Criminal Appeal No 244 of 2022 Juma Charles Stivin Simba v Republic

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA fCORAM: KEREFU. 3.A.. KIHWELO. 3.A And MDEMU. J.A.^ CRIMINAL APPEAL NO. 244 OF 2022 JUMA CHARLES @ STIVIN SIM BA........... ......... .............. APPELLANT VERSUS THE REPUBLIC........ ........ ..... ....... ...... ................. RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Sumbawanga) fNkwabi. J.1 dated the 27th day Of April, 2022 in Criminal Appeal No. 72 of 2020 JUDGMENT OF THE COURT 31“' October & 5Ul November, 2024 MDEMU, 3.A.: In the District Court of Mpanda, the appellant was arraigned for the offence of unlawful possession of government trophies contrary to the provisions of section 86 (1) and 2(c) (iii) of the Wildlife Conservation Act, No.5 of 2009 as amended by section 59 (a) and (b) of the Written Laws (Miscellaneous Amendment) (No.2) Act, No.4 of 2016 (the WCA) read together with paragraph 14 of the First Schedule to and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, Cap. 200 (the EOCCA) as amended. According to the particulars of the offence, it was on the 27th May, 2019 when the appellant was found in possession of 80 kilograms of hippopotamus meat valued at USD 1500 or its equivalent to T7S 3,453,375.00. He had no permit to do so. Facts that led to the arraignment, prosecution, conviction and ultimately sentencing the appellant to a 20 years prison term are as hereunder: On the fateful day, Baitazary Migodela (PW2), Cyprian Msabila (PW3) and Charles Manyenye, who are all park rangers, while on their routine patrol, received intelligence information of a person suspected to possess government trophies at Matandaiani area. Acting on such information, the said park rangers involved the Village Executive Officer (VEO) one Daniel Francis Maembe (PWl) and all proceeded towards the crime scene. While on the way, they saw a person holding a knife (exhibit P2) and two luggage folded in bags commonly known as "sulphate." The said person, who later came to be the appellant, was interrogated, and according to PWl, PW2 and PW3, he stated that the two sulphate bags contained dried wild meat which was given to him by one "Ndege Ulaya." A certificate of seizure (exhibit PI) was prepared thereafter, signed by the appellant, PWl, PW2 and PW3. The appellant together with the impounded wild meat were taken to Mpanda Police Station where Grace Sweetbert Kazinja (PW4) conducted valuation and certified that the said wild meat is of hippopotamus weighing 80 kilograms. The valuation report (exhibit P5) indicates the value of the alleged hippopotamus meat to be USD 1500 or TZS 3,453,375.00 In its equivalence. On 31st May, 2019, the said wild meat, as per the order of the District Court of Mpanda (exhibit P4) was disposed in terms of section 101 of the WCA read together with section 353 (2) of the Criminal Procedure Act, Cap. 20. At the trial, the appellant distanced himself from the offence alleging to have been framed up by the park rangers for reasons best known to themselves. That notwithstanding, the trial court found the prosecution case proven and proceeded to convict him. The findings of the trial court rested on the following: One, in terms of section 100 (3) of the WCA, the appellant's defence failed to establish that the impounded wild meat does not belong to the appellant Two, the evidence from the chain of custody (exhibit P3) establish beyond reasonable doubt that the wild meat seized from the appellant is hippopotamus and was with the appellant during his arrest and without being licensed to possess. His appeal to the High was without success. In dismissing the appeal, the High Court (Nkwabi, J.) found nothing to faulty the trial court's findings on what he observed at page 85 of the record of appeal that: "The evidence is dear. The evidence is strong against the appellant. It is not true that the trophies were on the road" On that account, the High Court proceeded to sustain both conviction and sentence meted out to the appellant. Still dissatisfied with such findings of the first appellate court, the appellant fronted the following grounds of appeal to this Court: 1. That, the learned Judge erred in law and fact by dismissing the appellants appeal while the case against the appellant was not proved beyond a il reasonable doubt 2. That, the learned Judge erred in law and fact by dism issing the appellant's appeal relying on the weakness o f the evidence adduced by the appellant instead o f the strength o f the prosecution evidence. 3. That, the learned Judge erred in law and fact by dismissing the appellant's appeal by believing exhibit P I (certificate o f seizure) while did not observe that the said exhibit was not signed by the appellant using thumb print, something which brings doubt in the eyes o f the law. 4. That, the learned Judge had lost site in points o f law and fact by dism issing the appellant's appeal without taking into consideration that exhibit P2 and exhibit P3 were adm itted illegally since the appellant was not given a chance to object or adm it it as required by the law. 5. That, the learned Judge m isdirected him self by dismissing the appellant's appeal relying on the prosecution's evidence and did not observe that, a t the tria l court the prosecution side failed to call a police officer who was the investigator o f the case in order to prove the charge against the appellant 6. That, the learned Judge had lost site in point o f law and fact by upholding the conviction and sentence o f the tria l court for the appellant white did not observe that the PF3 adm itted as an exhibit for the appellant, the tria l magistrate failed to consider it \Ne heard the appellant who appeared in person unrepresented on 31st October, 2024. He was ready to prosecute his appeal after having heard first from the respondent/ Republic. Mr. Deusdedit Rwegira, learned Senior State Attorney, appeared for the respondent/Republic and readily supported the appeal because the prosecution case was unproven to the required standard. He fronted the following reasons in that concession: First, he was not impressed on the manner the investigation machinery dealt with the impounded government trophy in the chain of custody (exhibit P3). Second, disposal of the impounded government trophy by the order of the subordinate court was irregular and third, the inventory was not issued after the disposal of the impounded government trophy. This, to the learned counsel, was key as it would form the basis of the evidence at the trial of the appellant. In absence of the inventory, he thought, the evidence is wanting because both the physical government trophy and the inventory did not form part of the evidence. He thus submitted that the offence was not proved. He referred us to the case of Ngasa Tambu v. Republic (Criminal Appeal No. 168 of 2019) [2022] TZCA 455 (21 July 2022, TanzLII). When his time came, the appellant was brief that, the prosecution case is surrounded with some weaknesses making the case unproved. He fronted further by referring us to page 29 of the record of appeal arguing that, his defence be considered in the determination of his appeal. He thus urged us to release him. We have attentively heard the appellant and the learned Senior State Attorney who joined forces to implore us to hold that, the appeal is meritorious. We have equally gone through the record of appeal with due care. Looking at the grounds of appeal and the route taken by the appellant and the [earned Senior State Attorney in arguing the appeal, one question that comes to our attention is whether at the time of arrest, the appellant was found in possession of 80 kilograms of hippopotamus meat as alleged in the prosecution case. This question basically resolves the first ground of complaint as reproduced above. That ground of complaint is to the effect that the prosecution case was not proved to the required standard, We have taken that course because it is not disputed that in the night of 27th May, 2019 the appellant was apprehended by a number of people, PW1, PW2 and PW3 inclusive. What did he possess during that arrest, is the subject of this appeal. In resolving ground one of the appeal, we will consider only two points. One, is in respect of whether there was evidence at the resumption of trial regarding the impounded hippopotamus meat. Two, is with regard to the procedure deployed in dealing with the certificate of seizure, exhibit PI at the trial court. Beginning with evidence of the impounded government trophy, at page 19 of the record of appeal, the prosecution tendered proceedings of Mpanda District Court (exhibit P4) such that the said hippopotamus meat was disposed of by burying in the soil. However, an inventory was not prepared post to an order for destroying the said trophy. As said, the prosecution sought to use the court's order (exhibit P4) being evidence that 80 kilograms of hippopotamus meat seized to the appellant was destroyed. We think the trial court erred in using exhibit P4 as evidence to prove what was destroyed in absence of an inventory. Faced with a similar situation in Ngasa Tambu v. Republic (supra) cited to us by Mr. Rwegira, the Court observed at page 19 of the judgement that: "The point, however, is not on the m odality of, or the law applicable in carrying out or ordering a disposal o f perishable exhibits. The critical concern is that the only evidence to show that there existed any trophy any time after destroying them is the document called inventory, containing the order for destroying the trophies. Otherwise, if the offence o f unlawful possession o f government trophy is not adm itted by a suspect, in absence o f both the physical government trophies and an inventory, a charge o f unlawful possession o f government trophies cannot be proved". In the appeal before us, the appellant disassociated himself with possession of the government trophy during his arrest. As was in Ngasa Tambu v. Republic (supra), both the physical 80 kilograms of hippopotamus meat and the inventory are missing. We said, and worthy repeating that the inventory was not prepared at all . Next for our consideration is in respect of the manner the certificate of seizure, exhibit PI was treated in the trial court. This exhibit was not read in court after being admitted. Time without number, this court repeatedly positioned itself to the effect that a document cleared for admission and admitted thereafter, must be read over in court. See for instance Robinson Mwanjisi and Three Others v. R, [2003] T.L.R. 218. The irregularity is indeed fatal rendering the said document liable to be expunged. Guided by that position of the law, we hereby expunge the certificate of seizure, exhibit PI from the record. Having expunged the certificate of seizure and in absence of the inventory and or the physical trophies, we are in ali fours with the learned Senior State Attorney that the evidence of arresting officers, that is PW2 and PW3 is of no evidential value. So do the evidence of PWl allegedly to have witnessed the said search and seizure of the trophies. Essentially, under the premises, the offence of unlawful possession of government trophies thus remains unproven. We think this ground alone suffices to dispose of the entire appeal. For that reason, we find no need for stretching ourselves to the remaining grounds of appeal as reproduced above. In the light of what we have observed above, this appeal is meritorious and is accordingly allowed. The conviction is hereby quashed and the sentence meted thereat is set aside. Our order is for the immediate release of the appellant, else held lawfully. DATED at SUMBAWANGA this 5thday of November, 2024. R. J. KEREFU JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 5th day of November, 2024 in the presence of the appellant appeared in person and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.