IN THE DISTRICT COURT OF MPANDA AT MPANDA EC. CRIMINAL CASE NO. 08/2010

Transcription

1 IN THE DISTRICT COURT OF MPANDA AT MPANDA EC. CRIMINAL CASE NO. 08/2010 REPUBLIC VS GEOFREY NANDI. ACCUSED JUDGMENT BEFORE: C. M. TENGWA, -DRMi/c. The accused person one Geofray Nandi is arraigned of three counts namely unlawful possession of firearm c/s 4(1)(2) and 34(1)(2) of the Arms and Ammunitions Act Cap 223 read together with paragraph 19 of the 1 st schedule of the Economic and Organized Crime Control Act, Unlawful Possession of Government Trophies c/s 70(1)(2)(b) of the Wildlife Conservation Act Cap 283 RE 2002 read together with paragraph 14(d) of the 1 st schedule to section 57(1) and 60(2) of the Economic and Organized Crime Control Act, and unlawful possession of ammunition c/s 4(1)(2) and 34(1)(2) of the Arms and Ammunitions Act Cap 223. In respect of the first count it was alleged by the prosecution side that on the 11 th day of May 2010 at or about 08:30hrs at Mlangale village the accused person one Geofray Tito Nandi was found in unlawful possession of one Muzzle loading gun commonly known as Gobole without a license. In respect of the 2 nd count it was alleged by the prosecution side that on the same date place and time the accused was found in unlawful possession of 10kg of buffalo, valued Tshs 1,800,000/= one Kg of top meat valued Tshs 80000/= one Impala penis valued Tshs 390,000/=, one Kg of porcupine meat valued Tshs 150,000/= and one piece of elephant ear valued at Tshs 4080,000/=. All making a total value of Tshs 7,220,000/=the property of the United Republic of Tanzania. 1

2 In respect of the 3 rd count it was alleged by the prosecution side that on the alleged date place and time the accused was found in unlawful possession of 12 ammunition of muzzle loading gun without a permit. The accused denied the allegations and a total number of three witnesses were summoned to disapprove the accused denial. PW1 one Gasper Kahabi gave testimony by describing himself as a park ranger at Katavi National Park. That, on the 10 th day of May 2010 he was at Stalike. While at Stalike he received a call that summoned him in the office. He responded by going into the office where he was given an assignment together with his fellow park rangers. Their leader told them that they ought to go to Mpanda town in Tambukareli area. They drove up to Mpanda town and met the informer at the city area. The informer told them that there was a resident of Tambukareli who was in possession of firearms and government trophies. They went to the police station and correct some police officers to accompany them. At the police officer, they were given two police officers named Yasin and Mosha. They left to the residence of the accused person at 0100hrs and traced the leader of the area. They managed to find him who introduced to them as Chrisant Pondamali. They told him that they were suspecting one of his residents called Geofray Tito Nandi to be in possession of firearms and government trophies. They asked him whether he knew the said man. The ten cell leader of the area and admitted to the accused person and led them to the residence of the accused. That was at 0300hrs of the 11 th day of May The ten cell leader knocked the door and introduced the men who accompanied with him. He asked the accused person to open the door and get out himself. The accused person responded by opening the door and got out. Thereafter, they disclosed and informed him the purpose of his visitation. 2

3 They asked him whether he had any trophy or firearm in his office. The accused admitted to posses government trophies and asked his wife to take them out. The wife of the accused person took the trophy outside. They found the meat being of an impala and a buffalo. They seized the same. They asked him whether he had other items and denied to have them. They decided to conduct a search with a view of satisfying themselves. They searched and retrieved a piece of elephant ear, a piece of elephant tusks, a meat of porcupine and a penis of an Impala. They asked them whether he had a muzzle gun and admitted to have it but defended to have kept it in his friend s house. They took them to Inteka area where his friend was residing. Unfortunately they did not find that man. Since the accused knew where the gun was then he led them there. The wife of the accused friend was there but the gun was retrieved and brought by the accused himself. The gun was in the bush besides the house of the accused friend. They did not search into the accused house as they obtained what they were looking for. They took the accused person to the Mpanda Police Station. They asked him whether he had any permit authorizing to posses both gun ammunitions or government trophies and denied to have any. The accused was taken to the police station with the exhibits. Thereafter came PW2 one Mbonea Hassani who gave his testimony by describing himself as a game warden. He told the court that on the 11 th day of May 2010 he was in his office. Then trophies were brought for examination and evaluation. He examined and weighed them. The trophies that were brought included an oil, meat and nose of a buffalo, valuing Tshs 1,500,000/= a meat of an impala valuing Tshs 390,000/= a meat and a tongue of a porcupine valued Tshs 150,000/= an ear of elephant 4,080,000/=. All the properties valued at Tshs 7,220,000/=. He prayed to tender a certificate of trophy evaluation and the court admitted the same as exhibit Tan 1. 3

4 Thereafter came PW3 one F DC Celicious Mosha who gave his testimony by telling the court that on the 11 th day of May 2010 he was ordered by the OC-CID to patrol and make search. He went with them and at 0000hrs told their park rangers told them that their informer had told them there was a man at Tambukareli called Tito Nandi who had brought a buffalo meat from the bush. They went to Tambukareli area and knocked at the accused door. Before going to the accused residence they decided to call the ten cell leader. They told the ten cell leader the purpose of visitation. They entered in the accused house and searched. He entered inside the house with the ten cell leader, the owner of the house and a park ranger. They found a meat of a buffalo in a sulfate bag. They found an oil of a buffalo about 1.5 kg, one kg of impala, a piece of buffalo nose. There were many other meats. They took the stuff outside and filled the search warrant and the witnesses signed. The seized items were taken to the department of the natural resources for examination and evaluation. In the department of natural resources, the meat was found unfit for human consumption. The court ordered the same to be destroyed. He prayed to tender the inventory form and the court admitted it as exhibit Tan 2. He prayed to tender a search warrant and the court admitted the same as exhibit Tan 3. Similarly the statement of Chrisant Pondamali was tendered in court as exhibit Tan 5 under section 34 of the Evidence Act as his death was proved in court by tendering his burial permit which was tendered and admitted in court as exhibit Tan 4. That marked the end of prosecution hearing. The court evaluated the evidence and its exhibits and found a prima facie case being made against the accused person. At that time the accused had already absconded his bail and the prosecution effort to procure his attendance failed. 4

5 It is my settled view that the evidence that establishes a prima facie case is capable of convicting the accused person. In Makuzi Zaidi v. Republic (1969) HCD 249 the court held that:- The case to be called prima facie must be such that:- a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defense. The accused person is, therefore, obliged to give his defence as a means of mitigating the risk of being convicted. This is due to the fact that the finding of the court will be based on the prosecution evidence without being contradicted by the defence. As the prosecution evidences project, the house of the accused person searched and different meats or parts of different animals including an elephant, buffalo and porcupine. As it has transpired the accusation of the accused person was pegged on the result of search that was conducted in his house. The said search and its findings were proved by a search ordered that was admitted as exhibit Tan 3. The search warrant strengthens the prosecution assertion of searching and seized items in the house of the accused person as it the signature of the accused person and his deceased ten cell leader. Likewise PW1 and 3 were the eye witness. Apart from PW1 and PW3 there was another eye witness who participated in the search and seizure of the stuffs. The said witness was independent witness as he was the ten cell leader of the accused person. Unfortunately he passed aware before testifying in court but his statement was admitted under section 34 of the Evidence Act Cap 6 RE There is no doubt that the evidence against the accused person is watertight as the stuffs were proved to have been found in the house of the accused person. As such the same could have not been left unchallenged or uncontradicted by accused person. Similarly the accused person was supposed to prove how lawfully he possessed the same but denied himself such sacred chance by jumping bail. The failure of the accused person to prove how lawfully he 5

6 possessed the same this court finds the accusations being proved beyond reasonable doubts. It finds him guilty and convicts him in absentia under section 226 of the Criminal Procedures Act Cap 20 RE PP: Records of previous conviction I pray for stiff sentence as these types of offence are rampant in the society. SENTENCING The accused person is first offender and there is no record of previous conviction. Though the accused absconded his bail, this court will not hesitate to exercise its mercy as he was a first offender. As such it sentences him serve a sentence of twenty (20) years in prison. Order (1) arrest warrant be issued against the accused person Delivered on the 6 th day of June 2013 in the presence of the accused person and the prosecutor. Right to appeal is available to the aggrieved party and is hereby explained. 6

7 7