Fabian Judgment 1 1

1 IN THE HIGH COURT OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL NO. 17833 OF 2024 (Original Criminal Case No. 7606 of 2024 from Chato District Court at Chato before A. Mushi PRM) FABIAN KANYENJA KASWA---------------------------------------------APPELANT VERSUS THE REPUBLIC -----------------------------------------------------------RESPONDENT JUDGMENT Date of last Order: 09/09/2024 Date of Judgment: 10/10/2024 K. D. MHINA, J. FABIAN S/O KANYENJA @ KASWA, the appellant, appeared before the District Court of Chato at Chato, together with two other persons, charged with the following two counts. The first count charged the appellant with criminal trespass contrary to Sections 299 (a)(b) of the Penal Code [Cap. 16 R.E. 2022]. The particulars alleged that on 8 March 2024, the appellant entered into the Rubondo Island National Park at Mizo area with intent to commit an offence. 2 The second count which the appellant faced related to unlawful possession of a Monofilament Net Within the National Park. This offended Regulation 66(1)(a) and 66(4) of the Fisheries Regulation GN No.308 of 2009. The particulars of this count were that the appellant and two others, on 8 March 2024, within Rubondo Island National Park at Mizo area, were found in unlawful possession of one monofilament net for the purpose of fishing in the freshwater. He pleaded not guilty to both counts. The prosecution case was characterised by the testimony of one witness, Juma Mwangwa (PW1), who the trial Court recorded that he was the “conservation ranger”. His evidence, as found credible by the trial court, was that, on 8 March 2024, while on patrol within Rubondo National Park at Mizo area with his colleague, Benjamin Brasio, they arrested the appellant and two others in the canoe. Inside the canoe, they found a monofilament net (exhibit P2), which he seized (exhibit P1 collectively). He also recorded the coordinates of the scene by using a GPS machine. At the trial, he also identified and tendered the sketch map (exhibit P1 collectively). 3 In his defence, the appellant testified that they were arrested while on the way to Kasenda. The trial learned magistrate found the appellant guilty and convicted him on all two counts. On the first count, he was sentenced to pay a fine of TZS. 100,000/= or serve one year in prison in default. On the second count, he was sentenced to pay a fine of TZS. 2,000,000/= or serve three years in prison in default. Being dissatisfied with the conviction, the appellant filed his memorandum of appeal containing four grounds of appeal as follows; i. The trial court erred both in law and facts to decide against the Appellant while the chain of custody was not considered, nor was the exhibit custodian called to testify. ii. The trial court erred in law and facts to convict and sentence the Appellant without considering the rules governing the admissibility of electronic evidence as to GPS coordinates. iii. The trial court erred both in law and facts to convict and sentence the Appellant, while the prosecution did not bring necessary and/or important witnesses to prove their case. iv. The trial court erred in law and facts to determine the matter against the Appellant while the offences charged were not established by the Respondent; hence, they were not proved beyond reasonable doubt. 4 At the hearing, the appellant was represented by Mr. Innocent Kaijage, a learned advocate. The State Attorney, Ms. Scolastica Teffe, appeared for the respondent Republic. In his submission to support the appeal, Mr. Kaijage argued both grounds together. He stated that the trial court convicted the appellant based on the evidence of a single witness. However, the witness failed to establish the chain of custody for the monofilament net from when it was seized until the witness testified at the Court. He also stated that neither the exhibit register was tendered as an exhibit nor was the custodian of the exhibit called to testify on the chain of custody. To cement his position, he cited Zainab Nassoro @Zena vs. Republic, Criminal Appeal No. 348 of 2015 (Tanzlii), where the Court of Appeal held that all procedures must be followed in establishing the chain of custody. The aim is to prevent the exhibit from being planted fraudulently to make someone appear guilty. He further testified that the prosecution tendered exhibit P1 (sketch map) retrieved from the computer. That exhibit was tendered by the PW1, who was not the IT expert; thus, he did not qualify to tender it. Furthermore, 5 the witness failed to tender the certificate of authenticity as per section 10b of Cap 442 (The Electronic Transaction Act), read together with section 18 (2) of the same Act. Attacking further on the sketch map, Mr. Kaijage submitted that the witness did inform the trial court of the origin and the destination of the exhibit, and he did not testify after given the coordinates for drawing a sketch map where he stored the same until tendering at the Court. He concluded by testifying that the republic had a duty to prove the case beyond a reasonable doubt, but they failed to do so at the trial against the appellant. When she took the floor to respond, Ms. Teffe conceded the appeal right away. In supporting the appeal, she submitted that, one, the chain of custody was not established; two, the procedure of electronic evidence authentication was not adhered to. She explained that the witness did not testify to the abovementioned issues while GPS coordinates and chain of custody were significant evidence at the trial. 6 She concluded by submitting that the prosecution evidence built by a single witness did not prove the case to the hilt and that some of the crucial witnesses, such as an independent witness, were not called to testify on the seizure of the exhibit. Having gone through the grounds of appeal, the submissions by both parties and the entire appeal record, I wish to start with why the trial court convicted the appellant. In the conviction of the appellant, the trial court was satisfied that the certificate of seizure and the sketch map drawn proved that the appellant was arrested 1.6 kilometres inside the National Park in possession of a monofilament net. Though the republic/respondent conceded the appeal, it is still the duty of the court to determine the merits or demerits of the appeal. See Ahmadi Chali vs. Republic, Criminal Appeal No. 56 of 1995 (Tanzlii). In determining the grounds of appeal, I will start with the issue of chain of custody of the seized exhibit, i.e. monofilament net (exhibit P2) and witnesses to the chain of custody. This will determine the 1 st and 3rd grounds of appeal. 7 In his evidence, PW1 testified that when he arrested the appellant and his colleague, he filled the certificate of seizure (exhibit P1 collectively). Further, when he apprehended the appellant and his colleagues, he was with his fellow park ranger, Benjamin Brasio. Having perused the certificate of seizure, I found that it was signed by the PW1, the appellant and the co-accused persons, and Benjamin Brasio. However, Benjamin Brasio was not called as a witness to testify at the trial. The position of law on witnesses to the seizure is as follows: Unlike the Drugs Control and Enforcement Act or the Wildlife Conservation Act, which provides for the procedure for search and seizure, the Fisheries Regulation G.N No.308 of 2009, in which the appellant was prosecuted in the second count, does not have that provision. Therefore, in such a circumstance, the law applicable is the Criminal Procedure Act, Cap 20, and Section 38 (3) is the relevant section. That section provides that:- “Where anything is seized in pursuance of the powers conferred by subsection (1), the officer seizing the thing shall issue a receipt acknowledging the seizure of that thing, being the signature of the owner or occupier of the premises or his near relative or other 8 person for the time being in possession or control of the premises, and the signature of witnesses to the search, if any”. Under the CPA, calling for an independent witness is a mandatory requirement. Section 38 (3), cited above, imperatively provided for the need for an independent witness. See Jibril Okash Ahmed vs. The Republic, Criminal Appeal No. 331 of 2017 (Tanzlii). In the circumstances of this appeal, where it was alleged that the appellant and his colleague were arrested in the National Park, we don’t expect a civilian to be an independent witness. However, other park rangers can be witnesses to the search and seizure by signing the certificate of seizure and later testifying before the court. In this appeal, that is lacking because park ranger Benjamin Brasio, who signed the certificate, did not testify at the trial, and no explanation was given for that failure. Thus, because the search and seizure were conducted contrary to section 38 (3) of the CPA, the search and seizure of the monofilament net (exhibit P2) were not performed properly according to the law, and it is fatal. 9 See DPP vs. Mussa Khatibu Sembe, Criminal Appeal No. 130 of 2021 (Tanzlii). Flowing from above, the failure to conduct search and seizure according to the law affected the whole chain of custody for the monofilament net (exhibit P2). Furthermore, the prosecution's evidence at the trial did not indicate the trail/ movement of the monofilament net from its seizure until it was tendered in court. PW1’s evidence indicated the seizure of the exhibit and its tendering. Therefore, the chain from seizure to the tendering of the exhibit was/is fragile. The issue of the movement of exhibits has already been settled in a number of cases. The Court of Appeal in Allan Duller vs. The Republic, Criminal Appeal No. 367 of 2019 (Tanzlii), where it was held that; “It is, we consider, well established in law that movement of exhibits from the time of its seizure, investigation and production in court must be of such nature that will eliminate the allaying fears about the possibilities of its tempering are avoided”. The above discussion and findings directly affected the 2nd count of being unlawful in possession of monofilament net and automatically 10 disposed of the 1st and 3rd grounds of appeal. The 1st and 3rd grounds of appeal have merits. The next question is whether the appellant and his colleagues were arrested at Mizo area within Rubondo Island National Park. This will dispose of the 2nd ground of appeal and discuss the 1st Count in which the appellant was convicted at the trial. The evidence that the trial court based on its conviction was the sketch map and the evidence of PW1. However, having gone through the evidence of PW1 and the sketch map (exhibit P1 collectively), as rightly submitted by Mr. Kaijage for the appellant and conceded by Ms. Tefe for the Republic, the prosecution evidence was weak and did not prove the offence to the hilt. The evidence does not indicate how PW1 took the coordinates of the crime scene, where he submitted the coordinates (data) and who drew the sketch map electronically using those coordinates. It is trite that when data is collected to generate documents or evidence to be relied upon in court, it is essential for the collector to testify on how he collected the data, the method used to collect it, the tools used 11 to collect it and how he stored it. This is very important as it touches on the authenticity of the data collected and the evidence generated from that data. Therefore, the sketch map (Exhibit P1 collectively), which indicated that the appellant was arrested within Rubondo National Park, fails the authenticity test for the reasons I elaborated above. Following the expungement of exhibit P1, the remaining oral evidence of PW1 is insufficient to prove the charges against the appellant. That evidence alone is insufficient to prove that the appellant was within the statutory boundaries of the National Park. In offences of this nature, the Court of Appeal has already elaborated in Mosi s/o Chacha @ Iranga vs. The Republic, Criminal Appeal No. 508 of 2019 (Tanzlii) that; “…the evidence must prove that the game scouts arrested the appellants strictly within the statutory boundaries of this game reserve. It will not suffice, for the prosecution witnesses to merely allege that the scouts stopped the appellants 'at Mto Rubanda area into Ikongo Game Reserve' the trial court must evaluate competing evidence and be satisfied that the 'Mto Rubanda area' is within the Ikongo Game Reserve”. 12 From the above observation, the prosecution evidence is insufficient to establish that the appellants were found within Rubondo National Park . The evidence of PW1 alone does not suffice to discharge that burden. Thus, the 2nd ground of appeal also has merit. Flowing from above, since the 1st, 2nd, and 3rd grounds of appeal dispose of the appeal, then it is automatically that in the 4th ground of appeal, the prosecution side failed to prove the offences beyond reasonable doubt as the evidence against the appellant was weak. In the final analysis, the prosecution's evidence did not prove the case against the appellants on the required standard, justifying a finding of guilt and conviction; thus, in the upshot, I find merit in the appeal and allow it. Accordingly, I quash the appellant's conviction and substitute it with an acquittal, setting aside the sentences and orders. The appellants shall be released from prison forthwith unless their continued incarceration is due to any other lawful cause. 13 K. D. MHINA JUDGE 10/10/2024 Court: Right to appeal explained. K. D. MHINA JUDGE 10/10/2024 14