20161029 TZHC Mwanza

u·~ THE HIGH COURTOF TANZANIA · AT MWANZA· · . CRI~iINAl APPEAL NUMBER 1 OF 2015 (Origina!Dimina/ Case Number 194 Of 2013 . Of The District Cowt of Bunda at Bunda Before 5.A. Kasonso PDM) ZAKARIA OGORA AND TWO OTH~RS ....... ~ ... APPEllANTS VERSUS THIE REPUBLIC;......................................... RESPONDENT . JUDGMENT 12.10.2015 & 29.10.2015 i\1atupa, J. Before the district court of Bunda at Bunda, the appellant was convicted of unlawful possession of governn1ent trophi.es contrary to section 85( 1) and (2) (b) of the VVildlife conservation. Act number 5 of 2009, read together · with Paragraph 14(d) of the First Schedule of the Economic arid Organised Crimes Control Act, cap 200 and fai.lure to report . . _possession of government trophies contrary to section 87( 1) and (2) of the same Act. He. was sentenced to a term of imprisonment of twenty years on both counts. It was ordered that both sentences should run concurrently. 1 ---- The facts of this case ·are .a bit at variance. During . Preliminary hearing . the prosecution . put to the accused persons the facts that ·on the mater_ial day, a_n information regarding. the presence.of . . game meat in a certain house within Rwamchanga . village reached game officers· who happened to be on patrol in the company of some police offic_ers. They went to the house. · ·and managed to arrest all the accused persons who happened to be present at the house. When they were asked if they had game meat in that house, they denied. They were searched and were found w.ith 15 pieces of flesh, which they suspected to be zebra meat They were sent to Rwamchanga police post · This piece of evidence changed at trial. The two witnesses who claimed to have arrested the appellants alleged all the appellants were arrested by the road. According to Mathias Maduhu PWl, they arrested the appellants at Rwamchanga - Kilima village in the .course of their routine patrol. The· appellants· were carrying fifteen pieces of meat. When they were asked about it, they _could not account for the meat as they did not have a permit authorising them to possess it. They arrested them and sent them to KOU. This testimony was almost repeated by Peter Korobani, PW2. They both contended that the appellants were arrested within a game reserve, as . . Rwamchanga Kilima village borders a game reserve. They didn't mention the game reserve. 2 On .the · other hand,. all appellants except for· th~ first appellant-who elected not to d_efend himself, gave own account on· how he was arrested. According to 'Ju)ius Nya01bari the . . second appellant,_ h~ was arr~sted by the road side on his ~ay to the hospital, when -a car carrying the arresting parties was speeding on the- road, he fell down. The car stopped and people inside the car asked him why ~e was feigning drunkenness and he wanted to cause an accident. Before he · could answer, he was arrested and was sent to a police station and was charged. Mtiba· Marwa on his part contended that he was arrested while laying bricks at a place he didn't mention. He was asked why he was digging a trench on the road. He was not given the oppqrtunity to reply; he was arrested and. was sent_ to the police where he was charged. One of the accused persons one Samuel John did not defend himself was convicted in absentia. The trial mag·istrate disbelieved the appellants and convicted them as Charged. The three appellants were dissat1sfied by decision of the stet lower · court, they have appealed against both, the conviction and sentence. In their petition of appeal, they have raised the following common grounds. First, facts that were put to the appellants during preliminary hearing were at variance with the evidence that was produced at the trial. Second, the court failed to appreciate 3 contradictions and inconsistencies in the prosecution evidence. Third, that the court-failed to draw an adverse inference aga·inst the prosecution for its ~ailure to call important witnesses. Third, the Cou_rt .had no jurisdiction to .try the -offence that was committed out of its ju.risdiction. At the hearing of this appea_l _the appellants appeared ,n person and fended_ for. themselves· and the respondents. the- Republic was represented by Ms Mary Hya·ssinta Lazaro State Attorney. The appellants were reminded of their grounds of . . appeal and they all adopted them. The Second and third appellants asked the Court to adopt their written submissions. . . The learned State Attorney was asked to comment on a procedural issue as it related to duplicity of the counts. It would appear that they were charged in relation of the meat on two counts, one of unlawful possession and the other for the failure to report the poss~ssion of the same_ meat_ at the sametime and the same place. The learned state attorney conceded the duplicity but she quick~y re-joined that the defect was not fatal as it is cured. by secti~n 388 of the CPA. However she ~rew the attention of the court, the illegality of the sentence in relation to the first offence. She submitted that . the provisions under which the first count is charged carries a maximum penalty of_ 18 months imprisonment. She 4 was of the view that since the appellants were ·conyicted on the first cou·nt, they could not again be convicted on the second.. She· was disinclined from supporting the conviction and· sentence on the second count. As regards the variance between the facts presented to · accused persons during the P~eliminary hearing and the . evidence at trial, she was of the -opinion that, since the . . appellants denied ·the facts the variance was cured._ On the jurisdiction of the court, she was of the opinion· that since economic offences are charged at the Court_ where the Director of Public Prosecutions designates in a Certifi~ate under section 12(3) of The Economic a·nd organised Crime Control Act, Cap 200. In the present case the Director of Public Prosecutions Designated the District Court of Bunda to try the offence. If I may start with the Jurisdiction of the Bunda District Court to try the case, we do ~bt find anything to fault the jurisdiction of the Court once we find that it was designated as such by the Director of Public Prosecutions. To add to that certificate, the provisions . of section 113(2) of the Wildlife Protection Act no 5 of 2009 provides that: . {2}Notwithstanding the provisions of other t,vritten law/ a court established for a District in _Mainland Tanzania Mainland may try, convict a·nd punish or ,- .) acquit a person ch.::nged with an offence committed in any other District or area of Mainland Tanzania The foregoi.ng provision permits an offence to be tried by any District court in Mainland Tanzania. I also agree with the learned State Attorney that the Certificate of The Director of - Public Prosecutions cures the jurisdictional hiccup. . . With the foregoing holding we now come to the first ground of appea~ which is whether the inconsistencies b~tween the facts as stated during the preliminary hearing and the evidence adduced at trial vitiated -the trial. The facts at the trial alleged that the appellants were apprehended following an information received that there was some game meat at a certain house and a subsequent search yielded the trophies. As pointed out,. the evidence showed that there was no such prior information nor was there any search which was conducted . . All the two witnesses alleged that the appellants were arrested as they were walking by the road. This is a stark varianc~. The purpose of having section 192(3) of the Criminal Procedu·re Act is to ensure that facts that are agreed at the preliminary hearing should not require any further proof. Although I agree with the learned counsel for the Republic that in present case the facts were denied and the prosecution had to .prove its case, I find it incredible that- the eviden·ce on the critical issue of ·where the appellants were arrested became G completely different from the ·place -allE;ged in .the memoranda of facts. I ta~e this divetgence,· as affecting the cred~bility of the - evidence. In the present case the _place where the appellants _were arrest~d is closely contested. And this would -determine if at all they were in the possession of the trophies. The appellants are a·lso contesting the fact that the trophies were seized from them. It is unfortunate that the procedure of seizure of the trophies was not followed in this case. Authorised officers_ have the power of s~arch and seizure. in accordance with the provisions of section 106(1) of the Act. That Section stipulates the powers without prejudice to any other written law. Section 38 (3) of the Criminal Procedure code requires a receipt to be issued for any property seized. In the present case that was not done. Even a valuation certificate in respect of the seized meat was also prepared by a PW2, a Game Warden on the 16 th day of December, the very day the appellants were sent to court for the first time. I find that under these circumstance·s the trial court could legitimately approach the matter with circumspection much so, where the exhibits were not produced in court at the trial. What happened is that the trophies were certified by Erwin S/O Mworia PW3 a game warden and it was sent to a magistrate who issued a disposal order. The trophies were not 7 produced _ih · evidence. Only a certificate · of dispo_sal was ·admitted. in court. Section io 1 ( 1) of The Wildlife Conservation Act number 5 of 2009 under which the Certificate was· issued describes the purpose of m_aking it as follows "101-(1} subject to section 99 {2} at any stage of the proceedings under this Act;. the Court may on its own motion _or in an application made by the prosecuti~n . in that behalf order that any animal trophr✓ weapon/ vehicle/ vessel or other article which has been .tendered or put in evidence is subject to decay destruction or depreciation be put at the disposal of .the Director" It is · clear from the terms of this section that it was intended to provide a procedure for preservation of evidencef it was not intended to provide for alternative 11_7anagement or in lieu of admission of evidence in Court. In our understanding, what was supposed to be done by the court was to receive the real exhibits in evidence first, to ava.il the accused persons an opportunity to cross exa_mine the witness producing it and thereafter the court could order its dispos9l to the Director. The proc~dure as it happened in this case was a denial to the ,ippellants of their opportunity to c_hallenge a vital piece of evidence. Not only that, but also a clear divergence from the permissible. procedure .that the exhibits must be· produced 1n evidence. 8 Another flaw apparent" on the proceedings is in relation to . the Certificate which· was pu.rported to be issued . . under section . 101(1). As we ha~e shown above, that section does not enable the_ officer to issue a certificate. as he did. If the officer intended· to issue a certificate under section 114 then P\A/3 was n6t a competent officer as subsection (3) of that section requires the certificate to be made by the Director or an officer of the rank .· .of not lower than a Wil_dlife Officer. In present case the Certificate was signed by a game warden. The certificate is only good as to the information on valuation of the exhibits and its authorship for the purpose· of assessing the appropriate punishment. The Magistrate in this case was supposed to record in evidence the receipt of the exhibits and therealter order the disposal. And not to depend on the certificate alone. That was not done and the crucial evidence was not on the record. Furtherrnore, under contested circumstances of arrest as the ones· obtaining under the present case, where the appella~ts were pfaced in custody for almost fo~r days from the 1ih to 16th of December 2013 when they were first sent to Court and even 12 days later when the memorandu·m of facts was read to them, still the prosecutor was not certain as to the . . facts. Under these circumstances it becomes apparent that the complaint by the appellants has substance. 9 •·. • • ,. . • I •••.• ~· • .From the _.foregoing I find that it is doubtful if at all the . . appellants were act)Jally arrested with.the trophies. This reason alone is enough to dispose of this appeal. ·. Inth.e resu·lt this appeal is allowed the cohviction·-quashed, the sentence is set aside and the appellants shall be released from q..1stody unless they are otherwise lawfu.lly held. Dated at Mwanza on this 29 th day of October 291s 10 .. . • 'f • I . ,· Date: 29.10.2015 Coram: Hon. S.B.M.G; Matupa, J Appellant: ·1 st present in person · 2n~ present in person 3rd present in person Respondent: Mary Hyasinta Lazaro . (State Attorney) . for the Respondent IB/C: Shida. M/S Mary Hyasinta: This appeal is set for judgment. The appellant are all present. We are ready for judgment. S.B.M.G. MATUPA JUDGE 29 . 10c2015 Court: · The judgment was read in chambers before M/S Mary Hyasinta (State . . Attorney) and all the appellant_s who were . th personally present on the 29 October, 2015. 11