JAMAL 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB REGISTRY) AT ARUSHA CRIMINAL APPEAL NO 18794 OF 2024 (Originating from the District Court of Karatu at Karatu before Hon. E.E. MBONAMASABO-PRM in Economic case no. 17/2019) JAMAL ANDREA...................................................................... 1st APPELLANT RAPHAEL DAVIS MOKI........................................................... 2nd APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT JUDGEMENT 04/09/2024 & 13/09/2024 MWENDA, J.: The appellants in this case, JAMAL ANDREA and RAPHAEL DAVIS MOKI and other accused persons who jumped bail , were jointly charged and later, convicted by the District Court of Karatu at Karatu for one count of UNLAWFULL POSSESION OF GOVERNMENT TROPHY contrary to Section 86(1) and 2(b) of the Wildlife Conservation Act, No. 5 of 2009 read together with paragraph 14 of the first schedule to, and Section 57 (1) and 60 (2) both of the Economic and Organized Crime Control Act [Cap 1 | P3ge 200 R.E 2019]. After a full trial, they were convicted and sentenced to serve a term of twenty (20) years jail imprisonment. Aggrieved, they preferred this appeal challenging the trial Court's decision. Summarily, the facts which led to the arrest and later, arraignment of the appellants are that between 9th and 10th October 2019 PW1, INSP. JACOB MASALU BURUGU was tipped that at the premises of one Mzee Masumbuko at Aman Street, kigongoni, poachers were spotted. He took initiatives to communicate with police officers from Mtowambu and the national park's rangers whom in turn, prepared themselves and went at the crime scene. Thereat, they entered Mzee Masumbuko 's house wherein, search was conducted in the presence of the Amani Street chairman one Mr. Abdi Msofe. In the cause, dried meat was found under the bed and, a certificate of seizure was filled and signed by the persons who were around, including the accused persons. A further search to other houses within that area retrieved a bucket full of fresh meat from the bathroom of the 1st appellant's house. As the 1st appellant was not around, his wife was asked over his whereabout and in turn, she gave them the location which led to his arrest. Upon interrogation the 1st appellant mentioned the 2nd appellant and another 2 | Page person who was not arrested as his partners in crime. As such, another certificate of seizure was prepared and filled. The appellants were then conveyed to Mtowambu police post. On 10/10/2019, PW4 (H5031, DC Mohamed) filled an inventory form and, together with the appellants, conveyed it at Mtowambu Primary Court for an order of destruction/disposal of the found meat. In the cause, the samples of the found meat were also taken to the Government chemistry 's office for examination. Its report showed that sample A2 was zebra's meat and not donkey's meat as it was speculated. After the completion of investigation, the appellants were arraigned before the court, and after a full trial, they were both convicted as charged and sentenced to serve twenty (20) years jail in imprisonment. Aggrieved, they filed this appeal with eight (8) grounds in which they challenged the prosecution's failure to discharge its duty of proving its case beyond reasonable doubt. Of essence is ground No. 2 which can dispose this appeal. The said ground reads as follows, that: "2. That, the learned trial magistrate erred in law and in facts in not finding that the disposal of the said perishable good was made in a contravention of section 101(ii) of the W.CA." 3 | Page At the hearing of the appeal, the appellants appeared in person, unrepresented whilst Ms. Eunice Makala, learned state Attorney represented the respondent. The hearing proceeded orally. Submitting in support of the grounds of appeal, each appellant briefly prayed for their grounds of appeal to be adopted and considered as part to their oral submissions. They then prayed the present appeal to be allowed. On the other side, the Respondent Republic did not oppose this appeal. While submitting in support of the same, Ms. Makala's argument based on contravention of Section 101 (i) and (ii) of the Wildlife Conservation Act during disposal of perishable exabit (P.l). The learned State Attorney we pointed out that the procedure set for disposal of perishable exhibits which was adumbrated in the case of BULUKA LEKELI OLE NDADAYE & ANOTHER V. REPUBLIC, CRIMINAL APPEAL NO. 459 OF 2020 was not followed. According to her, in the said process the following should apply. One that there must be an application to dispose exhibit, two, that the accused persons must be present at the time of making the prayer, three, that the suspect must be asked as to his comments, remarks, or objection as regards to perishable exhibits to be disposed ,fourth, if the suspect does not make any comments , remarks or objection, the magistrate shall 4 | Page record the fact that the suspect was invited to make any comment , remark or objection but he opted to make none; and if the suspect make any comment, remark or objection there shall be recorded either on reverse side of the inventory form or separate piece of paper and shall be signed by the magistrate. Having referred to the above law, the learned State Attorney submitted that although PW4 applied for an order of disposal of exhibit before Mtowambu Primary court, there was an anomaly which is failure to ask the appellants to comment, remark or object and she added even the inventory form (Exhibit P.9) bears no such comments, remarks or objection. For those reasons, she was of the view that exhibit P.9 should be expunged from records as it was illegally procured. The learned State Attorney went further in submitting that if Exhibit P.9 is expunged from records, the exhibit which stood in place of the destroyed trophy, then the appellants were found with nothing. With such observations, the learned State Attorney concluded that the prosecution failed to prove its case beyond reasonable doubt. Having heard the appellants and the submission made by the counsel for the respondent who supported the appeal, this court will now determine the merit of the appeal. 5 | Page To commence with, this court subscribes to what was submitted by the counsel for the respondent that Exhibit P6 (Inventory form) was illegally procured contrary to the dictates of Section 101 (i) of the Wildlife Conservation Act No.5 of 2009 and Paragraph 25 of the Police General Order, 229.For ease of reference, the said provisions are reproduced as follows: S.101"(i) Subject to Section 99 (2), at any stage of the proceedings under this Act, the court may on its own motion or on application made by the prosecution in that behalf order that any animal, trophy, weapon, vehicle, vessel or other article which has been tendered or put in evidence before it and which is subject to speedy decay, destruction or depreciation be placed at the disposal of the Director. Paragraph 25 of the Police General Order, 229: "Perishable exhibits which cannot be easily 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/" 6 | Page The above legal position was further propounded by the Court of Appeal in MOHAMED JUMA MPAKAMA V. REPUBLIC [2019] 1 T.L.R 514 where it was held inter alia that: "...paragraph 25 [paragraph 25 of PGO No. 229 (Investigation-Exhibits)] 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 person (if he is in custody or out on police bail) to be present before the magistrate and be heard. In the instant appeal, the appellant was not taken before the primary court magistrate and be heard before the magistrate issued the disposal order (exhibit PE. 3). While the police investigator, was fully entitled to seek the disposal order from the primary court magistrate, the resulting Inventory Form (exhibit PE.3) cannot be proved against the appellant because he was not given the opportunity to be heard by the primary court magistrate. In addition, no photographs of the 7 | Page perishable Government trophies were taken as directed by the PGO..., Exhibit PE.3 cannot be relied on to prove that the appellant was found in unlawful possession of the Government trophies mentioned in the charge sheet." (Emphasis is mine). Thus, guided by the cited provisions and the precedent, this court is of the firm view that Exhibit Pl was illegally procured. The reasons are that although the proceedings reveal that the appellants were conveyed before Mtowambu primary Court for the destruction of the trophy, the inventory form (the Exhibit Pl) is silent as to whether they were given a chance to make any comment, remark or objection to the same as it was stated in BULUKA LEKELI OLE NDADAYE & ANOTHER V THE REPUBLIC (SUPRA). Such failure denied the appellants the right to be heard. For those reasons, Exhibit Pl is hereby expunged from the records. Having expunged exhibit Pl from the records, the exhibit which stood for the trophy that has already been destroyed, there is nothing which remains in support of the charge against the appellants herein. As such this court finds merit on the 2nd ground of appeal and, since this ground managed to dispose this appeal, there is no need to determine the remaining grounds of appeal. 8 | Pa This appeal is thus allowed for being meritorious. The conviction and sentence imposed against the appellants is hereby quashed and set aside. I also order for an immediate release of the appellants from prison unless they are lawfully held. It is so ordered. DATED at ARUSHA this 13th day of September 2024. JUDGE 13/09/2024 9 | P