20161109 TZHC Mwanza

.., ( .. IN THIE HIGH COURT.Of TANZANIA - IN THE DISTRICT REGISTRY ATMWANZA . HC. CRIMINAL APPEAL No. 54 OF 2015 -- THO BIAS NYANGI@GICHORO ..... ~ .. , .................. APPELLANT AND TH IE RJE-PliJIBLIC. ■ 11111111: tr• ■ e 11 11111:111c111:1 • ■ ca a ■ • .i 11 G 111.11 ■ ii 111111:aa.• n • • • • ■ mna 11 ■ 11&·RESPON DENT JUDGEMENT 17/10/2016 - 9/11/2016 J. A. !De- Mello, J; The Appellant Thobias, was charged with three counts, namely:- 1. Unlawful entry nnto the National Park c/ s 21(1), (a) (2) and section 29(1) of the Nationai Park Act C~p.- 282. 2. Unlawful possession of weapons c/s 24(1) (b) and (2) of the National Parks Act (supra) read together with para 14 (c) of · the first schedule to sectl:ion_ 57(1) and 60 ·' . . (2) of the Economic and Org3n~zed Crime . . . Act Cap. 200 .RE 2002. 3. Unlawfu~ possession· of Government Trophies c/s · 86(1) (2) (c ) of. the Wil~life Conservation Act No. 5 of 2009 and para 14 ( d) of the first schedule and section 57 ( 1) .and 60 (2) of the Economic and Organized Crime Control Act Cap. 200 [R.!E 2002] . The District Court sitting in. Tarime found the Appellant guilty and convicted while sentencing him to payment of fine amounting to TShs. 10,000 /- & TShs. 20,000 /::: for the 1st and 2nd counts • · respectively, while twenty years imprisonment was passed for the 3rd Count, to run consecutively. The Appellant believes to have been aggrieved and, . has lodged . . · seven grounds of Appeal ranging from and challenging the conviction. . and sentence based on weak and inconsistent evidences from witnesses, fabricated evidence admitted as exhibits Pi - P6, lack of official analyst to accord weight to the Appellant 2 ( . to highlight the basics. He prayed for his Appeal .be aiiowed as co·nviction and sentence is quashed and set aside. Counsel Ndamugoba for .the Republic strongly opposed the Appeal · on the grounds that, the case was proved by none other than M.suya and Otonya from Tainapa who testified in . favour of the · prosecution having obtained consent to do so from the Director of Public Prosecutnon consent vide Government Notice dated the 6th of January 2015. At this juncture the Court observed the appointment to be irregular and, thus defective h_aving been done in 2015 after the proceedings and judgement that was delivered way back in 2014. Counsel Ndamugoba then co.needed to the fact that the entire- proceedings, conviction and judgement is a nullity as he prayed to withdraw at this juncture pleading with the Court for a Re- . Trial De - Novo. ·. The Appellant objected the prayer stating_ that, he has been in · custody since July, 2014 and, quite unfair, if a Re-Trial is ordered. I have given the matter its due weight and, consideration and of a w~ . firm view· ·that a Re-Jrial D~~vo will not occa~ion justice a~ no . ' -- 3 . . I ;-· --- .- .. . . analyst qualified and,. competent to give evidence against the Appellant ·then way back in 2014. In· fact my· perusal from the proceedings have failed· to establish neither the two said expert. testimony ··of analyst report or .the report itself. It is PW4 Erick Kwambaza a Wildlife Warden, who testified to that vein. Sadly, even the inquiry on which the Court took parties through_, leaves a lot to be desired· as the Court having heard the Appellant's side who denied the offences, went on delivering a ruling as follows; "I have considered all sides, I am satisfied that DW3 1s telling the truth, therefore I reject the defence case after the demeanour of witness DW3 is very credible according to his demeanour the statement is hereby ·received! and admitted by this Court as". The exhibit if any, is unknown and not marked as can be gathered here. Times and, over a·gain Courts have been cautioned on how t(? receive and admit exhibits as provided under section 312 of Cap. 6. How credible was DW3 again leaves much to be desired as the Magistrate without an objective evalUa~f what is evidence before it. This ~ 4 . was the ·position held in· the case of Mku;6ma Mbagaia vs. R, (CAT), Criminal Appeal .No. 267 of 2006 where it was stated; "For a judgen:r,ent or ruling of any CQuu:t of Justice·to be h~ld to be a reasoned one. In our respectful opinion, .. it ought to · contain an objective eva!uat:ion of the entire evidence before it.. Thi~ involves a proper consideration of the evidence for"· the defence which is balanced against that of the prosecution. in order to find out which case among the two is · mor.e cogent. In short, such an evaluation should be a conscious process of analyzing the entire evidence dispassionately in order to fo_rm an informed opinion as to its quality before a formal conclusion ·is arrived at. See the case of Shantilal M. Rlllwala vs. R, [1957] IE.A 570. It now behoves us to doscharge this duty". The issue of demeanour is quite pararnount sensitive as most liars can fool people most of the time. Unfortunate. as it shall appear, I release the Appellant forthwith, as I caution the prosecution to ·carry its duty up to the standards laid down by_ law. The summoning of witnesses worse even experts. require proper procedur~-~'\,a~PFe9=ess lest, innocent persons fall ~- 5 ( •victim of such irregu!a_rities which goes to the root of the ·matter . . Already the Appellant· has been wrongly· confided in custody since 2014 and, which the Republic has not opposed. The conviction and sentence ts hereby quashed and, set aside. It is accordingly ordered. Judge 9/11/2016. 6