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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA CRIMINAL APPEAL NO. 20211 OF 2024 (Originating from Economic Case No. 06 of 2023 in the District Court of Momba at Chapwa) FREDY S/O MARKO KOTA.………………………………… APPELLANT

VERSUS THE REPUBLIC……………………...…..………………..RESPONDENT

JUDGMENT Date: 5 September 2024 & 11 September 2024 SINDA, J.: The appellant was charged with and convicted of the offence of unlawfully possession of government trophy contrary to section 86 (1) (2) (c) (iii) of the Wildlife Conservation Act, Cap. 283 (the Wildlife Act) read together with paragraph 14 of the First Schedule to and section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, Cap. 200 R.E 2022. The 1 District Court of Momba at Chapwa (the District Court) convicted the appellant and sentenced him to ten (10) years imprisonment. The particulars of the offence are that on 3 December 2022 at Kamsamba area within Momba District in Songwe Region, the appellant was found in possession of Government trophy to wit, one piece of giraffe tail, one piece of civet cat skin, one piece of hippopotamus tooth, one piece of giraffe tail, one piece of pangolin scale, one wildebeest tail, two pieces of porcupine skin, one leopard lower jaw, one piece of vulture beak and mamba snake scales all valued at TZS 53,030,800/= only, the property of the Government of the United Republic of Tanzania without a permit. The appellant challenge his conviction and the corresponding sentence on the following grounds: 1. That the leaned trial court magistrate erred in law and facts by convicting and sentencing the appellant while the case was not proved on the standards required in criminal cases that is beyond a reasonable doubt.

2. That the leaned trial court magistrate erred in law and facts by deciding the case basing on the exhibits which were retrieved in an illegal search conducted by PW1 violating law governing the procedures for search hence unjustifiably convicted and sentenced the appellant. 2 3. That, learned trial magistrate erred in law and facts by convicting and sentencing appellant basing on exhibit (PE2) which was brought at the court from illegal search and the chain of custody was not proved. No witness testified keeping the same.

4. That, the learned trial magistrate erred in law and fact by convicting and sentencing the appellant by believing the evidence mere evidence of PW3.

5. That, the learned trial Magistrate erred in law and facts by sentencing the appellant severely punishment of ten years imprisonment or heavy fine o 53,030,800/= despite the fact that the case was not proof at the required standard, at beyond the reasonable doubt. At the hearing of the appeal, the appellant appeared in person, unrepresented. The respondent was represented by Mr. James Mwenda, learned State Attorney. The appellant requested the Court to consider his grounds in the petition of appeal as presented in the Court. The appellants opted for Mr. Mwenda to reply to them first so he could rejoin in case such need arose. Mr. Mwenda supported the appeal. He submitted on ground number three on chain of custody that in the proceedings of the District Court (the Proceedings), the prosecution did not state on how Exhibit PE2 was kept and brought to court as an exhibit. Therefore, he agreed that the chain 3 of custody was not proved. He referred to the case of Paulo Maduka & 4 Others vs. R, Criminal Appeal No. 110 of 2007 (unreported) at page 299 the CAT stated that: “There must be a chronological documentation and or paper trail showing the seizure, custody, control, transfer, analysis and disposition of evidence.” He also referred to the case of the DPP vs. Akida Abdallah Banda, Criminal Appeal No. 32 of 2020, where the CAT stated that: “Even if there is no documentation

oral evidence can establish the chain of custody”. Mr. Mwenda, maintained that in the evidence of the prosecution at the District Court there was no documentation or oral evidence to establish the chain of custody. As such, he was of the opinion that the appeal has merit. In a brief rejoinder, the appellant had nothing useful to add. I have considered the District Court’s records and the parties' arguments. I will now deliberate on the third ground of appeal on the chain of custody of Exhibit PE2, to wit government trophies tendered before the District Court by PW2, one David Gasper Msovela. The appellant stated that Exhibit PE2 was as a result of an illegal search and the chain of custody was not proved. The claims are also supported by Mr. Mwenda in his submission. 4 In the Proceedings, PW1 stated that the appellant was arrested with the said government trophies at Kamsamba, and was later taken to Kamsamba Police station as explained by PW6 at page 21 of the Proceedings. Further, PW2 at page 9 of the Proceedings stated that he was informed by his boss that there were government trophies apprehended in Tunduma. After examination he handed the same to the police officer for further step. That being the case, I agree with Mr. Mwenda and find this ground of appeal holds water. There is no evidence on record, oral or documented, showing how and who moved the said Exhibit PE2 from

Kamsamba to Tunduma. Additionally, the record does not disclose who was in custody of the exhibits and who brought the same to court. In my understanding, as far as chain of custody goes, there has to be chronological documentation and or paper trail showing the seizure, custody, control, transfer, analysis and disposition. See: Paulo Maduka (supra). The trail can be established though oral account as well. See: The DPP vs. Akida Abdallah Banda (supra). I will also borrow a leaf from the case of Jibril Okash Ahmed vs Republic, Criminal Appeal No. 331 of 2017 that cited and the case of Paulo Maduka 5 & 3 Others vs Republic, Criminal Appeal No. 110 of 2007, where the Court of Appeal stated: “…it is settled law that in cases involving arrest, seizure, custody and later production in court of the seized property as exhibit, there must be proper explanation of who and how the property was handled from where it was found and seized up to the point when it is tendered in court. That is intended to ensure authenticity of such evidence.” That being said, the third ground is enough to dispose of the matter at hand. I therefore do not wish to discuss the remaining grounds. Consequently, the appeal is hereby allowed. I proceed to quash the conviction and sentence of the District Court. Right of appeal explained. DATED at MBEYA on this 11 day of September 2024. A. A. SINDA

JUDGE 6