francis jeremia akyoo vs the republic 2023 tzhc 23456 14 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CRIMINAL APPEAL NO. 62 OF 2023 (Originating from the District Court of Arumeru at Arumeru in Economic Case No. 11 of 2022) FRANCIS JEREMIA AKYOO APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT 06th September & 14th December, 2023 KAMUZORA, J. The Appellant was aligned before the District Court of Arumeru at Arumeru (the trial court) in Economic Case No. 11 of 2022 and charged with two counts; one, the offence of unlawful possession of government trophy contrary to section 86(1) and (2) (c)(iii) of the Wildlife Conservation Act, No 5 of 2009 as amended by section 59 (a) and(b) of the Written Laws (Miscellaneous Amendments) Act No 2 Act No 4 of 2016 read together with paragraph 14 of the 1st Schedule to and section 57 (1) and 60(2) of the Economic and Organised Crime Control Act, [Cap 200 R.E 2019] and two, the offence of unlawful possession of weapon Page 1 of 16 contrary to sections 103 of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 of the 1st Schedule to and section 57 (1) and 60(2) of the Economic and Organised Crime Control Act, [Cap 200 R.E 2019]. The Appellant was convicted and sentenced to serve twenty-years imprisonment for the first count and one year imprisonment for the second count. It was alleged that, on 01st day of January 2022 at Arusha national Park within Arumeru District in Arusha Region, the Appellant was found in unlawfully possession of government trophy to wit, common waterbuck meat divided into two pieces which is equal to one killed common waterbuck valued at USD 850 equivalent to Tshs. 1,960,100/=, the property of the Government of the United Rrepublic of Tanzania without permit from the Director of Wildlife. It was also alleged that the Appellant was found in possession of weapon to wit, two bush knives and one snare wire, in the circumstance which raised reasonable presumption that he used them in commission of offence under the Wildlife Conservation Act, No. 5 of 2009. The Appellant was arrested by conservation rangers who were in normal patrol and sent to the police station and later aligned for the offences before the court. Before the trial court, the prosecution side paraded a total of four witnesses and on the other side, the Appellant defended himself and Page 2 of 16 presented no witness. Upon full trial, the trial court was convinced that the prosecution evidence was water tight against the Appellant hence, convicted and sentences him as above stated. The Appellant was aggrieved thus, preferred an appeal to this court on ten grounds which are summarised as hereunder: - 1. That, the trial court erred in not finding that the prosecution case was not proved beyond reasonable doubt. 2. That, the trial court erred in not finding that there was no independent witness involved in the course of arresting the Appellant. 3. The trial court erred in law and in fact in not finding that, the Appellant was not issued with a receipt to acknowledge the seized trophy contrary to mandatory requirement of section 38(3) of the CPA. 4. That, the trial court erred in law and in fact in not finding that, the prosecution failed to summon the exhibit keeper to tender handling over certificate to verify how did the said trophy was handed to him. 5. That, the trial court erred in law and in fact in not finding that, prosecution side failed to tender exhibit book (PF16). 6. That, the trial court erred in law and in fact in not finding that, there was no consent and certificate conferring power to the trial court. 7. That, the learned trial magistrate erred in law and in fact in not finding that the prosecution witnesses were not credible and their evidence could not warrant Appellant's conviction. Page 3 of 16 8. That, the trial court erred in law and in fact in not taking into consideration the defence evidence of the Appellant. Hearing of the appeal was by way of written submissions and as a matter of legal representation, the Appellant appeared in person while Mr. Alawi Hassan appeared for the Respondent, Republic. Arguing in support of appeal, the Appellant submitted, the prosecution evidence reveals that two people were arrested; the accused and one Jeremia Mrema but only the Appellant was sent to the police station. To him, the fact the Appellant was in the national park is doubtful. Appellant further submitted that, the prosecution side filed to present independent witnesses who witnessed the search and seizure. That, the prosecution side also failed to summon the magistrate who ordered disposal of the trophy thus, the evidence in support of disposal is doubtful. The Appellant also submitted that section 38(3) of the CPA and section 22(3) of EOCCA requires issuance of receipts acknowledging seizure of an item but in this case, the Appellant was not issued with a receipt as required by the law. The Appellant also submitted that, there is no proper chain of custody on how the trophy moved from one hand to another. To him, Page 4 of 16 change of hands from one person to the other was not well established hence led to the break of the chain of custody. The Appellant also submitted that the trial court had no jurisdiction to entertain the matter as there was no consent from the DPP conferring jurisdiction to the Subordinate court to entertain the matter as required under section 26(1) and 12(3) of the EOCCA. The Appellant claimed that the trial court did not consider the defence evidence specifically on the place of arrest. He was of the view that, the failure to consider the defence evidence is fatal and contrary to section 312(1) of the CPA. The Appellant insisted that the case was not proved to the required standard to warrant his conviction. On the Respondent's side Mr. Alawi supported conviction and sentence passed by the trial court. He submitted that the Respondent managed to prove that the Appellant was arrested inside the national park and his presence there was unlawful as possessed no permit from the director of Wildlife. On the Appellant's argument that one person was released, Mr. Alawi submitted that such fact was not raised before the trial court hence, cannot be raised on appeal. On the argument that there was no independent witness, Mr. Alawi submitted that exhibit P4 which is a certificate of seizure listed independent witness. He added that the testimony by PW4 indicate that Page 5 of 16 the certificate of seizure was also signed together by his fellow ranger as an independent witness could not be found at the scene. On the claim that the magistrate who signed the inventory was not summoned he replied that, during the tendering of the inventory form it was not objected and since the Appellant signed it, he acknowledged the disposal of the meat. Regarding the issuance of receipt, Mr. Alawi submitted that, PW4 who was the arresting officer elaborated that it was emergency search and arrest. He insisted that the fact that the receipt was not issued does not affect the fact that the Appellant was arrested in the national park with government trophy. To support his submission, he referred this court to the case of, Gitabeka Giyaya Vs. Republic, Criminal Appeal No 98 of 2017. He added that the chain of custody was intact and well established from seizure, custody, control, transfer, analysis and disposal of the same. That, PW1 received the exhibit from PW2 who received it from PW4 and that PW1 handed over to PW3. Mr Alawi further submitted that, the issue of consent and the certificate from the DPP was not raised before the trial court. That there is no irregularity which the Appellant could benefit from. He referred the case of Adam Selemani Njalamoto Vs. The Republic, Criminal Appeal No 196 of 2016 CAT at Dar es salaam. He insisted that the Page 6 of 16 evidence from PW1 to PW4 linked the Appellant with the offence the trial court properly convicted the Appellant. On the argument that another person by the name Jeremia Mrema was not charged, Mr. Alawi submitted that the said person was not indicated as accused person before the trial court hence, a stranger to the current appeal. He added that before the trial court there is no any other witness apart from the Appellant who testified and exhibit that was tendered to support defence case. He insisted that, the Appellant's evidence was well considered by the trial court. In concluding, Mr. Alawi was of the view that, prosecution evidence in totality, proved the case against the Appellant beyond reasonable doubt. He thus prayed for the appeal to be dismissed. In rejoinder, the Appellant reiterated his submission in chief and added that the alleged bush knife and snare wire were never tendered before the trial court as exhibits. Having carefully considered the trial court record, the submission made for and against the appeal, the crucial issue for determination is whether the prosecution side proved its case beyond reasonable doubt to warrant conviction of the Appellant by the trial court. I will first adjudicate on the issue of jurisdiction of the trial court as raised by the Appellant in one ground of appeal. It was contended by Page 7 of 16 the Appellant that the trial court had no jurisdiction to entertain the matter for lack of consent and certificate conferring jurisdiction dully issued by the Director of Public Prosecutions (DPP). There is no doubt that the Appellant was charged for economic offence. The law under section 3 of the EOCCA Cap 200, confers jurisdiction over economic offences to the High Court upon prosecution consent issued the DPP under section 26 (1) which read; "Subject to the provisions of this section, no trial in respect of an economic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions." The law under section 12 (3) of the Act gives powers to the DPP to certify for any economic offence triable by the High Court to be tried before the subordinate court. Section 12 (3) of the Act reads: - "The Director of Public Prosecutions or any State Attorney duly authorized by him, may, in each case in which he deems it necessary or appropriate in the public interest, by certificate under his hand, order that any case involving an offence triable by the Court under this Act be tried by such court subordinate to the High Court as he may specify in the certificate." From the above provision, the DPP or any State Attorney authorised by him may by a certificate, order any economic offence triable by High Court to be tried by a subordinate court. Page 8 of 16 In the the matter at hand, the trial court records show that the charge that was filed before the trial court was signed on 11th March 2022 and the consent together with the Certificate issued on 14th March 2022 were attached thereto. The same was duly signed by the Prosecution Attorney in charge. Although the same does not bare the date to which it was presented for filing before the court, the record shows that the Appellant was arraigned before the trial court on 23rd March 2022 and asked to plea to the charge meaning that the consent and certificate were filed jointly with the charge sheet. For that reason, I disagree with the submission by the Appellant that there was no consent and certificate that were filed before the trial court. From the above observation, the trial court was clothed with jurisdiction from the time the charged was filed in court. On the remained grounds; the following are issues raised by the Appellant; failure to present independent witness who witnessed search, failure to issue receipt after seizure, failure to prove chain of custody (failure to call exhibit keeper and failure to tender exhibit register), credibility of prosecution witnesses, failure to consider defence evidence and proof of case beyond reasonable doubt. Page 9 of 16 In order to clearly respond to the above issues, I find it pertinent to assess the evidence before the trial court, the evidence of all prosecution witnesses intends to show that the Appellant was found in possession of government trophy to wit, waterbuck meat and was also found in possession of weapon inside the national park which was reasonably believed to have been used in commission of offence. The testimony from PW1, D/Sgt Henry shows that he was a police officer and on 01/01/2022 he was at the police store at Usariver police station. One CPL Gideon (PW2) went there with two accused persons; Jeremia Akyoo and Jeremia Mrema and handled to him; two pieces of waterbuck meat, two bush knives and one snare wire. He registered the exhibits in the register book and kept the same. On 03/01/2022 PW1 handled the meat to Matiko Chacha (PW3) for identification and valuation. That, PW1 went together with Matiko Chacha and the accused persons for disposal order and thereafter returned the accused persons to the police station. The inventory form, two bush knives and one snare were admitted as exhibits in court. PW2 CPL Gideon is also a police officer at Usariver police station. His testimony reveals that on 01/01/2022, he was at the Usariver police station when one Pius Peter Mugirwa (PW4) went there with two accused persons; Francis Jeremia Akyoo and Jeremia Mrema and Page 10 of 16 exhibits which are two pieces of waterbuck meat, two bush knives and one snare wire. He registered the case against the accused persons and handled exhibits to PW1 who was the store keeper. PW3, Matiko Chacha is the Conservation Ranger working with KDU herein Arusha. He testimony reveal that he is responsible to identification and valuation of trophies. On 03/01/2022 he was phone by the investigator one Sgt Henry and went to Usariver police station where he was assigned duty to identify and valuate meat. He was sent to the store where the store keeper Sgt Henry handle meat to him for identification and valuation. He was able to identify the meat as waterbuck and valuated the same at USD 850 equivalent to TZS 1,960,000/=. He prepared the valuation certificate and listed items seized, name of the complainant one Pius Mgilwa and names of the accused persons; Francis Jeremia and Jeremia Mrema. That the same was signed by Francis Jeremia and Sgt Henry. That, they went together with the accused persons and Sgt Henry to Usariver police station for disposal of exhibits. The valuation certificate was admitted in court as exhibit. PW4, Pius Peter Mwigwira is the Conservation Ranger and arresting officer in this case. His testimony reveals that on the material date of alleged incident, 01/01/2022 he was on patrol at Ngurudoto forest with Page 11 of 16 his fellow rangers. They, arrested two people who identified themselves as Jeremia Dawson Mrema and Jeremia Akyoo. They found them with two pieces of wild animal which they identified as waterbuck. Each of those accused had a bush knife and they had a wire. They interrogated the accused persons if they had any permit to be there and to have the wildlife meat but they had none. PW4 prepared a certificate of seizure and sent the accused persons to Usariver police station. He handled the exhibits and accused persons to CPL Gideon (PW2) who registered a case for the offence of unlawful entering into national park without permit and unlawful possession of government trophy. From the above analysed evidence, all prosecution mentioned that two accused persons were arrested in respect of this case; PW1 mentioned them as Jeremia Akyoo and Jeremia Mrema Francis, PW2 mentioned them as Jeremia Akyoo and Jeremia Mrema, PW3 mentioned them as Francis Jeremia and Jeremia Mrema and PW4 mentioned them as Jeremia Dawson Mrema and Jeremia Akyoo. While testifying in court, they all identified the accused Francis Jeremia Akyoo as one among the accused arrested on the material date of incident. It is unfortunate that none of the witness was able to mention the whereabout of the other accused. It was expected for the prosecution to explain why they opted to charge one person while their evidence revels that two people were Page 12 of 16 arrested in the national park in unlawful possession of wild animal meat and prohibited weapon. It was expected for the prosecution side to give account for the whereabouts of the other accused person. The contention by the State Attorney that the matter ought to have been raised before the trial court is unfounded. In my view, the trial court was bound to assess the evidence in totality because there was clear evidence that two people were arrested but only one person was charged. What was needed is to assess the weight of prosecution evidence revealing the arrest of two people while only one person was charged. This court is therefore convinced with the Appellant's argument that failure to charge the other person whom was allegedly arrested together with the Appellant brings doubt on the prosecution case. Turning to issue on the chain of custody, the evidence reveal that the exhibits moved from the arresting officer (PW4) to the police officer who was on duty one CPL Gideon (PW2). From PW2 the exhibit was handled to the store keeper one Sgt Henry (PW1). PW1 handled the same to PW3 for identification and valuation. The Exhibit register was tendered evidencing the handover between CPL Gideon, Sgt Henry and Matiko Chacha. Nothing was presented to prove handover between CPL Gideon and Pius Peter Mwigwira who allegedly sized the exhibit from the Page 13 of 16 accused persons. I therefore agree with the Appellant's argument that there was broken chain of custody of the alleged exhibit hence weaken the prosecution case. The Appellant claimed that his testimony was not considered by the trial court. In my perusal to the proceedings, I discovered that the Appellant herein raised a defence that he was arrested with his fellow while picking grasses/pastures in the forest. They were asked by the conservation rangers to state if they saw people passing and when they failed to them, they were arrested and tortured to mention the poachers before they were sent to the police station. It was contended by the State Attorney that the Appellant's evidence was considered by the trial court at page 8 of the judgment. In my perusal to the judgment, I discovered that at page 8 of the judgment the trial magistrate pointed out that the Appellant in his defence raised doubt as to why he was not taken to the local leader around the area. It is unfortunate that the defence evidence does not contain such version of the story. Nowhere in his defence where the Appellant was complaining for not being sent to local leader. This seems to be an invention of new facts by the trial court. In that, I agree with the Appellant that his defence was not considered by the trial court. Page 14 of 16 It is a settled principle of law that this court can to step into the shoes of the trial court and assess the evidence in totality. Exercising such powers, I find that the defence evidence raised reasonable defence that they were two people found by Rangers in the forest cutting grasses. If the prosecution allege that those people were found in possession of wild animal meat and prohibited weapon, they were bound to prove such facts beyond reasonable doubt. But, as well discussed above, there are doubts on the number of people arrested and those charged in court as well as the whole process of chain of custody. In my view, the prosecution evidence was weak and could not safely be relied upon to conclude that the offence was proved beyond reasonable doubt. Having said so, I see no reason to waste much time in assessing the claim over failure to procure independent witness who witnessed search and seizure or the claim for failure to issue receipt to acknowledge the seizure of trophy. The above pointed weakness sufficient enough to conclude that the charges against the Appellant were not proved in the required standards in criminal cases. I therefore find merit in this appeal and proceed to allow the same. The conviction and sentence passed against the Appellant is hereby quashed and set Page 15 of 16 aside. The Appellant shall henceforth be released from prison immediately unless, held for any other lawful cause. DATED at ARUSHA this 14th day of December, 2023 D.C. MUZORA JUDGE Page 16 of 16