EMMANUEL DANIEL MASAKI V

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI RM CRIMINAL APPEAL NO. 13772 OF 2024 (Originating from Economic Case No. 04 of 2022 of the Resident Magistrate’s Court of Moshi at Moshi) EMMANUEL DANIEL MASAKI …………………………... APPELLANT VERSUS REPUBLIC …………………………………………………. RESPONDENT JUDGMENT 29/01/2025 & 26/02/2025 SIMFUKWE, J. Before the Resident Magistrate’s Court of Moshi, Emmanuel Daniel Masaki, hereinafter referred as the appellant was charged and convicted on three counts as follows: 1 1st Count: Unlawful possession of Government Trophy contrary to section 86(1)(2) (c) (iii) of the Wildlife Conservation Act, Cap 283 R.E 2022, as amended by section 59 of the Written Laws (Miscellaneous Amendment) Act, No. 2 of 2016, read together with paragraph 14 of the 1st Schedule and section 57(1) and 60(2) of the Economic and Organized Crimes Control Act, (Cap 200 R.E 2022). 2nd Count: Unlawful possession of weapons into the Conservation area contrary to section 103 of the Wildlife Conservation Act (supra) read together with Paragraph 14 of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organized Crimes Control Act, (supra). 3rd Count: Entering into the National Park contrary to section 21(1) (a) (2) of the National Park Act, Cap 282 R. E 2022, as amended by Written Laws (Miscellaneous Amendments) Act, NO. 11 of 2003. The particulars in support of the three counts are to the effect that on 6th December 2020 at Ngaroni area in Kilimanjaro National Park within Siha district in Kilimanjaro Region, the appellant did unlawfully enter into Kilimanjaro National Park without a permit from authorized authority. The appellant is alleged to have been found in unlawful possession of one 2 bush knife, two traps and fresh Dikdik meat equivalent to one killed Dikdik valued at 250 USD, which is equivalent to TZS 579,750/= only the property of the United Republic of Tanzania. After being arraigned before the trial court, the appellant pleaded not guilty. To prove their case, the prosecution side called five witnesses and tendered eight exhibits. According to the records of the trial court the brief facts of the case were that on the material date PW1, PW2 and one Pendael Kilimba were on patrol at Ngaroni area within Kilimanjaro National Park. While on patrol they saw the appellant holding a sulphate bag and a bush knife. They surrounded him and managed to arrest him. The appellant was searched by PW2 who found him in possession of fresh dikdik meat, one bush knife and two manila ropes. They asked the accused if he had any permit for entering into the National Park and for possessing government trophy. However, the appellant had no permit. Then, PW2 filled a certificate of seizure (exhibit P1) which was signed by conservation rangers and the appellant. Thereafter, the appellant and the seized exhibits were taken to Moshi Central Police Station. The exhibits were handed over to PW4 a police officer through the handing over certificate (exhibit P2). Then, PW1 registered and labelled 3 the exhibits in the exhibit register PF16 (exhibit P7) before the same were kept in the exhibits room. On 07/12/2020 PW1 handed over the dikdik meat to the investigator of the case PW5. PW5 communicated with PW3 a Game Officer who identified and valued the seized dikdik meat. A Trophy Valuation Certificate was filled to that effect (exhibit P5). Thereafter, PW5 prepared an inventory form (exhibit P8) and took the appellant together with the dikdik meat before Moshi district court seeking the disposal order. The order to dispose of the meat was issued by the court. In his defence the appellant denied to have committed the offence. He stated that, on the material date, the conservation rangers found him at the farm which borders Kilimanjaro National Park. They told him to go with them. He was then taken to their camp where he was ordered to enter inside, he left his sulphate bag containing grasses outside. He was interrogated and required to sign some papers. Thereafter, the rangers took a sulphate bag and put the dikdik meat in it. The appellant was then taken to Moshi Central Police Station. In short, it was the defence of the appellant that the conservation rangers fabricated the case against him. After full trial, the trial magistrate was of the opinion that the prosecution case was proved beyond reasonable doubts. Consequently, the appellant was convicted and sentenced to serve twenty years term of imprisonment 4 on the first and second count and one year imprisonment on the third count. Sentences were ordered to run concurrently. The appellant was aggrieved, he filed the instant appeal on the following grounds: 1. That the learned trial Magistrate grossly erred both in law and fact in failing to note that, the whole exercise of search and seizure allegedly conducted against the appellant flouted the mandatory provisions of section 38(2) of the C.P.A, Cap 20, since there were (sic) no report made to the nearest Magistrate soon after the completion of the said exercise in order to get the Magistrate’s approval on the said search and seizure, as there was no search warrant sought before the alleged search being conducted as stipulated under the above mentioned law. 2. That, the learned trial Magistrate grossly erred in law and fact in relying upon the certificate of seizure (Exh. P1) to hold that, the appellant was unlawfully found in possession of government trophy and weapon, but failed to note that this particular exhibit was tendered in 5 evidence by incompetent witness (PW1) since he was neither the maker nor the custodian of the same. Further, there is no explanation on how it found its way on the hands of PW1 who tendered it in evidence as exhibit. 3. That, the learned trial Magistrate grossly erred both in law and fact in convicting the appellant on irregular proceedings which flouted the mandatory provisions pf section 214 of the C.P.A, as the appellant was not accorded with his right to choose whether the already testified witnesses re-summoned and re-testify. 4. That, the learned trial Magistrate grossly erred both in law and in fact in relying upon the inventory form (Exh. P8) to find and hold that, the alleged trophy real existed, despite the said exhibit P8 being unprocedurally acquired, tendered and admitted in evidence as exhibit, since the appellant was not accorded with a right to be heard before or after the alleged disposition of the said seized wild animal meat. 5. That, the learned trial Magistrate grossly erred both in law and fact in convicting and sentencing the appellant 6 on the third count of entering into the National Park basing on a wrong provision of law. 6. That, the learned trial Magistrate grossly erred both in law and fact in using weak, tenuous, incredible and wholly unreliable prosecution’s evidence as a basis of the appellant’s conviction. 7. That, the learned trial Magistrate grossly erred both in law and fact in convicting and sentencing the appellant despite the charge being not proved beyond reasonable doubt against the appellant and to the required standard by the law. The appellant prayed his appeal to be allowed, conviction be quashed, set aside the sentence and set him free. Hearing of the appeal was conducted by way of written submissions. The appellant was unrepresented while the respondent was represented by Mr. Innocent Ng’assi, the learned State Attorney. In his submission in chief, the appellant submitted among other things that, the search and seizure of the government trophy and weapons was done without search warrant contrary to section 38(2) of the C.P.A. He was of the opinion that the omission to adhere to the above cited 7 provision of the law rendered the whole exercise of search and seizure null. The appellant subscribed to the decision of the Court of Appeal in the case of Shaban Said Kindamba v. R, Criminal Appeal No. 390 of 2019 at page 15 where it was held that: “The tone of the provision above cited, and the fact that under Paragraph 2(a) and (b) of the P.G.O, there is even a requirement of obtaining permission from a Magistrate before effecting search, shows that the intention was to prevent abuse of powers of search and arrest. The requirement to obtain approval of a Magistrate is echoed in section 38(2) of the CPA.” On the second ground of appeal, the appellant faulted the trial Magistrate for relying on the certificate of seizure (exhibit P1) which he believed was tendered by an incompetent witness (PW1). He submitted that PW1 was neither the maker nor custodian of exhibit P1. It was submitted further that there was no explanation on how PW1 came into possession of exhibit P1. That, PW1 testified that exhibit P1 was filled by PW2 and it was not among the exhibits which were handed over to PW4 by PW2. Meaning that exhibit P1 remained in the hands of PW2. Support was sought from the case of Meshaki Abel Ezekiel v. R, Criminal Appeal No. 297 of 2013 at page 14 where the Court of Appeal held that: 8 “….. Like the Learned State Attorney, we also wonder how come the Rifle and ammunition that had been stolen from the complainant, later recovered by the police in the forest, found way back to the complainant who tendered the same as exhibit P1 and P2.” On the fourth ground of appeal, the appellant faulted the trial Magistrate for relying on the inventory form (exhibit P8) which he was of the view that was unprocedurally acquired. He stated that PW5 never said whether the appellant herein was ever involved before, during or after the preparation of the said inventory form. Moreover, PW5 never said whether the appellant was present during the said disposition of the alleged wild meat and accorded with an opportunity to be heard. The argument was buttressed with the case of Buluka Lekeni Ole Ndidai and Another v. R, Criminal Appeal No. 459 of 2020, TZCA 116 [2024] Tanzlii (21 February 2024) at pages 13-14 where the Court held as follows: “As seen above, we indicated that PW3 testified that at the time of seeking a disposal order, the suspects were present. In our view, that simple linear statement is insufficient. Because it leaves many more questions unanswered in view of this court’s authorities we referred to above. Such queries are like; one, if the suspects were present before the magistrate, where is it indicated in the inventory, 9 that the suspects were present? Two, were they asked for any comment, remark or objection as regards the exhibit which was being sought to be disposed of? If yes, where is the record of their comment, remark or observation in that respect?” In our view, the void and emptiness left by the above questions lead to only one conclusion, namely, that the appellants were not heard and their comments or objections (if any) were not taken, at the time the disposal order was being procured. If that is the case, which we are confident it is, the inventory cannot be relied upon to prove any case against them, it is ineffectual.” The appellant said that the scenario in the above cited case is quite similar to what happened in this case. He alleged that he was not present during the seeking of an order to dispose the said wild meat or during the disposition of the same. Hence, exhibit P8 was unreliable as it does not reflect anywhere that the appellant was present during the alleged exercise of disposition. He prayed that exhibit P8 be expunged from the record rendering lack of evidence to sustain the conviction entered against him. In conclusion, the appellant reiterated his prayer to find merit in this appeal, quash the conviction, set aside the sentence and set him at liberty. 10 In his reply Mr. Innocent Ng’assi started by stating that he supports the conviction and sentence meted against the appellant and partly supports the appellant’s appeal. On the issue of search and seizure, Mr. Ng’assi submitted that the contention brought by the appellant is misconceived as he cited a wrong provision of the law regarding his arrest and search. The learned State Attorney stated that the arrest and search of the appellant was conducted according to section 106 of the Wildlife Conservation Act, (supra) which empowers authorized officers of wildlife to search in any place except in dwelling house where a warrant must be obtained. Hence, the circumstances of the appellant’s case amount to search under emergency. On the issue of competency of PW1 to tender a certificate of seizure; Mr. Ng’assi replied that PW1 was a competent witness to tender the said document since he had knowledge of the document and to prove that his name does appear on exhibit P1. The learned State Attorney relied on the case of DPP v. Mirza Pirbakhshi alia Hadji and 3 Others, Criminal Appeal No. 493 of 2016 in which at page 7 and 8 the Court of Appeal at Arusha said that: “A person who at one point in time possesses anything, a subject matter of trial….is not only a competent witness to testify but he 11 could also tender the same. It is our view that it is not the law that it must always be tendered by a custodian. The test for tendering the exhibit therefore is whether the witness has the knowledge and he possessed the thing in question at some point in time, albeit shortly. So, a possessor or a custodian or an actual owner or alike are legally capable of tendering the intended exhibits in question provided he has the knowledge of the thing in question.” On the fourth ground of appeal which concerns disposal of dikdik meat; the learned State Attorney conceded that the accused was not involved in the process of disposing of the perishable exhibit. He said that the same was contrary to the Police General Order 229 Paragraph 25 which directs that it is mandatory requirement for the accused person to be present during the disposal process of perishable exhibits. Mr. Ng’assi explained that the position was found in the case of Nyamhanga Mwise Muhere v. R, Criminal Appeal No. 304 of 2020, Court of Appeal of Tanzania at Musoma and Mohamed Juma @ Mpakama v. R [2019] T.L.R 514 which were cited in Maria Emirio Ngoda v. R, (Criminal Appeal No. 37116 of 2023) [2024] TZHC 258 (16 February 2024). However, Mr. Ng’assi was of the opinion that regardless of improper procurement of the inventory for destruction of the dikdik meat, there is 12 enough available evidence to hold the appellant liable. He elaborated that the appellant was arrested in the conservation area at Ngaroni area within Kilimanjaro National Park by wildlife officers (PW1 and PW2). That, a certificate of seizure was prepared which listed the dikdik meat, bush knife and two traps. The same was signed by the appellant meaning that he agreed to the contents found in the said document which was admitted as exhibit P1. The said traps and bush knife were admitted as exhibit P3. It was contended further by the learned State Attorney that the appellant never cross examined PW1 and PW2 in respect of exhibit P1 and P3. That, the appellant never disputed to had signed the certificate of seizure, he only disputed the procedure of obtaining it. Mr. Ng’assi insisted that it is settled principle that failure to cross examine in important matters is deemed acceptance of that matter and will be estopped from asking the trial court to disbelieve what the witness said. Reference was made to the case of Nyerere Nyague v. R, Criminal Appeal No. 67 of 2010 [2012] TZCA 103 (21 May 2012). The learned State Attorney prayed the appeal to be dismissed in its entirety. 13 I have considered the rival submissions of both parties, the grounds of appeal and the trial court’s records. The issue for determination is whether the raised grounds of appeal have merit. I will start to consider the 4th ground of appeal for the sake of convenience as it is in respect of point of law. On this ground the appellant complained that the Inventory Form (exhibit P8) was totally unreliable as the same was unprocedurally acquired. Exhibit P8 was faulted on the ground that the appellant was not present during the disposition of the alleged wild meat and that the appellant was not accorded with an opportunity to be heard. The appellant fortified his argument by citing the case of Buluka Lekeni Ole Ndidai and Another v. R (supra). Mr. Ng’assi for the Republic conceded to the anomaly in respect of exhibit P8. He vehemently faulted the trial court and commented that the procedure followed in destruction of meat was totally against the law. He cited the P.G.O 229 Paragraph 25, the cases of Nyamhanga Mwise Muhere v. R (supra) and Mohamed Juma @ Mpakama v. R (supra) to substantiate his submission. At the same time, the learned State Attorney was of settled mind that regardless of improper procurement of the Inventory for destruction of exhibit, there is sufficient evidence to hold 14 the appellant liable. He made reference to the remaining evidence which was adduced against the appellant. Paragraph 25 of P.G.O 229 provides that: “25. 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 exhibits should be photographed before disposal." [Emphasis added]. In the case of Buluka Lekeni Ole Ndidai and Another v. R, at page 10 the Court of Appeal observed that: “In the case of Mohamed Juma Mpakama, (supra) it was held at page 516 thus: - "Vii. Paragraph 25 of PGO envisages any nearest Magistrate, who may issue an order to dispose of perishable exhibit. This paragraph 25 in addition emphasizes the mandatory right of an accused (if he is in custody or out on police bail) to be present before the Magistrate and be heard." [Emphasis added] 15 As a consequence, the Court at page 527 observed: "...While the police investigator, Detective Corporal Simon (PW4), was fully entitled to seek the disposal order from the primary court magistrate, the resulting Inventory Form (exhibit PE3) cannot be proved against the Appellant because he was not given the opportunity to be heard by the primary court magistrate." [Emphasis added]” Also, I subscribe to the Judiciary of Tanzania Exhibits Management Guidelines, 2020; Items 4.4.1 and 4.4.2.1 which provide that: “(a) The court may order storage or disposal of perishable goods before commencement or during trial depending on the nature of the exhibit; and (b) Storage or disposal order shall direct where and how the perishable goods shall be kept and treated. 4.4.2.1. The court shall record the proceedings for the said disposal.” Emphasis added Based on the above quoted authorities, respectfully to the learned State Attorney, on the outset, I disagree with his argument. The charges against 16 the appellant cannot be proved beyond reasonable doubt where the Inventory Form is flawed. The case of Buluka Lekeni Ole Ndidai (supra) at page 16, the Court concluded that: “Finally, in view of this Court's consistent position as regards affording the suspects the right to be heard at the time of issuing a disposal order, exhibit P5 in this case was illegally procured. In Juma Mohamed @ Mpakama (supra), we said "the resulting Inventory Form (exhibit PE3) cannot be proved against the Appellant because he was not given the opportunity to be heard by the primary court magistrate." Based on that authority, we expunge exhibit P5 from the record. In the absence of the Inventory Form, which stands in the place of the destroyed trophies, there is no way legally conceivable, that the appellants can still legally remain blameworthy of the offence charged, in the aftermath of discarding exhibit P5. In fine, the first ground of appeal succeeds to the above extent. In the same vein because, discarding exhibit P5 is sufficient to dispose of the appeal, which we allow, we find no need to engage in discussing any other grounds of appeal.” Emphasis mine 17 Guided by the Court of Appeal decision cited above, in the appeal before me, I have no alternative other than to expunge exhibit P8 from the record, which I hereby do. As I have already said, in absence of the inventory form which is the root of the charges against the appellant, the charges cannot be proved beyond reasonable doubts. In the upshot, the 4th ground of appeal suffices to dispose of the instant appeal. That said and done, I allow the appeal, quash the appellant's conviction and set aside the sentences imposed on him. The appellant is ordered to be set free forthwith, unless lawfully held. Appeal allowed. Dated and delivered at Moshi this 26th February 2025. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 26/02/2025 18