JUDGEMENT YOHANA SANGA

THE UNITED R EPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 21603 OF 2024 (Originating from Criminal Case No 65 of 2023, in the District Court of Mbarali at Rujewa) YOHANA S/O SANGA……………...…………………...…...APPELANT VERSUS THE REPUBLIC…...……………………...…………..…. RESPONDENT JUDGMENT Date: 25 September 2024 & 31 October 2024 SINDA, J.: The appellant at the District Court of Mbalari at Rujewa (the Trial Court) was charged with two counts. The first count was unlawfully entry into the national park contrary to section 21 (1) (a) and (2) and 29 (2) of the National Parks Act, [Cap 282 R.E 2002 R.E 2002] (the National Park Act) and the second count was disturbing the habit of the component of biological of biological diversity contrary to section 188 (c), 66,68 and 193 1 (1) (a), (b), (2) (4), (5) of the Environmental Management Act No. 20 of 2004 (the Environmental Management Act) It was alleged that the appellant on 21 January 2023 at Mnazi area in Ruaha National Park within Mbalari District in Mbeya Region, the appellant was found entered therein with a power tiller make Kubota with Chassis number 1406629 without having a permit disturbing the habitant. It was the prosecution case that on the material day the conservation rangers were in normal patrol within the Ruaha National Park. Upon reaching Mnazi area in Ruaha National Park within Mbalari District in Mbeya Region met with the appellant leveling the cultivated land by using a rack which was pooled by a power tiller make Kubota with Chassis number 1406629. The appellant said his name was Yohana s/o Sanga of Ubaruku in Mbalari District. While filing the certificate of seizure the appellant run away. The conservation ranger sent the power tiller to the police station. Later on, the appellant went to police station to claim his power tiller. The appellant later was taken to court and the power tiller was tendered in court during hearing. The appellant in his defence he alleged that he was found in the land which belongs to him and not a part of Ruaha National Park. At the end of hearing the trial court find that the prosecution side proved all two 2 counts to the required standard. The appellant was convicted and sentenced to pay 80,000/= or serve nine months jail in default and to pay a fine of 150,000 or to serve twelve months jail in default. Aggrieved with decision, the appellant filed memorandum of appeal at hand which contain five grounds; 1. That, the honourable trial magistrate grossly erred in law and facts to convict the appellant for non existent offence of unlawfully entry into the national park. 2. That, the honourable trial Magistrate erred in law and facts to convict the appellant with the offence of disturbing the habitat of the component of biological diversity while it was not proved to the required standard. 3. That, the honourable trial magistrate grossly erred both in law and facts to determine the case as if it was civil nature instead of determining it as criminal case. 4. That, the honourable trial magistrate grossly erred in law and facts by deciding the case without raising issues, hence reached erroneous decision. 3 5. That, the honourable trial magistrate failed to evaluate and scrutinize the evidence on records, hence unfairly convicted the accused. During hearing of appeal, the appellant was represented by advocate Omary Issa while respondent was represented by Zena James and Augustino Magesa, learned State Attorneys. The appeal was argued orally. Mr. Omary prayed to abandon third and fourth ground of appeal and opted to submit ground number two and five together. On ground number one he submitted that according to the charge sheet, the accused was charged with two counts. Count number one was unlawful entry to the National Park contrary to section 21 (1) (a) and 21 (2) and section 29 (2) of the National Park Act Cap, both of the provisions cited in the charge sheet do not establish or create the offence of unlawful entry to the National Park. He submitted that Section 21 (1) (a) of the National Park Act does not create the offence of unlawful entry. The section has marginal notes which provide for restriction on entry into the National Park. However, the contents of section 21 (1) (a) of the National Park Act does not mention such offence instead it mentions penalty for offence of unlawful entry into 4 the National Park. In law the marginal notes are not part of the written law as provided by section 26 (2) of the Interpretation of Laws Act, Cap. 1. Therefore, it means the marginal notes in section 21 (1) is not a part of the offence of unlawful entry to the National Park. He averred that even section 29 of the National Parks Act does not create the offence of unlawful entry into the National Park. Instead, section 29 of the National Park Act provides for the general penalties for violation of any provisions of the National Park Act. He referred the case of Keraryo Mwita @ Musenye vs. Republic, Criminal Appeal No. 151 of 2021, HC at Musoma to cement his argument. Regarding to grounds number two and five he submitted that the offence of disturbing the habitat of biological diversity was not proved to the required standard due to the fact that the trial magistrate failed to evaluate and scrutinize the evidence on record. He stated that it is a cardinal principle in criminal cases that the prosecution side has a burden of proving the charge. The standard of proving in criminal cases is beyond reasonable doubt. In the case at hand, prosecution evidence had a lot of doubts. 5 The doubt number one is that the offence of disturbing the habitat of biological diversity was alleged to have been committed by the appellant by using a power tiller and a rack, there was no proof as to the ownership of the said power tiller and a rack because no blue cards were tendered. So those two instruments that is the power tiller and the rack could be the properties of any other person than the appellant. The doubt number two was on the place where the appellant was arrested. According to the records and the judgement, the appellant was arrested away from the National Park. This is confirmed by the evidence of PW4 which is available at page nine (9) of the typed judgement which states that the appellant was arrested 10 km from the border of Ruaha National Park. This is also collaborated by the evidence of DW2 who testified to the effect that the appellant together with other villagers were registered cooperative society were allocated farms away from the National Park and they have been using those farms for cultivation for more than 20 years. This is according to the copy of the typed judgement at pages 13 and 14. Now, the question is if the appellant was a farmer recognized and being arrested 10 km away from the border of the National Park. How could he disturb the habitat of biological diversity in the National Park. 6 The doubt number three was on tendering and admissibility of a certificate of seizure in respect of a power tiller and a rack. However, the said certificate of seizure was illegal in accordance with the 38 (3) of the Criminal Procedure Act. Section 38 (3) of the CPA because was not signed by the appellant (the owner of power tiller). He referred the case of Ndima Kashinje aka Joseph vs. Republic, Criminal Appeal No. 466 of 2027, CAT at Shinyanga (Tanzlii) at page 11 to 12. The doubt number four is in respect of identification of the appellant. The record shows that soon after the appellant was arrested by PW1, he ran away. It was because of that the appellant did not sign the certificate of seizure. The appellant was then re-arrested later on. After other requirements were completed, the appellant was brought at the District Court of Mbarali at Rujewa. There is nowhere in the proceedings of the trial court which show that after the re arrest of the appellant there was an identification parade to identify the appellant. The record show that PW1 identified the appellant while he was in the court of law. This is known as dock identification and dock identification is not reliable, he referred the case Hamis Ramadhan Lugumba vs. Republic, Criminal Appeal No. 565 of 2020, CAT at Dodoma to cement his argument. 7 He prayed appeal be allowed, the conviction and sentence for the trial court be quashed and set aside. The power tiller Make KUBOTA with Chasis number 1406629 be returned to the appellant. The fine of TZS 80,000 which has been paid by the appellant be refunded to the appellant. The fine of TZS 150,000 which has been paid by the appellant in respect of the second count also be refunded. On reply Mr. Augustino Magesa on the first ground of appeal submitted that it is true that section 21 (1) (a) and 21 (2) and section 29 (2) of the National Park Act does not create the offence of unlawful entry into the National Park. Mr. Magesa objected ground number two and ground number five that the prosecution failed to prove the offence beyond reasonable doubt, it was respondent view that prosecution proved the offence of disturbing the habitat of biological diversity. At page 11 of the proceeding, PW1 stated that he is the one who arrested the appellant in the Ruaha National Park doing agricultural activities using power tiller and the rack. Soon after arresting the appellant, they filled in the certificate of seizure. The appellant did not sign the certificate of seizure and ran away. He left the Power Tiller with Chassis number 1406629. 8 As per the testimony of PW1, the incident occurred on 21 January 2023. On 23 January 2023, the appellant went to Rujewa Police Station and stated that he is the owner of the power tiller and the rack. He agreed that on the date of the incident he was arrested and ran away. The testimony of PW1 is collaborated with the defence of the appellant at page 68 of the proceedings of the trial court that he went to the Police Station and provided the information that he went to obtain his power tiller. Also, in the submission of the advocate of the appellantprayed the court to return the power tiller to the appellant. This means that the power tiller belonged to the appellant. The appellant was arrested with the power tiller at the scene of crime. Also, the testimony of PW4 provided at page 33 of the proceedings of the trial court that the appellant was arrested inside Ruaha National Park at Mnazi area. Miss Zena added that PW4 stated that the area where the appellant was arrested as per his profession as a surveyor was inside the National Park. He also noted that agricultural activities were going on. This is supported by the appellant during his defence at page 11 and 12 of the judgement where he agreed that in 2022, the Minister for Lands visited the area and that Mnazi Mmoja area is included as part of Ruaha National Park. 9 In relation to the certificate of seizure she submitted that it is true that the certificate of seizure was not signed by the appellant because after the appellant was arrested, they seized the power tiller and rack and the appellant ran away before the certificate of seizure was signed by the appellant. The fault that the certificate of seizure was not signed was caused by the appellant himself. She finds that the prosecution proved that the second offence beyond reasonable doubt that he was conducting agricultural activities. Therefore, the order of the fine of TZS 150,000 was correct. Also, the nationalization of the power tiller is correct because was connected with the second offence. They support the fourth prayer that the order to pay a fine of TZS 80,000 should be quashed. They prayed that the appeal should not be considered in relation to the second and fifth ground of appeal. She submitted that if the court think that the evidence was not evaluated properly by the trial court. This court under section 388 of the CPA has power to reevaluate the evidence and come with a conclusion which is proper. On rejoinder respondent advocate reiterated his submission in chief. I have reviewed the records and case law. 10 Starting with ground number one that appellant was convicted for non existent offence of unlawfully entry into the national park. As correct submitted by appellant advocate and conceded by respondent State Attorney, I have gone through the cited provision of section 21 (1) (a) and (2) and section 29 (2) of the National Park Act in the chargesheet and find that the same do not establish or create the offence of unlawful entry to the National Park, section 21 of the National Park Act (Supra) has marginal notes which provide for restriction on entry into the National Park and section 29 of the National Park (supra) provide for general penalties for person who commit offence against the Act. Apart from that, Section 26 (2) of the law of interpretation stated that “(2) A marginal note or footnote to a written law and, notwithstanding subsection (1), a heading to a section, regulation, rule, by-law, or clause of a written law shall be taken not to be part of the written law.” In the line of the above provision, I find that the appellant was charged and convicted for non existence offence regarding to the first count. On the second and five grounds the appellant complained that the offence of disturbing the habitat of the component of biological diversity was not proved and the trial court failed to evaluate and scrutinize the evidence on records. 11 I will deliberate these grounds together on the issue of whether this count was proved to the required standard and evidence was properly evaluated at the trial court. It is a position of law that the standard of proof in criminal cases that is required by law is proof beyond a reasonable doubt as emphasized in the case of Mohamed Haruna@ Mtupeni & Another vs. Republic, Criminal Appeal No. 25 of 2007 (unreported) where it was held that; "Of course, in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence.” Discussing the above issue of whether this case was proved by prosecution to the required standard at the trial court and evidence was properly evaluated, this court being the first appellate court I wish to evaluate evidence on record afresh. In this case on the second count the appellant was charged with offence of disturbing the habit of the component of biological of biological diversity. To prove the offence PW1 testified that on the material day while they are in normal patrol at Ruaha National Park they found the 12 appellant leveling the cultivated land by using a rack which was been pooled by a power tiller Kubota. PW1 stated that the introduced themselves and arrested the appellant. They asked the appellant if he had a permit that allow him to conduct agriculture activities in the area. The appellant replied that he had none. They seized power tiller and filed a certificate of seizure but in the course of filling it the appellant ran away without sign the same. They handled the power tiller at Rujewa Police station. The evidence of PW4 an expert of GIS in his testimony on page 33 of the proceedings of the trial court stated on his examination that the GIS revealed that the place and location where the appellant was arrested cultivating was within Ruaha National Park. However, on page 34 of the proceedings of the trial court PW4 further stated that the appellant was arrested 10 km from the boarder of Ruaha National Park. This means it was not within the Ruaha National Park. I find these two statements to be contradictory. As it is not clearly established where exactly the appellant was arrested. Therefore, the prosecution has failed to state exactly where the appellant was arrested. Therefore, the second offence appears not being established by the prosecution. Therefore, the charges were not 13 established beyond reasonable doubts. As such this ground can dispose of this appeal. Based on the above analysis, the appellant appeal is allowed. The conviction and sentence on the first count and second count are set a side. The power tiller Make KUBOTA with Chasis number 1406629 be returned to the appellant. Right of appeal explained. DATED at MBEYA on this 31 day October 2024. A. A. SINDA JUDGE 14