CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ARUSHA SUB-REGISTRY] AT ARUSHA CRIMINAL APPEAL NO. 15749 OF 2024 (C/F Economic Case No. 7 of 2022 in the District Court of Karatu at Karatu) BETWEEN REGINALD AMBROSE...................................................... ........... .. APPELLANT VERSUS THE REPUBLIC..............................................................................RESPONDENT JUDGMENT 13/2/2024 & 19/2/2025 MWENDA, J.: The appellant, one Reginald Ambrose was, before the District Court of Karatu at Karatu, arraigned for an offence of Unlawful Possession of Government Trophy contrary to Section 86 (1) and (2) (b) of the Wildlife Conservation Act No. 5 of 2009 [R.E 2022], read together with paragraph 14 of the First Schedule to, and Sections 57 (1) and 60 (2) both of the Economic and Organized Crime Control Act, [Cap. 200 R.E 2022]. In the particulars of the offence, the prosecutions alleged that on 10th of September 2022, the appellant, while at Endabash Village within Karatu District in Arusha Village, was found in possession of Government Trophy to wit; two pieces of elephant tusks weighing 3 kilograms which were valued 1 | P d ge at one Thousands and Six Hundred Fifty United States Dollars (USD1650) which by then, was equivalent to Three Million and Eight Hundred Forty Seven Thousand and Eight Hundred Tanzania Shillings (TZS 3,847,800/=) only, the property of Tanzania Government. When the charge was read over to the appellant, he pleaded not guilty. The prosecution partook its duty of proof by parading six (6) witnesses and in the cause, it tendered several exhibits. After a full trial, the appellant was convicted and sentenced to serve a term of Twenty (20) years jail imprisonment. Aggrieved by the conviction meted against him, he has preferred the present appeal. The same contain eight (8) grounds which read as follows: 1. That, the trial court erred in law and fact to convict the appellant while the prosecution case was not proved beyond reasonable doubts and there were serious contradictions between the prosecution's witnesses. 2. That, the trial court erred in law and fact to find that trophy, seizure certificate and trophy evaluation certificate were admitted without objection while the admissibility of them was objected and therefore the trial magistrate ought to have given them lesser weight. 2 | Pa ge 3. That, the trial court erred in law and fact to convict the Appellant while chain of custody of handling the government trophy was totally broken. 4. That, the District court erred in law and fact for it totality failed to properly analyze evidence adduced and employ wrong reasoning thus made a wrong findings and decision. 5. That, the trial court erred in law and fact for failure to held (sic) that searching of the Appellant's house if any was conducted contrary to the mandatory requirement of the law. 6. That, the trial court erred in law and fact for failure to rule against the prosecution case on the Appellant being arraign in court after the statutory prescribed time and the investigation and thereafter prosecution being conducted contrary to the mandatory requirement of the law. (sic) 7. That, the trial court erred in law and fact for failure to draw adverse inference against the prosecution case for their failure to call key witnesses including one NORBERT, other neutral witnesses and for failure to tender important documentary evidence, (sic) 3 | P a ge 8. That, the trial court erred in law and fact to convict the appellant after previous records from state Attorney hence the whole proceedings is a nullity, (sic) With the said grounds at hand, the appellant prayed this court to issue, in his favour, the following orders to wit, allowing this appeal by quashing and nullifying the trial court's decision, set aside the sentence and that he be immediately set free and released from prison custody. When we convened for hearing on 13th December 2024, both parties were in attendance and duly represented by the learned counsels. The appellant enjoyed the services from Mr. MNDEME, learned counsel whilst the respondent Republic was represented by MS. CHANG'A, learned State Counsel. Addressing the court, the learned State Attorney prayed this appeal to be disposed by way of written submissions. The court granted the said prayer, and the scheduling order, convenient to both parties was fixed. The learned counsel for the appellant had to file written submissions on or before 27/12/2024, the reply by the respondent Republic ought to be on or before 10/01/2025 and the rejoinder if any had to be filed on 24/01/2025. 4 | P a ge Despite showing comfort with the said schedule, it is unfortunate that it is only the appellant through MR. SAMWEL WELWEL, learned Counsel who has complied with the Court's order. The respondent republic, despite having enough state Attorneys did not bother to file any reply and or inform the court on what prevented them from complying with the court's order timely. I have endeavored to closely go through the petition of appeal, written submissions, the trial court's records and the case laws cited for reference. On that basis, I now turn to deliberate on the merits or demerits of this appeal by providing answers to the issue which is whether the prosecution's side proved its case to the required standard. In the cause I will start with 3rd grounds followed by the rest in sequence. Commencing with the 3rd ground of appeal, the appellant complained that the trial court erred in law and fact to convict him while the chain of custody of handling the government trophy was totally broken. While submitting in support of this ground, the learned counsel for the appellant had it that the chain of handing over the purported trophy was broken. His was that while 5 | P a ge PW.2 testified to have received and handled the trophy to CPL KASSIM, the said recipient was not called on to testify on whether the trophies so tendered are the same which were received by him from PW.2. On this ground of appeal, I wish to point out that from the record, what is gathered from prosecution's evidence is that having impounded the trophy in question from the suspects, the certificate of seizure was prepared and thereafter, the said trophy passed through several hands before its tendering in court. Beginning with PW.l [PC. KAMBONA], the exhibit keeper, in his testimony informed the trial court that on 15/10/2022 one CPL KASSIM handled over to him two pieces of elephant tusks which were related to case file number KRT/IR/1560/2022. According to him, the handing over forms were prepared and signed by the duo and other witnesses. In addition to that he testified that before the said trophies were handled over to him, the PF-16(chain of custody form) reflected that the said exhibits were on 11/9/2022 handled over to the wildlife officer for evaluation and identification and on the same date returned to CPL KASSIM, who had earlier on received them from INS. PROTAS [PW.2]. This witness tendered the said PF-16 as exhibit PW.2. His evidence was synonymous to that of PW.2 [ASP PROTAS]. 6 | P a ge Principally, the chain of custody is an important aspect in cases of this nature. It tends to show how exhibits is kept and changed hands from the point when it is seized to the date it is tendered in court. In this matter this court noted some shortfalls in respect of exhibit handling/keeping, chain of custody, trophy valuation certificate and certificate of seizure as follows. One that, while the prosecutions witnesses (PW.2) alleged that the trophies in question were impounded from the appellant at around 08.00 hours before returning to KARATU police station at 12.00 hours, the PF 16 reveals the same were handled over to CPL KASSIM at 01.00 hours. It is however not known where the said exhibits were kept between 12.00 hours and 01.00 hours. In his testimony PW.2 did not say where exactly did he keep the said exhibit before handling them to CPL KASSIM. Two, although none of the prosecution witnesses testified to have labelled the said trophies/exhibits, PW. 1 told the court that he received the already labelled [KRT/1R/1560/2022] exhibits from CPL KASSIM. With such evidence, it is evident that the trophy purported to impounded from the appellant had no special/distinct marks which was crucial in this matter. Any 7 | P a ge identification and description made by prosecutions witnesses during trial, to the trophies in question has nothing to do with what is purported to be found from the appellant. Three, the chronological documentation and/ or paper trail showing seizure, custody, handing over and analysis is doubtful. Commencing with certificate of seizure mine is that despite being witnessed and signed by those involved including the suspect and the witnesses, he, who is purported to conduct the said search dis not endorse his signature. In the said form, it is only his name which is appearing without any endorsement of his signature. With that shortfall it unsafe to conclude that the said PROTAS MKINI [P.W. 2] conducted any search and seizure as alleged by the prosecution. There is a likelihood that he was never involved in the said exercise, or such exercise was never conducted. Also, the chain of custody form is not properly filled and signed as required by the law. In the PF-16, any recipient of the exhibit must endorse his/her signature and the same applies to anyone involved in the subsequent movement of the said exhibit. In this matter as hinted above, there is not any signature of CPL KASSIM, INSP. PROTAS and PC. KAMBONA in PF-16. 8 | Pa ge It is only their names which is recorded thus, it is again unsafe to rely on it since the persons who are purported to be involved never endorsed their respective signatures. Lastly the trophy valuation certificate does not bear the Police File Number. It is unsafe to rely on it as it is unknown if the said report is related to the trophies which are purported to impounded from the appellant. From the above reasoning it suffices to say that the certificate of seizure, chain of custody form and the trophy evaluation form are negatively affected and as such they are eligible to be expunged from the record as I hereby do. With such expungement, it would mean one, there is no trophies which were impounded, two, even if the same were impounded from the appellant which is not the case then, it is not known if the same are the ones which were tendered as exhibit in court due to the broken chain of custody and three, the value of trophy under discussion is not ascertained to peg the sentence against the culprit. If that is done, the remaining prosecution's evidence will not suffice to prove the charge. Since the findings of the third ground of appeal suffices to dispose of this appeal, I thus find no need to determine the remaining grounds. 9 | P a ge In upshot, I agree with the learned counsel for the appellant that the case against the appellant was not proved beyond reasonable doubt. Consequently, I hereby allow the appeal and quash the conviction of the appellant and set aside the sentenced passed against him. I order his immediate release from prison unless he is held for other lawful cause. Ordered accordingly. DATED at ARUSHA this 19th day of February 2025. JUDGE 10 | P a ge