IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION CRIMINAL APPEAL NO.9 OF 2015

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1 IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION CRIMINAL APPEAL NO.9 OF 2015 Originating from Bunda District Court, Economic Case No. 18 OF 2012,Kassonso PDM) WESIKO MALYOKI...APPELLANT VERSUS THE REPUBLIC...RESPONDENT 20/4/2015 &H/5/2015 JUDGMENT OF THE COURT GWAE, J The District court of Bunda (trial court) tried and convicted one Wesiko Malyoki (appellant) of two offences namely: unlawful en try into a game reserve c/s 15 (1) and (2) of the Wilde Conservation Act No.05 of 2009 and unlawful hunting in a Game Reserve c/s 19 (1) and 2 (a) of the Wilde Conservation Act no. 5 of 2009 read together;'

2 with paragraph 14 (a) of the 1 st schedule of Economic and Organized Crime Control ACT, CAP 200 (2002). Initially, the appellant was jointly and together charged with 4 other accused persons, all four accused persons were found guilty of the 1 st offence, in the l st count and were sentenced to pay a fine of Tshs.300,000/= or serve three years imprisonment each, however the appellant was alone found guilty of both counts and was sentenced to twenty years imprisonment in respect of the 2 nd count, In the 1 st count, the prosecution alleged that the appellant, Mwita Marwa, Marwa Sigori, Chacha Kegeta and Mwita Ryoba on 17/3/2012 at about hrs at the East Grumeti river area into Ikorongo/Grumeti Game Reserve within Serengeti District in Mara Region, did enter into the said area without having a written permit from the Director of wildlife. In the l st count, the prosecution alleged that the appellant, Mwita Marwa, Marwa Sigori,Chacha Kegeta and Mwita Ryoba on 17/3/2012 at about hrs at the East Grumeti river area into Ikorongo/Grumeti Game Reserve within Serengeti District in Mara Region, did unlawfully hunted and killed game animals to wit: six elephants f)i

3 valued at Tshs, 32,640,000/= in the reserve without having any written permit from the Direct of Wildlife previously sought and obtained. The brief facts of the case are as follows: That on 17/3/2012 the game officers (PW1 and PW2) inclusive heard bullets' loud fired by unknown persons at Ikorongo Grumeti game reserve and after that the game officers proceeded to the area but their tracing efforts of poachers went in vein, that on 28/3/2012 the game officers got information through cellular phone by Ward Executive Officer (PW3) that the appellant and 4 others confessed to have entered in the game and hunted the elephants.that the PW3 managed to know involvement of the accused persons through complaints lodged to him that the appellant's act of being indebted to his colleagues in the tune of 200, 000/=after sale of elephants' tusks and that after the apprehension of the suspects, the carcasses of the killed elephants were on 2/4/2012 found through the lead of the accused persons, The appellant, having been aggrieved by the trial court conviction and sentence imposed thereof, preferred an appeal to this court by filing four grounds of appeal:

4 1.That the cautioned statement was recorded contrary to the law. 2. That there was fundamentally contradiction concerning the date of appellant's arrest. 3. Evaluation of the government trophies was doubtful as no certificate which was tendered. 4. That the adduced evidence was that of game reserve officers only. At the hearing the appellant appeared in person, consequently, he personally prosecuted his appeal by verbally adding that he was arrested while in possession of no government trophies or any illegal article and that the charge against him was fabricated for the reason that he refused to give money to the Ward Executive officer (PW3),he then sought court's adoption of his grounds of appeal. The Republic was represented by Ms. Mwaseba, the learned attorney who strongly supported the trial court conviction and the imposed sentence by submitting that the appellant's guilt was proved beyond reasonable doubt and attacking the appellant's grounds of appeal as follows:

5 Regarding the 1 st ground, Ms. Mwaseba submitted that although the cautioned statement was given weight but there were other pieces of evidence incriminatory to the appellant (Ref.PWS) and that same was corroborated by independent witnesses, In the appellant's complaint, Ms. Mwaseba stated that the appellant was arrested on 28/3/2012 but 28/3/2013 appearing on the judgment is a typing error; it ought to be 28/3/2012 and not 28/3/2012 adding that the contradiction did go the root of the case. In respect of the 3 rd appellant's complaint, Ms. Magreth Mwaseba submitted that the complaint is legally unfounded due' to the fact that inventory and evaluation report were produced and admitted as exhibit P7. Responding to the fourth ground of appeal, Ms, Mwaseba the same is also meaningless as the prosecution witnesses were not only from complainant (Game reserve) but also other independent witness (WEO-PW3) I should now come to determine the grounds of appeal filed the appellant.

6 In respect of the l st ground of appeal, I have looked at both proceedings and judgment of the trial court and come up with the observation that the cautioned of the appellant and those of other accused persons were tendered in evidence on 25/7/2012 and the appellant and co-accused offered no objection to their tendering, the appellant's cautioned statement was admitted as exhibit PI however it is not found in the trial court record. 1 have also keenly looked at the evidence on record and judgment, it is observed as submitted by Ms. Mwaseba that the trial court that the cautioned was not much relied during judgment preparation. I however looked at the cautioned statements of other accused persons and found some irregularities thereof such as omission to record time at which the purported recording commenced and asked myself if the Game officers have mandate to record the confessions of suspects, looking at the wordings of Section 27 of the Tanzania Evidence Act and the Wildlife conservation Act, I do not see if PW4, Proches Rongoma had mandate to record the accused persons' cautioned statements as they were already apprehended since 28/3/2012 and the PW4

7 is found testifying that he recorded their cautioned statements on 29/3/2012, question to be paused here is v why not police officer, police investigator in particular, under section 106 of cap 283, any authorized officer is empowered to search and arrest any person whom he believes to have committed or is about to commit an offence under the Act. I have not come with provision under the Act allowing game officers to record confessions of suspects. Worse enough alleged interrogation was not made on the material date of arrest but there was elapse of time from the date of arrest and date the allegedly made cautioned statements were recorded (28/3/ /3/2012), question to be paused is where these accused persons were detained?if not in police custody and if so why the statements were not recorded by police? This raised a serious doubt. As to the alleged contradiction to the date of appellant's apprehension, it is from the trial court record where the complained contradiction can be ascertained whether it is true or not and found in affirmative whether the same cause miscarriage of justice, the appellant was arrested by:

8 the Ward executive officer, one Joseph Matororo-PW3 on 28/3/2012 and not 28/3/2013, that is purely typing error which to my view did not any how cause miscarriage of justice. Coming to the 3 rd and 4 th appellant's complaints, from the outset I am not persuaded by the appellant as the trial court record shows that inventory and, certificates of evaluation of Government trophies were tendered and admitted as PE.6 and PE.7 respectively, I now turn to the evidence of the prosecution if it sufficiently proved the case against the appellant, it is from the record that the appellant was complained by his co-accused persons in the office of PW3 of different issue that he was indebted to them however the prosecution is found alleging that they appellant and his co-accused persons led to the discovery of dead bodies of six elephants. If true that the appellant and 4 others on 2/4/2012 led the game officers to the discovery of carcasses of the elephants and that the accused persons voluntarily agreed to take lead to the discovery to the investigator (see evidence of PW2), who was this investigator? Whether Game officer or police officer? It is not clearly testified, the accused were

9 arrested on 28/3/2012 if admitted to take lead meaning that after their stay at the police custody for more than four days, that being the position why not police investigator appeared and adduced to that effect bearing in mind that the alleged incident is said to have occurred on 17/3/2012, I think the investigator ought to have been summoned to give his testimony to effectuate the evidence adduced by PW2 and PW4 that the appellant and his co-accused persons admitted to have hunted the elephants and they actually took the lead to the discovery. In Robinson Mwanjisi and 3 others V. R (2003) TLR 218. The court of Appeal stated among other things that; "The purpose of investigation is to collect facts and later to give evidence there is no law or authority that declares an investigator incompetent to testify" In this particular case the investigator's testimony if truly was involved in the investigation of the case was necessary witness and for interest of occasion of justice in this particular case ought to have appeared and testified in court.

10 The investigation and prosecution always is bound to be highly diligent and professional in its performance so that its evidence leaves no doubt as to guilt of an accused person bearing in mind that it is more painful and unfairly to convict an innocent person than to acquit a guilty person. Before putting off my pen, I should say with no hesitation that the trial magistrate procedurally erred in causing to be readover the cautioned statements of the accused persons before asking them if they had objection. In practice, courts used to permit reading over cautioned statements after either no objection from defence or after trial within trial being conducted unlike what was erroneously done by the trial court during testimony by PW4. In the light of the above reasons, I find the trial court to have over looked issues of whether the PW4, a game officer had mandate to record the allegedly made cautioned statements and whether there was cogent evidence in support of the prosecution particularly alleged admission to take the lead to the carcasses of elephant and if they accused persons were really detained in police while

11 investigation was being carried out. Failure by the trial court to address these issues left a lot to be desired. r Consequently, the appellant's appeal is allowed, the trial court conviction and imposed sentence are quashed and set aside respectively, appellant is to be release forthwith unless held for different lawful cause. It is found and ordered accordingly. Court: Right of appeal fullyexplained. 11/5//2015 Court: Parties are to be supplied with copies of judgment and proceedings today but on application and without court fees.

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