Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL No. 12411 OF 2024 (Originating from the District Court of Liwaie at Liwaie Economic Case No. 1 of2023} ABDALLAH SAID NGAUNJA......................... APPELLANT VERSUS REPUBLIC........................................................ RESPONDENT JUDGMENT 16* July & 31st July, 2024 MPAZE, J.: The appellant was charged with the offence of unlawful possession of government trophies contrary to section 86 (1) and (2)(c)(ii) of the Wildlife Conservation Act, (the WCA) [Cap 283 R.E 2022] read together with paragraph 14 (d) of the first schedule to section 57(1) of the Economic and Organized Crimes Control Act (the EOCCA), [Cap 200 R.E 2022]. It was alleged in the particulars of the offence that, on 12th January, 2023 at Mikukuyumbu area, Mungurumo Village within Liwaie District in Lindi Region, the appellant was found in unlawful possession of 1 Lindi Region, the appellant was found in unlawful possession of government trophies, to wit twenty-three pieces of warthog meat valued at Tshs. 974,639.40, the property of the Government of the United Republic of Tanzania, without a permit. The appellant pleaded not guilty to the charge, prompting the court to proceed with the case. The prosecution called a total of four witnesses to substantiate the allegations against the appellant. The witnesses included H 8899 PC Steven (PW1), Francis Petro Chacha (PW2), A/Insp Maiko Lugodisha Lulami (PW3), and G 2735 D/CPL Mohamed (PW4). The chain of custody form, the order of disposing of 23 pieces of warthog meat, the motorcycle, the trophy valuation report, the certificate of seizure, and the caution statement of the appellant were all admitted as Exhibits Pl, P2, P3, P4, P5 and P6 respectively. The prosecution's case was that on 12th January, 2023 PW3 was patrolling in the Mikukuyumbu area when he came across two people pushing a motorcycle with two sulphate bags. He stopped them, but one fled, leaving the appellant behind. PW3 inquired about the contents of the bags, and the appellant claimed they contained warthog meat. Upon inspecting the bags, PW3 confirmed that they contained 23 pieces of warthog meat. He filled the 2 certificate of seizure and brought the appellant to Liwale Police Station, where a file for unlawful possession of government trophies was opened. On the same day, through PW2, an assessment of the 23 pieces of warthog meat was conducted. With his expertise, he confirmed that the 23 pieces he assessed were warthog meat valued at USD 429, equivalent to Tshs. 974,639.4. It was the prosecution's case that the appellant when questioned at the police station by PW4, confessed through his caution statement to being found with the 23 pieces of warthog meat. In his defence, the appellant denied being found in possession of the said 23 pieces of warthog meat, stating briefly that he was framed and that the charge was not true. After the trial, the trial magistrate evaluated the evidence from both sides and was fully satisfied that the appellant was guilty of the offence charged. He convicted and sentenced the appellant to serve twenty (20) years imprisonment. The appellant was discontent with the decision of the trial court; hence he preferred this appeal. A total of 13 grounds were presented in his petition of appeal. 3 At the hearing of the appeal, the appellant appeared in person while the respondent/Republic was represented by Ms. Florence Mbamba, learned State Attorney. When the court invited the appellant to argue his appeal, he told the court that he wished to hear from the State Attorney first and would respond if necessary after the State Attorney's submission. The State Attorney agreed to begin and, in her submission, supported the appeal based on ground 9, which challenged the admissibility of Exhibit P2, the disposal order from the Liwale District Court. The State Attorney argued that this ground alone was sufficient to dispose of the entire appeal, so she would not address the other grounds. In support of this ground, the State Attorney contended that the offence the appellant was facing was unlawful possession of government trophies, specifically 23 pieces of warthog meat. She stated that for the prosecution to prove this offence, they needed to tender the 23 pieces of warthog meat or an inventory that ordered the disposal of the said meat. The State Attorney said that what was tendered as evidence of the appellant being found with the warthog meat was a disposal order from the District Court of Liwale, which was admitted and marked as Exhibit Pl. The State Attorney claimed that when this exhibit was tendered, the 4 appellant objected to its admissibility on the ground that the order was made in his absence. The State Attorney argued that it was true that when the order was issued, the accused was not involved, which is contrary to various decisions that direct that during the issuance of a disposal order for trophies allegedly found with the suspect, the suspect must be involved. However, the State Attorney did not cite any specific cases from those various decisions. Given these circumstances, the State Attorney requested this court to expunge Exhibit P2 from the record, stating that if the Exhibit is expunged, there will be no remaining evidence to convict the appellant. After the State Attorney's submission, I turned to the appellant, who stated that after listening to the State Attorney, he had nothing to add and requested the court to allow his appeal. I agree with the State Attorney that for the appellant to be found guilty of the offence he was charged with, it is the prosecution's duty to prove the alleged illegal possession of a government trophy. This proof can be established by tendering the physical trophy the appellant was allegedly found with as an Exhibit, or if the trophy was ordered to be destroyed due to ongoing investigations, then an inventory should be provided. If the case had already reached the court and an 5 order was made for the disposal of the trophies, then the order authorizing such disposal should be tendered. In the case at hand, what was admitted during the trial as evidence of the appellant being found with the said government trophy was the order that mandated the destruction of the 23 pieces of warthog meat. The prosecution admits that this order was not properly made as it did not involve the appellant. I will pause here to explain the procedure for issuing disposal orders for perishable items allegedly found with suspects and their involvement when these orders are issued. The procedures for obtaining a disposal order differ depending on when the order is requested; whether it is during the investigation stage or when the case is at the stage of proceedings in the court with jurisdiction over the matter. In the case of Mohamed Juma @ Mpakama v. R, (Criminal Appeal No 385 of 2017), published on the website www.tanzlii.org [2019] TZCA 518. The Court of Appeal had this to say; ' There is one issue which we unsuccessfully pressed for answers from the learned Counsel for the respondent. That is whether the procedures for disposal of perishable Government trophies like game meat under section 101 of the I/I/C4 extend to police officers 6 handling these trophies during the investigation stage. We think a distinction must be drawn between the disposal of perishable Government trophies by the police during their investigations and the disposals ofperishable Government trophies during the course of court proceedings, which is outlined under section 101 of the WCA '[Emphasis added] The procedure to be followed when the case is still with the police and has not reached the court while the investigation is ongoing, and they have a perishable Exhibit that cannot be preserved, handling such an Exhibit is directed under paragraph 25 of the Police General Orders (PGO) No. 229 titled INVESTIGATION - EXHIBIT, which provides; 'Perishable exhibits which cannot easily be preserved until the case is heard shall be brought before the Magistrate, together with the prisoner (if any), so that the Magistrate may note the exhibits and order immediate disposal. Where possible, such exhibits should be photographed before disposal.1 To clarify what this paragraph means, the Mohamed case) supra}, affirmed that; ' The above paragraph 25 envisages any nearest Magistrate who may issue an order to dispose of the perishable exhibit. This paragraph 25 additionally emphasizes the mandatory right of an 7 accused (if he is in custody or out on police bait) to be present before the Magistrate and be heard.' According to this paragraph and what was stated in the authority cited above, when applications for disposing of the perishable Exhibit are made to the magistrate while the investigation is still ongoing, the accused must be present and heard. The case stated further that; V/7 the instant appeal, the appellant was not taken before the primary court magistrate and heard before the magistrate issued the disposal order (exhibit PE3). White the police investigator, Detective Corporal Saimon (PW4), was fully entitled to seek the disposal order from the primary court magistrate, the resulting Inventory Form (exhibit PE3) cannot be proved against the appellant because he was not allowed to be heard by the primary court Magistrate...' Apart from that procedure which is governed by the PGO, another procedure is that which is found under section 101 of the Wildlife Conservation Act, Cap 283 R.E 2022, which reads; '101 CE)-Subject to section 99 (2), at any stage of the proceedings under this Act, the court may on its own motion or on an application made by the prosecution on that behalf order that any animal, trophy, weapon, vehicle, vessel, or other article which has 8 been tendered or put in evidence before it and which is subject to speedy decay, destruction or depreciation be placed at the disposal of the Director.' This section describes the disposal of trophies during proceedings, meaning that the case is already before a competent court. The section states that such an order can be issued when the trophy has been tendered or put in evidence before the competent court. In other words, the application of this section is to issue a disposal order when the trophy has already been brought to court and tendered as evidence. If it is then determined that the Exhibit is subject to speedy decay, it will be placed at the disposal of the Director. See the cases of Mohamed (supra) and Emmanuel Saquda @ Sulukuka & Another v. R, Criminal Appeal No 422 "B" of 2013 CAT (Unreported). Reverting to the case at hand, the question is; which of these two procedures was followed, and was it followed in compliance with the law or not, as submitted by the State Attorney? I have examined the records of Economic Case No. 1 of 2023, which show that on 31st July, 2023 the court received Exhibit P2 from PW1. This Exhibit was a disposal order arising from Misc. Criminal Application No. 5 of 2023. The Drawn Order reads; 9 'DRAWN ORDER Prayer for: 1. Order for disposal Exhibit (23 pieces of Warthog fresh meat). 2. Any other Order the Court May deem fit. The application coming on this day for final disposal, before Hon N.S. Mwakibibi -SRM, in the presence of D/C Josephat Ijumba for Repubiic(Appiicant) and in the absence of the Respondent. It is hereby ordered that the 23 pieces of fresh meat, presented before this court, be disposed of by the Director of the Wildlife, pursuant to section 101(1) (a) (i) of the Wildlife Conservation Act[ Cap 283 R.E2022]. Given under my HAND and SEAL of the court, 13fh this day of January, 2023. Senior Resident Magistrate' After reviewing the order, I went back to the application itself, which was filed in court on 13th January, 2023 moving the court under section 392 A(2) of the Criminal Procedure Act Cap 20 R.E 2022 and section 101 of the WCA. When the application was made, the records show that the io appellant was in the hospital seriously sick and, thus unable to follow up on the application. It seems that what transpired in this application is what led the State Attorney to argue that the appellant was not involved. I agree with the State Attorney in this regard since the appellant was not present when the order was issued. My question is, despite the appellant not being involved in the application, whether the procedure followed was proper in obtaining the disposal order for the 23 pieces of warthog meat. Section 101 clearly states without any ambiguity that a disposal order shall be issued for the trophy that has already been tendered or put in evidence, and it should be noted that the court issuing the order must have jurisdiction. The Court of Appeal in Mohamed's case (supra}, when explaining the applicability of section 101, remarked; 'It is apparent to us that section 101 of the WCA can only apply to perishable Government trophy when the court with requisite jurisdiction is already seized of the matter and does not extend back to the period when the police are still carrying their investigations over the same matter... To us, the phrase ’at any stage of the proceedings in section 101 of the WCA implies ii the proceedings are already in court with requisite jurisdiction over the /n^fter/[Emphasis added] Based on what was discussed in the cited authority, the question is whether at the time the Liwale District Court issued the disposal order, it had the requisite jurisdiction. The case that was before the trial court was an Economic case, meaning the court would only have requisite jurisdiction over the matter once it had received consent and a certificate conferring jurisdiction as per sections 26(2) and 12(3) of the EOCCA. When I examined the records of Economic Case No. 1 of 2023, I found that the Liwale District Court received the consent and certificate conferring jurisdiction to try the case on 24th April, 2023. Therefore, at the time the Liwale District Court issued the disposal order for the said 23 pieces of warthog meat, it was not clothed with jurisdiction. This is why, even in the records dated 12th January, 2023 at 13:15hrs, when the appellant's charges were read to him in the hospital, the court stated; ' The charge sheet has been read and explained to the accused person in a language understood by him and not asked to piea for want ofjurisdiction. 12 Sgn SRM 12/1/2023' On the same date when the court read the charges to the appellant and informed him that he could not enter a plea due to lack of jurisdiction, the same court issued the disposal order for the alleged 23 pieces of warthog meat allegedly found in the appellant's possession. This was improper because the court did not have jurisdiction at that time. Thus, I agree with the State Attorney that Exhibit P2 deserves to be expunged from the record, though for different reasons. Even if the appellant had been involved in the application, it would still have been improper because the court lacked jurisdiction. In light of the above discussion, I conclude that Exhibit P2 should be expunged from the record since the disposal order was issued by a court that lacked jurisdiction. With Exhibit P2 expunged from the record and given that the 23 pieces of warthog meat were neither put in evidence nor tendered as an exhibit, the charge of unlawful possession of government trophies against the appellant is untenable, as the remaining evidence cannot establish the appellant's guilty in the absence of this crucial evidence. 13 Although I could end my judgment here, an additional anomaly has emerged as a ground of appeal, necessitating further consideration. In ground 5 of the appeal, the appellant complains about the admission of the caution statement without following proper procedures and that even after it was received, it was not read. I examined the proceedings and noted that on 16th August, 2023 PW4 prayed the admission of the caution statement made by the appellant at the police station as Exhibit. After this prayer, the appellant objected to its admissibility, stating that he was forced to sign it. The court adjourned the case until 25th August, 2023 for an inquiry. On 25th August, 2023 the trial court conducted an Inquiry, after hearing both parties, the court delivered a ruling which overruled the appellant's objection and proceeded to admit the caution statement as Exhibit P6. As the appellant complained, the procedure followed after the ruling was not proper. After reading the ruling and the trial magistrate determining that the caution statement was voluntarily made, the trial magistrate should have resumed the proceedings, which had been stayed, by reminding PW4, who was testifying before the proceedings were stayed, that he was still under oath. 14 The trial magistrate should have allowed PW4 to tender the statement as an Exhibit, which would then have been received and marked as an Exhibit, with its contents being read subsequently. See the case of Selemani Abdallah & Two Others v. R, Criminal Appeal No. 384 of 2008 CAT, which outlines the entire procedure from the start of the inquiry to its conclusion. Thus, I concur with the appellant that the caution statement was wrongly admitted, and like Exhibit P2, it as well expunged from the record. Given the shortcomings in the prosecution's case, I am compelled to find that the appeal has merit. Consequently, I allow the appeal, quash the conviction, and set aside the sentence. I hereby order that the appellant be immediately released from custody unless he is lawfully held for other just cause. It is so ordered. Dated at Mtwara this 31st July, 2024. * M.B. Mbaze A '-*'•??. Judge V I b *1 ' * F A3 i* I J xiv y / 15 Court: Judgment has been delivered today in the presence of the appellant and Ms. Farida Kiobya learned State Attorney for the Republic. 16