CRIMINAL APPEAL NO

IN THE HIGH COURT OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 0000673 OF 2024 REFERENCE NO. 20240109000000673 (Arising from Economic Case No. 160 o f 2022 o f the District Court o f Serengeti at Mugumu) MARWA S/O KICHONGE @ MARWA............................................... APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT JUDGMENT 24th & 31st July, 2024 M, L, KO MBA, J.: Marwa Kichonge, the appellant was aligned before Serengeti District Court (the trial court) with four counts namely; unlawful possession of weapons in the National Park without permit contrary to section 24(l)(b) and (2) of the National Parks Act (the NPA), unlawful possession of Government trophies to wit two fresh meat of zebra as second count, one dried skin of Topi as the third count and one dries skin of Thomson as fourth count contrary to section 86 (1) and (2) of the Wildlife Conservation Act No. 05 of 2009 Cap 283 RE 2022 (the WCA) read together with Paragraph 14 of Page 1 of 12 the First Schedule to, and sections 57 (1), 60 (2) of the Economic and Organized Crime Control Act [Cap. 200 R. E. 2002] (EOCCA). He was heard and convicted and sentenced to serve one year imprisonment, one year imprisonment for the first count and twenty years imprisonment for the rest of counts. It was adduced by prosecution that on 11/10/2022 at Mto wa Rangi area into Serengeti National Park, the appellant did enter into the National Park and found in unlawful possession of weapons to wit; one knife and three trapping wires. He was also found in unlawful possession of Government trophy above mentioned properties of the United Republic of Tanzania. The appellant denied the charges, action which attract full trial. In the process of proving their case, the prosecution paraded four witnesses and five (5) exhibits which were tendered and admitted in court as evidence. After a full trial the trial court was satisfied that the all counts were proved hence convicted and sentenced the appellant as stated herein above. The trial court's decision aggrieved the appellant and knocked the door of this court in search of his rights through his petition of appeal encompassed with four (4) grounds of appeal as follows; Page 2 of 12 1. That, the trial magistrate erred in laws and the facts to conviction and sentence the appellants because at the time of disposing of government trophies I was not there as law said like to take a photographer as evidence shown that during a time of disposing of government trophies I was there, (sic) 2. That, the trial magistrate erred in laws and the facts to conviction and sentence the appellant by admitted wrong evidence from PW1 and PW2 the evidence that testimony was not collaborate with the charge sheet read, (sic) 3. That, the trial magistrate erred in laws and the facts to conviction and sentence the appellant because the prosecution side did not prove the case beyond reasonable doubt from the witness of PW1, PW2, PW3 and PW4. (sic) 4. That, the trial magistrate had erred in laws and the facts to conviction and sentence the appellant because there were no any exhibit of government trophies that tendered at the court during this case at the trial magistrate, (sic) 5. That, the trial magistrate had erred in laws and the facts to conviction and sentence the appellant by admitted wrong exhibit PW4 because PW4 did not explain the GPS case was longitude or latitude, (sic) When the appeal was scheduled for hearing, the appellant was virtually connected from Tarime Prison and unrepresented while the respondent, Republic was represented by Ms. Agma Haule, learned State Attorney. Page 3 of 12 When given time to submit for his appeal the appellant had a very short submission which actually was a prayer, he prayed to be released, that was all. Ms. Haule shared the position that the Republic is against the appeal. She then submitted each ground of appeal starting with the 1st ground about the presence of the appellant during disposition. She was of the submission that it is not requirement of law the accused person to be present during disposition of seized Government trophy. In essence, she said, the witness testified on how the disposition was done and he tendered Exhibit 5 where he elaborated the appellant was present before the Magistrate when the disposition order was issued. Elaborating further he said the inventory was prepared under paragraph 28 of the PGO and appellant was taken before Magistrate for disposition Order, she insisted that it is not necessary the accused to be present during disposition and prayed this court to find the ground is less of merit. She then combined the 2nd and 3rd grounds about proving the offence beyond reasonable doubt. She submitted that it is clear that appellant was charged with four counts, being found in possession of weapon as first count and 2nd ,3rd and 4th be found with Government trophy. She elaborated that in the first offence, under section 34 (1) (b) of Cap 282 Page 4 of 12 ingredients is a person to be found in the National Park with weapon without permit and she referred page 15-21 of the proceedings where witness explain when they interrogate the appellant, appellant said he possess no permit to warrant him to enter in the park with weapon. Further she said witnesses tendered a map with coordinates which show appellant was within the National Park while exhibit Exh 1 and 2 prove some weapons were seized. She was of the position that prosecution managed to prove the first count. Ms. Agma went on submitting on the second, third and fourth counts ingredients is to be found with Government trophy without permit wherever within the country. She insisted that appellant declared he had no permit and the witnesses issue the seizure certificate to prove he had no permit. PW3 tendered the identification and valuation report then disposition order was issued and posed that the offence against the appellant was proved without doubts as all the requirement were met. Arguing on the 4th ground she submitted that PW5 testified during trial as featured in paged 29-30 of the proceedings when he explains how the exhibit was tendered before the Magistrate. She elaborated that, exhibit 5 was prepared to replace the Government trophy as the goods was perishable and the order was issued. So, exhibit replaced the Government Page 5 of 12 trophy. There was no need to tender the Government trophy as inventory form was enough. She prayed this court to find the ground lacks merit. In this appeal respondent Republic relied on the decision in Mohamed Juma @ Mpakama vs Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27th February 2019) because all what was directed by the court were met and prayed the appeal to be dismissed for lack of merit. During rejoinder the appellant pray this court to release him. That mark the end of submission and the duty of this court is to find out if the appeal is meritorious. In doing so I have to find only if prosecution managed to prove offences beyond reasonable doubt as this is a criminal case the standard is high. Starting with the first ground that the appellant was not present during disposition of the said Government trophy, as submitted by State Attorney the law is clear that what is required is when police is seeking for disposition order is when the accused (in this case appellant) is supposed to appear in person. Thereafter the law is silent. Section 101 of the Wildlife Conversation Act read that; '101.-(1) 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 in that behalf order that any animal, trophy, Page 6 of 12 weapon, vehicle, vessel or other article which has 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. (2) Where the article in respect of which an order under subsection (1) is made is not an animal or trophy, the court may, if it is satisfied that it would be just to do so, attach to the order a condition that the Director shall not dispose of that article until the expiration of three months from the date of the making of that order. (3) Notwithstanding the provisions of any written law to the contrary, on the expiration of three months from the making of an order under subsection (1) to which the condition under subsection (2) was attached, the order of the court shall be final and shall operate as a bar to any claim by or on behalf of any person claiming ownership of, or any interest in the article by virtue of any title arising before the order was made.' Because it is not the requirement of the law, then non-participation of the appellant cannot be fatal to prejudice the appellant and therefore the ground is less of merit. The remaining grounds 2nd, 3rd and 4th shall be analysed jointly as in essence of these grounds the appellant is complaining that the offence was not proved beyond reasonable doubt. I have closely read testimony of PW 5 at page 29 of the proceedings where he informed the trial Magistrate that he prepared Exh. P5 and took it Page 7 of 12 together with accused to Primary Court Magistrate for disposition ordered and the order was issued. I further read Exh 5 which is inventory used to issue disposition order and find it was prepared and signed by EDWARD B. KAZUNGU-ASP. That means the inventory which was prepared by PW5 was not tendered during trial. The inventory found tendered and admitted has no connection with the case that's why, appellant at the 4th ground complained there was no Government trophies. The order, if was issued was for different Government trophies not one subject to this appeal. The question here is who prepared the inventory (Exh 5) which was the base of the order of disposition and which, later on, replaced by the Exhibit 5. The question has no answer as one document cannot be prepared by two people. In other words, exhibit which was prepared by PW5 was not tendered during trial. This is a criminal case in which the standard of proving the offence is high, that is beyond reasonable doubt. The fact that the Exh P5 was prepared by two different people without giving any explanation create doubts. Proving an offence beyond reasonable doubt has been defined in the case of Samson Matiga vs Republic, Criminal Appeal No. 205 of 2007, CAT at Mtwara (unreported) where the Court of Appeal said; Page 8 of 12 'What it means, to put is simply, is that the prosecution evidence must be strongly as to leave no doubt to the criminal liability of an accused person.' It is the position of this court that find Exh P5 was illegally procured and tendered and must be removed from court record, as hereby do. See Ngasa Tambu vs. The Republic (Criminal Appeal 168 of 2019) [2022] TZCA 455 (21st July 2022). After removing Exh P5 the remaining evidence are not sufficient to warrant the appellant's conviction on 2nd, 3rd, and 4th counts. The offence will not be said to be proved in the absence of exhibit 5. Therefore, these grounds are sufficed to settle the appeal. On the rest of count, the appellant was charged with offence of unlawful possession of weapons while at Mto wa Rangi area in Serengeti National Park without permit contrary to section 24 (1) (b) and (2) of the NPA. Weapons mentioned were one knife and three trapping wires. The prosecution did provide coordinates of the place where the appellant was found. In addition, appellant was found with other items apart from weapons. Arresting officers were PW1 and PW2, lets read their testimony during trial; PW1 '....while on the said patrol we saw foot prints, we followed them into the bush. We surrounded the bush and arrest a Page 9 of 12 person ....we searched him and found him with two pieces of meat of Zebra, a dried skin of Topi and dried piece skin of Thomson, the local weapons to wit knife and three anima! trapping wires.' PW2 '....at the place we saw foot prints, we followed them into the bush and we entered there in and met a person, we surrounded the place and arrest him.....we found him, with weapons and Government trophy. The weapons were three animat trapping wires and knife. The trophies were two fresh pieces meat ofZebra and dried skin of Topi and Thomson.' Reading testimony of PW1 and PW2 at page 16-21 of the trial court proceedings being arrest officers as per above quotes, they narrated what they saw while in patrol, they saw the appellant alone with weapons and Government trophies. From their story appellant had one knife, three animal trapping wires, two fresh meat of zebra, one dried skin of Topi and one dries skin of Thomson. These witnesses failed to narrate how they find all those with the appellant, apart from contradiction whether they saw items or if they search him after the arrest. What did they search is not known. Was he carrying them in his hands or wrapped in paper bag or carried in his suit case, carried head or shoulder or were they down hidden? Appellant has only two hands, if the knife and trapping wires were on his hands, then where was the dried skin and meat Page 10 of 12 which was said to be found in his possession. By the way, a reasonable man may ask what was the size of the dry skin and what was the size (length and sickness) of the wires. Prosecution was silent on those issues as key witness failed to inform the trial court what exactly happened at the scene and what they saw when they arrest the appellant, specifically where do they search him. See Mwita Marwa © Kohe vs The Republic (Criminal Appeal No. 62 of 2022) [2023] TZHC 20472 (23 August 2023). I have further read the testimony of PW1 where he explained the knife had a blue handle covered with bladder. I then read Exh Pl which is seizure certificate it is written Kisu 01. The exhibit has no more explanation on size neither color. It is not clear if the weapon seized at the scene were the same tendered in court. Proving an offence beyond reasonable doubt traces its root under section 3 (2) (a) of the Evidence Act, Cap. 6 R.E. 2022 that; J4 fact is said to be proved when- (a) In criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists;' From the above analysis, I find prosecution failed to prove the offence to the required standard as their evidence creates doubts, and that the doubt Page 11 of 12 created has to benefit the appellant as was decided in Aidan Mwalulenga vs Republic, Criminal Appeal No. 207 of 2006, Chacha Ng’era vs The Republic, Criminal Appeal No. 87 Of 2010 (July 2013) CAT at Mwanza. I find the appeal is meritorious to the extent above and I hereby allow it. I quash the conviction and set aside the sentence uttered against the appellant. I order the appellant to be released from prison unless otherwise lawfully held. DATED in MPSOMA this 31th Day of July, 2024. K M. L. KOMBA Judge Judgement chamber in the presence of Ms. Happiness Machage, State Attorney for respondent and in the presence of the appellant. M. L. KOMBA Judge 31st July, 2023 Page 12 of 12