JOSEPHAT BISEKO JUDGMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 18617 OF 2024 (Originating from Economic Case No. 21 of 2023 District Court of Babati at Babati) JOSEPHAT PHILBERT BISEKO………………………………………. APPELLANT VERSUS REPUBLIC …………………….………………………………………..…RESPONDENT JUDGMENT 18th Dec, 2024 & 25th Feb, 2025 MWIHAMBI, J.: At the District Court of Babati at Babati (the trial court), the appellant, Josephat Philbert Biseko, was charged with the offence of unlawful possession of Government trophy contrary to section 86 (1) and (2) (c) (ii) of the Wildlife Conservation Act [Cap. 283 R.E. 2022] (the WCA) 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 EOCCA). The particulars of the offence as per the charge sheet were that, on 27th day of September, 2023 at Minjingu Village within Babati District, the 1 appellant was found in unlawful possession of government trophy, to wit; six (6) pieces of raw impala meat, three (3) pieces of impala skin, one (1) limb of impala, one (1) impala head, one (1) piece of the ribs of impala, one hundred and thirty six (136) pieces of cooked impala meat worthy USD 390 equivalent to TZS 963, 073.8. The prosecution side paraded six witnesses and tendered seven exhibits to support its case. The appellant was convicted and sentenced to a jail term of twenty (20) years. He is now appealing against the conviction and sentence with three grounds of appeal; That, the learned trial magistrate grossly erred in law and in fact when he failed to evaluate properly the evidence of PW1, PW2, PW3, PW4, PW5, Exhibit PEI, PEII, PEIII, PEVI and PEVII and as a result ending up with wrong Judgment. That, the learned trial magistrate grossly erred in law and fact when he failed to observe the laws. That, the learned trial magistrate grossly erred in law and fact in his judgment in holding that the prosecution had proved its case beyond reasonable doubts. The factual background of the case was that, on 27th day of September, 2023 during day time, a park ranger, one Meshack Thobias Hamis (PW2) and his fellow park rangers; Anold Elihum and Richard Leopilali (PW3) were in their normal patrol within Maramboi area when PW2, through a 2 phone call, received information that the appellant, Josephat Philbert Biseko, had Government trophy in his house. PW2 informed the other two park rangers and together they decided to work on the information. On arrival to Almasi Hamlet in Minjingu Village, they looked for Hamlet chairperson then a 10-cell leader both in vain. Close to the appellant’s house they found Zabron Elia (PW4) and successfully requested him to witness the forthcoming search as an independent witness. The appellant was found in the house making Mkeka/Jamvi and he confirmed ownership of the house. PW2 informed him the house is suspected to have Government trophy and appellant agreed on searching which resulted into finding the Government trophy listed hereinabove. PW2 prepared a certificate of seizure (exhibit PE VI) which was signed by PW2, the appellant, PW3 and PW4. The appellant and the exhibits were taken to Minjingu Police Station and later on that day to Babati Police Station. The seized exhibits were handed to F 2449 SGT James (PW1) by chain of custody (exhibit PE II). D/CPL Innocent (PW5) recorded the appellant’s caution statement (exhibit PE VII) wherein the appellant allegedly confessed to have committed the offence. The following day PW1 handed the exhibits to Goodluck James Kalabani, a wildlife officer (PW6) who identified and valued the trophies; the trophies were worth TZS. 3 963,073.08. The Trophy Valuation Certificate prepared by PW6 was admitted in evidence as exhibit PE I. Satisfied that the appellant had a case to answer, the trial court called upon him to mount his defence. In his defence, the appellant, who testified as DW1, rejected the prosecution's version of evidence. He admits being arrested by park rangers at his home in Almasi area. He denies being owner of the said house, that he was forced to enter the house and that the search found nothing. That he was subsequently taken to the rangers’ vehicle and in there he found the things that was allegedly found in his house. That in Minjingu Police Station he was made to sign a certain paper and in Babati Police Station PW5 recorded his statement, by force. This defence was thorough analysed and at the end of the day the trial court was convinced that the prosecution had proved its case hence convicted and sentenced the appellant as alluded to earlier. This appeal was argued by way of written submissions as preferred by the parties. The appellant, in his written submissions, was represented by Mr Joseph G. A. Masanja, learned advocate (before his demise, MHSRIP) and the respondent, Republic, enjoyed the service of Mr. Benedict Kapela, Senior State Attorney and Ms. Bernadetha Mosha, State Attorney. 4 In the written submissions in support of the appeal, arguing in respect of the first ground, the appellant’s counsel submitted that the trial court did not discharge the duty to make a clear assessment and critical analysis of the adduced evidence, rather it decided the case basing on cooked, unfounded stories, speculative claims and sheer lies as there was no evidence to prove the case. Relying on Ndizu Ngassa v. Masisa Magasha [1999] T.L.R 202 and Union of India V.K.V Lakshman and Others, AIR 2016 SC 3139, he thus invited this Court to discharge its duty as the first appellate court to “clear the storm”. In the second and third grounds of appeal the appellant faults the trial court for failure to observe laws and that the prosecution failed to prove the case beyond reasonable doubt. Submitting on the failure by the trial court to observe the laws, the appellant argued that important exhibits; valuation report and sketch map, were received without being read over contrary to section 192 (4) of the Criminal Procedure Code [Cap 20 R.E. 2022] (the CPA). In relation to issuance of receipt, the learned counsel argued that while section 38 (3) of the CPA puts a mandatory requirement for the arresting officer when arresting suspects with anything intended to be used in evidence to issue a receipt, in this case no such receipt was issued. 5 He also argued that section 38 (3) of the CPA and paragraphs 1 (a) (b) and (c) and 2 (a) and (d) of Police General Order PGO No. 226 were violated as there was no search warrant considering that the search was not an emergency one covered under section 42 of the CPA, because there was an early information from an informer regarding the said possession of the Government trophy. The appellant’s counsel also argued that no village leader was involved in the whole process. He relied on Director of Public Prosecution v. Doreen John Malemba, Criminal Appeal No. 359 of 2019 CAT Dar es Salaam (TANZLII) to cement his argument that a search without warrant under circumstances not covered under section 42 of the CPA is an illegal search and therefore evidence obtained from an illegal search becomes illegal evidence and deserves to be expunged from the record. The appellant’s counsel also argued that there was no proper identification of the said Government trophy, as the said identification was done by PWI; a police officer who testified as a wildlife officer. In addition, he generally argued that exhibits; certificate of seizure and inventory form, were tendered by an improper person. On each of these alleged violation of law as alluded herein the appellant argued that the violation makes the case to be unproved. The learned advocate concluded 6 with a prayer for this Court to set aside judgment of the trial court, quash the appellant’s conviction, set aside the sentence and make order for the appellant to be set at liberty. For the respondent, Mr. Benedict Kapela, Senior State Attorney and Ms. Bernadetha Mosha, State Attorney kickstarted by submitting that the conviction meted to the appellant and the sentence thereto is justice, it resulted from the case being proved beyond reasonable doubt and an exhaustive scrutiny of evidence by the trial court. Arguing against the first ground of appeal, the respondent submitted that the trial magistrate properly evaluated the evidence of PW1, PW2, PW3, PW4, PW5 and PW6 Goodluck James whom they called “a valuer who was not mentioned or acknowledged by the appellant” as well as exhibits PE1, PEII, PEIII, PEVI and PEVII. The learned State Attorneys referred to Woodmington v. DPP (1935) AC 462 in pointing out the common principle that the prosecution has the duty to prove the case beyond reasonable doubt which has been translated in the case of Magendo Paul & Another v. Republic, (1993) T.L.R. 219 that “For a case to be taken to have been proved beyond reasonable doubt, its evidence must be strong against the accused person as to leave a remote possibility in his favor which can easily be dismissed.” 7 They submitted further that in the case at hand the prosecution was required to prove the offence of unlawful possession of Government trophy and the same was properly proved beyond reasonable doubt through various aspects. That there were three eye witnesses who testified in the trial court; PW2, PW3 and PW4, and section 62 (1) (a) of the Evidence Act [Cap 6 R.E. 2022] accords the evidence of eye witnesses a lot of weight. That section 106 (1) (b) of the WCA empowers a wildlife officer to enter into any building and conduct search without warrant but in the presence of at least one independent witness and in the case at hand this provision was adhered to as it is shown in PE VI signed by the accused/appellant, arresting officers and PW4; an independent witness. Relying on Nabibakhsh Pirbakhsh Bibarde & Another v. Republic, Criminal Appeal No. 663 of 2020 [2023] TZCA 17269 (19 Maya 2023) TANZLII at page 13, they argued that by signing a certificate of seizure the accused person/appellant proved or acknowledged that the said Government trophy was found in his possession. The learned State Attorneys further argued that the chain of custody (PE II) was well maintained as PWI explained clearly on how the exhibits were handled up to 10th October, 2023 when he brought the same in the trial 8 court, the wild meat together with the yellow bucket were admitted as PEIII collectively and the chain of custody was properly admitted in court as exhibit PEII. They further argued that the Trophy Valuation Certificate and sketch map were properly admitted as PE 1 collectively which confirmed what the accused/appellant was arrested with is Government trophy. That the caution statement; PE VII, was properly admitted in the trial court, with no objection from the appellant and by so doing it proves that he agreed with the document. The learned State Attorneys invited this Court to refer the case of Paulo Maduka & Others v. Republic, Criminal Appeal No. 110 of 2007 [2009] TZCA 69 (28 October 2009) TANZLII which held that the best evidence in a criminal trial is a voluntary confession from the accused himself. In relation to the second and third grounds of appeal the respondent submitted that the same do not hold water since the prosecution case was proved in the standard required under section 3 (2) (a) of the Evidence Act [Cap 6 R.E. 2022], that is, beyond reasonable doubt. The learned State Attorneys, on the argument that the trial court admitted exhibit PE I without being read over, argued that the same did not prejudice the appellant in any way since the appellant, during preliminary 9 hearing, agreed such documents to be produced which implies that he did understand these documents well. The learned State Attorneys relied on section 192 (4) of the CPA to emphasize the argument that once a document is admitted during preliminary hearing and signed in the memorandum of agreed facts such document is deemed to have been proved. They further argued that officers who prepared the said PE I; PW6 and PW5 testified in the trial court and the appellant failed to cross examine them. The learned State Attorneys cited Patrick Omary @ Richard v. The DPP, Criminal Appeal No. 236 of 2019 CAT at Sumbawanga, TANZLII [2023] TZCA 17646 (25 September 2023) which quoted Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010 TANZLII [2012] TZCA 103 (21 May 2017) that “… a part who fails to cross examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the Trial Court to disbelieve what the witness said…” In relation to non-issue of receipt after search by the arresting officer, the learned State Attorneys argued that such issuance is not a mandatory requirement as the certificate of seizure signed by the accused, the arresting officer and the witnesses serves the purpose. They further argued that the section has been so interpreted in the case of Matata 10 Nassoro & Another v. Republic, Criminal Appeal No. 329 of 2019 [2022] TZCA 690 (2 November 2022) TANZLII at page 16 and 17. Therefore, they argued, the current position is that the certificate of seizure is as good as the receipt. The learned State Attorneys opposed the argument that the trophy identification was done by PWI who testified as a wildlife officer, they argued that identification of the seized trophy was undertaken by PW6 who is a wildlife officer and an expert in making identification and valuation of wild animals for more than 8 years, and that the seized trophy was identified to be an Impala by its peculiar features and that PW6 prepared a trophy valuation certificate which was admitted as PE1. To cement their argument, the case of William Maganga @ Charles v. Republic, Criminal Appeal No. 104 of 2020 [2023] TZCA 17742 (6 October 2023) TANZLII was cited. In this case it was held that: “… In wildlife conservation related cases, identification of a particular specie of the animal affected or part of it in relation to an offence charged, is a matter of considerable significance. That aspect of the case, is provable by tendering a properly filled in Trophy Valuation Certificate, which is a standard form document created under the Wildlife Conservation (Valuation of Trophies) Regulations 2012 (Government Notice No. 207 of 2012). Tendering of that certificate must go hand in glove with a proper explanation of a wildlife expert 11 detailing the distinctive features of a given animal. Such oral explanation or description may be based on animal science or the witness’s experience in wildlife conservation and management…” In relation to search warrant, the learned State Attorneys argued that the search in question was conducted under section 106 (1) (b) of the WCA which empowers wildlife officers to enter into any building and conduct search without warrant but in presence of at least one independent witness and this was complied with. They admitted knowledge of section 38 (1) of the CPA and PGO No. 226 with regard to search by police officers, and argued that these should not be read in isolation to other laws as it is provided in the Interpretation of Laws Act [Cap. 1 R.E. 2019]. That in the case at hand, search without a warrant did not prejudice the appellant in any way as the same was conducted by PW2 in the presence of an independent witness; PW4 and the certificate of seizure was signed by the accused/appellant and admitted in trial court as PE VI whereby the accused agreed with his name and signature on it. The learned State Attorneys therefore prayed for dismissal of these grounds for lack of merit and concluded that the evidence from the three prosecution witnesses was strong and thus sufficient to prove the case against the appellant beyond reasonable doubt and there were no irregularities by the trial court to make the case flop. 12 In rejoinder submission, the appellant’s counsel prayed for the respondent’s submission to be rejected for lack of merit, instead the appellant’s submission be withheld as submitted. He argued that the prosecution case was not proved beyond reasonable doubt because the whole process of arrest, search and seizure was illegal. In relation to the provisions of section 106 (1) (b) of the WCA on authority over search and seizure, the learned advocate emphasized that the proviso to the section provides categorically that no dwelling house shall be entered into without a warrant except in the presence of at least one independent witness. That since section 106 (1) (b) of the WCA uses the words “without prejudice to any other law” then park rangers were duty bound to adhere to the CPA particularly section 38 (1) and (3) which is relevant to the subject matter. To cement his argument the learned counsel cited the case of Samwel Kibundali Mgaya v. Republic, Criminal Appeal No. 180 of 2020 [2020] TZCA 342 (14/06/2022) TANZLII. He also argued that the officers had a mandatory duty under section 22 (3) (b) of the EOCCA to issue receipt after seizing the alleged exhibits. That this provision even mentions that the relevant official receipt should contain signature of at least one independent witness who witnessed the search. The appellant’s counsel referred to the case of Mwanahamisi 13 Makenzi & Another v. DPP, Criminal Appeal No. 687 of 2023 [2024] TZCA 330 (8/5/2024) TANZLII in which the Court of Appeal insisted on issuing of an official receipt and involvement of independent witness. He further argued that in the case at hand there was no independent witness; that PW4 was not an independent witness rather he was one of the park rangers because he failed to explain whether he is one of the inhabitants at the locality or not. To cement his argument the learned counsel referred to P. L. Malik’s Criminal Court Hand Book, 21st Edition, Eastern Book Company, at page 127 which states: “Before making a search, officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated …” In relation to the alleged confession reflected in the appellant’s caution statement, the learned advocate argued that the appellant’s caution statement was taken while the appellant was in police custody, was not free and was unaware of interview procedure adding that the appellant is “an illiterate person to Police Science.” In relation to failure of the appellant to cross examine a witness, the learned advocate relied on the case of Zakaria Jackson Magayo v. Republic, Criminal Appeal No. 411 of 2018 [2021] TZCA 207 14 (19/05/2021) TANZLII and Kwiga Masa v. Samwel Mtubatwa [1989] T.L.R. 103 to argue that such failure does not mean an acceptance of a material part of evidence on reason that such failure is not an absolute rule. The learned counsel concluded with a prayer for all grounds of appeal to be allowed as submitted as they are meritorious. After going through the rival parties’ submissions and case records, the main issue in this appeal is whether the prosecution case was proved beyond reasonable doubt. As the appellant’s counsel submitted, this is the first appellate court, hence appraisal of evidence adduced at the trial court will be conducted. Apart from the cited case of Ndizu Ngassa (supra) and Union of India V.K.V Lakshman and Others (supra) it was also stated in Makubi Dogani v. Ngodongo Maganga, (Civil Appeal 78 of 2019) [2020] TZCA 1741 (21 August 2020) that: “The first appellate court is entitled to re-evaluate the entire evidence on record, by reading it together and subjecting it to a critical scrutiny and if warranted, arrive at its own decision”. The first ground faults the trial court for failure to properly evaluate evidence thus ending up with a wrong judgement. As per the charge sheet the appellant was charged with the offence of unlawful possession of Government trophy. The trial court judgment from page 3 to 10 analyses 15 the evidence adduced by PWI, PW2, PW3, PW4, PW5 and PW6. The trial court shows how the evidence of each one corroborated with the other. PW2; receiver of the information, illustrated how they searched and found the independent witness, found the appellant in his house, his admission to be the owner of the house, how the appellant moved PW2 and his colleagues from one room and house to another in searching for the trophies and upon finding them, the appellant was asked and he replied that he had no permit to possess the trophy, and finally how the certificate of seizure was prepared and signed. The evidence of PW2 was corroborated with PW3 who was with PW2 from their normal duty patrol, to the appellant’s house and all that took place there until they handed over the appellant and exhibits to PWI. PWI testified how he received and kept the exhibits then handed over to PW6 for identification and finally taking the exhibits and the chain of custody form to the trial court. On the other hand, the testimony of PW4 also corroborated the evidence adduced by PW2 and PW3 on what happened and what was found in the appellant’s house. PW5 drew the sketch map and recorded the appellant’s caution statement. PW6 who, as the learned State Attorney correctly put it, was not mentioned in this ground of appeal for the reason only known to the appellant, conducted identification of the seized trophy and 16 prepared a Trophy Valuation Certificate to confirm that the seized exhibit was Government trophy and its worth. The trial court evaluation of evidence led to its conclusion in page 10 that: “… There is no any doubt that the present accused person was founded (sic) with fresh and cooked meat wild animal known as Impala … prosecution side had a legal duty to make deep and proper investigation to collect all kind of evidence and exhibits which were material to prosecute such suspect in court of law. … the prosecution side did prove their case against an accused person beyond any reasonable doubt.” This Court, considering the oral and written evidence adduced in the trial court, does not agree with the appellant that decision of the trial court was based on cooked, unfounded stories, speculative claims and lies rather the truthful evidence adduced before the trial court. This ground is therefore dismissed. In the second and third grounds of appeal the appellant faults the trial court for violation of laws. On the Important exhibits (trophy valuation report and sketch map) being admitted and marked PEI collectively without being read, this Court agrees with the appellant that the said documents were not read over in the trial court. According to the trial court typed proceedings, chain of custody, certificate of seizure and 17 accused caution statement; exhibit PE II, PE VI and PE VII respectively, were admitted and read out loudly as follows: “…the contents of PEII read over in court loudly by PW1 ” page 7 “…the contents of PE VI read over in court loudly by PW2 ” page 14 “…the contents of PEVII read over in the court loudly by PW5 ” page 21. However, with the Trophy Evaluation Certificate prepared by PW6 and the sketch map prepared by PW5, at page 22 and 21 respectively the situation was put generally like this: “…This is the Trophy Evaluation Certificate. This is my names and my signature. It is at my hand writing. It was in respect of Impala meat. PEI shown to PW6 and referred it…” “… That map had my hand writing. It has my name and my signature … PEI given to PW5 and referred it…” This Court have stated in Bakari Mussa Mere v. Republic, Criminal Appeal No 2 of 2019 (High Court of Tanzania at Mtwara) that: “… once a document is intended to be relied upon in court, such document must be tendered by a witness testifying the contents of that document. Secondly, upon being admitted in court, the contents of such document must be read loudly in court. The purpose of reading the contents of such document is to let the accused understand its contents and be prepared if any, to ask relevant questions related to such document…” 18 This principle has been repeated in various judgments such as the case of Robison Mwanjisi & Others v. Republic [2003] TLR 218, in which the Court of Appeal held: ''Whenever it is intended to introduce any documents in evidence, it should first be cleared for admission, and be actually admitted, before it can be read out, otherwise it is difficult for the court to be seen not to have been influenced by the same". It also held in Aneth Furaha & Others Vs. Director of Public Prosecutions, Criminal Appeal No. 161 of 2018 at Bukoba (unreported) that: "After the documents is admitted, is for the contents to be read over before being acted upon in evidence". In similar circumstances in the case of Matata Nassoro & Another (supra) deliberating on irregular admission of exhibits the Court of Appeal held: “Without much ado, we find the complaint justified because all these exhibits … while properly processed for admission, their contents were not read out aloud in court. In line with our decision in Robinson Mwanjisi & Three Others (supra), et al, we hereby expunge them from the record.” It follows therefore that, the consequences of failure to read the contents of the document admitted in court is to expunge it forthwith as if it never 19 existed. This position was clearly pronounced in various cases including in the case of Jumanne Mohamed & 2 others v. E, Criminal Appeal No. 534 of 2015 DPP v. Kashen Joseph Mtambo, Criminal Appeal No. 10 of 2019 and Issa Hassan UKI v. Republic, Criminal Appeal No. 129 of 2019. In all these cases the court arrived into one conclusion, the exhibit should be expunged. I therefore expunge exhibit PEI from record. The question that follows is whether the prosecution case can still stand even with the expunge of the trophy valuation report and sketch map. In Matata Nassoro & Another (supra) the same question followed after expunge of key exhibits to wit, certificate of seizure, valuation certificate, chain of custody and sketch map. The Court of Appeal, guided by Simon Shauri Awaki@Dawi (supra), Emmanuel Mwaluko Kanyusi & Four Others v. Republic, Consolidated Criminal Appeals No. 110 of 2019 and 553 of 2020 and Saganda Saganda Kasanzu v. Republic, Criminal Appeal No. 53 of 2019 (both unreported), was of the view that the expunge of mentioned exhibits had no material effect on the prosecution case because oral evidence could still suffice to prove the case in the absence of documentary evidence and sustain conviction. As this Court made it clear in Bakari Mussa Mere (supra); documentary evidence is not the only evidence to lead the trial court to convict the accused. In 20 addition, the Court of Appeal in the case of Ngasa Tambu v. Republic, Criminal Appeal No. 168 of 2019 (CAT) Shinyanga (Unreported) stated: “… That is not to say however, that in every case where a document is expunged then it automatically follows that, the oral evidence of the witness who tendered the document cannot be relied upon to support the case, and even where possible to use it to convict the accused. See the case of Huang Qin and Xu Fujie (supra). The rationale is that, it really depends on the evidential value relevance or weight that the expunged document was contributing to the oral account of the witness that remains on record. For instance, if a document was tendered and its contents were not recounted in the oral evidence received, chances are that the expunged document would go with the substantial amount of weight of that witness' evidence. Conversely, if a witness who tendered a document which has been expunged, captured or accounted for the contents of the document in his oral evidence, which remains on record, chances are that expunging the document would not affect that witness' evidence on record from his oral testimony. That is to say, it all depends, and each case must be decided according to the facts before the court and the context of the dispute subject of the resolution.” This gets support from Simon s/o Shauri Awaki@ Dawi v. Republic, Criminal Appeal No. 62 of 2020 (CAT) Arusha in which it was held that “it is the stance of law that oral evidence can prove the case in the absence of a documentary evidence and mount a conviction provided the said oral 21 evidence is credible and sufficient to prove the offence concerned”. From examination of the trial court proceedings, there is still the evidence of PW6 whose oral evidence on page 22 clearly describes how he carried out the valuation process and the findings resulting in exhibit PEI. PW6 adduced as follows, in its verbatim form: “… It was one head of Impala, three pieces of skin one was attached with front limb, six (6) pieces of fresh meat in yellow bucket of 20lts, 136 pieces of cocked meat, one piece of rib. I did make my identification simply of its head and skin. These are things which help us to make simple identification of wild animals because it is outer parts. The Impala head are very unique horn. Its horns are likely lyre to wit there is no any other animal which had such kind of horns. Also, Impala had large ears with black marked color in and out of it but the rest parts is redish. Its body had redish color and brownish. Also, at the center of its limbs from hooks there is black dot. That limb had such dot. Its meat had more redish with soft muscle. It does not have intermuscular fats. Impala is medium Antelope. Its rib was small in size, compare with others. That cocked meat was some how gray. This is the culture of Impala meat which loose its water and change its color after having been cocked. All of these give me this result that was Impala meat. Its marketing value on that day was Tshs. 963,073.08 the exchange rate on that day was Tshs. 2,469/42…” On the other hand, PW5 at page 21 explained about the process and the sketch map of the scene area. This Court is therefore of the view that the 22 explanations from PW6 and PW5 were sufficient in the absence of the exhibits itself. Therefore, the expunge of PE I has no effect on the prosecution case. The appellant also argued that another violation of law relates to failure of the arresting officer to issue receipt after the arrest and seizing exhibits contrary to section 38 (3) of the CPA. As the appellant correctly argued, the issuing of receipt also came up in the case of Samweli Kibundali Mgaya (supra) in which various irregularities were said to taint the search and seizure thereto and one of them being no receipt issued to the appellant to acknowledge the seizure of the trophies. Looking at the judgment it seems the Court looked at receipt and certificate of seizure synonymously, as it held: “… PW1 who led the search did not issue a certificate of seizure on what was seized. The need to issue a certificate of seizure was emphasized in our recent decision in Shabani Kindamba v. Republic; Criminal Appeal No. 390 of 2019 in which an excerpt in our earlier decision in Selemani Abdallah and Others v. Republic, Criminal Appeal No. 354 of 2008 (both unreported) was referred wherein the Court stated "The whole purpose of issuing receipt to the seized items and obtaining signature of the witnesses is to make sure that the property seized came from no place other than the one shown therein. If the procedure is observed or followed, the complaints normally expressed by suspects that 23 the evidence arising from such search is fabricated will to a great extent be minimized." The court then continued to hold that the conducted search was illegal and so was the seizure. However, the position changed in Matata’s case (supra) in which one of the appeal grounds was wrong admission of the certificate of seizure with the appellants therein arguing that a receipt did not accompany the certificate of seizure, citing the case of Andrea Augustino @ Msigara & Another v. R, Criminal Appeal No, 365 of 2018 (unreported) in which the Court underscored the need to issue receipts acknowledging receipt of seized items as required by section 38 (3) of the CPA. The Court, finding no dispute that receipt was not issued, went on to hold that: “… in view of the fact that the appellants counter-signed a certificate of seizure containing a list of items seized from them, such certificate was sufficient under the circumstances considering that there was also oral evidence from the arresting witnesses and the independent witness.” The Court went on to dismiss the appeal ground holding that: “In any case, as we held in Nyerere Nyague v. R, Criminal Appeal No. 67 of 2010 (unreported) not every apparent contravention of the CPA would result in the automatic exclusion of the evidence in question.” 24 In our case certificate of seizure; PE VI, was signed by the appellant, other arresting officer (PW3) and the independent witness; PW4 and it contained a list of all seized items. In addition, PW2, PW3 and PW4 all testified in the trial court and their testimonies reflect contents of the certificate of seizure. For these reasons I see no merit in the argument that non-issue of a receipt on seized items was illegal. On the other point, the appellant argued that section 38 (3) of the CPA was also violated as there was no search warrant or the presence of any village leader as the search was not an emergency search. The importance of search warrant cannot be underestimated, it was interpreted in Samweli Kibundali Mgaya (supra) to be a safeguard to the constitutional right to dignity and privacy of a person. On the other hand, the Court of Appeal in Nassib Abubakar Mwazyega @ RAS v. Republic, Criminal Appeal No. 146 of 2021 at Mbeya also emphasised that whilst section 38 (3) of the CPA sets that requirement, the reading of it must go together with section 106 (1) (b) of the WCA which stipulates that: "(1) Without prejudice to any other law, where any authorized officer has reasonable grounds to believe that any person has committed or is about to commit an offence under this Act, he may enter and search without any warrant any land, building, tent, vehicle, aircraft or vessel in the occupation or 25 use of such person, open and search any baggage or other thing in his possession: Provided that, no dwelling house shall be entered into without a warrant except in the presence of at least one independent witness." It follows that where search and seizure involve wildlife offences, and the place to be searched is a place or vessel other than a dwelling house, such search and seizure may be conducted without warrant and without the presence of an independent witness. For a dwelling house there must be a search warrant otherwise the independent witness must be involved. The Court of Appeal in Omary Said @ Lubawa v. Republic, 26 Criminal Appeal No. 31 of 2023 [2024] TZCA 486 (24 June 2024, TANZLII) as referred to in Nassib Abubakar Mwazyega @ RAS (supra) also stated that section 38 (1) and (3) of the CPA must be read with section 106 (1) (b) of the WCA. The latter gives wildlife officers wide powers of entry, search and seizure without warrant or a requirement of an independent witness, save where a dwelling house is involved. In the case at hand an independent witness was involved; PW4, who also signed PE VI and testified in the trial court, in page 17, on what transpired on the material day from the moment PW2 requested him to witness the search to the search itself, the seizure and arrest. However, the appellant had the following to argue on PW4: 26 “…regarding independent witness, there was no one, the purported PW4 one ZABRON ELIA … it undisputed (sic) that he is one of the Park Rangers and has interest to serve because failed (sic) to explain whether he is one of inhabitants at the locality or not” This Court doses not see any merit in the argument advanced on this issue. The appellant also argued that there was no proper identification of the said government trophy, that “PW1 testified that as a wildlife officer, he was able to identify through his knowledge, the meat to be that of Impala…”. With due respect, this Court believes the appellant’s counsel misdirected himself. PWI; F 2448 Sgt James - a police exhibit room storekeeper, whose testimony is at page 6 of the trial court typed proceedings, described on how he received, kept and present to the trial court the exhibits together with the chain of custody, and when the same was admitted as PE II he read it out in accordance with the law. There is nowhere in the proceedings where PW1 even attempted to testify on identification of the trophy except that on 28th September, 2023 he handed over the exhibits to PW6 for identification and valuation. Still on failure of the trial court to observe law, the appellant argued that exhibits were tendered by improper person, adding that it was “a witness who was not responsible”, citing a certificate of seizure and inventory 27 form. This brings about the question as to who is a competent witness to tender exhibits in a court of law. We get assistance from the Court of Appeal in Fatuma Said Mahanyu v. Republic, Criminal Appeal No. 323 of 2019 (CAT) Arusha that: “… Settled law is to the effect that an exhibit may be tendered by any person who had, at any time, dealt with it. The object of the rule is to ascertain the identity of the said exhibit as the very one which it is claimed to connect the accused with the offence charged” In this case the Court of Appeal went on to refer its other two earlier decisions; DPP vs. Mirzai Pirbakhsh @ Hadji and Three Others, Criminal Appeal No. 493 of 2016 and DPP vs Sharif Mohamed @ Athuman and 6 Others, Criminal Appeal No. 74 of 2016 (both unreported) in which it laid down the categories of people who can tender exhibits in court. It stated thus: “… The test for tendering the exhibit therefore is whether the witness has the knowledge and he possessed the thing in question at some point in time, albeit shortly. So, a possessor or a custodian or an actual owner or alike are legally capable of tendering the intended exhibits in question provided he has the knowledge of the thing in question.” The two cases were also initially referred to in Hamis Said Adam v. Republic, Criminal Appeal No. 529 of 2016 (CAT) Arusha. 28 In the case at hand the trial court typed proceedings show that seven exhibits were tendered. The exhibits and who tendered the same in the trial court are: Trophy Valuation Certificate and sketch map (PE I collectively - PW6 and PW5 respectively), Chain of custody (PE II- PW1) Wild animal meat (fresh and cooked) (PE III collectively- PWI), two iron pots (PE IV collectively - PW1), two machetes (PE V collectively- PW1), Certificate of seizure (PE VI- PW2) and the accused caution statement (PE VII- PW5). The appellant’s complaint was on tendering of certificate of seizure and inventory form. There was no inventory form in this case however the certificate of seizure was tendered by PW2 who is the one who led the search, seizure and prepared the same. Therefore, on the light of Fatuma Said Mahanyu (supra) PW2 was competent to tender PE VI as an exhibit and therefore the complaint lacks merit. After all is said and done, I find the appeal without merit and I dismiss it in its entirety. DATED at BABATI this 25th day of February, 2025. N. J. MWIHAMBI JUDGE 29 COURT: Judgment delivered today in presence of the appellant and Mr. Jackson Maheka, State Attorney. B/C: Ms. Anna Mathayo (RMA) is present. Right of appeal explained. N. J. MWIHAMBI JUDGE 30