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IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

MOROGORO SUB REGISTRY

AT MOROGORO CRIMINAL APPEAL NO. 39547/2023 & 12166/2024 (Appeal from the Decision of the District Court of Kilombero at Ifakara in Economic Case No 13 of 2021 before T.A. Kaniki Esquire Resident Magistrate)

BETWEEN ABEL KAYUSI MCHENGESI 1^ APPELLANT GERMANUS VENUS LIBWEHA 2^° APPELLANT

VERSUS

REPUBLIC RESPONDENT

JUDGMENT MRUMA,3 The Appellants Abel Kayusi Mchengesi and Germanus Venus Libweha were charged before the District Court of Kilombero at Ifakara with three offences of possession of government trophies. In the first count the Appellants were charged with the offence of; 1. Unlawful Possession of Government Trophies Contrary to Section 86 (1),(2)(c) and (3) of the Wildlife Conservation Act, No. 5 of 2000 Cap 283 as amended by written Laws (Miscellaneous Amendment) Act No. 4 of 2016 read together with paragraph 14 of the first schedule to and section 57(1) and 60(2) of the Economic and Organised Crime Control Act, Cap 200 RE 2019. In that count the prosecution alleged that on 13^^ day of August 2021 at Goregore area within Udzungwa National Park In Kllombero District the Appellants were found in unlawful possession of Government Trophies to wit; eleven pieces of Bufallo meat valued at United State Dollars 1900 which Is equivalent to TZS 4,406,100/= (Say Tanzania Shillings Four Million Four Flundred Six Thousand and One hundred) only, the property of the Government of United Republic of Tanzania without a permit from the Director of Wildlife. In the second count the Appellants were charged with the offence of: 2. Unlawfully possession of Government Trophies contrary to section 86 (1)(2)(c) (III) and (3) of the Wildlife Conservation Act No 5 of 2009 [Cap 283 as amended by the

Written Laws(Miscellaneous Amendment) Act No 4 of 2016 read together with paragraph 14 of the First Schedule to and Section 57(1) and 60(2)of the Economic and Organized Crimes Control Act [Cap 200 R.E. 2019] It was alleged by the prosecution that on the same date and place, the Appellants were found In unlawful possession of Government Trophies, to wit; Thirteen pieces of Bush Pig Meat valued at United State Dollars 840 which is equivalent to Tanzania shillings 1, 947,960/= (Say Tanzania shillings One Million Nine Hundred Forty-Seven Thousand Nine Hundred and Sixty only the property of the Government of United Republic of Tanzania without a permit from the Director of Wildlife. With respect to the third count the Appellant was charged yet with the offence of; 3. Unlawfully Possession of Government Trophies Contrary to Section 86(1)(2)(c) and (3) of the Wildlife Conservation Act No 5 of 2009 as amended by the Written Laws Miscellaneous Amendment Act No 4 of 2016 read together with Paragraph 14 of the First Schedule to and Section 57 (1) and 60 (2) of the Economic and Organized Crime Act [Cap 200 R.E. 2019] With respect to that count it was alleged by the prosecution that on the same date and place the appellants were found In unlawful possession of Government Trophies to wit; Ten pieces of Abbots Duicker Meat valued at United State Dollars 560 which is equivalent to Tanzania

Shillings 1,298,640/= (Say One Million Two Hundred Ninety-Eight Thousand Six Hundred and Forty Tanzanian Shillings) only, the property of the Government of the United Republic of Tanzania without a permit from the Director of Wildlife. In the quest to prove the charges against the Appellants the prosecution paraded a total of five (5) witnesses and tendered six (6) exhibits; namely cautioned statement of the first accused (Exhibit PI), cautioned statement of the second accused (Exhibit P2), Inventory Form (Exhibit P3), Certificate of Seizure of the first accused (Exhibit P4), Certificate of Seizure of the second accused (Exhibit P5) Chain of Custody Form (Exhibit P6) and Valuation report (Exhibit P7). After a full trial the district court was satisfied that the prosecution had proved the case bfeyond reasonable doubt and proceeded to convict the Appellants and sentenced them to pay a fine of Tanzania Shillings 7,653,000 each or to Serve twenty years imprisonment in each. The first Appellant filed Criminal Appeal No. 39547of 2024 but when the Appeal was called for hearing it was brought to the attention of the court that the second Appellant Germanus Venus Libweha who was a co- accused in the trial court and who was also convicted of the same offence, had also lodged an appeal which was registered as Criminal Appeal No 12166 of 2024. The learned counsel prayed that the two

appeals be consolidated and argued together as Criminal Appeal numbers 39547 of 2023 and No 12166 of 2024, the prayer which was granted. When the appeal was called for hearing the Appellants who were not represented did not have much to say. The first Appellant submitted that he was forced to admit that the trophies were his while they were not. The second Appellant also contended that he was forced to concede that he was found with the trophies which was not the case. On his part, Mr. simon Mkina, learned State Attorney who represented the Respondent/Republic supported the Appellants'appeal, the learned State Attorney stated that after going through the records he has discovered that on the evidence on record the prosecution did not prove its case beyond reasonable doubt. He conceded that ground 3 raised by the first Appellant had merits. He said that it was true that the Inventory Certificate tendered in. evidence and which was relied by the District court in its decision didn't match with the principles laid down by the Court of Appeal in the case of BULIKA LEKEN OLE NDIPA Versus R Criminal Appeal No ,459 of 2020 at page 15 where the Court of Appeal laid down principles to be followed by a magistrate before making an order for dispose of perishable exhibits among such principles is a principle that if the order is likely to be relied upon in any future proceedings against

any suspect, then the suspect must be present at the time of making such prayer and order and he must be asked to make any comment(s) if he has and his comments must be recorded. The laid State Attorney stated that in the case at hand the trial court didn't comply with the requirements as laid down in the Bulika's case, as Exhibit P 3 (i.e. the Inventory Form) did not indicate that the Appellants were invited to give their comment and/or objection to its admission. The learned State Attorney stated that at page 14 of the typed proceedings PW3 admitted in cross-examination that he did not ask the Appellants any question before making an order for disposal of exhibits that were perishable. The learned State Attorney submitted that since Exhibit (P3), formed the basis of the trial court's conviction if it is expunged then the prosecution's case cannot stand as there is no any other evidence which would support the case. I have taken time to go through the trial court's record, the grounds of the appeal and the learned State Attorney's submissions in support of the appeal. This being a first appellate court, it has a duty to re-evaluate the evidence adduced at the that court and satisfy itself if the trial court correctly evaluated and considered it before finally airing the impugned judgment. This duty had been re echoed in numerous decisions of this court and Court of Appeal, one

of those decisions being that in the case of the Registered Trustees of Joy in the Harvest Vs Hamza K. Sungura, Civil Appeal No.l49 of 2017 CAT (unreported), were the Court stated that: "the first appellate court Is entitled to re-evaluate the entire evidence adduced at the trial and subject It to critical scrutiny and arrive atitsIndependent decision. Before delving into what has been submitted by the learned State Attorney, going through the evidence on record and on perusal of charge sheet it is apparent that there was a variance between the charge sheet and the evidence. The three counts in the charge sheet show that in the first count the Appellants were charged with the offence of being found in possession of Bufallo meat and in the second count they were allegedly found in possession of 13 pieces of Bush Pig meat. In the third cpunt they were charged,for being found in unlawful possession often pieces of Abbot Duicker meat. However, the evidence tendered and particularly in one of the inventories (i.e. exhibit P3), suggests that apart from meat, it shows that the Appellants were allegedly also found in unlawfully possession of heads of bush pig and Abbot Duicker and a buffalo tail but these facts 9- are not reflected in the particulars of the charge. The contents of Exhibit P3 reads: Nguruwe vipande 11 vya nyama kavu na vichwa viwHi vikavu Nyati vipande vikavu vya nyama

10 na mkia mmoja Nyama kavu ya funo vipande 8na vichwa viwiii vya Funo. The same particulars are found in the Certificate of Seizure which was also admitted in evidence and relied upon by the trial court. The arresting officers that is to say PWl and PW4 whose evidence was intended to support the contents of exhibit P4 and P5 did not mention anything as to whether the Appellants were arrested with heads and tails as recorded in.exhibits tendered despite the fact that by signing the disposal order, the learned magistrate (PW3) who according to the inventories (Exhibits P2, P3 and P4), ordered the disposal of the meat showed that there were two heads of bush pig and one buffalo tail. This is a huge contradiction in the.prosecution's case which the trial court ought to have considered. The record shows that clearly there was . a variance between charge sheet and the evidence adduced in trial court. It is trite law that a variance between the charge and the evidence adduced renders the charge sheet defective. In the case of Michael Gabriel vs Republic, Criminal Appeal No. 240 of 2017 (unreported), where the Court held that: " The variance (between the evidence and the charge sheet) rendered the prosecution case deficient of proof beyond reasonabie doubt. Back to the learned State Attorney's submissions in support of the appeal, it is common ground that in criminal cases the

Republic through the office the National Prosecution Services (NPS) acts as the complainant in all criminal prosecutions. The victim of a crime who is the actual complainant becomes a witness for the Republic. I terms of Section 91(1) of the Criminal Procedure Act (Cap 20 R.E. 2019], the NPS through the Director of Public Prosecutions has powers to withdraw any case against an accused person. There is no similar powers at the appeal level. However, in my opinion where the Republic(i.e. the prosecution) concedes at the appeal level that it did not have sufficient evidence to support the conviction during the trial, unless there is any good, sufficient and serious reasons, to hold otherwise, court must accede to the Republic or complainant's view. To hold otherwise rnay make put the impartiality nature of courts in jeopardy. . That said, the Appellants' appeal Is allowed, the conviction and sentence passed by the trial court Is quashed and set aside. It Is hereby ordered that the Appellants should be released from prison unless otherwise held for any other lawful cause. 0 A.R. MRUMA OF 0 C ■1. •4 •y X > JUDGE UJ 26. 8. 2024 10