josephina meshack another vs republic 2023 tzhc 22387 13 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF TABORA

AT TABORA DC CRIMINAL APPEAL NO. 26 OF 2023 (Originating from Kaiiua District Court Economic case no.2/2021) JOSEPHINA MESHACK.............................................. 1st APPELLANT ELIZABETH HAMIS.................................................... 2nd APPELLANT

VERSUS REPUBLIC....................................................................... RESPONDENT

JUDGMENT Date of Last Order: 09/10/2023 Date of Judgment: 13/10/2023 MATUMA, J, The appellants together with one Keflin Lucas stood charged in the District Court of Kaiiua at Kaiiua for unlawful possession of Government Trophy contrary to section 86 (1) and (2) (c) (ii) of the Wildlife Conservation Act No. 5 of 2009 as amended, and section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, Cap. 200 R.E.

2019. Before the commencement of the trial, Keflin Lucas jumped bail. The prosecution however decided to withdraw him from the charge. After a full trial, the trial court was satisfied that the prosecution case has been proved beyond any reasonable doubts. It convicted the appellants and sentenced them to suffer a custodial term of twenty (20) years. The trial court also convicted and sentenced Keflin Lucas to twenty years jail term despite the fact that he was no longer an accused in the charge sheet. The appellants being aggrieved with the conviction and sentence have preferred this appeal with a total of eight grounds which were however condensed and argued into two major complaints namely; i) That the prosecution case was not proved beyond any reasonable doubts. ii) That the trial court had not obtained the requisite jurisdiction to entertain the case against the appellants. At the hearing of this appeal, the appellants were present in person and were represented by Mr. Samwel Ndanga learned advocate. The Respondent/Republic was represented by Nurdin Mmary learned State Attorney. Both learned counsels had the same observations that the prosecution case was not proved beyond any reasonable doubts and that the Consent and Certificate by the Director of Public Prosecutions were not properly endorsed for purposes of jurisdiction of the trial court. To avoid making this judgment

too long as the parties are at per on the matter, I will not reproduce the submissions made by each party. Rather, I will be referring to their respective submissions in the course of my decision. While I reject the arguments of Mr. Samwel Ndanga that the consent and Certificate by the Director of Public Prosecutions ought to have been received as exhibits during trial to confer jurisdiction to the trial court, I agree with Mr. Nurdin Mmary learned State Attorney that what is required is for the trial court to endorse such documents and not to receive them as exhibits. That is in fact the position held in the case of John Julius Martin and Another versus The Republic, Criminal Appeal no. 42 of 2020 in which the Court of Appeal at page 8 held that the DPP's Consent and Certificate should be endorsed on its face by the trial magistrate and be reflected on record to have been admitted. Failure so to do, renders the trial court incompetent to try an economic offence despite of the presence of such documents in the case file. The two documents cannot be received on record as exhibits as purportedly argued by Mr. Samwel Ndanga learned advocate because by doing so it would mean the commencement of trial by swearing in or affirming a witness who is going to tender the documents as exhibits. As a matter of practice, a witness is called in the witness dock after the charge is read to the

accused person and the plea thereof is recorded. Therefore, admitting the Consent and Certificate as exhibits, it would mean the trial court should commence the trial by reading the charge and taking the plea of the accused persons evenjsefore admitting the Consent and Certificate on record. That is not theH&w. The plea of an accused person can only be taken by the trial court after the receiving and endorsing the Consent and Certificate. Therefore, such documents must as a matter of law be received by the trial court and be endorsed accordingly before the trial commences. In that respect they cannot be admitted as exhibits. In the instant matter the Consent and Certificate were received in court on 19/11/2022 and endorsed by the Registry officer but the trial Magistrate did not endorse the same nor reflected on record that the documents have been received and admitted on record to confer jurisdiction to the court to try the matter. As such the trial court lacked jurisdiction to try the matter and the proceedings thereof were a nullity. The judgment emanating from such proceedings cannot stand and it is accordingly quashed. Up to this juncture, as rightly argued by Mr. Nurdin Mmary learned State Attorney the remedy would be to order a retrial. But again, as rightly submitted by both counsels, the evidence oh record could not warrant the conviction of the appellants even if the

Consent and Certificate would have been properly on record. I thus agree with the learned State Attorney that ordering a retrial would be injurious to justice for the prosecution would need to fill in the gaps. Some of the weakness pointed out by Mr. Samwel Ndanga learned advocate and not contested by the learned State Attorney are; i) Documentary exhibits were not read out to reveal the contents to the appellants and thus liable to be expunged. ii) Failure to join the owner of the premises one Malipesa as a co­ accused or even calling himj^a witness to explain how the alleged trophies got into his premises whereas the appellants were merely invitees for other social issues. iii) The evidence of seizing officers contradicted the trophy valuation evidence whereas the seizing officers seized sable antelope but identification and valuation were executed in respect of an Impala meat which are two different animals. I agree with Mr. Samwel Ndanga learned advocate for the weaknesses observed supra. The prosecution evidence contradicts itself on the identity of the trophy allegedly seized from the appellants. While the seizing officers alleged that they seized sable antelope who is also known in Swahili as Palahala or Mbarapi and stood firm during trial in respect of the trophy they seized, PW4 Floravic Julius Kalambo identified and valued a different trophy which is impala meat. But

the inventory is to the effect that what was brought to the magistrate for inventory was sable antelope (Palahala). In that respect what was seized is what was destroyed by order in the inventory but there is no evidence for identity and valuation of the alleged seized trophy sable antelope. This being the Wildlife case, trophy identification and valuation thereof is the necessary evidence for the purposes of identifying the category of the offence committed and the sentence. In the instant matter we don't have such evidence because PW4 did not identify the alleged trophy. I think the problem resulted from the breaking of chain of custody as rightly argued by the learned State Attorney. The prosecution evi ce is not clear as to the chain of custody of the said trophy from the arresting officers to the valuation officer and later to the court for inventory. The two animals; sable antelope and Impala are different in accordance to the Wildlife Conservation Act supra because sable antelope is found at part II of the first schedule and its Swahili name is Palahala or Mbarapi, while Impala is found at the second schedule of the Act and its Swahili name is swalapahala. Therefore, there is no clear evidence as to which trophy the appellants are allegedly found in possession. I also agree with Mr. Samwel Ndanga learned advocate that so long as the owner of the premises was not

involved anyhow in this case, it was fatal and weakened the prosecution case as it was held by the Court of Appeal in the case of Sophia Joseph Kimaro versus The Republic, Criminal Appeal no. 152 of 2019\n which it was held that when the seizure is done in someone's premises he has to be involved in the search or charged failure of which the manner in which the exhibits got into his premises remain unresolved and the benefit goes to the accused. With all these weaknesses, I will not order a retrial but rather I allow this appeal, quash the conviction of the appellants and set aside the sentence of twenty years meted against them. I order their immediate release from custody unless otherwise held for some other lawful course. The conviction of Keflin Lucaswho was convicted and sentenced unheard is as well quashed and set aside respectively. His status remains that the prosecution withdrew the case against him and they may thus reinstitute the charges against him. Right of further appeal explained. Court; Judgment delivered in the presence of Mr. Lucas Ndanga advocate holding brief of Mr. Samuel Ndanga advocate for the appellants, Ms. Eva Msandi State Attorney for the respondent and appellants in person.

UDGE 13/10/2023 7