Ilanga Ndibato Ndongo

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA CRIMINAL APPEAL CASE REFERENCE NO. 202501052000000283 ILANGA NDIBATO …………….…………........................... APPELLANT VERSUS REPUBLIC……..…………………………………………...… RESPONDENT (Originating from the Decision of the District Court of Bariadi at Bariadi) (Hon. M.M. Nyangusi - SRM) Dated the 4th December 2024 in Criminal Case No. 29778/2024 ----------------------------- JUDGMENT 3rd & 14 th March, 2025. F.H. MAHIMBALI, J. The appellant in this case has been aggrieved by the decision of the District Court of Bariadi in which he was convicted of three offences in Economic Case No. 29778 of 2024 filed against him. It was alleged in 1 the charge sheet convicting him (first offence) that Contrary to Section 17(1)(b) and (2) of the National Parks Act, [Cap 282 R.E. 2002], that on 5th October 2024 at Mto Duma area in Serengeti National Park within Bariadi District in Simiyu Region, was found in unlawful possession of weapons to wit: one bush knife, one knife and four animal trapping wires without permit and failed to satisfy the authorized officers that the same were intended to be used for purposes other than hunting, killing, wounding or capturing of wild animals. In the second and third offences, it was alleged that on the same date, place and time, the appellant was found in unlawful possession of Government trophy to wit, one dry skin of Hyena equivalent to one Hyena unlawfully killed valued at USD 550 equivalent to Tanzania Shillings one Million Four Hundred Ninety- One Thousand and six Hundred(1, 491,600) and one dry skin of Impala equivalent to one Impala unlawful killed valued at USD 390 equivalent to Tanzania Shillings one Million Fifty- Seven Thousand Six Hundred and eighty (1,057, 680) only, both the properties of the United Republic of Tanzania, which is contrary to Section 86(1) and (2)(c) (iii)of the Wildlife Conservation Act, [Cap 283 R.E. 2022] read together with Paragraph 14 of the First Schedule to, and Sections 57(1) and 60(2), of 2 the Economic and Organized Crime Control Act, [Cap 200 R.E. 2022] both the properties of the United Republic of Tanzania. The appellant pleaded not guilty to the charge of the all three offences charged, whereby the prosecution brought a total of four witnesses and tendered six exhibits in efforts to establish the charge. In summary, the prosecution’s case says this. On the alleged date of 5 th October 2024, the appellant while at Mto Duma area in Serengeti National Park within Bariadi District in Simiyu Region, was found by PW1 and PW2 being in unlawful possession of the alleged weapons and the two trophies as per charge sheet. The same were seized (exhibit P1, P3 and P.5). The trophies were accordingly valued (P4). As to whether the appellant was really arrested within the National Park as alleged, the GPS Map – exhibit P2 was tendered. The appellant fended himself and had no exhibit to tender. In his defense testimony, the appellant seemed to have admitted being arrested within National Park area but when chopping fire wood. He disputed being responsible of possession of the alleged trophies. In digest to the prosecution’s case in totality and as well as the defense testimony, the trial court found the appellant guilty of all the three offences 3 charged, convicted him and consequently sentenced him to serve one-year imprisonment for the first offence and 20 years’ jail imprisonment for the second and third offences respectively. Thus, this appeal against both conviction and sentence based on the following three grounds: 1. That, the trial magistrate erred in law and in fact to pass sentence in hearsay evidence which adduced by prosecution witnesses because he was not arrested in the National Park and not possessing the said government trophies, this case was framed. 2. That, the learned trial magistrate erred in law and in fact to accept inventory form as exhibit instead of bringing the trophies in court as the charge sheet read over thus left a shadow of doubts. 3. That, the learned trial magistrate court erred in law when she did not properly evaluate the evidence and ignored my defense therefore arriving wrong decision. On these grounds, the appellant prays that his appeal be allowed, conviction quashed and sentence set aside and that he had no more to submit. 4 On his part, Mr. Kadata learned state attorney for the Respondent resisted the appeal saying that it is bankrupt of any merit. He submitted as follows: Submitting on the first ground of appeal that the appellant was not arrested within the National Park and being in possession of the said weapons and trophies unlawfully, Mr. Kadata refuted that that is not true as per available evidence. That in consideration of the prosecution's evidence vide PW1 and PW2 together with the exhibits tendered, he clarified that it was the testimony of PW1 and PW2 which established how they arrested the appellant, and the coordinate points were taken and eventually printed (exhibit P.2) exhibiting the point of arrest of the accused person. Furthermore, this PW1 tendered certificate of seizure listing the things/articles seized during the said arrest (P1 exhibit). Interestingly, there was no objection on its admissibility. He concluded on this ground that since it is trite law that failure to object admissibility of the exhibit amounts to admission especially when there is no cross examination on the said fact. He invited this court to be guided by the decision in the case of Emmanuel Lohay & Another V. Republic, Criminal Appeal No. 278 of 2010. Thus, this ground of appeal is meritless. 5 On the second ground of appeal, the concern is on the reception/admission of inventory form as exhibit instead of bringing the real trophies in court as stated into the charge sheet. It is Mr. Kadata’s submission that the reception of inventory form instead of the physical exhibits is as per law, since such perishable exhibits can be done with before the commencement of the suit and the disposal order of magistrate suffices the production of it as exhibit in lieu of the trophy itself. The court is mandated to do so under section 101 (1) of the Wildlife Conservation Act, Cap 283 R.E 2020. Thus, the production of the said inventory form in court sufficed the legal purpose, and it was not unlawful. That said, this ground of appeal is devoid of any merit. On the third ground of appeal, he submitted that, the concern is, there was no proper evaluation and analysis of the case’s evidence and that the defense testimony was not actually considered when reaching that finding. On this Mr. Kadata reacted by making reference to the relevant pages of the impugned judgment in which the trial magistrate had evaluated the evidence of both parties (at pages 6, 7 and 8) and weighed it with the defense testimony which she was eventually satisfied that the prosecution’s case was 6 established beyond reasonable doubt. In totality, Mr. Kadata was of the firm view that this ground of appeal as well, is bankrupt of any merit. Lastly, he concluded that in his considered view, this appeal being bankrupt of any merit, it be dismissed in its entirety for want of merit. That this Court should uphold both conviction and sentence meted out by the trial court the appeal being bankrupt as it is. In his rejoinder submission, the appellant just maintained on his grounds of appeal saying that strong as they are and that he being HIV positive, he prays for an acquittal so that he reunites with his family. That was all as far as the appeal hearing is concerned. Having digested the submissions from the both parties above, the vital question to dispose is one, whether the appeal is brought with the sufficient cause. In my thorough scanning of the trial court’s proceedings, evidence received and recorded, firstly, I consider the second and third offences of unlawful possession government trophies as not dully established as per law. First and foremost, the said dry skins of hyena and impala as not scientifically established being so. The testimony of PW3 that “I discovered they were one dry skin of spotted Hyena and one dry skin of Impala because hyena 7 have different kind of skin and that one had yellowish brown, and others dark brown and they are in different size some are big some are small, some can be seen Cleary while some cannot. The skin of Impala has reddish brown colour, it has white colour at the buttocks area, it has black line starting at the back going to the head”. I wonder if this description is scientific and that it belongs to hyena and impala animals only. Secondly, the said skins being dry, I wonder what compelled the tendering the said exhibits in form of inventory pursuant to section 101 (1) of the Wildlife Conservation Act, as it was not stated if it was not in perishable situation. With these two deficiencies, I am satisfied that the charge of being unlawful possession of government trophies, being not established. As regards to the first offence of being in possession of weapons within the National Park unlawfully, it is the prosecution’s testimony that they did arrest him within the National Park of Serengeti amongst others being in possession of the said weapons (Exhibit P.1, P.2 and P3). In his defense, the appellant testified under oath that: On 4/10/2024 I left home around 15:00hrs, and went to the borders of the Maswa Game Reserve to cut fire wood so that I 8 can go to take medicine at the hospital, I proceeded to chop the firewood and was called. The people who called me were six I told them I cannot go to they should come themselves. They asked me why did I chop the firewood there in, in the game reserve area, they arrested me and took me to the motor vehicle and took me to the police station. on 5/11/2024 they took me to the police station. On 7/11/2024 I was brought with exhibit at the court and the order of disposal was issued. I was arrested with the offence of chopping fire wood. PW1 said I was found with hyena skin. PW3 did not identify me he was just called. Pw4 said I confessed in a caution stamen but he did not take me to the welfare office. In my digest to this evidence, the appellant is suggesting two things: Firstly, he was not arrested on 5th October 2024 but 4th October 2024. Secondly, that he was just chopping tree for firewood. But not stated by which weapon. Thirdly, that the point of his arrest is at the borders of the Maswa Game Reserve. This evidence ought to have been defeated by what the prosecution had testified. The only evidence relied by the prosecution on this is establishing the proof of the said fact is the GPS Map print out describing 9 the point of arrest as with coordinate points 36M0672151UTM9705190. In Dogo Marwa @ Sigana & Another vs Republic (Criminal Appeal No. 512 of 2019) [2021] TZCA 593 (21 October 2021), the Court of Appeal had this to say on proper description of the point of arrest in offences of such nature, that: “We were somewhat surprised by the very casual and perfunctorily way; the national park rangers testified that they arrested the appellants at Milima Soroi areas, within the Serengeti National Park. We pointedly asked the learned Senior State Attorney whether the Milima Soroi area is within statutory boundaries of the Serengeti National Park. Mr. Mayenga submitted that section 5 (1) read together with the First Schedule to the NPA, describe the statutory boundaries of the Serengeti National Park: "5. -(1) The area specified in the First Schedule to this Act is declared a National Park to be called the Serengeti National Park:" 10 After reading through the First Schedule, which provides the outlines of the boundaries of the Serengeti National Park, Mr. Mayenga conceded the Milima Soroi area where the park rangers supposedly arrested the appellants, does not appear under the First Schedule marking the boundaries of the national park. We need not reemphasize that the prosecution evidence on record, did not prove beyond reasonable doubt that the park rangers arrested the appellants within the statutory boundaries of the Serengeti National Park”. Now, the issue for digest is whether by a mere tendering the GPS Map print out with coordinate points 36M0672151UTM9705190 established the fact the said particular point of Korongo la Mto Duma was within the statutory boundaries of Serengeti National Park. It appears the prosecution had believed that the said fact was established beyond reasonable. Reading the said testimony in the trial court’s readings expected, there is no description given regarding the admitted GPS Map print out. We are thus not aware what this coordinate points 36M0672151UTM9705190 means what and describes anything. Perhaps, the prosecution assumed that the trial court /trial magistrate to go and search those coordinate points from 11 unknown sources and interpret the statutory boundaries of Serengeti National Park and establish whether at that particular point, is really within the restricted geographical boundaries of Serengeti National Park. A mere production of the GPS Map was neither sufficient nor the proper interpretation of the conditions imposed in the case of Dogo Marwa @ Sigana & Another vs Republic (supra). So, in my considered view, a mere production of that GPS Map printout per se was not a conclusive proof that the alleged area was within the restricted statutory boundaries of Serengeti National Park. The production of that Map print out was just one step to the full proof of the alleged fact. By the way, it was not elaborated how the coordinate points were taken and by what device (its make, authenticity etc.) and how the said coordinate points really reflect the said arrest point. Secondly, the print out map is an electronic evidence in the eyes of the Electronic Transactions Act, Cap 442 R.E 2022 which provides for the legal recognition of electronic transactions, the use of information and communication technologies in collection of evidence, admissibility of electronic evidence, etc. Under section 18 of the said Act, it clearly provides for the conditions of admissibility of electronic evidence. I quote: 12 18. (3) The authenticity of an electronic records system in which an electronic record is recorded or stored shall, in the absence of evidence to the contrary, be presumed where- (a) there is evidence that supports a finding that at all material times the computer system or other similar device was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of an electronic record and there are no other reasonable grounds on which to doubt the authenticity of the electronic records system; (b) it is established that the electronic record was recorded or stored by a part to the proceedings who is adverse in interest to the part seeking to introduce it; or (c) it is established that an electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a part to the proceedings and who did not record or store it under the control of the part seeking to introduce the record. 13 (4) For purposes of determining whether an electronic record is admissible under this section, an evidence may be presented in respect of any set standard, procedure, usage or practice on how electronic records are to be recorded or stored, with regard to the type of business or endeavours that used, recorded or stored the electronic record and the nature and purpose of the electronic record. In digest to the manner PW1 had testified, there has not been any proof of reliability of the said information how it was generated, stored, produced, its integrity, authenticity and its weighty in evidence. Thus, the production of the said purported evidence did not make any strict adherence and compliance to the mandatory section 18 of the Electronic Transactions Act, for it to have a legal value. It is thus unbelievable. The above said, I find this appeal to have been brought with sufficient cause; and thus, it is allowed. The trial court’s decision on both findings: conviction and sentence is hereby quashed and set aside. The appellant is thus consequently ordered to be released from prison unless lawfully held by other cause. 14 Right of further appeal is hereby explained. DATED at SHINYANGA this 14th March, 2025. F.H. Mahimbali Judge 15