20170131 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 165 of 2016 (From Ulanga District Court Economic Crimes Case No. 11 of 2011) WILBAD KADAYA .................................... APPELLANT VERSUS THE REPUBLIC RESPONDENT Date of Last Order: 20/1/2017 Date of Judgment: 31/01/2017 JUDGMENT FELESHI, J.: In the District Court of Ulanga District at Mahenge, the appellant was charged with the offence of Unlawful Possession of Government Trophies contrary to section 86(1),(2) (b) of the Wildlife Conservation Act, No.5 of 2009 [Cap.283 R.E.2002] read together with Paragraph 14(d) of the First Schedule to, and sections 57(1) and 60(2) of the Organized Crime Control Act, [Cap.200 R.E.2002]. The Particulars of Offence presents that, on 8th November, 2011 at Epanko Village within Ulanga District in Morogoro Region the appellant was found in possession of Government Trophies to wit, three pieces of Bufallo meat valued at Tshs. 3,420,000/= being the property of the Government of the United Republic of Tanzania without permit or licence. Upon trial, the appellant was found guilty where he was convicted and sentenced to five (5) years imprisonment with an order to pay compensation of shs. 3,420,000/=. Page 1 of 10 The basis of the trial court's judgment is the evidence of three witnesses. G.2741 PC Joseph (PWl) and Julia Athuman @ Kalindina (PW2) being Police Officer and Game Warden respectively, testified how they went to the appellant's home on 8/11/2011 and upon search they found him in possession of three pieces of Bufallo meat. Roswita Francis @ !panda (PW3) being a Game Warden examined the said meat on 9/11/2011 at Mahenge Police Station and established that it was a Bufallo meat. She valued it at USO 1800/Tshs. 3,420,000/=. PW3 tendered her Certificate of Valuation which was admitted and marked Exhibit Pl. Aggrieved by both conviction and sentence, the appellant preferred this appeal on eight (8) grounds of appeal which can neatly be reduced into five grounds: one, the trial court erred to try a case without the DPP's Certificate; two, the court erred in convicting the appellant without there being evidence proving search and evidence from an independent witness; three, the court erred to convict the appellant without there being inventory or government chemist report proving that the meat was Bufallo meat; four, the trial court grossly erred in law and facts in depriving the appellants right to call his witness; and five, the trial court magistrate erred both in law and fact in not drawing an adverse inference against the prosecution's failure to tender a documentary proof of evidence and to call civilian witnesses. Hearing of the appeal was conducted orally. Whereas the appellant appeared in person and was unrepresented, the Republic was represented by Ms. Elizabeth Mkunde, learned State Attorney. During the hearing, the Page 2 of 10 appellant urged the Court to consider his grounds of appeal and be pleased to allow his appeal. On her part, Ms. Mkunde, learned State Attorney supported the appeal mainly because the prosecution did not tender in evidence the alleged Bufallo meat or inventory in respect thereof. She submitted that, such failure was fatal as the appellant was not given an opportunity to comment or object that evidence in court. Besides, the learned State Attorney added that PW3 did not tell the Court as to how he came to the conclusion that the meat was one of Buffallo hence a Government Trophy bearing in mind that PWl and PW2 were not knowledgeable to adduce such proof. To buttress her position, Ms Mkunde made reference to sections 101 and 353(1) of the Wildlife Conservation Act (supra) and Criminal Procedure Act (supra) respectively. The provisions, she argued, brings place a requirement to put in evidence the exhibits. She referred the Court to Emmanuel Saguda @ Sulukuka and Sahili Wambura v. the Republic, Cr.Appeal No.422 "B" of 2013, Tabora Registry (unreported) where the Court of Appeal held that: "It is evident from the provisions of section 101 of the Wildlife Conservation Act, the Government trophies found in possession of the appellants were required to be tendered in Court as exhibits. This was not done. Instead a certificate of valuation and an inventory form were tendered and admitted in court. The appellants did not have any opportunity to see the actual trophies and did not have any opportunity to raise objection. It is a well established practice in cases where witnesses are required to testify on a document or object which would subsequently be tendered as Exhibit that the procedure is not simply to refer to it theoretically as was the Page 3 of 10 case here, but to have it physically produced and referred to by the witness before the court either by display or describing it and then have it admitted as an exhibit. The court treated the reports produced by PW1 as conclusive. Given the position, the requirement under the law has not been met." [Emphasis supplied] In view of the above decision, the learned State Attorney reasoned that as in the case under examination there was no meat or inventory tendered in evidence the appellant was thus prejudiced. She added that, the irregularity fatally dented the prosecution's case and the same cannot thus be said to have been proved beyond reasonable doubt. She thus urged this Court to allow the appeal. Following that submission, the appellant did not make any rejoinder but he reiterated his prayer that his appeal be allowed. Now, starting from where the learned State Attorney's submission ended, the Court has noted from the trial record that it is true that the subject of the Certificate of valuation of trophies tendered by PW3 was not tendered or put in evidence as per the cited provisions of law above and loudly underlined by the above decision Court of Appeal. To this Court, a mere fact that such Certificate of Valuation of Trophies was prepared and successfully tendered by PW3 without any opposition from the appellant does not qualify such Certificate to meet the requirement of law which essentially empowers the court to regulate its own proceedings for purposes of preserving the sanctity of the subject of the charged wildlife offence by permitting that subject to be tendered or put in evidence before the court for it to give commensurate disposal order Page 4 of 10 either at any stage of proceedings or at any time after the final disposal of such proceedings. I thus find merit in the appellant's complaint as well as in Ms.Mkunde's submission on the matter. However, for practical purposes, I feel obliged to remind those involved in investigation and prosecution of criminal and economic offences that sections 101 and 353(2) of the Wildlife Conservation Act (supra) and Criminal Procedure Act (supra) respectively, are there to facilitate parties to realize substantive justice by parties engaging the court on timely management of potential exhibits which is subject to speed and natural decay. The legislature well knew that, some offenders cannot for some practical factors be arrested on time for court arraignment before, say, a poached trophy speedily decays; and further, that there are times where due to long court vacations or distances involved, arrested offender and seized potential exhibit which is subject to speed and natural decay, it is impractical and dangerous for exhibit disposal proceedings to be conducted particularly if by doing so the decaying exhibits may cause heinous infectious diseases to the wildlife or nearby population. In situations where the offender is timely arrested along with exhibit(s) the rule thus requires that he should immediately be sent along with the exhibit to court for the exhibit, subject to court's jurisdiction, to be admitted or put in evidence. In case he is not arrested, such exhibit still has to be put in evidence for appropriate disposal order. This process however, does not relieve investigators and prosecutors to work for requisite inventory and certificate of values documents. Page 5 of 10 For the second situation where for practical reasons it is impractical to tender or put in evidence a physical exhibit for disposal proceedings, the rule that where witnesses are required to testify on a document or object which would subsequently be tendered as Exhibit which is restated in Emmanuel Saguda @ Sulukuka and Sahili Wambura's case (supra) has to be followed. A Prosecutor must have a document physically tendered for admission after leading a tendering witness to explain and describe the exhibit. That has cumulative effect of building the competencies of both a witness seeking to tender the exhibit and the . exhibit in question. Casual tendering, admission and overreliance on such exhibits, as was for a Certificate of Valuation of trophy in the case under scrutiny, will in most cases continue to be prejudicial to charged offender. Therefore, considering the nobility and heritage the country is bequeathed to by her wildlife, it is expedient that the DPP, being Chairman of the National Criminal Justice Forum, work with the Attorney General and other players to ensuring that wildlife cases have better presentations in court even if that may necessitate to review our laws. Secondly, concerning the appellant's first ground of appeal that the trial court tried the case without the requisite Certificate of the Director of Public Prosecutions, this ground of appeal is baseless. This is because, the trial court record clearly shows that the trial commenced on 12/2/2014 upon receipt of a new Charge Sheet dated 5th September, 2013 signed by a · State Attorney which was well accompanied by Consent of the State Attorney In Charge as well as a Certificate Conferring Jurisdiction in the Page 6 of 10 Subordinate Court to try an Economic Crime Case both signed by one SUNDAY MELKIOR HYERA, State Attorney In Charge, Morogoro Zone where the District Court of Ulanga District sitting at Mahenge was ordered to try the case. It is thus apposite to state here that the instruments issued by the Morogoro Zone State Attorney In-Charge are in all fours compliant with sections 12(3) and 26(2) of the Economic and Organized Crime Control Act (supra) which provide that: Section 12(3): "The Director of Public Prosecutions or any State Attorney duly authorized by him, may, in each case in which he deems it necessary or appropriate in the public interest. by certificate under his hand, order that any case involving an offence triable by the Court under this Act be tried by such court subordinate to the High Court as he may specify in the certificate. "[Emphasis added] Section 26(2): "The Director of Public Prosecutions shall establish and maintain a system whereby the process of seeking and obtaining of his consent for prosecutions may be expedited and may, for that purpose, by notice published in the Gazette specify economic offences the prosecutions of which shall require the consent of the Director of Public Prosecutions in person and those the power of consenting to the prosecution of which may be exercised by such officer or officers subordinate to him as he may specify acting-in accordance with his general or special instructions."[Emphasis added] In James Sendeka V. The Republic, Criminal Appeal No.279 "B" of 2013, Tabora Registry (Unreported) the Court of Appeal succinctly held the following at pages 8 & 9 :- "There is no doubt in our minds, that the trial of every economic offence under the Act has to be preferred by the consent of the OPP, under section 26(1) and that under section 26(2) of the Act, the OPP may delegate his powers to his subordinates, on such Page 7 of 10 • offences as he may specify in the Gazette .... GN 191 of 1984 sets out two categories of offences in the schedule under the Notice. Part 1 of the schedule carries those offences under the Act, which can only be consented to by the DPP in person. Part 2 contains offences under the Act, whose powers are delegated to the State Attorneys in Charge of the Zones." Therefore, there is no doubt whatsoever that, in view of the above quoted provisions of the Economic and Organized Crime Control Act (supra) and holding of the Court of Appeal Economic Crimes Case No.11 of 2011 was appropriately consented by SUNDAY MELKIOR HYERA, State Attorney In Charge, Morogoro Zone who, at the material time, was such officer of the OPP vested with powers to issue consent for offences contained in Part 2 of the Act and by his Certificate institute the case in the District Court of Ulanga. It is on the strength of the evidence on record and the exposition of the above provisions of the law I do not thus find merit in the first ground of appeal since the Charge Sheet, Consent and Certificate sent to the trial court were legally drawn and filed in the designated economic court. The first ground of appeal is thus hereby rejected. Now, basing on the findings made on those two grounds above that the trial court by virtue of the Consent and Certificate filed by the State Attorney In Charge had jurisdiction to try the case and that the trophy which was the subject matter of the offence charged was not tendered or put in evidence, the appellant's appeal is hereby allowed. I will not therefore address the remaining grounds of appeal. Page 8 of 10 • I quash the conviction and set aside the sentence and consequent order(s) passed against the appellant. The appellant should thus be released from prison unless is lawfully held. It is so ordered. DATED at Dar es Salaam this 31 st January, 2017 .M. FELESHI JUDGE Page 9 of 10 COURT: Judgment delivered this 31 st day of January, 2017 in presence of the appellant in person and Ms.Elizabeth Mkunde, learned State Attorney for the Republic, Respondent. A right of appeal is explained. 0-=-"'--;--. 0' ' :i:.- LU ~- ~ . ESHI ______.,.,-:::-: ~-~· ;::,,,.... JUDGE Page 10 of 10