Judgement Criminal Appeal No

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF TANZANIA MOSHI SUB-REGISTRY AT MOSHI CRIMINAL APPEAL NO. 42 OF 2023 (C/F Economic Case No. 02 of 2018 in the District Court of Same at Same) EZEKIEL ELINAS @ MBWAMBO………………………..….……..APPELLANT VERSUS REPUBLIC………………………….….…………….…………. RESPONDENT JUDGEMENT Date of Last Order: 15.04.2024 Date of Judgment: 06.05.2024 MONGELLA, J. The appellant herein was arraigned in the district court of Same at Same (henceforth, the trial court) on three counts. The first count was on unlawful possession of Government trophy contrary to Section 86 (1) (2)(c) (i) of the Wildlife Conservation Act No. 5 of 2009, read together with paragraph 14 of the First Schedule and Section 57(1) of the Economic and Organized Crime Control Act, as amended by Section 16 (a) of Written Laws Miscellaneous Amendments) Act No. 3 of 2016 [Cap. 200, R.E. 2002]. The second count was on unlawful possession of weapons contrary to Section 103 of the Wildlife Conservation Act no 5 of 2009 read Page 1 of 21 together with paragraph 14 of the First Schedule and Section 57(1) of the Crime Control Act, [Cap. 200, R.E. 2002] as amended by Section 16 (a) of Written Laws Miscellaneous Amendments) Act No. 3 of 2016. The third count was on unlawful entry in national park contrary to Section 21(1) (a) of National Parks Act [CAP 282 R.E. 2002] as amended by Act 11 of 2003. The particulars of the offence on the first count were that: on 02.02.2018 at Soito area within the district of Same in Kilimanjaro region, the appellant was found in possession Government trophy to wit, eight legs of kudu valued at 5200 US Dollars; equivalent to eleven million four hundred and forty thousand (Tsh.11,440,000/=), the property of the Government of the United Republic of Tanzania. On the second count the particulars were to the effect that: on the same day of 02.02.2018 at Soito area in Mkomazi National Park within the district of Same in Kilimanjaro region, the appellant was found in unlawfully possession bush knife and traps for purpose of committing offence. The particulars on the final count were that: on 02.02.2018 at Soito area in Mkomazi National Park within the district of Same in Kilimanjaro region, the appellant did unlawfully enter in Mkomazi National Park without a permit from the relevant Authority. Page 2 of 21 The appellant was found guilty on all three counts. He was convicted out of his own plea of guilty and sentenced to serve an imprisonment term of 20 years. Aggrieved, he approached this court whereby Hon. Mwenepazi J. quashed the conviction and sentence and ordered the matter to be tried de novo. The matter was remitted to the trial court to enforce said order. In retrial, the prosecution mounted six (6) witnesses and produced six (6) exhibits to prove its case. The prosecution case was to the effect that on the material day of 02.02.2018, three conservational rangers to wit, PW1, PW3 and one Isaya Joel Mbwambo were patrolling at Mkomazi National Park. They noticed footsteps of a human being, which they traced. The footsteps led them to the appellant whom they found sitting under a tree. The appellant was questioned as to whether he had a permit. He was found to have none. He was then arrested and upon being searched, he was found with 8 legs of lesser Kudu, one torch, one bush knife and 23 trap/sneer wires. The items were seized and a seizure certificate thereof filled by PW1. PW3 and the said Isaya Mbwambo witnessed the said seizure. The seizure certificate was admitted as exhibit PE1. The appellant and the seized items were then taken to Same police station. At the station, PW1 handed over the said exhibits to one Sgt Richard (PW2), an exhibit keeper at the said station. The items were admitted before the trial court as Exhibit PE2. A hand over form was executed between PW1 and PW2. The same was admitted by the trial court as Exhibit PE3. Page 3 of 21 Further, the prosecution evidence presented that: on 05.02.2018, PW4, a Same district game officer came to Same police station to evaluate the 8 legs of Lesser Kudu. She received the same from PW2 and the exchange was documented by a handing over form duly executed between her and PW2. The same was admitted before the trial court as Exhibit PE4. PW4, identified the government trophy, to wit 8 legs of Lesser Kudu. She then dully filled a valuation report which was admitted as Exhibit PE6. Thereafter, PW4 took the 8 legs of the Lesser Kudu to court seeking a disposal order. PW5 one D/SGT Deogratius took the appellant out of police custody and followed PW4 to the court to obtain a disposal order. PW4 was granted a disposal order by Hon. Kigingi. An inventory form thereof was duly filled and the trophy was required to be buried. The burial was held in court premises in the presence of PW4, PW5, PW6-a court clerk, the appellant and Hon. Kigingi. The valuation report was admitted as exhibit PE6. Considering the prosecution evidence, the trial court found that the appellant with a case to answer. He defended as a sole witness. He alleged that on the fateful day of 02.02.2018 at 10:00hrs he left home with his stick in search of his lost goats. He went to Nadururu, which is a free grazing area. Then he saw rangers coming from Mkomazi National Park. They ordered him to sit down and started hitting him. That he tried to explain to them that he was in search of his goats, but they did not understand him. The rangers arrested him and took him to their office in the forest. Then around evening hours, they took him to Same police station while he was Page 4 of 21 unconscious. That, the police refused to take him in which caused the rangers to take him to the hospital where he was administered 3 drips of water. They returned to the police around 20:00hrs That, the PF3 issued was taken and he was taken into custody. After a day, his caution statement was recorded and after 3 days he was arraigned before the trial court. He further alleged that he was brought before Hon. Kigingi for disposal and an order was issued to that effect. He denied being found with trapping wires challenging the prosecution for not presenting photographs to prove the prosecution’s allegations. He also challenged the prosecution evidence for containing contradictory statements of its witnesses. He as well denied signing the alleged inventory form. The trial court found the 3rd count non-existent, thus acquitted the appellant of the same. As to the 1st and 2nd counts, the court found the appellant guilty as charged and convicted him accordingly. Consequently, he was sentenced to pay a fine of T.shs. 110,440,000/- in respect of each count or in default, to serve twenty years imprisonment term for each count. The sentence was set to run concurrently. Aggrieved by said decision, the appellant preferred the appeal at hand on the following grounds: 1. That the trial court grossly erred in law and fact when convicted and sentenced the appellant relying on exhibit PE5, which was irregularity procured. Page 5 of 21 2. That the trial court grossly erred in law and fact when convicted and sentenced the appellant while the charge sheet was defective. 3. That, the trial court grossly erred in law and fact when convicted and sentenced the appellant relying on weak incredible and unreliable prosecution evidence. 4. That, the trial court grossly erred in law and fact when convicted and sentenced the appellant while the prosecution evidence was loaded with contradictions discrepancies and inconsistences affecting the prosecution witnesses’ credibility. 5. That the trial court grossly erred in law and fact when convicted and sentenced the appellant while the defence case was not considered. 6. That the trial court grossly erred in law and fact when convicted and sentenced the appellant on the case which was not proved to the required standard. The appeal was argued by written submissions whereby the appellant was unrepresented while the respondent was represented by Mr. Henry Kasiano Daudi, learned state attorney. Page 6 of 21 The appellant generally submitted on his grounds of appeal. He averred that under the 1st count, the appellant was allegedly found in unlawful possession of government trophy to wit, 8 legs of Lesser Kudu, but the same were neither produced nor tendered as exhibits as the same were disposed vide an inventory form (Exhibit PE5). He faulted the trial court for relying solely on the said exhibit to hold that the said trophy existed while failing to note that the same was illegally and un-procedurally prepared, acquired and tendered as evidence. Explaining further, he averred that when PW4 prepared Exhibit PE5, he did not involve him. That, even when taken before the magistrate, the he was not accorded the opportunity to be heard before or after the same was disposed. In support of his argument, he referred the court to the case of Arbogast Augustino @ Shayo and 2 Others vs. Republic (Consolidated Criminal Appeals No. 24 of 2022) [2023] TZHC 16788 TANZLII. In his view, Exhibit PE5 was vital to the prosecution case and if expunged, as he requested, the prosecution’s case would crumble. He finalised by praying for the court to adopt all of his grounds of appeal, allow the appeal, quash the conviction and sentence and set him at liberty. The appeal was opposed by the respondent. Replying, Mr. Daudi had a firm stance that Exhibit PE5 was properly procured in accordance with the guidance under Paragraph 25 of PGO No. 229 and as emphasized in Mohamed Juma @ Mpakama vs. Republic Page 7 of 21 (Criminal Appeal 385 of 2017) [2019] TZCA 518 TANZLII. He contended that the appellant was present when the order for disposal was issued by Hon. Kigingi, a fact he well admitted in his testimony. In the premises, he had the view that the same signifies that he was accorded the opportunity to participate in the disposal of the Lesser Kudu meat and knew what was going on and thus his right was never infringed. Banking on the rest of the prosecution evidence, in case Exhibit PE5 is expunged, he argued that it is settled that the expunging or discarding of part of the evidence does not automatically mean that the remaining evidence is insufficient to secure a conviction. In that respect he referred the court to the case of William Maganga @ Charles vs. Republic (Criminal Appeal No. 104 of 2020) [2023] TZCA 17742 TANZLII. He added that even if this court would rule that Exhibit PE5 was illegally procured and expunge it from the record, it should consider the remaining evidence including the oral evidence of PW4, which he found sufficient enough to sustain a conviction. He in fact urged the court to do that. Arguing further, Mr. Daudi added that PW4 did identify the meat as being of Lesser Kudu distinguishing it from domestic animals. Addressing the 2nd ground, Mr. Daudi contended that the charge was properly drafted according to the law. He argued so on the ground that the charge contains statements of offences which the appellant was charged with and particulars of the said offences as required under Section 132 of the Criminal Procedure Act [Cap 20 R.E 2022]. In addition, he alleged that all witnesses testified in Page 8 of 21 relation to what was reflected in the charge and there was no variance between the charge and evidence adduced. In that observation, he urged the court to dismiss this ground for being baseless and for the appellant failing to show how the charge was defective. The 3rd, 4th, 5th and 6th grounds of appeal were argued collectively. On these grounds, Mr. Daudi averred that the trial magistrate did consider both, the prosecution evidence and the appellant’s defence. That, the trial magistrate considered whether the appellant was found in unlawful possession of government trophy to wit, 8 legs of Lesser Kudu, a bush knife and 23 trap wires within Mkomazi National Park in Soito Area. A certificate of seizure (Exhibit PE1) was dully filled and the appellant signed with his own thumb print, in presence of PW1. He further challenged the appellant for not objecting the admission of Exhibit PE1. He added that the appellant also acknowledged signing the exhibit during his arrest, which signifies that he agreed to have been in possession of all exhibits. In support of his arguments, he referred the case of William Maganga @ Charles vs. Republic (Criminal Appeal No. 104 of 2020) [2023] TZCA 17742 TANZLII. Arguing further, he contended that PW4 identified the meat found in the appellant’s possession as being legs of Lesser Kudu, a wild animal in group of antelopes. Commenting on chain of custody, he argued that the trial magistrate also satisfied himself on the chain of custody of said exhibits whereby he found the same to have been properly managed. Page 9 of 21 Mr. Daudi further contended that PW1 seized the items from the appellant and sent them to Same police station and handed them to PW3 through Exhibit PE3. That, PW2 handed over the Lesser Kudu meat to PW4 for disposal through Exhibit PE4. That, PW4 took the Lesser Kudu meat to Hon. Kigingi, a magistrate who issued a disposal order in presence of the appellant through Exhibit PE5. He added that the other exhibits to wit, 23 rapping wires, one torch and bush knife were under the custody of PW2 from the date they were received. That, PW2 handed the same to the prosecutor for them to be tendered before the trial court. In the premises, Mr. Daudi had the stance that the chain of custody was well documented and supported by oral evidence adduced by witnesses. He was firm that the legal requirement set in Chacha Jeremiah Murimi & Others vs. Republic (Criminal Appeal 551 of 2015) [2019] TZCA 52 (4 April 2019) was observed. The learned state attorney continued to argue by vehemently disputing the appellant’s assertion that prosecution witnesses contradicted. He saw no place in the proceedings manifesting any contradictions. He was firm that the prosecution case was consistence from the time the appellant was arrested with all exhibits to when all exhibits were tendered before the trial court. Addressing the claim that the defence evidence was not considered, he contended that the appellant was required under Section 106(3) of the Wildlife conservation Act to prove that he was not in possession of government trophy to wit, Lesser Kudu. That, while the appellant claimed that he was not arrested in possession Page 10 of 21 of a torch, bush knife, 23 trap wires and 8 legs of Lesser Kudu, he did not deny that he put a thumb print on the seizure certificate which was filled after he was found in possession of the said items. That, the appellant also admitted to have gone to Hon. Kigingi for a disposal order Mr. Daudi averred further that the trial court, in convicting the appellant, found the prosecution evidence credible, reliable, consistent and strong enough to convict the appellant. In his view, the defence was not satisfactory to hold water but was rather self- implicating when subjected to an objective interpretation. That, the defence evidence did not cast any reasonable doubt on the prosecution evidence. Mr. Daudi finalized his submissions by praying for the appeal to be dismissed. Rejoining, the appellant maintained that the charge against him was not proved beyond reasonable doubt. He alleged that Mr. Daudi had indirectly concurred to his submission regarding Exhibit PE5 (the inventory form) which was un-procedurally acquired and tendered as evidence. He further maintained that given the shortfalls on Exhibit PE5, if the same is expunged, there would be no any remaining evidence to sustain his conviction. He alleged that Mr. Daudi misdirected the court by alleging that Exhibit PE5 was properly procured and that if expunged, the surviving evidence would secure his conviction. He maintained that since he was charged for unlawful possession of government trophy to wit, 8 legs of Lesser Kudu, the same were to be tendered as Page 11 of 21 exhibits, but were not. That, it was alleged on trial that the alleged exhibits were disposed vide inventory form (Exhibit PE5) thus rendering the form vital in the prosecution case. He insisted that the surviving evidence would not sustain his conviction if Exhibit PE5 is expunged. Insisting that he was not given the right to be heard, he argued that being present during the disposal and being afforded the right to be heard are two distinct matters. On that, he referred the case of Mohamed Jumanne Mkwazu vs. Republic (Criminal Appeal No.61 of 2023) [2024] TZHC 983 TANZLII. He concluded by reiterating his prayers for the appeal to be allowed, conviction quashed, sentence set aside and he be set at liberty. After considering the grounds of appeal, the submissions of both parties and the lower court record; my observation is as follows: With respect to the 1st ground, the appellant faults the trial court for convicting and sentencing him while Exhibit PE5, the inventory form so tendered by the prosecution, was improperly procured. He challenges the propriety of the exhibit on the ground that it was not signed by him and he was not accorded the right to be heard when procured. Mr. Daudi, on the other hand, holds the view that the Exhibit was properly procured. He banked on the oral evidence by the prosecution witnesses as well as that of the appellant. Page 12 of 21 The contention between the parties is based on the requirement set under Paragraph 25 of the Police General Orders No. 229 regarding disposal of perishable exhibits. The same provides: “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.” According to the trial court record, it appears that the appellant was present during the disposal of the 8 legs of Lesser Kudu. This was testified by PW1 and PW3 who also claimed to have found the appellant in possession of the Exhibit during his arrest on 02.02.2018. The same was also testified by PW4, the game officer that evaluated the 8 legs of Lesser Kudu meat and sought the disposal order; PW5, a police officer who took the appellant to the court to witness the disposal; and PW6, a court clerk that witnessed the disposition. The appellant testified in his defence to have been present before the Magistrate when the disposal order was sought and issued. For ease of reference, I find it pertinent to quote his own words whereby, as seen at page 40 of the typed proceedings, he stated: “They brought me to Hon. Kigingi and they were seeking for disposal order. They had two sulphate which had meat and they were told to dispose the exhibit thereof.” Page 13 of 21 Further, Exhibit PE5 which was filled by PW4 reflects that the disposal took place on 05.02.2018. The Exhibit also bears the signature and remark by the Resident Magistrate stating that the Exhibit was seen to be destroyed. With respect to the claim of denial of right to be heard, I found no signature as claimed by the appellant and there is also nowhere indicated that he was accorded the right to be heard. In the premises, the question is thus whether the omissions rendered the procedure for procuring Exhibit PE5 wrong warranting the same to be expunged. It is evident from the cited provision of Order 25 of the Police General Orders 229, that the requirement for the suspect to sign the inventory form is not provided. The provision only requires the suspect who is in police custody to be allowed to be present. The Court of Appeal however, in Mohamed Juma @ Mpakama vs. Republic (supra) interpreted this provision whereby it stated: “The above paragraph 25 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.” Through case law therefore, appending of the suspect’s signature on the inventory form appears to be a requirement for purposes of proving the suspect’s presence in the said procedure. This was also ruled in the case of Kurwa Limbu @ Musha vs. Republic (Criminal Page 14 of 21 Appeal 279 of 2018) [2022] TZCA 436 (18 July 2022) whereby it was stated: “Further to that, the inventory form which shows the disposed exhibits alleged to have been found in possession of the appellant and his fellow bear no signature of the accused persons including the appellant. The absence of the appellant's signature suggests that the appellant was not present when the disposal was conducted. It is a settled procedural requirement that the accused has to be present during disposal process so as to afford him/her an opportunity to see the actual trophies and have an opportunity to raise an objection if any. But this was not the case in the matter at hand.” [Emphasis added] In Idd Hamis vs. Republic (Criminal Appeal No. 119 of 2022) [2024] TZCA 67 (20 February 2024) the Court of Appeal stated: “Glancing through exhibit P2, the inventory form, we find no indication that the appellant, who is alleged to have participated in the process, was allowed to append his signature. Appendage of signature on the document is an inalienable right which, if accorded to him, would be a near certainty of his participation in the process. No reason was given by the prosecution to justify this omission. This heightens the contention by the appellant that nothing was seized from him, and we hasten to add that there was, probably, nothing against which a destruction would be ordered.” In this case, it is undisputed that PW4, PW5, PW6 and the appellant testified to have been present when the disposal order was sought from the Magistrate and issued. The appellant testified to have seen Page 15 of 21 a sulphate with meat in it. This however is not sufficient to prove the appellant’s participation by being accorded the right to be heard. Addressing similar circumstances, the Court of Appeal, in the case of Buluka Leken Ole Ndidai & Another vs. Republic (Criminal Appeal No. 459 of 2020) [2024] TZCA 116 (21 February 2024) stated: “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, 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?” The Court proceeded to take note of the lacunae in law with respect to disposal procedure and offered solutions to address the same. Thus, even if the appellant’s presence is proved by the mentioned witnesses including himself, it does not serve as proof that the appellant was accorded the right to be heard. In Buluka Leken Ole Ndidai & Another vs. Republic (supra), the Court, having noted that the inventory form did not indicate that the appellants were present nor were their comments recorded anywhere, proceeded to state: “In our view, the void and emptiness left by the above questions lead to only one conclusion, Page 16 of 21 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 the appellants, for as against them, it is ineffectual.” In the foregoing analysis, it is clear that the inventory form, Exhibit PE5, was illegally procured. I therefore expunge the same from the record. Having expunged the inventory form which stood in place of the government trophy, the conviction and sentence on the offence of unlawful possession of government trophy cannot be sustained. The same are hereby quashed. The appellant was charged with another count on unlawful possession of weapons. Since, the appellant raised allegations contending that the charge was defective, and the surviving offence is unlawful possession of weapons, I find it imperative to reproduce Section 103 of the Wildlife Conservation Act, under which the offence was preferred. The provision states: “103. A person who is found in possession of any weapon or any other object in circumstances which raise a reasonable presumption that he has used or intends or is about to use the same for the purpose of the commission of an offence under this Act, shall, unless he shows lawful cause for such possession, commits an offence, and shall be liable on conviction to a fine of not less than two hundred thousand shillings but not exceeding five million shillings or to imprisonment for a term of not less than one year but not exceeding three years or to both.” Page 17 of 21 The above provision establishes the offence of unlawful possession of weapons. I am of the view that the particulars within the charge, which I have reproduced at the very beginning of this judgement, indicate that the appellant was found in possession of a bush knife and traps. As seen, the charge contains both, the statement of offence and particulars of the offence as required under Section 132 of the Criminal Procedure Act. In the circumstances, I find the 2nd ground without merit. At this juncture, the nagging question is whether this offence, that is, of unlawful possession of weapons, was proved against the appellant beyond reasonable doubt. Deliberating on this issue, I shall resolve the 3rd, 4th, 5th and 6th grounds generally. As testified by PW1 and PW3, who arrested the appellant within Mkomazi National Park at Soito area, the appellant was found in possession of a bush knife, trap wires and a torch. A seizure certificate (Exhibit PE1) was duly prepared by PW1 and signed by PW3 and one Isaya Joel Mbwambo. The three items were seized upon arrest and taken to Same police station. The case was registered as SAM/RB/346/2018. PW1 then handed the items to PW2, an exhibit keeper. PW2 testified to have received the same from PW1 and a hand over certificate (Exhibit PE3) was duly signed by both of them. PW2 relabelled the exhibits as 1/2018. On 30.10.2020 when the matter came for hearing, PW2 took the items to the trial court and handed the same to the Public Prosecutor. The items were admitted before the trial court on 30.10.2020 at the initial trial. Following the retrial order, on Page 18 of 21 07.03.2022, the torch, 23 trap wires and bush knife were again admitted and marked Exhibit PE2. In the premises, I am satisfied that there was sufficient oral evidence and documentation to prove the chain of custody of the bush knife and 23 trap wires. The appellant’s defence, which I find was dully considered by the trial court as vividly seen at page 16 of the trial court’s judgement, did not cast any reasonable doubt on the prosecution’s evidence. While he alleged that he had lost his goats, such information was unknown to his village leaders and his wife, whom he alleged was absent at the time. There were no details on where he had lost the said goats, or even the number of the goats he had. Further, the appellant never objected the admission of the weapons rendering the claim an afterthought at this stage. In the premises, I find the charge of unlawful possession of weapons well proved. The appellant also challenged the prosecution evidence for being contradictory. However, in his submission he did not point any contradictions in the said evidence for this court to examine and deliberate as to whether they go to the root of the case or not. In the foregoing, I quash the conviction and set aside the sentence meted against the appellant in relation to the 1st count. As to the 2nd count, I sustain the conviction against the appellant. However, with respect to the sentence issued against the appellant, I am alive that under Section 60 of the Economic and Page 19 of 21 Organized Crimes Control Act as amended by Section 13 of the Written Laws (Miscellaneous Amendments) Act, No. 3 of 2016 the penalty for all economic offences as defined therein is imprisonment for a term not less than 20 years and not more than 30 years. There is no option for fine. This position was also was well explained by the Court of Appeal in Chande Zuber Ngayaga & Another vs. Republic (Criminal Appeal 258 of 2020) [2022] TZCA 122 (18 March 2022), whereby it stated that: “The above provision, imposes a mandatory custodial term of not less than twenty years but not exceeding thirty years or to both that imprisonment and any other provided penal measure. This provision applies upon an accused person's conviction of any corruption or economic offence, notwithstanding provision of a different penalty under any other law. In this case, as indicated above, the appellant was convicted of an economic offence. As such, no option of fine is allowable and that the imprisonment cannot be levied in default of payment of a fine.” In the foregoing I set aside the trial court order for appellant to pay fine of T.shs. 110,440,000/- in respect of the 2nd count or in default, to serve twenty years imprisonment term. Consequently, in substitution thereof, the appellant shall serve a sentence of twenty years imprisonment term with respect to the 2nd count. The appeal is thus allowed to such extent. Page 20 of 21 Dated and delivered at Moshi on this 06th day of May, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 21 of 21