JUMA SHABANI JUDGEMENT2222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 31138 OF 2024. {Originating from Economic case No. 10449/2024 from Simanjiro District court at Orkesment.') JUMA S/O SHABANI....................................................1st APPELLANT SELEMANI S/O JUMBE................................................. 2nd APPELLANT VERSUS THE REPUBLIC....................................................................RESPONDENT JUDGMENT 17th & 11th March, 2025 Kahyoza, J. Juma Shabani and Selemani Jumbe (the appellants), were charge with two accounts of unlawful possession of Government trophy, contrary to Section 86(1) and (2)(c)(iii) of the Wildlife Conservation Act, [ Cap. 283 R.E. 2022] (the WLCA) and read together with paragraph 14 of the First schedule to and sections 57(1) and 60(2) of the the Economic and Organised Crime Control Act, [Cap 200 R.E 2022] (the EOCCA) and sentenced to serve; a minimum mandatory statutory sentence of twenty (20) years' imprisonment. Aggrieved, the appellants appealed to this Court complaining that; one, the second appellant was wrongly convicted as the first appellant was the one used to hunt; two, that second appellant was not a i beneficially, three, they were arrested in the absence of their leaders; four, the chain of custody was not properly filled; and the search was conducted in the absence of an independent witness; and finally, the trial court erred to rely on the repudiated confession. This is the first appeal which has a duty to re-evaluate the evidence, hence apart from considering the issues raised by the ground of appeal, I will consider the basic issue whether the prosecution proved the appellant guilty beyond reasonable doubts. Given the nature of the offence, the prosecution had a duty to prove that; one, the appellants were found in possession of wild meat identified (trophy) to wit; the meat of dikdik and dove; two, the appellant possessed wild meat unlawful; and three, for determining the sentence to prove the value of the trophy, Briefly, the prosecution's facts are that; the appellants were on the 2nd day of April 2024 at Langai Village, within Simanjiro District in Manyara Region, founded in possession of fresh meat of dikdik equivalent to two killed dikdik valued at Tzs. 1,533,000.00 and dove meat, equivalent to one killed dove valued at Tzs. 255,500.00 the property of the government of United Republic of Tanzania without permit from Director of wildlife. The prosecution witnesses, Tito Towo (Pw3), and David Sumbi (Pw5) after receiving the information from the whistle-blower that at Endumo area in Langai village there were poachers went to the scene. 2 They arrested the appellants who were at the farming camp. They search the camp and found meat they identified as dikdik's meat and dove's meat. Tito Towo (Pw3), prepared the certificate of seizure which he identified in the court as Exh. P3. They took the appellants and the meat to police station and handed the same to police officer No. J.3050 Pc Maiungu, the exhibit keeper (Pwl). They use the chain of custody form to hand over the exhibit, which was tendered as Exh.pl. On the same day, that is on 2.4.2024, J.3050 Pc Maiungu, (Pwl) handed the exhibit to Janeth Msoke (Pw2), the wildlife officer who identified and valued the exhibits. Janeth Msoke (Pw2), she identified the meat as the meat of dikdik and dove meat. She also valued the meat. She did not give distinct features of dikdik or dove meant while testifying. She tendered a trophy valuation certificate and an inventory as exhibits P.2 and P3 respectively. Lucia Mushi, the resident magistrate (Pw4) deposed on 2.4.2024 Janeth Msoke (Pw2), went to her office with the appellants and meat alleged to be wild meat. She interrogated the appellant in relation to the exhibit. They asked that they were found with meat. She filled the inventory and ordered the meat to be disposed. The appellants gave their defence after affirming. Juma Shabani (Dwl) denied to commit the offence. He narrated that he was tortured 3 and asked to explain where was one Mudi, a person who was watching the Division executive secretary's shamba. Selemani Jumbe. (Dw2) denied to have been involved in the commission of the offence but stated that Juma Shabani (Dwl) had hunted animals. He confirmed that the meat found at their camp were wild meat. Aggrieved, Juma shabani and Selemani Jumbe appealed to this court raising five grounds of complaint. That the trial court erred in law and facts to convict the 2nd appellant while he made the court to be a were that the 1st appellant was responsible with such offence and he didn't deny to commit the offence. That the trial court erred in law and facts to convict the 2nd appellant without credible evidence and it was seems to benefit from the meet. Did the prosecution prove that the appellants were found in possession of wild meat (the trophy)? The prosecution's principal witnesses, Tito Towo (Pw3), and David Sumbi (Pw5) told the court that following information that there were people suspected to possess and sell wild meat, went to the scene of crime and arrested the suspects. They found them with meat they identified as the meat of dikdik and dove. Tito Towo (Pw3), prepared the seizure certificate which they all signed. It is unfortunate that the seizure certificate was not tendered as exhibit. Tito Towo (Pw3), while testifying 4 he had an opportunity to identify the seizure certificate as exhibit P. 3. As the record bears testimony Exhibit P. 3 was an inventory form tendered by Janeth Msoke (Pw2). Failure to tender the certificate of seizure raised doubts of the appellants found in possession of the wild meat and Tito Towo (Pw3), and David Sumbi (Pw5) seized meat from the appellants. I also examined the prosecution's evidence to find out whether meat allegedly found in the appellant's possession was sufficiently identified. Tito Towo (Pw3), and David Sumbi (Pw5) deposed based on their experience that the meat found in the appellants' possession was the meat of dikdik and that of dove. There was no one who gave peculiar characteristic based on experience or animal science. It is hard to rely on their evidence and conclude that the meat alleged found in the possession of the appellants was that of dikdik and dove. Janeth Msoke (Pw2), the wildlife officer who was summoned to identify and value the trophy, deposed without giving features of the meat of dikdik or dove that the meat was of two dikdik and one dove. She also valued them. She tendered a trophy valuation certificate which did not state how she identified the trophy. Janeth Msoke (Pw2)'s testimony did not establish that meat alleged found in possession of the appellants were dikdik or dove meat as alleged. The Court of Appeal had an opportunity 5 to consider the issue of identification of trophy in the case of William Maganga @ Charles vs Republic (Criminal Appeal No. 104 of 2020) [2023] TZCA 17742 (6 October 2023). I wish to produce the observation of the Court in extenso, as follows- "With respect, the above linear statement does not demonstrate any kind of expertise that PW5 had, in identification of animal species or their body parts. He does not say why did he conclude that the items were elephant tusks and not any horn or tooth of any other animal. The point we want to clarify ourselves about is that, not every person can identify and differentiate animals or animal parts particularly wild animals. In this case we expected some animal science in the evidence of PW5, at least to mention a feature or two, that are peculiar to elephant tusks and which are not available in any other anima! species. In Evarist Nyamtemba v. R, Criminal Appeal No. 196 of 2020 (unreported), a case involving identification and valuation of elephant tusks, we observed that:- "The testimony of PW5 lacked all these information. As rightly submitted by the learned State Attorney, PW5 gave a generalized statement that exhibit PI was elephant tusks with no further explanation as to the peculiar features of it that led him to conclude that exhibit PI was truly elephant tusks hence a government trophy. " That is the precise point we are making in this case. A generalized statement is not acceptable, because anybody can make such a sweeping statement. In wildlife conservation related cases, 6 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 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 any event, we agree with Ms. Moshi, who observed that throughout his evidence, PW5 did not state anywhere that he was even a qualified wildlife officer mandated to carry out identification of animal species and their valuations." (Emphasis added) I find that prosecution did prove that the appellants were found in possession of wild meat (the trophy) beyond reasonable doubts. As shown above, it is doubtful whether the appellants were found in possession of the wild meat in the absence of the seizure certificate. Even if, the appellants were found in possession of meat, there is no sufficient evidence to prove that meat was wild meat to wit; meat of two dikdik and dove. Having found that the prosecution did not prove two of the elements 7 of unlawful possession of Government trophy, there no need to consider the remaining elements. I, find that the prosecution did not prove beyond reasonable doubt that the appellants were found in possession of the government trophy In the end, I allow the appeal, set aside the conviction and sentence for the prosecution's failure to prove the appellants guilty of the offence of unlawful possession of Government trophy, contrary to Section 86(1) and (2)(c)(iii) of the Wildlife Conservation Act, [ Cap. 283 R.E. 2022] beyond reason doubt. I order the appellants' immediate release from prison unless held there for a lawful cause. I Order accordingly. Dated at Babati, this 11th day of March, 2025. Court: Judgment delivered on the virtual presence of the appellants and Ms Rose Kayumbo SSA for the Republic. B/C Mr. Shedrack present. J. R. Kahyoza, J. 11.3.2021 8