta. The accused confessed to have been dealing in hunting, and selling the government trophies in their respective cautioned statements. The elephant tusks were found at Kisingisa Village in Manyoni District; these trophies were ceased and presented in court as exhibits. "ORIGINAL" On record, it is shown that Athumani Bahati, Daudi Mahenge, Moses Munya, WP 5324 D/CPL Josephine, E 4279 D/CPL Nicholous, D 7447 D SGT Beatus and G 1793 D/Cpl Juma (hereinafter referred to as "PW 1", "PW 2" "PW 3" "PW 4"PW 5 "PW and "PW 7" respectively) confirmed that the trophies were found in possession of the Appellants and that all the accused persons confessed and recorded their confession freely before the police officers. - Regarding the seizure note, Salim Msemo, the state attorney argued that there was a certificate of seizing the weapon which was admitted as Exhibit P5, when the seizure note was tendered in court, the appellants did not object, and so it was admitted. The recording of the seizure notes complied with Section 106 (1) (a), (b), (c) of the Wildlife Conservation Act No. 5 of 2009. This section reads: "ORIGINAL" 106.-(1) without prejudice to any other law, where any, authorized officer has reasonable grounds to believe that any person has committed or is about to commit an offence under this Act he may - (a) require any such person to produce for his inspection any animal, game meat, trophy or weapon in his possession or any license, permit other document issued to him or required to be kept by him under the provisions of this Act or the Arms and Ammunition Act; (b) Enter and search without warrant any land, building, tent, vehicle, aircraft or vessel in the occupation or use of such person, open and 10 "ORIGINAL" search any baggage or other thing in his possession: Provided that no dwelling house shall be entered into without a warrant except in the presence of at least one independent witness; and (c) seize any animal, livestock, game meat, trophy, weapon, license, permit or other written authority, vehicle, vessel or aircraft in the possession or control of any person and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest and detain him. 11 "ORIGINAL" Mr. Msemo submitted that since the trophies were not seized from a dwelling house, thus there was no need of the presence of an independent witness. The trophies and the weapon were seized from an open area, not a dwelling house, and thus the seizures were in proper compliance with section 106 cited hereinabove. Besides, the 15t appellant herein signed the seizure note since the owner of the house ran away. It is true that there was no independent witness when seizing the items from the 1st appellant, the rest of the appellants ran away from the scene, and so it is obviously that they did not sign the seizure note. It is also true that the items were not seized from the dwelling house, and so since the law which governs the seizure of the trophies and the weapon is the Wildlife Conservation Act, that law was 12 "ORIGINAL" strictly followed. Again, the discrepancies on the seizure note being not signed by the independent witness and being not signed by the rest of the appellants, except appellant no 1, are insignificant in nature and are not having any effect on genesis of prosecution story as there is sufficient material, proved on record, to hold the appellants guilty. The evidence of the police witnesses and that of the game wardens cannot be discarded merely on the ground that they belong to the police force or game wardens and are either interested in the investigating or the prosecution. But prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible a corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation and requires greater care to appreciate their testimony. The evidence of the police officers and the game 13 "ORIGINAL" wardens who testified in this case have been corroborated by the seizure notes, the trophies and the weapons tendered in court as exhibit, but again by the confession statements of the accused themselves. Thus, the first ground of appeal is meritless and it is hereby dismissed. 2nd ground of appeal, it is true as Regarding the submitted by Mr. Salim Msemo, the State Attorney that there was enough evidence to prove that all the three appellants herein above were found with the trophies at Kisingisa village. There was evidence at page 38 of the proceedings 2nd and 3rd which shows that the Vt appellant introduced the appellant to PW2 Daudi Mahenge, and then the 15t Appellant instructed the 2nd appellant in sukuma language to bring the bag which contained the elephant tusks. It was the 2id Appellant who brought a bag to the scene which contained 14 "ORIGINAL" 2nd and the two elephant's tusks. There is also proof that the 3rd appellants managed to escape the arrest as soon as the police unveiled themselves as police men, and not the buyers. They were all identified by PW2 and also they were mentioned by the 1st appellant in his admission before the 2nd Appellants admitted in their police. Besides, the 1st and cautioned statements (Exh P7 and P8) that the trophies 3rd appellant also found with them belong to them. The admitted in his cautioned statement which was admitted as exhibit P9 to have been present at the crime scene, and he escaped the arrest. He also admitted that he was found with the trophies. The case for the prosecution was proved beyond reasonable doubt. I have heard the Learned Counsel for the State, Counsel Salim Msemo. I have given my thoughtful consideration to the grounds of appeal raised by the 15 "ORIGINAL" appellants and have gone through the relevant records and also the relevant provisions of the law. The Appellants never argued that the trophies were not found in their inclusive possession or that the trophies were found in only one accused possession. From the confessions of the appellants and in totality of the prosecution evidence, I find that prosecution was able to establish that these items were in exclusive possession of the appellants. The trophies belonged to all the three appellants herein and all three of them were found in possession of the trophies. The case for the prosecution was supported by all the prosecution witnesses who have fully supported the case of the prosecution and the prosecution proved its case beyond reasonable doubt. It is on record that all the accused were in possession of ivory tusks without having any license for keeping the same or selling them. It was further proved by 16 "ORIGINAL" expert evidence and valuation report that the trophies were duly proved as of ivory which is specified as prohibited animals in the Schedule of the Wildlife Act. It is a matter of record that during the trial/proceedings, accused persons have challenged the proceedings before the Trial Court. It is also matter of record that the Trial Magistrate was satisfied after receiving the evidence that the accused persons could not justify of their possession of trophies and weapons since they did not show that they have certificates of ownership or a permit to own and sell them. The Trial Court further observed that it is for the appellants to discharge that burden and it will have to be appropriately determined only in trial. Hence, as per this order, accused persons have to show that they were having the legal possession of the trophies in question and the weapon found in the 15t appellant's possession. 17 "ORIGINAL" Admittedly, possession of the trophies and a weapon was contested by the accused persons at trial but this fact was proved by the prosecution beyond reasonable doubt and the fact was supported by the appellants own statement recorded freely at the police. PW-2 has specifically deposed that the trophies were recovered from the house of the accused persons by the recovery team, the seizure note was properly completed, and paper trail was properly admitted in court showing that nothing was tempered with by the prosecution witnesses. There is nothing in the cross examination of PW-2 to show that accused persons were not residing or the trophies were not recovered from their possession. There is also nothing on record which disprove the prosecution case regarding possession of a weapon 1st appellant failed recovered from the 15t appellant and the 18 "ORIGINAL" to rebut the presumption that he owned the weapon unlawfully. Further, it is also a matter of record that the trophies were produced before the Court as exhibit in total compliance of the seizure procedures and the law of evidence Act. The trophies were checked by the valuer and it was confirmed that they were from the elephant, the weight value and measurements were exhibited in court and an inventory- cum-seizure memo was prepared with the signature of the police, the game warden and the 1st appellant. It is obvious that the 2nd and 3rd appellant did not sign the seizure note since they ran away. It is a matter of record that the trophies were sent to the Wildlife Institute for scientific analysis and result of analysis was tendered in court and as per the result, the two 19 "ORIGINAL" a trophies are of an elephant. As stated above, it is an undisputed fact that the trophies were recovered from the premises of the accused persons, the appellants herein and all the accused persons were living there or they were found there during the arrest but they escaped. Further as per the Wildlife Conservations Act, mere possession is sufficient to attract the provision of this Act and no knowledge is required. The trophies are of elephant ivory which is specified in Schedule 1 of Wildlife Conservation Act. After going through the entire record, it is very much clear that trophies were in the possession of the accused persons which is prohibited under the Wildlife Act. Accused persons have not led any defense evidence to support their contentions. 20 "ORIGINAL" Under the Wildlife conservation Act, prosecution has to prove that accused persons were found in possession/custody or control of any part or deliberately of any animal and until the contrary is proved, which is to be proved by the accused persons, custody of such person will be treated to be unlawful custody. Accused persons have not led any evidence to rebut the presumption of the Act. From the cross examination of prosecution witnesses, accused persons have failed to bring anything on record to rebut the said presumption. Witnesses have totally supported the case of the prosecution regarding the recovery of trophies and also they all are corroborating each other on all material aspects and there are no inconsistency contradictions in their statement. Their statements on record are found to be cogent, inspire the confidence of the Court and there is no reason to 21 "ORIGINAL" S disbelieve the same. Further, minor discrepancies which have been pointed out, I am of the view that they are not of such nature which create infirmity in the prosecution's case. I do not find any reason that why the police and the game wardens that went to the scene would falsely implicate the accused persons. The appellants were not convicted based on the weak evidence, actually as stated herein above Accused persons have not led any evidence to rebut the presumption of the Act that they were found in possession of the trophies without a license, and thus they were unlawfully dealing with the trophies. As held in the case of Issa Said vs. R Criminal Appeal No. 10 of 2014, CA Mtwara (unreported), the defense case was taken into consideration but it was rejected. This does not mean that the defense case was not considered. 22 "ORIGINAL" Hence, in view of the submissions made above and after scanning the entire record and proceedings, I have no hesitation to hold that prosecution has successfully able to prove the guilt of the accused persons, the appellants herein beyond all reasonable doubts that the trophies were recovered from the possession of the accused persons, on the said date and place as stated above. The prosecution also was able to prove that the weapon was recovered at the instance of the 1st appellant who led them to where it was hidden, the 15t appellant was so found in possession of the weapon in contravention of Section 103 of the Wildlife conservation Act also in violation of the Arms and Ammunition Act. In conclusion, the appeal lacks merits, it is hereby dismissed, and the conviction and sentence passed by the District Court is hereby confirmed. 23 c 'r -L "ORIGINAL" Appeal dismissed NSOOR I 4E :jber, 2019 Judgement delivered in Court today in the presence of the Appellants, Ms. Mwajuma Mkonyi, State Attorney for the RespOndent Republic and MRS. MARIKI the Court Clerk. iIO ber, 2019 24