CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 22018 OF 2024 (Arising from the decision of the District Court of Masasi at Masasi in Criminal Case No. 11 of2020) EDWARD JOHN RAISI @ MACHECHE......... ............... APPELLANT VERSUS THE REPUBLIC .................................. RESPONDENT JUDGMENT November2024& Sh‘ December, 2024 MPAZE, J.: This appeal stems from the judgment delivered by the District Court of Masasi (the trial court), on 9th July ,2024 in Criminal Case No. 11 of 2020. In that case, the appellant was found guilty of the offence of unlawful possession of a government trophy, contrary to sections 86(1) and (2)(c)(ii) of the Wildlife Conservation Act No. 5 of 2009 (the WCA), as amended by Act No. 2 of 2016, read together with paragraph 14 of the First Schedule to, and sections 57(1), 60(2), and (3) of the Economic and Organised Crime Control Act, Cap. 200 R.E. 2019, as amended by Act No. 3 of 2016. i Consequently, the appellant was convicted and sentenced to a term of 20 years imprisonment. In addition to the custodial sentence, the appellant was ordered to pay a fine of TZS 2,000,000/=. Feeling aggrieved by the conviction and sentence imposed upon him, the appellant sought the intervention of this court by filing an appeal with ten grounds. However, when the matter was called for hearing, Mr. Edson Mwapili, State Attorney, who appeared for the Republic, supported the appeal based on the 6th and 7th grounds, stating that the two grounds alone were sufficient to dispose of the entire appeal. As a result, he saw no need to address the other grounds of appeal. Based on this account, the court will not list al! the grounds as lodged by the appellant, except where necessary for clarity or emphasis. At this stage, it suffices to state that the grounds supported by the State Attorney are as follows; 6. The trial court erred in law and fact by convicting and sentencing the appellant based on the evidence adduced by PW3 and her exhibit P4 (inventory form), which was neither credible nor reliable to support the conviction of the appellant. 7. That the trial court erred in law and fact by convicting and sentencing the Appellant while the prosecution was not proved (sic) 2 beyond reasonable doubt as required under section 3(2) of Tanzania Evidence Act Cap 6 R.E2022. The appellant, who was unrepresented, when invited to argue his appeal, he prayed the State Attorney be allowed to submit first. Accordingly, the State Attorney proceeded to set out his argument in support of the appeal. In supporting the appeal, the State Attorney claimed that the trial court erred in admitting Exhibit P4 (the inventory form) as Exhibit and relying on it to convict the appellant. He alleged that the procedure for disposing of perishable exhibits, as provided under section 101(1) and (2) of the WCA and paragraph 25 of PGO No. 229, was not properly adhered to in this case. Mr. Mwapili argued that, while these provisions address the disposal of perishable exhibits, they do not provide a detailed procedure, instead only asserting the necessity of involving the accused when an order for disposal is made. The State Attorney further referred to the case of Buluka Leken Ole Ndidai & Another v. R (Criminal Appeal No. 459 of 2020) [2024] TZCA116 (21 February 2024), where the Court of Appeal acknowledged the gap in the law and outline a five-step procedure to be followed when 3 issuing an order for the disposal of perishable exhibits. The five steps, according to that case, include; 1. The prayer for an order to dispose of the perishable exhibit must be made before a magistrate in chambers with full information. 2. If the order is likely to be relied upon in future proceedings, the accused must be present when the prayer is made. 3. The accused must be asked for any comments, objections, or remarks regarding the perishable exhibit intended for destruction. 4. If the accused does not make any objections or remarks, the magistrate should record this fact. 5. Any objections or remarks made by the accused must be recorded appropriately, either on the reverse side of the inventory form or on a separate document, and signed by the magistrate. The State Attorney argued that in the case at hand, PW6, who took the appellant to the magistrate (PW3), did not state whether the appellant was present when the prayer for the disposal order was made. Instead, PW6's testimony claimed that only the inventory form and the meat were presented to the magistrate, who issued the order for disposal without involving the appellant in any discussions or objections. Referring to the testimony of PW3, the State Attorney claimed that although the magistrate stated that the meat, the appellant, and the inventory were all brought before him, there was no indication that the appellant was invited to make any comments, objections, or remarks 4 regarding the order for the disposal of the meat. He alleged that this omission was a clear departure from the required legal procedures, as outlined in the Buluka Leken Ole Ndidai case (supra). The State Attorney further argued that since the procedures outlined in the Buluka Leken Ole Ndidai case specifically steps three, four, and five were not followed, Exhibit P4 should not have been admitted or relied upon in convicting the appellant. He maintained that without adherence to the required procedural steps, the inventory form could not be considered credible or reliable, and therefore, prayed it be expunged from the record. Moreover, the State Attorney stressed that as the meat had already been disposed of, and Exhibit P4 was the only remaining evidence if it were to be expunged, there would be no remaining proof to establish whether the appellant was found in possession of the monkey meat. In this regard, the State Attorney concluded by stating that, should Exhibit P4 be expunged from the record, the appellants complaint in ground 7 that the case was not proven beyond a reasonable doubt would stand, as there would be no evidence of the monkey meat or the inventory to prove that the appellant was found in possession of the said government trophy. Consequently, the prosecution’s case would entirely collapse. In light of this, he supported the appellant's appeal and prayed 5 that this court quash both the conviction and the sentence imposed by the trial court. After the State Attorney's submission, the court asked the appellant if he had anything to rejoin. The appellant responded that he had nothing to add. Once the hearing of this appeal was concluded by the parties, the duty now rested with the court to determine whether the appeal had merit. In determining whether the appeal had merit, I began by thoroughly examining the trial court record, where I noted that the charge against the appellant was unlawful possession of a government trophy, contrary to sections 86(1) and (2)(c)(ii) of the Wildlife Conservation Act No. 05 of 2009, as amended by Act No. 2 of 2016, read together with paragraph 14 of the First Schedule to, and sections 57(1), 60(2), and (3) of the Economic and Organised Crime Control Act, Cap. 200 R.E. 2019, as amended by Act No. 3 of 2016. According to the particulars of the offence, it was alleged that on the 27th day of December 2020, at Marika Village within Masasi District in Mtwara Region, Edward John Rais @ Macheche was found in unlawful possession of government trophy, specifically thirty-six (36) pieces of vervet monkey meat valued at Tanzania Shillings One Million Six Hundred 6 Sixty-Two Thousand Seven Hundred Eighty-Two and Four Cents (Tshs. 1,662,782.4), the property of the Government of the United Republic of Tanzania. It was further alleged that the possession was without a written permit or license duly sought and obtained from the Director of Wildlife. Upon examining the charge sheet, it is clear that for the prosecution to establish the charge against the appellant beyond a reasonable doubt, they had the duty to prove the following; 1. The appellant was found in possession of vervet monkey meat. 2. Such possession was without a permit or license issued by the Director of Wildlife. To answer the question, I raised regarding whether this appeal has merit, I will address it by considering the sub-issue of whether the prosecution met the required standard of proof to establish the charge against the appellant beyond a reasonable doubt. As I have already stated, the appellant was charged with unlawful possession of government trophies, specifically vervet monkey meat. Upon examining the trial court records, particularly the testimony of PW6 and PW3, it is clear that the meat was never tendered in court as a physical exhibit. Instead, what was tendered was a documentary exhibit, 7 namely the inventory form (Exhibit P4), which ordered the disposal of the said meat. In supporting this appeal, the State Attorney pointed out that there were flaws in the entire procedure leading to the issuance of the disposal order for perishable goods. He argued that since the procedure was not followed, and if Exhibit P4 were to be expunged from the record, there would no longer be any evidence to prove the offence against the appellant. The procedure for disposing of perishable goods is outlined in section 101 of the WCA and Paragraph 25 of the Police General Order (PGO) No. 229. Section 101 of the WCA specifically addresses the disposal of perishable government trophies by the Director, while Paragraph 25 of the PGO No. 229 focuses on the disposal process by the police. The disposition carried out in this case falls under the police procedure outlined in Paragraph 25, which states; ' 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 8 exhibits should be photographed before disposal.' [Emphasis added]. In this case, the prosecution relied on Exhibit P4 (the inventory form) to support the allegation that the appellant was found in possession of vervet monkey meat. PW6 testified that he took the appellant and the meat to the magistrate (PW3) for the issuance of an inventory. However, the evidence on record does not clearly establish that the appellant was given an opportunity to be heard before the magistrate as required. Additionally, there is no indication that the appellant made any comments, objections, or remarks regarding the order for disposal of the meat. The Court of Appeal in Mohamed Juma @ Mpakama v. R [2019] 1 T.L.R 514, emphasized the importance of adhering to these procedures. Failure to do so renders the inventory unreliable as evidence. The court held that the absence of an opportunity for the accused to object to the inventory, coupled with the lack of physical evidence or photographs, undermines the prosecution's case. The Court stated; ' While the police investigator, Detective Corporal Salmon (PW4), was fully entitled to seek the disposal order from the Primary Court magistrate, the resulting Inventory Form (Exhibit PE3) cannot 9 be proved against the appellant because he was not given the opportunity to be heard by the primary court magistrate. In addition, no photographs of the perishable Government trophies were taken as directed by the PGO. Our conclusion on the evidential probity of Exhibit PE3 ultimately coincides with that of the learned counsel for the respondent. Exhibits PE3cannot be relied on toprove that the appellant was found in unlawful possession of Government trophies mentioned in the chargesheet.- The Court further stated; 'With regard to the first count of unlawful possession of government trophies mentioned in the particulars of the charge, we agree with the learned counsel for the respondent Republic that ' unlawful possession of Government trophies, " which is a salient ingredient of this offence, was not proved, not at least because the Government trophies allegedly found in possession of the appellant were not physically tendered as evidence, and the appellant had no opportunity to object if he needed tof Similarly, in the present case, the prosecution failed to prove that the appellant was afforded an opportunity to comment or object during the preparation of Exhibit P4. Furthermore, the inventory form does not reflect adherence to the mandatory procedures outlined in PGO No. 229. lo As observed in Mohamed Juma @ Mpakama {supra), the exception to the general rule that the physical exhibit (meat) should be tendered in court does not apply unless the procedures for preparing an inventory are fully complied with. The failure to comply with these procedural safeguards makes it unsafe to rely on Exhibit P4 as evidence to convict the appellant, in addition to the Mohamed Juma @ Mpakama case, the case of Buluka Leken Ole Ndidai, as correctly referred to and submitted by the State Attorney, provides further guidelines to be followed when an order for the disposition of perishable goods by police is to be issued. Upon a thorough examination of Exhibit P4,I found no indication that the appellant was brought before PW3. There is no suggestion that he was asked to provide his comments before the disposal order was made. In short, the appellant was not involved in the disposition process. Scrutinizing further Exhibit P4, I observed that PW3 ordered the disposal of what is referred to as 'Nyama ya Ngedeie'(Monkey Meat), rather than specifically Vervet Monkey Meat, as stated in both the charge sheet and the Trophy Valuation Certificate. This discrepancy is noteworthy, as the term Ngedek,’ in the context of the Wildlife 11 Conservation (Valuation of Trophies) (Amendment) Regulations, 2023, broadly refers to Monkey. The regulations identify several distinct species of monkeys, including; 'Regulation 45: CoIobus Monkey (all races) Regulation 46: Blue Monkey Regulation 47: Sykes Monkey Regulation 48: Vervet Monkey Regulation 84: White-Nosed Monkey Regulation 85: Patas (Red) Monkey For clarity and to ensure proper documentation and procedural accuracy, it was essential for PW3, in compliance with the Wildlife Conservation Act and the PGO No. 229, to specify the exact species of monkey in the disposal order. Ideally, PW3 should have indicated, in brackets, the specific type of monkey meat that was being disposed of, such as Nyama ya Ngedele (Vervet Monkey) or Nyama ya Ngedele (Blue Monkey)) depending on the type. This would have resolved any ambiguity and ensured that the disposal order was consistent with the charge and supporting documents. 12 This failure to specify the species of monkey in the disposal order represents a procedural flaw that undermines the clarity and reliability of the evidence presented in the case. Without this crucial detail, it becomes challenging to conclusively link the evidence to the charge of unlawful possession of vervet monkey meat. Based on these procedural irregularities and the lack of a clear link between the disposal order and the charge, it is evident that the prosecution has failed to prove beyond a reasonable doubt that the appellant was in unlawful possession of vervet monkey meat. Therefore, I find merit in this appeal. Consequently, the appeal is hereby allowed, the conviction entered against the appellant is quashed, and the sentence is set aside. Given that the two grounds sufficiently dispose of the entire appeal, there is no need to address the remaining grounds. The appellant is to be released from custody forthwith unless lawfully held for another cause. Order accordingly. Dated at Mtwara this 5th December, 2024. M.B Mpaze Judge Court: Judgment has been delivered today in the presence of Mr. Joel Karangi, State Attorney and the appellant. M.B Mpaze Judge 5/12/2024 14