Abed Abdallah v Repuvlic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI CRIMINAL APPEAL NO. 21291 OF 2024 {Originating from Criminal Case No. 3093 of2024 of District Court of Simanjiro at Orkesumet) ABED ABDALLAH..............................................................................APPELLANT

VERSUS THE REPUBLIC............................................................................. RESPONDENT

JUDGMENT 3Cfh September and 7th November, 2024 MIRINDO, J.: Abed Abdallah was charged before Simanjiro District Court with unlawful possession of government trophy, namely, fresh eland meat contrary to subsections (1) and (2) (c) (iii) of section 86 of the Wildlife Conservation Act [Cap. 283 R.E. 2022] read together with the provisions of Paragraph 14 of the First Schedule to the Economic and Organised Crime Control Act [Cap. 200 R.E. 2022] and sections 57 (1) and section 60 (2) of the latter Act. He was convicted and sentenced to twenty years imprisonment. He has now appealed to the High Court at Manyara Sub-registry. In his five grounds of appeal, the appellant, Abed Abdallah, complains about five procedural errors connected with the offence he faced at the trial court. The appellant appeared in 1 person and left it to the Court to determine his grounds of appeal without any elaboration from him. This appeal was supported by Mr. Leonce Bizimana, learned State Attorney who represented the respondent Republic. The fate of this appeal hinges on sufficiency of evidence. The prosecution case at the trial was that a group of wildlife officers went to Tumaini Farm on 19 January 2024 having being tipped off of the presence of illegal hunters in that Farm and arrested the appellant who was "outside beside a fire." At the Farm which is also referred to as the "camp", the wildlife

officers located portions of eland meat, skin, horns and two hooves. Also found at the Farm were an axe, a machete and a knife. In his defence the appellant said that he was arrested at Israel Farm and then brought to Tumaini Farm. He explained that he was not found with anything. The wildlife officers, he said, brought him to the Tumaini "camp". They beat him and forced him to sign a paper. It is at once clear that unlawful possession of a government trophy is an offence of possession. It is a well-established principle of law that mere presence at the crime scene does not render one liable for the offence. This principle has been applied in various decisions including Jandika Makwarija and Another v R, Criminal Appeal 175 of 1991, Jackson s/o Mwakatoka and others v R [1990] TLR 17 (CA) and R v Komen arap Chedal and Others (1938) 5 EACA 150. Central to the proof of the offence of possession is accused's control over the item and accused's knowledge of its existence. These two elements have been addressed in Moses Charles Deo v R [1987] TLR 134 at 139; Nurdin Akasha alias 2 Habab v R [1995] TLR 227 and Song Lei vs Director of Public Prosecutions and Others (Consolidated Criminal Appeals 16 of 2016) [2019] TZCA 265 (30 August 2019). The only wildlife officer who participated in arresting the appellant and testified in court was the first prosecution witness, Alex Kipii. There is

nothing from his testimony regarding the accused's control or knowledge of the items seized. When Alex Kipii was cross-examined by the appellant, he said: It was at 1:00 am midnight, it was in the farm, we didn’t know that there were people in the farm. We didn’t measure the meat but we took all what was there. We didn’t take you to the village because you were in the farm. I arrest who [sic] commit the offence. We brought you at the Police at 11.30 am. Alex Kipii admits that no efforts were made to investigate to see if there were other people in the farm. There is no reason to rule out the possibility of the items being under the control of other persons. This finding alone is sufficient to dispose of this appeal. I will, however, consider one ground among the three raised by Mr. Bizimana in support of the appeal because it is directly connected with the proof of the charge. The learned State Attorney, Mr. Bizimana pointed out the charge is that the appellant was found with eland meat at Kangala Village within Simanjiro District. Alex Kipii, the only wildlife officer who testified from among wild officers who arrested the appellant testified that the appellant was found with the eland meat at Tumaini Farm in Robiseret area. The learned State Attorney added that while this witness said that the appellant was arrested with eland meat, horns, and hooves the charge is that he was

arrested with fresh meat. Mr. Bizimana concluded that this variance was a serios error as was held by the Court of Appeal in Matera Simango alias Masana v R (Criminal Appeal 3 517 of 2019) [2021] TZCA 621 and Thabit Bakari v R (Criminal Appeal 73 of 2019) [2021] TZCA 259. I am satisfied that in the circumstances of this appeal, the variation constituted a serious defect and the charge of unlawful possession of fresh eland meat was not proved beyond reasonable doubt. It follows that I am in agreement with Mr. Bizimana that the charge was not proved beyond reasonable doubt. I allow the appeal and order that the appellant, Abed Abdallah, be released from custody forthwith unless he is otherwise withheld for another lawful cause. F.M. MIRINDO

JUDGE COURT: Judgment delivered this 7th day of November 2024 in the presence of the appellant and Mr. Leonce Bizimana, State Attorney for the respondent. B/C: Anna Mathayo (RMA) present. Right of appeal explained. F.M. MIRINDO

JUDGE 4