CRIMINAL APPEAL NO 15904 OF 2024 defence evidence not considered

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CRIMINAL APPEAL NO. 15904 OF 2024 (Originating from Economic case No. 15 of2023 in the District Court ofArumeru at Arumeru) SHORISAEL NAFTALI................................................. APPELLANT VERSUS THE REPUBLIC.............................................. RESPONDENT JUDGMENT ----------------------- - \\ /7 \77 1(7 February & 21st March 2025 \s \\ ___ s x V Masara, J Before the District Court of Arumeru (\tlje trial, court"), Shorisael Naftali, the Appellant herein, stood chargeckof two counts; namely, Unlawful X. X’ ’ ‘ *x 7< ’ Possession of Government Trophy^dbntrary to section 86(1) and (2) of '77'~~''y \ the Wildlife Conservation ActbCap. 283 [R.E 20221 read together with ParagrapfiH^Qf thexFirst Schedule to and section 57(1) and 60(2) both < '''' \\ of the Economidand Organized Control Act, Cap. 200 [R.E 20221: and Unlawful .Possession of Weapons, contrary to section 103 of the Wildlife Conservation Act, Cap. 283 [R.E 20221 read together with Paragraph 14 of First Schedule to and section 57(1) and 60(2) both of the Economic and Organized Crimes Control Act, Cap. 200 fR.E 20221. 1 After hearing, the trial court was satisfied that the Prosecution proved its case to the required standards; that is, beyond reasonable doubts, for all counts. It proceeded to convict and sentence the Appellant to serve 20 years imprisonment for each count and ordered that the sentences run concurrently. Being aggrieved, the Appellant preferred an appeal thxthis Court challenging both the conviction and sentence imposed oirBitn by the trial % court. The Appellant raised 3 grounds of appealed with the leave of this Court he added 5 more grounds, making irTbtaiW 8 grounds. I will reproduce the said grounds yerbatim^for easy^of reference. They are: 1) That, the case against the7Appellant was not proved beyond reasonable doulat.. v J/ 2) That, thetnal^ccnir^ieried in law and fact in not finding that there was a contradiction between PW1 and PW2. \x 3) That, the triai magistrate erred in law and facts in failing to consider i the defence, evidence adduced. (J Y) 4) That, the (darned trial magistrate erred in law and fact in failing to note that'the government trophy seized were kept contrary to PGO No. 29 paragraph 19. 5) That, the learned trial magistrate erred in law and fact in convicting and sentencing the appellant on a defective charge. 6) That, the learned trial magistrate erred in law and fact in not finding that, the exhibitP3 valuation certificate were notread. 2 7) That, the learned trial magistrate erred in law and fact in not finding thatthe valuation certificate and inventory form were not issued by the competent person as mandatory requirement of section 86 (4) and 113(4) of WCA. 8) That the trial court erred in law and fact in not finding that, the prosecution side failed to summon other arresting officers (ie Abel Sustan Masunga, Jumanne Jackson Kisaka and Mi^on Mtowe) and the magistrate who ordered to disposal of the said trophy. In Court, the Appellant appeared in person. Mr PhilberfeMsuya, learned State Attorney appeared for the Respondent Re^ublic.\With the leave of the Court, hearing of the Appeal proceeded byway?df-written submissions. In his written submissions, the Appellant jointly submitted in all the l.'i /’K\ grounds save for the seventh ground. In short, his submissions hinged on the contention thatthe case against him was not proved to the required standards, In support of theabove contention, the Applicant argued that there was materia L eontradiction between the evidence of PW1 and that of PW2 as can be garnered at page 12 of the typed proceedings where PW1 testified that he handed over seven heads, front rear legs, ribs, tail, a knife and snare wire; while PW2 (the valuation officer) testified to have been handed over with the trophy which is meat with skin, seven piece of hand and horns both front and rear legs, tail and ribs. 3 The second issue that the Appellants claims is based on the fact that the valuation certificate, exhibit P3, was not read over after its admission at the trial court. That, failure to read exhibit P3 after its admission prejudiced him as he was denied the right of knowing the contents of the said document to enable him defend himself adequately. He supported <X his submission with the decision of Robison Mwanjisi and Another vs R [2003] TLR 218. The other issue raised by the Appellant is on^the number of arresting officers who appeared before the trial court toteStify.He claimed that, as per the Prosecution evidencer during the arrest there were five arresting ft Xx officers but only one of tlpem wassummoned to testify before the trial court. That, at least two officers were to be summoned and, in their absence, then the offence wa^left unproven. The other variance pointed out by the Appellant is that the charge against him was at variance with the evidence adduced. That, it was alleged that the Appellant^was found with government trophy; namely, giraffe meat which was in pieces which are 7 head, tail, rear and front legs, while the store keeper testified to have been handed the head, ribs, rear and front legs. With that variance the Appellant submitted that the charge was not proved. 4 Submitting of the seventh ground (the fourth in the additional grounds of appeal), the Appellant stated that, section 86(4) and 114(3) of the Wildlife Conservation Act, requires that the certificate of seizure and inventory be issued by either the Director of Wildlife or any Wildlife Officer. That the case under consideration does not reveal as to whether the person who prepared the valuation certificate and inventory was a p^on competent as named in the law; hence the identification of the trophy could not have been believed by the trial court in finding thexAppellarit guilty. Responding to the appeal, the learned StateAttorney? with respect to the alleged contradiction of the.-eyidence. ofN?Wl and PW2, Mr Msuya contended that there is no :such contradiction. That, as per the evidence <x of PW1, on 20th June s2003 he received meat of buffalo; to wit, seven pieces containing head of buffalo with horns, skin, ribs, front and rear legs, tails,xknife ano, wire as seen at page 12 and 13 of the trial court •7Z proceedings. That, the evidence by PW1 was collaborated with the evidence by PW2 as seen at page 15 to 19 of the trial court proceedings, where PW2 testified that she received seven pieces of buffalo; that is, head of buffalo with horns, skin, ribs, front and rear legs and tails for purpose of identification, valuation and inventory. Mr Msuya added that 5 PW2 had nothing to do with the knife and wire seized from the Appellant as her duty was to value and identify the trophy only. On failure to read Exhibit P3 after its admission, Mr Msuya argued that the original record reveals that the said exhibit was read out after it was admitted. That the claim that the same was not read is a typing error in the typed trial court records. He prayed that the ground be' dismissed as \ S’K z’ the issue was distinguishable from the case of Robirisbn Mwanjisi (supra). With regard to the claim of failure<tq surpmon arresting officers to testify before the trial court, Mr MsuyFwas of the view that such failure does not diminish the prosecution chse anyhow,. According to him, it is not the V X. /-J number of witnesses which'isXimportant but the quality of evidence adduced. That the evidence adduced by PW3 suffices to prove that the Appellant was.apprehended while in possession of a government trophy and Weapons. He'cemented his position with Section 143 of the Evidence Act, CaB?64R<E 20221, Responding to the claim that there exists variance between the charge and the evidence adduced against the Appellant, Mr Msuya was of the view that there exists no variance; in the sense that, the charge was to the effect that the Appellant was found in possession of government 6 trophy consisting of seven pieces of buffalo. He added that, at page 24, 25 and 27, PW3 testified that he seized seven pieces of buffalo from the Appellant which evidence was collaborated with the evidence of PW1, the store keeper, who testified to have received the seven pieces together with weapons; namely, a wire and a knife. Countering the seventh ground (the fourth ground in mexadditional grounds of appeal), Mr Msuya argued that at page\15of5the.typed trial \\ zX \ V/ court proceeding, PW2 testified to be a wildlifeofficerWhus, according to zx \ \ him, PW2 is a competent person as per- section 3 of the Wildlife Act, Cap. % 283 [R.E 20221. He added that, as pex^secti^p 86(4) and 114(4) of the same Act, a Wildlife officer is capable of*issuing valuation certificate; \\ "v w <\ \\ zf hence, PW2 qualifiedxp isstje^bqtm the inventory and the valuation 'x’- certificate. X V 'X Mr Msuya finalized' byxstating that this Court is bound by the trial court's £/ \\ \> findings on the credibility of the prosecution witnesses, specifically that of vX X£ X ■' ■' PW1, PW2ahdPW3 as held in the decision of the Court of Appeal in Omari Ahmed vs R F19831 TLR 52. Having outlined the cases for the Appellant and the Respondent and after due consideration of the original and additional grounds of appeal as well 7 as the submissions made by the Appellant and the learned State Attorney, the issue for determination is whether the appeal before me has merit. I will first deal with the seventh ground of appeal which challenges the competence of the person who issued the valuation certificate as well as the inventory form. It is on record that the Appellant was charged for contravention of the Wildlife Conservation Act aszwell as the>Economic and Organised Crimes Control Act ("EOCCA"). According-tosection 20 of the EOCCA, the investigation of any economic offence must be conducted in accordance with the provisions, of the Criminal Procedure Act ("the CPA") except where the law creating the offence expressly provides for acts to be done under the said law/Moreover, section 20(2) of the EOCCA w // expressly allows the law\cr^ating<the offence if expressly provides for specific acts to be done in theprocess of investigation, then the act can be donerin atcQrdahce with that law to the extent only to which that law derogates from the provision of the CPA. In this case; the Appellant stated that both the valuation certificate and the inventory form were issued by an incompetent person. Section 86(4) and 114(3) and (4) of Cap. 283 [R.E 2022] requires that a valuation certificate, signed by the Director of Wildlife or an officer from the rank of 8 Wildlife Officer, stating the value of any trophy involved in the proceeding, be admissible in evidence. The Appellant's claim is that since the said exhibits were prepared and issued by PW2, one Ruth Charles Philemon, then the same is not admissible as evidence. As above stated, section 86(4), 114(3) and (4) of Cap. 283 recognizes the Director or a Wildlife officer to issue a sjgned certificate stating the value of the trophy. The evidence of PW2, while yv X\ % under oath as seen at pages 15 and 16 of theAtyped trial court _ \\ XX \\ proceedings, is that she is a Wildl^OfterrSfiMurther stated that she prepared the trophy valuation-certificate as^well as the inventory form (exhibit P3 and P4). With this evidencein record, it is evident that the said V ) exhibits were prepared and issued bya competent person. Therefore, the seventh ground of appeal fails^ I now turn back to<£onsider whether the offence against the Appellant i' ■ \\ was proved beyond reasonable doubts as required by law. I will first address the issue of the number of arresting officers who testified against the Appellant. I am mindful of the legal requirement that, no specific number of witnesses is required to be summoned to prove or disprove a certain fact. See Section 143 of the Evidence Act. 9 In the case at hand, Robert Mbepwa, PW3, testified to have been one of the arresting officers. That he and the other officers, namely Abel Dustan Masunga, Jumanne Jackson Kisaka and Miltone Mlowe apprehended the Appellant. The evidence of PW3 was with respect to the whole process of arresting the Appellant and seizing from him the trophy and weapons. In V\ the assessment of the trial court, the said testimony was not impeached or shaken in anyhow by the defence evidence. By implication, even without the testimonies of other arresting offers, the evidence of PW3 suffices to prove that the Appellant wascarrested in unlawful possession of weapons and government trophyascharged. On the issue whether theretwas compliance with the requirement to read U MJ \\ W // out documentary evidence after its admission as exhibit before the trial court, I agree<with Mr Mstfyp that the same is untrue. The original (handwritten) trial court proceedings dated 17/10/2023 reveal that there // 'A was fijll compliance with that procedure. It is unfortunate that the typed t- \* // trial courtjproceedings do not indicate the same. The alleged omission arises from failure of the typist to include the part which indicated compliance. On the claim regarding contradictions between the evidence of PW1 and that of PW2 on the trophy that was allegedly seized and that which was 10 handed over to the exhibit keeper, I have failed to observe any material contradictions in the evidence of PW1 and PW2 as alleged. The evidence by PW1 as well as exhibit Pl, the book register, tally with the evidence of PW2 and exhibits P3, P4 and P5. The oral evidence and exhibits tendered are to the effect that there were seven pieces of buffalo meat. With regard to the wire and knife, the evidence of PW1 reveals that they were in his possession until they were tendered in court as exhibit<p2._ There is no record or evidence to suggest that the knife?and the wires were ever handed to PW2. The claim, therefore/ lacks basis and has to fail. Regarding the alleged variant^ between xthe charge sheet and the prosecution evidence, I have not beeh -able to decipher such variance from the record availed to me. In The.JrsFcount, the charge sheet indicated that the Appellant was found in unlawful possession of government \ 7 — - x X^y trophy; to wit, one.head, conjoined ribs, two forefront legs, two back legs • X" xx \x /' X/1 and a tail of Buffalo. The evidence by PW1, PW2 and PW3 together with exhibitsT1,J^3/P4 and P5 substantiated, in my view, the particulars of the offence specified in the first count. Similarly, the evidence by the Prosecution regarding the second count appear to be in order. In the second count it was started in the substituted charge that the Appellant was found in unlawful possession of weapons; to wit, one wire for u trapping animals and one machete(panga). The scrutiny of evidence shows that PW3, the arresting officer, and PW1, the store keeper, confirmed the said particulars. That is also substantiated by the seizure certificate, exhibit P5, and exhibit P2. It would appear that the Appellant's apprehension of contradiction arose from failure of PW2 to mention the <X\ weapons. But, as earlier stated, PW2 had nothing to doXwith the said weapons as her duty was to identify and value the trophy. W From the above, I would have easily dismissed the Appeal. However, the Appellant raised one pertinent issue regardihgii failure by the trial <X \ magistrate to accord weight to the defence evidence. This is ground 3 in f'/ /X 'X\ the original grounds of appeal.^IfXhis Court finds that the defence \. X-X /j evidence was not adequately considered, it can step into the shoes of the trial court and(analyse the defence evidence, coming up with its own Xx findings.<hi^is asjater the decision of the Court of Appeal in Athuman // X‘.\ x Mussa vs Republic, (Criminal Appeal No. 4 of 2020) 2021 TZCA X ■J 278 Tanzlii^ Although not entirely true, I find that the trial magistrate failed to consider one crucial aspect of the defence case. The Appellant testified that he was arrested in his farm and that the area where he was arrested was not within the National Park as alleged. He further stated that he was held 12 without a charge at Usa River Police Station for about a month before he was taken to Court. This evidence was not contradicted by the Prosecution. From the evidence, there is no dispute that the Appellant was arrested on 20th June 2023, the valuation and inventory were duly completed on 21st June 2023. It is however evident from the proceedings thaifthe Appellant was arraigned in Court on 13th July 2023, which is about threeweeks since \\ zz ' ■ \\ VX the arrest was done. This corroborates thexdefehce case that the Prosecution maltreated him in order^^ecGre^hiS' confession to the offence. An accused person cannot besdetained at the whims of the law enforcers for that long,' especially where he is said to have been <\ J apprehended on theXscerte^oLJ^e crime. One wonders why the Zz'*’ ''X \ Prosecution had to keep the Appellant in custody for that long. Such delay, in my viewdiminishes all the good evidence that was rendered against \\ the Appellant. Unfortunately, the trial magistrate never addressed his mind dri^his^issue despite of having all the records before him. The Appellant should, therefore, be given the benefit of doubts. For the forgoing reasons, I find the appeal merited. It is accordingly allowed in its entirety. The conviction on the two counts is hereby quashed and the sentence imposed upon the Appellant by the trial court is set 13 aside. It is ordered and directed that the Appellant be released from prison with immediate effect, unless he is held there for some other lawful cause. DATED and DELIVERED at ARUSHA this 21st March 2025. 14