tabu magembe zizi vs republic 2021 tzhc 2028 15 january 2021

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA CRIMINAL APPEAL NO 134 OF 2020 TABU s/o MAGEMBE @ ZIZI APPELLANT VERSUS THE REPUBLIC RESPONDENT (Arising from the decision and orders of the district court of Serengeti at Mugumu Hon. Semkiwa RM in economic case no 53 of 2019 dated27.07.2020) JUDGEMENT 1st December 2020 & l$h January 2021 GALEBA, J. In this appeal, the appellant along with Daniel Maduhu Bosongo, were charged on three (3) counts of unlawful entry into the national park and unlawful possession of two (2) knives and six (6) animal trapping wires in the national park without any permission sought and obtained from the Director of Wildlife. The 3rd count was unlawful possession of one (1) fresh skin of a lion and seven (7) pieces of zebra skin, which are both government trophies. According to the prosecution, the offences were committed on 03.06.2019 at Soloyi hills in the Serengeti national park within Serengeti district in Mara region, thereby violating various laws established to conserve wildlife and regulate entry into national parks. latter adopted his grounds as submissions to support the appeal and this court required Mr. Ibrahim to react to the grounds. In respect of the 1st ground of appeal, Mr. Ibrahim submitted that before the district court of Serengeti was to try the case, the prosecution procured a certificate and filed it in court on 23.01.2020 conluding that the 1st ground was therefore misconceived. This court has gone through the court record and it is true that indeed on 23.01.2020, the certificate was presented in court and its original is on the record of the trial court. That said the 1st ground of appeal has no merit. In respect of the 2nd ground of appeal Mr. Ibrahim submitted that, the witness who tendered EXHIBITS was PW1 and not all witnesses as complained by the appellant. He added that all the EXHIBITS were tendered without objection by the appellant citing the case of Abas Kondo Gede v the Republic, Criminal Appeal no 472 of 2017 (unreported) where it was held that where a party does not question admissibility of a document, he is estopped from questioning its authenticity at a later stage. I have gone through the proceedings, and it is evident that indeed the certificate of seizure (EXHIBIT PEI), the weapons (EXHIBIT PE2), the trophy valuation certificate (EXHIBIT PE3), the sketch map (EXHIBIT PE4) and the inventory (EXHIBIT PE5) were all tendered without any objection from the appellant. During 3 'We managed to arrest them, found possessing (sic) two knives, six animal trapping wires, one fresh skin of Lion, and seven fresh pieces of Zebra.' At page 26 of the typed proceedings, PW2 Godino Gosbert Ndengize testified thus; We found them in possessing (sic) two knives, six anima! trapping wires, one fresh skin of Lion, and seven fresh pieces ofZebra.' The above two are the key witnesses who arrested the appellant and another offender, yet they do not tell clearly what pieces of the Zebra they arrested the appellant with. The point is that the phrase 'seven fresh pieces of Zebra' is ambiguous and not specific, in the circumstances. The prosecution therefore failed to prove that the appellant was found with seven (7) pieces of skin of Zebra as stated in the charge. That said, the 3rd ground partly fails and partly succeeds. It fails as for the pieces of the Zebra skin but it succeeds for the skin of a lion. In reply to the 4th ground of appeal, Mr. Ibrahim submitted that at pages 39 to 40 of the typed proceedings, the appellant was permitted to call his witnesses at page 40 but at page 41 he stated that he does not know where his witnesses were and he closed his case. It is true, the appellant was given the right to call his witnesses and he submitted that he would call Zenze Maduhu, Minza Kengele and Kudawa Ng'nga 5 ensure that a scanned copy of this judgment via electronic mail reaches the incharge of the prison in which the appellant is held followed by a formal letter attaching the judgment to the same prison as evidence that we sent the ment to the prisoner. Z. N. Galeba JUDGE 15.01.2021 7