stivin simba vs republic 2014 tzhc 2205 6 june 2014

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT MPANDA DC CRIMINAL APPEAL NO. 47 OF 2013 (Appeal from the decision of the District Court of Mpanda in Original Criminal Case No. 7 of 2009) STIVIN SIM BA........................................ APPELLANT Versus THE REPUBLIC........................................ RESPONDENT 28th May & 6th June, 2014 JUDGMENT MWAMBEGELE, J.: In the District Court of Mpanda the appellant Stivin Simba was arraigned and convicted of unlawful possession of government trophies contrary to section contrary to section 70 (1) and (2) (c) (iii) of the Wildlife Conservation Act, Cap. 283 of the Revised Edition, 2002 read together with para 14 (d) the first schedule to, and sections 57 (1) and 60 (2) of, the Economic and Organised Crime Control Act, Cap. 200 of the Revised Edition, 2002. He was sentenced to go to jail for ten years. He was dissatisfied with the conviction and sentence and therefore appealed to this court on eight grounds of grievance. The eight grounds of appeal, in my view, can be summarised in only one ground; which is the second ground which states that the prosecution did not prove the case against the appellant beyond reasonable doubt. 1 * When this appeal came up for hearing on 28.05.2014, the appellant appeared in person and unrepresented. He therefore fended for himself. The respondent Republic had the services of Mr. Mwashubila, learned State Attorney. In arguing the appeal, the appellant had nothing to add to what he stated in the memorandum of appeal earlier filed. He only prayed to adopt the grounds of appeal. On his part, the learned State Attorney refrained from supporting the appellant's conviction and sentence. He was of the view that the evidence adduced by the prosecution at the trial fell short of proof of the prosecution case beyond reasonable doubt. He was of the view that the prosecution witnesses had interest of their own to serve and therefore their evidence needed corroboration. A b rah am W ilso n S a ig u ra n & 2 O th ers Vs R [1981] TLR 265 was cited to bolster this point. The learned State Attorney submitted further that the witnesses were told by the driver of the lorry that the trophies belonged to the appellant. The prosecution ought to have called the said driver to testify in support of the case. As this witness was not called there were doubts that the trophies, indeed, belonged to the appellant which doubt ought to have been, and must be, resolved in favour of the appellant. I have gone through the evidence on record and find myself in agreement with the learned State Attorney that the prosecution did not prove the case beyond reasonable doubt. The prosecution witnesses who arrested the appellant - Cyprian Msabila PW1, Martin Leonard Nyamwezi PW2 and Filbert Shirima PW4 - who are park rangers testified that they were told by an I informer that there was a lorry which was transporting government trophies to Sumbawanga. They waylaid the said motor vehicle with Registration No. T798 AQV which was being driven by one Nassoro Ngonyani. After the vehicle was stopped, some passengers took to their heels. Efforts to fire in the air with a view to arresting the escaping passengers proved futile. They (the park rangers) returned to the vehicle where they searched the vehicle and found several pieces of meat of a hippopotamus, giraffe and buffalo. They asked the driver who allegedly told them that the meat belonged to the appellant. They interrogated the appellant who told them that the meat belonged to the passengers who escaped. The park rangers arrested him anyway saying that he was together with those who escaped. The appellant maintained at the trial that the meat might have belonged to the passengers who ran away. He maintained the same story in the memorandum of appeal. It is my well considered view that the evidence adduced by the prosecution at the trial fell short of proof of the prosecution case to the standard required by our criminal law; that is, proof beyond reasonable doubt. If anything, the evidence adduced in proof of the prosecution case was only enough to cast a suspicion on the appellant but was not enough to ground a conviction. It is settled law in this jurisdiction, and elsewhere in the Commonwealth, that suspicion alone, however strong it might be, cannot take the place of evidence and be used to found a conviction - see B e n e d ict A je tu Vs R. [1983] TLR 190, N a th a n ie l A /phonce M apunda & A n o th e r Vs R e p u b lic [2006] TLR 395 and N oah E d w a rd G w alupam a Vs R Criminal Appeal No. 124 of 2011 (unreported), to mention but a few. Worse more, as rightly pointed out by the learned State Attorney, Nassoro Ngonyani; the driver of the lorry who allegedly told PW1, PW2 and PW4 that the trophies belonged to the appellant was not called to testify for the prosecution. In the circumstances of this case where the prosecution allege to have arrested the appellant on the strength of the word of the said Nassoro Ngonyani; the driver of the lorry, for all intents and purposes, this witness was an important witness which the prosecution ought not to have dispensed with. Nassoro Ngonyani was not called to testify and the prosecution supplied no reason why such an important witness was not called to support its case. In the premises, this court is entitled to draw an adverse inference against the prosecution that had the said Nassoro Ngonyani been called to testify, he might have given evidence adverse to the prosecution. On this proposition, I wish to borrow a leaf from a civil case of H em ed i S a id i Vs M oh am ed i M b ilu [1984] TLR 113 in which this court - I quote from the headnote •*held: "where, for undisclosed reasons, a party fails to call a material witness on his side, the court is entitled to draw an inference that if the witnesses were called they would have given evidence contrary to the party's interests." To reinforce this point further, I wish to refer to C hacha P e sa M w ikw ab e Vs R Criminal Appeal No. 254 'B' of 2010 (unreported) wherein the court of appeal referred to its earlier decision of Jo lin a S o w a k i Vs R, Criminal Appeal No. 5 of 1998 (unreported) and quoted another earlier decision of G a llu s F a u stin e S ta n isla u s @ W a siw a si & A n o th e r Vs R Criminal Appeal No. 231 of 2007 (unreported) as follows: "Non-calling, as witnesses of neighbours who came to the scene of the crime gives rise to doubts as to whether or not the appellants were the culprits. No explanation was given by the prosecution why even a single neighbour was not called as a witness. In the absence of such explanation, it is fair and reasonable to infer that if any such neighbour was called would not have given evidence similar to that of PW1 and PW2." [Emphasis added]. And, further, in A z iz i A b d alah Vs R [1991] TLR 71, the court of appeal, quoting from the headnote, held: "The general and well known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution." To recapitulate, in the light of the foregoing binding authorities, a party is duty bound to call its material witness or witnesses in proof of its case. Where, for undisclosed reasons, a party fails to call a material witness or witnesses to prove its case and such witness or witnesses are within reach, the court is entitled to draw an adverse inference that if the witness or witnesses were called, they would have given evidence contrary to the party's interests. In the instant case, the omission to call the star witness Nassoro Ngonyani; the driver of the lorry who told the prosecution witnesses that the trophies belonged to the appellant was fatal and vitiated the strength of the prosecution case, for the testimony of the prosecution witnesses to the effect that the trophies belonged to the appellant and the passengers who ran away is rendered hearsay. In the upshot, this appeal is meritorious. The appeal is allowed. The judgment of the trial court is quashed and the sentence of imprisonment for ten years inflicted upon the appellant is set aside. The appellant Stivin Simba should forthwith be released from custody unless otherwise detained for some other lawful cause. DATED at M PAN DA this 6th day of June, 2014. J. C. M. MWAMBEGELE JUDGE 6