Justine Balali

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY AT MOROGORO CONSOLIDATED CRIMINAL APPEALS NO. 25095,32449,32454 & 32945 OF 2024 (Originating from the decision of the District Court of Kilombero in Economic Crime Case No. 31 of 2022 delivered on 22"^ March 2023) JASTINE SIMON BALALI ISTaPPELLANT MOHAMED ALI MEKUSU 2"^ APPELLANT JOHN VALELI NYANGE 3^^ APPELLANT GABRIEL EMANUEL @YAKOBO ,4''^ APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGEMENT 28/11/2024 & 29/11/2024 KINYAKA J.: This appeal arises from the decision of the District Court of Kilombero at Ifakara, hereinafter the "trial court" in Economic Case No. 31 of 2022 delivered on 22"^ March 2023 in which the appellants, Justine Simon Balali, Mohammed Ally Mekuso, John Valeli Nyange and Gabriel Emmanuel @ Yakobo were convicted of two counts upon their arraignment and prosecution before the trial court. The first count was Unlawful Possession of Government Trophies contrary to section 86(1) and (2)(c)(iii) and (3) of the Wildlife Conservation Act No. 5 of 2009 hereinafter the "WCA" as amended, read together with paragraph 14 of the First Schedule to the Economic and Organized Crime Control Act, [Cap. 200 R.E. 2019] hereinafter, the "EOCCA". The second one was Unlawful Possession of Weapons in the National Parks contrary to section 17(l)(b) and (2) of the of the National Parks Act, Cap. 282 R.E. 2002 hereinafter the "NPA". The prosecution allegations against the above named appellants were that on the 21^ day of June 2021, the appellants were found in Mpanga area which is within Nyerere National Park within Kilombero District in Morogoro while in unlawful possession of items without the permit from the Director of the Wildlife. The items were government trophies to wit; four hundred fifty (450) pieces of Hippopotamus meat valued at 1500 US$ equivalent to Tanzanian Shillings Three Million Four Hundred Seventy Eight Thousands Three Hundred Thirty Five(TZS 3,478,335) the property of the government of the United Republic of Tanzania; and one knife, two bush knives(panga) and one arrow. Upon the charge sheet being read to them, the accused persons denied the allegations. At the conclusion of the trial, the trial court was convinced that the prosecution through the evidence of six witnesses and four exhibits had established the offence the accused persons were charged with. They were subsequently jointly convicted by the trial court and sentenced to pay a fine of 8,675,000 or in default serve a twenty(20) years imprisonment in jail. Being dissatisfied with the foregoing outcome, each of them preferred a separate appeal to this Court. The first, second, third and fourth appellants filed Criminal Appeal Nos. 25095 of 2024, 32449 of 2024, 32454 of 2024 and 32945 of 2024 respectively. On 28^ November 2024, when the appeal was tabled before me for hearing, the appellants agreed to have the four appeals consolidated for the reason that they were emanating from the same Economic Crime Case No. 31 of 2022 in which they were subjected to the same proceedings and convicted of similar counts. Further, the appellants' respective appeals were premised on similar grounds of complaints. By the order of the Court, the appellants' appeals No. 25095, 32449, 32454 and 32945 of 2024 were consolidated. The appellants' grounds of appeal as stated in their respective petitions of appeal are as reproduced herein below: 1. That the consent of DPP conferring jurisdiction for the trial court was invalid for failure to indicate therein the offence charged (i.e provisions of the offence charge were not referred) see the case of Dilipkumar Magambai Patel Vs Republic Criminal Appeal No.270 of 2019[2022] TZCA 477(25 July 2022)TANZUI; 2. That the trial court erred in law and facts when it convicted the appellants while there was no documentary or oral evidence establishing how the exhibits were handled from the time of their seizure to the date on which the same were Handed in court; J, That the trial court erred in law and fact when convicted the appellants while they were brought in court outside the prescribed period according to the law(see S.29(I) of the EOCCA cap 200 RE 2022); 4. That the trial court erred in law and fact when convicted the appellants while there was variance between charge and evidence in respect to the number of accused as the witnesses stated that six people were arrested but charge sheet indicated only four and no explanation on what happened; 5. That the thai court erred in law and fact when convicted the appellants while prosecution witnesses had failed to clarify which person(s) carried alleged 80kgs and who carried 70kgs of Hippos out of 450kgs; 6. That the trial Magistrate erred to believe that PWl was having certificate of seizure at the scene without considering that they were not in patrol but they were in boundary demarcation with Land surveyors therefore this can be convicted evidence, i.e certificate of seizure was not filed at the Locus in quo; Z That the trial Magistrate erred in law and fact to convict and sentence the appellant without observing that there were material contradiction between PW5 and PW6 in respect to what happened during disposal of the alleged meat; 8. That the trial Magistrate failed to realize that failure by Prosecution to mark or labeled the exhibits at the scene of crime has affected their case, hence the tendered exhibits have no evidential value to be relied to convict and need be expunged from the records; and 9, That the case was not proved beyond all reasonable doubts as per procedure of the laws. Before reproducing parties' submissions for and against the aforementioned grounds of appeal, I find it appropriate to narrate the background facts which lead to the appellants' conviction as deduced from the trial court records. On 21^ June 2021, Majid Juma Kijaji (PWl) while in the company of his fellow conservation rangers, land officers and the chairman of Lyagama helmet, one Ally Said Hambagai(PW2) were putting demarcations between the villages and the National park. In the course of the exercise they saw a way which made them suspicious that somebody passed thereon. They decided to make follow up where they successfully met six people coming in front of them dragging a bicycle while carrying luggage. The said six people were subsequently arrested where upon being probed as to what they carried they admitted to have been hunting in the park. Each of them admitted to have carried the hippopotamus meat. PWl thereafter conducted the search on the said luggage in the presence of PW2 and one Chrisant Bahati, his fellow conservation ranger and confirmed what he was told by the culprits. He thereafter filled the certificate of seizure form which was tendered and admitted in evidence as PEl. From the said search, the culprits were also found in possession of three bicycles, two bush knives, one knife and one arrow which were also tendered in evidence during the trial and admitted collectively as PE2. It was the testimony of PWl that after the completion of the search and seizure exercise, he took the culprits with the items they were found with to Ifakara Police Station and handed them together with the items to PW5, E7183 D/Sgt Charles. On the very same day, PW5 phoned a Wildlife Officer f namely Uchugu Bilos (PW3) requesting for his identification and valuation of the seized meat. In his testimony, PW3 informed the trial court that from his expertise in the studies of anatomy and physiology, he identified the meat as that of hippopotamus after finding a chemical substance namely hippo sodohcadd in the said meat which according to him, is only found in hippopotamus. He testified further that upon his valuation of the meat, he found the same to be 450 pieces of meat valuing at TZS 3, 478,335/=. PW3 thereafter handed over the meat back to PW5. He substantiated his findings by tendering before the trial court a valuation certificate which was admitted and marked as PE3. According to PW5, In compliance with the orders he received from the Officer Commanding Criminal Investigation department (OC-CID), he prepared the inventory form and took the meat to the Honorable Magistrate, Theresia Antony Kaniki(PW6) who ordered the disposal of the 450 pieces of meat. PW6 signed the inventory form which she tendered and admitted in evidence at the trial as PE4. The investigation of the matter was on the following day placed in the hands of XWP 2652 D/Sgt Veronica(PW4) who interrogated three accused persons whom she named as Justine Bilali, Joseph John Nyange and Joseph Aidan though the latter was not brought to court. She told the trial court that the said accused persons admitted to have both killed the hippopotamus using a spear and found in possession of the meat In their defence, all accused persons disputed the prosecution allegations. In his testimony, Justine Bilali (DWl) admitted to have been arrested by conservation rangers including PWl when he was coming back home from kikandekande from taking charcoal. He denied that the arrest took place at the National Park. He further denied to have been interrogated by PW4 and found with the alleged hippopotamus meat. It was also his defence that he was arrested alone and that the certificate of seizure was signed at Udzungwa and not at the crime scene as testified by PWl. He associated his involvement in the offence with the conflict he has with PW2, the Chairman of the helmet he is residing after he refused to give him charcoal. DW2, Mohamed Mekuso, informed the court that he was also arrested by PWl on his way home from Kikandekande where he went to take charcoal. He further informed the court that he was not found with the luggage and that he was forced to sign the certificate of seizure. He faulted PW3's identification of the meat complaining that it was done without using scientific equipment He complained that he has a conflict with PW2 upon his denial to give him 10,000 which he demanded from him. On his part, DW3 denied to have been interrogated. He further denied to have been arrested at the National Park but the place known as kadenge. In his further defence, he testified that he didn't sign the certificate of seizure. In a nut shell, he disputed to have been found with the meat and associated his arrest with the PW2's grudges against him upon finding DW3 in adulterous affair with his daughter. DW4, Gabriel Emmanuel @ Yakobo informed the court that he was arrested on 21^ June 2021 by conservation rangers when he was on his way back home from cutting firewood. He denied to have been found with the luggage 43^ containing hippopotamus meat and claimed to have been forced to sign the certificate of seizure. He further faulted PW4 for not tendering the caution statement he was alleged to have signed. On a whole, the four accused persons prayed for the trial court to acquit them from the charges. Nonetheless, the trial court did not believe their story. As hinted earlier, it found the accused persons guilty of the offence and convicted them, thus prompting the institution of the present appeal. At the hearing of the appeal, the appellants entered appearance in person whereas Mr. Josberth Kitale and Mr. Shaban Kabelwa, learned state attorney appeared for the Republic. Kick starting, the appellants being lay persons had nothing substantive to submit. Each of them prayed for the Court to consider the respective grounds of appeal, do justice and set them free. In reply, Mr. Kitale prefaced his submission by opposing the appeal. He Informed the Court that he will be the one arguing on the 1^, 2"^, 3^^, 4^ grounds while Mr. Kabelwa will submit on the 5^,6^,7^, 8*^ and 9^ grounds of appeal. Against the first ground, Mr. Kitale boldly told the Court that the consent and certificate complained of by the appellants carried the provisions that the 10 appellants were charged with. He distinguished the case of Dilipkumar Mahanbai Patel v. R, Criminal Appeal No. 270 of 2019 cited by the appellants contending that on page 21 of the case, the Court spoke of the importance of the application of section 12(3) and 26(1) of the EOCCA and that consent and certificate did not cite section 86(l)(c)(iii) and (3) of the WCA. He insisted that in the matter at hand, the consent and certificate showed the provision of the law. The state counsel added that according to Economic Offences (Specification of Offences for Consent) G.N. No. 496H of 2021, the law provides for forms which does not require the specification of the name of offences but the provisions of the law creating the offences. As regards to the second ground, the learned state attorney admitted that indeed there was no documentary evidence on how the exhibits were handled. He however contended that the requirement for documentary evidence is an old position articulated in Paul Maduka & Others v. R., Criminal Appeal No. 110 of 2007. Relying in the case of Jibril Okash Ahmed v. R., Criminal Appeal No. 331 of 2017 on page 36, it was his assertion that the prosecution proved the chain of custody through PWl(the person who seized the exhibit), PW2 (an independent witness), PW5 (the recipient of the exhibit), and PW6 who ordered disposal of the exhibit. It was n therefore his submission that the chain of custody was intact and was not tempered. On the 3'^ ground, the learned counsel admitted that the appellants were arrested on 21^ June 2022 and were taken to court on 5^^ July 2022 contrary to the provision of section 29(1)of the EOCCA which gives not more than 48 hours for the accused to be taken to court after he is arrested. He however profoundly opined that the delay does not remove the fact that the appellants were found with government trophies and that the evidence before the trial court was sufficient to ground conviction. He insisted that the delay is immaterial as held in the case of Hamad Mzamilo Malafya v. R., Criminal Appeal No. 603 of 2021 on page 16. More so, he cemented that the delay was stated by PW4 on page 37 as occasioned by the file being sent to the DPO. Resisting the 4^ ground, Mr. Kitale refuted that there is a variance between the charge and the evidence. He explained that the matter preferred at the trial court involved four accused persons and the evidence was in respect the four accused persons and it is the four accused persons who were found with the 450 pieces of meat. He added that the file is silent on other two persons. As such he prayed for ground to be dismissed. 12 Submitting against the fifth ground in which the appellants complained that the prosecution failed to clarify the kilograms of hippopotamus meat carried by each person, Mr. Kabelwa told the Court that none of the prosecution witnesses spoke of kilograms of meat but that all the accused persons were found with 450 pieces of the hippopotamus meat He said, the appellants admitted to have been found with the 450 pieces of meat after they signed certificate of seizure. He cited the case of Waziri Shabani Mizogi v. R, Criminal Appeal No. 476 of 2019 on page 30 where it was held that the signing by accused or suspect of certificate of seizure is an admission that he was found with the exhibit. In relation to the sixth ground, the learned state attorney attacked the ground for being an afterthought as it is being raised for the first time at the appeal level. He expounded that the appellants were afforded with the opportunity to ask questions on the matter and never object to the admission of the certificate of seizure. Mr. Kabelwa elaborated that PWl testified that they found the appellants 500 meters from the boundary towards the National Park and that he filled the seizure certificate at the crime scene. He cited the case of Nyerere Nyague v. R, Criminal Appeal No. 67 of 2010 on 13 page 5 to cement his view that the appellant admitted the certificate of seizure as they did not cross examine PWl. As regards to the 7^ ground, the state attorney's point of entry was the decision of the Court of Appeal in the case of Dickson Elia Nshambwa Shapwata & Another v. R, Criminal Appeal No. 92 of 2007 on page 7, where it was held that the Court should pick one sentence alleged to contain contradiction and compare with another evidence to rule out if the same is minor or material. Applying the authority to the matter at hand, the state counsel referred the Court to page 39 and 40,43 and 44 of the proceedings, when PW5 and PW6 were testifying, and contended that there is no any contradiction in their testimonies as each of the prosecution witness who had possession of the meat had possessed the same in different times. Mr. Kabelwa opposed the appellants' eighth ground submitting that the purpose of marking is to show the differences in exhibits especially if they are transported so that they should not be mixed while labelling is for the purpose of handling the exhibit. He highlighted that in the present case, the meat was seized and destroyed on the same date. It was therefore his view that the chain of custody was maintained. 14 On the ninth ground, the learned state attorney elucidated that the appellants were charged with two offences and the same were proven. Elaborating on the point, Mr. Kabelwa pointed out that there are three ingredients in respect of the first count The first is that the meat was a government trophy which was proven by PW3 who identified the meat as shown on page 31 and 32; the second ingredient is that the appellants were found In possession of the meat as evidenced by PWl and PW2 as well as certificate of seizure and inventory; and the third ingredient is that the appellants had no permit from the Director of Wildlife as evidenced by the testimonies of PWl and PW2. As to the second count, the learned counsel submitted that the appellants have not raised any ground complaining that they were not found with the weapons within the National Park. He added that the prosecution proved all ingredients on the second count to wit; that the appellant were found within the National Park as testified by PWl on page 12 and 20 of the proceedings; and that the appellants were found in the National Park with weapons without permit. On that account, it was Mr. Kabelwa's proposition that the charges against the appellants were proven beyond reasonable doubt. 15 As regard to the sentence imposed by the triai court, It was Mr. Kitale who took the floor. He pointed out that on page 15 of the trial court proceedings, the appellants were convicted on both counts but highlighted that on page 16 of the judgement, the appellants were sentenced on the first count. According to him, the sentence does not conform to the requirement of the law under 312(2) of the Criminal procedure Act Cap. 20 R.E. 2022. It was his submission that the sentence should have specified the offence that the appellants were convicted of and provision under which the punishment was made. As a way forward, he prayed for the matter to be remitted to the trial court for the trial court to properly sentence the appellants on the first and the second counts upon this Court's satisfaction that the case was proven against the appellants beyond reasonable doubt. Rejoining, the 1^ appellant reiterated that his grounds are merited and prayed for the same to be considered and be set free. He had nothing to submit regarding absence of sentence but rather prayed for justice to be done. The 2"^ appellant also reiterated his earlier submissions for the Court to accept his grounds and set him free. He informed the Court that he knew nothing regarding sentence, as he found himself sentenced. 16 As for 3'"^ appellant's rejoinder, he pressed for the Court to do justice by considering his grounds of appeal. He prayed for their appeal to be accepted as they stayed in jail for so long. He submitted nothing as regards to the trial court's sentence. The 4^ appellant stressed that he believe that the Court will do justice in the present appeal. He supported his fellow appellants' prayer for them to be set free as their grounds are merited and had spent long time in jail. Having heard the parties' submission on the grounds of appeal, I propose to start with the issue of the propriety or otherwise of the sentencing process of the trial court upon its conviction of the appellants on both counts. As rightly pointed out by Mr. Kitale, section 312 of the CPA provides for the form and content of a valid judgment in the eyes of the law. The provision reads: 312,-(1) Everyjudgment under the provisions ofsection 311 shaii, except as otherwise expressiy provided by this Act, be written by or reduced to writing under the personai direction and superintendence of the presiding judge or magistrate in the ianguage of the court and shaii contain the point or points for determination, the decision thereon and the reasons for the 17 decision, and shall be dated and signed by the presiding officer as ofthe date on which It Is pronounced In open court. (2)In the case ofconviction thejudgmentshaii specify the offence of which, and the section of the Penai Code or other iaw under which, the accused person is convicted and the punishment to which he is sentenced. [Emphasis added] Having read the above provision in relation to what has been unveiled as regards to the sentencing process of the accused persons by the trial court, it is without question that the trial court judgment is fatally defective for its omission to indicate which offences the appellants were sentenced. For easy of reference, this is what was stated by the trial court upon hearing the appellants' mitigation on page 16 of its judgement; "... having heard the submission of both parties taking Into account of their mitigation and all are first offenders also they are still youths who would have use their efforts to buHd the nation, but the law doesnt offer for the minimum sentence against the said offence due to that, I have considered the value ofone animal(Hippopotamus) who was killed to be Tshs 3,478, 335/=. Ihereby times ten of which Is Tshs34,783,000/=; hence Ihereby sentence all accused persons each to pay One of Tshs. 8,675,000 or Imprisonment of20 years. 18 Apparently, from the above excerpt, It Is uncertain as to what count from the two counts does the aforestated sentence covers. It Is quite clear that the Honourable trial Magistrate infracted the provision of section 312(2) of the CPA for her omission to clearly impose sentences on each count In which the appellants were convicted of. In the case of Noah Sajilo and Another v. Republic, Criminal Appeal No. 478 of 2021 [2024] TZCA 2(2 January 2024) a related scenario faced the Court of Appeal. It was revealed that from the records, the judgment of the trial court was unclear on the counts on which the appellants were convicted and the reasons as to why the accused were being sentenced on only two counts amongst the six. The court held on page 15 of Its decision that: "...//7 our perusal, the record reveals that the appellants were sentenced on two counts only, that Is count1 and count2...., It is obvious that the sentences meted out in court and for which the appellants are serving in prison are not consistent with the convictions entered in court and sentences meted out which were on two counts only. Worse still, it is not dear on the j'udgment' the counts on which the appellants were convicted and why they were sentenced on only two counts. In sum, the j'udgment'lacked clarity which is an essential component in fair 19 trial as guaranteed in Article 13(6)(a) of the constitution ofthe United Republic of Tanzania of 1977 which underscores and safeguards the fundamental rights of individuals when their rights and duties are being determined by the courts or other agencies.. The court went on deliberating on page 18 thus: "The findings ofthe trial court and the sentences meted out for the offences, as aptly explained above, leave a lot to be desired. The trial court j'udgment is full of uncertainties as on which counts the appellants were found guilty/convicted and sentenced. Cumulatively, the infractions render it a confused J'udgment the remedy of which is to let a fresh judgment be composed setting outconcisely and clearly the counts, ifany, the appellants are convicted and sentenced and the same should be reflected in warrants ofcommittal. In view of this, we hold that there was no validjudgment upon which the High Court could interfere and correct, uphold or dismiss on first appeal. Unfortunately, such serious and patent infractions, went unnoticed by the High Court.." In view of what I have demonstrated above, the instant appeal is merited. As the foregoing controversy on the propriety of the sentence has disposed of the entire appeal, I deem it unnecessary to test the appellants' grounds 20 of appeal. This is on the apparent reason that the defect in the sentencing of the appellants bars this Court to entertain the merit of the decision of trial court in which the appellants challenges the conviction and sentence. That said, and pursuant to the powers bestowed upon me under section 372(1) of the Criminal Procedure Act Cap. 20 R.E. 2022,1 hereby nullify the triai court's judgment and quash the convictions and sentence imposed on the appeilants. In the event, I remit the case fiie in respect of Economic Crime Case No. 31 of 2022 to the District Court of Kilombero before the same Honourable trial Magistrate for composition of a new judgment according to the dictates of the law. Meanwhile, the appellants shall remain in custody awaiting the trial court's composition and delivery of the fresh judgment. It is so ordered. Right of appeal fully explained. DATED at MOROGORO this 29^ day of November 2024. ^ I. A. kinyAka ■ ¥ JUDGE 29/11/2024 21