CRIMINAL APPEAL NO 27 28 OF 2021 JUMANNE GALIYELA ANOTHER VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: MUGASHA. J.A.. MASHAKA. J.A. And ISSA, J.A/1 CRIMINAL APPEAL NO. 27 & 28 OF 2021 JUMANNE GALIYELA GHATI..................................................1st APPELLANT MAGEMBE VAELA MADATA...................................................2NDAPPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Kahyoza, J.) dated the 19th day of November, 2020 in Consolidated Criminal Appeal No. 90 & 94 of 2020 JUDGMENT OF THE COURT 25th & 28th October, 2024 MUGASHA, J.A.: The appellants, Jumanne Galiyela Ghati and Magembe Vaela Madata were jointly and together charged and convicted before the District Court of Serengeti at Mugumu with three counts all alleged to have been committed on 11/10/2019. The charge in respect of the 1st count was unlawful entry into the National Parks contrary to section 15 (1) and (2) of the Wildlife and Conservation Act No. 5 of 2009. On the second count, the charge was unlawful possession of weapons in the Game Reserve contrary to section 17(1) and (2) of the Wild Life and Conservation Act No. 5 of 2009. Lastly, the 3rd count l involved unlawful possession of Government Trophy contrary to section 86 (1) (2) and (b) of the Wildlife Conservation Act, No. 5 of 2009 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 2002] as amended by the Written Laws (Miscellaneous Amendment) Act No. 3 of 2016. In the particulars of the offences, it was alleged by the prosecution that, on the fateful day, the appellants unlawfully entered into Ikorongo/Grumeti Game Reserve without a permit of the Director of Wildlife and were found therein in unlawful possession of weapons intended to be used for the purposes of hunting, killing, wounding or capturing wild animals. It was also alleged that, they were found in unlawful possession of Government trophy to wit, two fore limbs of Zebra; one head of zebra, two ribs of zebra and one neck of zebra all valued at TZS. 2,640,000.00 the property of the United Republic of Tanzania. After a full trial, as earlier alluded, they were convicted as charged for all the three counts. Accordingly, they were sentenced to serve a jail term for one year each in respect of the first count, and the second count. They were also sentenced to serve a jail term of twenty years in respect of the third count. Their appeal to the High Court was partly successful following the acquittal in respect of the 3rd count. However, the sentence in respect of the second count was enhanced to twenty years. Still undaunted the appellants have preferred the present appeal seeking to demonstrate their innocence. Before addressing on the nature of complaint, it is crucial to give a brief account of what underlies the present appeal. From a total of four witnesses and three documentary exhibits, the prosecution account was briefly as follows: On the fateful day, the two game scouts namely Hamis Lilanga @Ncheye (PW1) and Kulwa Richard @ Maganga (PW4) together with other game scouts, were on patrol at Mto Grumeti within Ikorongo Grumeti Game Reserves. While there, they spotted two persons carrying luggages walking along Grumeti River. Upon arresting them, the two persons were found in possession of one knife, one panga, a head of zebra, one neck of zebra, two fore limbs and two ribs of zebra all being fresh. It is alleged that the two arrested persons introduced themselves as Jumanne Galilaya and Magembe Madata residents of Matoke village and they had no permit to enter or possess weapons and government trophies. The weapons and the trophies were seized as per the certificate of seizure which was tendered at the trial as exhibit PEI. The suspects together with the seized items were taken to Mugumu Police Station. According to Wilbrod Vicent (PW2), upon being summoned at the police he conducted the valuation of the trophies, prepared a trophy valuation certificate and handed over to PW3 (DC Said). The said trophy valuation certificate was tendered and admitted as exhibit PE3. Following the valuation G. 4076 DC Said (PW3) prepared an inventory form and presented it to a magistrate seeking for a disposal order which was granted and it was admitted at the trial as exhibit PE4. On the other hand, the appellants denied the accusations by the prosecution. The first appellant gave a testimonial account which the 2nd appellant also associated with it. He stated that on the fateful day, he was heading to Rubane River and while on the way met the Game Scouts in their vehicle. Upon being asked as to where he was going, the reply was that they were going on a fishing expedition. The Game Scouts took them into the vehicle to their camp and later, to Mugumu Police station. The aforesaid evidence is the basis on which the conviction of the appellants was grounded. Before us the appellants have filed a joint memorandum of appeal fronting four grounds of complaint as hereunder: 1. That, the two Courts below erred in law and fact to convict and sentence the appellant on procedural Irregularities o f reaching the decision to the case at hand without giving opportunity to the appellant to bring his key witness to testify before the Court. 2. That, the trial and the first appellate Courts erred in law and fact by convicting and sentencing the appellant by admitting wrong evidence which was cooked by the prosecution witnesses. 3. That, the trial Court erred in law and fact by convicting and sentencing the appellant by admitting and relying on wrong exhibit which enacted by the prosecution witnesses to prove their case. 4. That, the trial and the first appellate Courts erred In law and fact to convict and sentence the appellant by admitting and relying only on the evidence produced by park rangers and game warden who were the person working the same station without an independent witness. At the hearing, the appellants appeared In person unrepresented. They adopted the grounds of appeal and opted to initially hear the submission of the respondent if need arises. The respondent Republic had the services of Mr. Isihaka Ibrahim, Ms. Agma Haule and Ms. Beatrice Mgumba, all learned State Attorneys. It is Mr. Ibrahim who addressed us and from the outset he supported the appeal. From what is discerned in the grounds of appeal the major complaint of the appellant is that the charge was not proved at the required standard against the appellants. However, the learned State Attorney initially submitted that the trial court had no jurisdiction to conduct the trial which involved an economic offence. On this, he pointed out that both the consent and certificates were invalid having not mentioned the provision of the laws under which the second count of unlawful possession of weapons in the game reserve was preferred. Thus, he argued that with the said omission, the trial court was not legally conferred with jurisdiction to try the case which involved an economic offence which rendered the trial proceedings and judgments of the lower courts a nullity. This being a point of law, the appellants who were a laymen had nothing useful to add besides agreeing with the stance taken by the learned State Attorney. Since the point raised by the learned State Attorney questions the jurisdiction of the courts below whose proceedings and judgments are subject of this appeal, it has to be determined first. As a matter of law, the Economic Crimes Court is the High Court but a subordinate can be conferred a certificate where the DPP or officers subordinate to her issues a certificate in that regard. In the respective consent and certificate the provision under which the charge is preferred against the accused person must be indicated in the consent and the certificate conferring jurisdiction. The respective consent appears at page 7 of the record of appeal which contains the following: "IN THEDISTRICT COURTOFSERENGETI ATMUGUMU ECONOMIC CASENO. 136 OF2019 REPUBLIC VERSUS 1. MAGEMBES/O VAELA @ MADATA 2. JUMANNEDS/O GALIYELA @ GHATI CONSENT OFSTA TEA TTORNEYINCHARGE I, VALENCE S’ MAYENGA, Senior State Attorney in­ charge Mara Region, do hereby, in terms of section 26(2) of the Economic and Organised Crime Control Act [CAP 200 RE 2002] and GN. No 284 of 2014 CONSENT to the Prosecution of MAGEMBES/O VAELA @ MADATA and JUMANNE S/O GALIYELA @ GHATI for contravening the provisions ofparagraph 14 of the first schedule to and section 57(1) and 60(2) of the Economic and Organized Crime ControlAct [CAP 200 R.E 2002] as Amended by the Written Laws (Miscellaneous Amendment) Act No. 3/2026, and sections 15(1) and (2) of the Wildlife Conservation Act No. 5/2009, the particulars of which are stated in the charge sheet." "IN THEDISTRICTCOURT OFSERENGETT ATMUGUMU ECONOMIC CASE NO. 136 OF 2019 REPUBLIC VERSUS 1. MAGEMBE S/O VAELA @ MADATA 2. JUMANNEDS/O GALIYELA @ GHATI CERTIFICATE CONFERRINGJURISDICTION ONA SUBORDINATE COURT TO TRYAN ECONOMICAND NON-ECONOMIC CASES I, VALENCE S. MAYENGA, Senior State Attorney in­ charge Mara Region, do hereby, in terms of section 12(4) of the Economic and Organised Crime Control Act [CAP 200 RE 2002] and GN. No 284 of 2014 ORDER that MAGEMBE S/O VAELA @ MADATA and JUMANNE S/O GALIYELA @ GHATI who are charged for contravening the provisions of paragraph 14 of the first schedule to, and section 57(1) and 60(2) of the Economic and Organised Crime Control Act [CAP 200 R.E 2002] as Amended by the Written Laws (Miscellaneous Amendment) Act No. 3/2016, and sections 15(1) and (2) of the Wildlife Conservation Act 5/2009 be tried by the District Court of Serengeti District at Mugumu." The fate of proceedings based on invalid consent and certificate has been a subject of discussion by the Court in numerous cases including RHOBI MARWA MGARE AND TWO OTHERS VS REPUBLIC, Criminal Appeal No. 192 of 2005, ELIAS VITUS NDIMBO AND ANOTHER VS REPUBLIC, Criminal Appeal No. 272 of 2007 and DILIP KUMAR MAGANBAI PATEL VS REPUBLIC, Criminal Appeal No. 270 of 2019 (all unreported). In the latter case the Court stated as follows: 'We have no doubt that in view o f our deliberation above the consent and certificate conferring jurisdiction on the trial court were defective, though they were made under the appropriate provisions; section 12(3) and 26(1) o f the EOCCCA but referred to the provisions which the appeiiant was not charged with. The consent and certificate did not refer to section 86(1), (2) (ii) and (3) o f the WCA which was clearly cited in the charge sheet The certificate and consent were therefore incurably defective and the trial magistrate could not cure the anomaly in judgment as suggested by the learned State Attorney for the respondent The defects rendered the consent o f the DPP and the certificate transferring the economic offence to be tried by the trial court invalid. For that reasonf we are constrained to find that the trial and proceeding before the Resident Magistrate Court o f Dar es Salaam at Kisutu in Economic Case No. 58 o f 2016 and the High Court in Criminal Appeal No. 146 o f2018 were nothing but a nullity." In view of the aforegoing discussion and the settled position of the law, as correctly submitted by the learned State Attorney that, on account the trial court lacking jurisdiction to entertain the trial, proceedings and judgments of the two courts below are a nullity. In the circumstances, on the way forward ordinarily, the remedy would have been to order a retrial. However, we agree with the learned State Attorney that, a retrial is not worthy in the interests of justice given the apparent weak prosecution account. We shall explain. Although the appellants were acquitted on the charge of unlawful possession of government trophies, the prosecution evidence was discrepant on the manner in which the parts of the zebra were disposed. The powers to issue disposal orders of a perishable exhibit under section 101 (1) (a) (i) and (2) of the Wildlife Conservation Act which stipulates as follows: 101.-(1) The Court shall, on Its own motion or upon application made by the prosecution in that behalf- (a) prior to commencement o f proceedings, order that- (1) any animal or trophy which is subject to speedy decay; or (ii) any weapon, vehicle, vessel or other article which is subject o f destruction or depreciation, and is intended to be used as evidence, be disposed o fby the Director; or (b) at any stage o fproceedings, order that- (I) any animal or trophy which is subject o f speedy decay; or (ii) any weapon, vehicle, vessel or other article which is subject to destruction or depreciation, which has been tendered or put in evidence before it, be disposed o f by the Director. (2) The order o f disposal under this section shall be sufficient proof o f the matter in dispute before any court during trial. In the light of the cited provision, prior to the commencement of the trial, upon being moved by the prosecution, the court has mandate to order disposal of an animal or trophy whose nature is perishable and susceptible to speedy decay. During the trial, the disposal order shall be sufficient proof of the matter in dispute. It is also settled law that, the disposal must be conducted in the presence of a suspect from whom the exhibit was retrieved and he should be accorded opportunity to be heard and raise objection if any, in respect of the intended disposal of the exhibit. See: EMMANUEL SAGUDA @ SULUKA VS REPUBLIC, Criminal Appeal No. 422 'B' of 2013 (unreported), MOHAMED JUMA MPAKAMA VS REPUBLIC [2019] TLR 514 and BULUKA LEKEN OLE NDIDAI AND ANOTHER VS REPUBLIC, Criminal Appeal No. 459 of 2020 (unreported). In the latter case the Court laid down the procedures to be followed before a Magistrate can order the perishable goods to be disposed. The Court stated thus: ...it w ill be sufficient for a magistrate before whom an order to dispose a perishable Government trophy or trophies, to make such order, provided that; one, the prayer to issue the order to dispose o f perishabie exhibits may be made by the investigator or the prosecution informaiiy before a magistrate in chambers; two, if the order is iikeiy to be relied upon in any future court proceedings against any suspect, that suspect must be present at the time o f making the prayer and; three, the suspect must be asked as to his comments, remarks or objections as regards the perishable exhibits sought to be destroyed. Four, if that suspect does not make any comments, remarks or objections, the magistrate shall record the fact that, the suspect was invited to make any comments, remarks or objections, but he opted to make none. Five, if the suspect makes any comments, remarks or objections, they shall be recorded as appropriate either on the reverse side o f the Inventory Form or on any separate piece o f paper or papers and shall be signed by the magistrate." In the light of the above cited excerpt, the burning question here is whether the guideline was complied with to the letter. We do not think so. We are fortified in that regard because the appellants, who were not present during the purported disposal, were denied the right to be heard before the conduct of the disposal. Therefore, given the discrepant disposal, the Inventory Form cannot be proved against them and as such, the trial court wrongly invoked the provisions of section 101 (2) of the WCA to ground the conviction of the appellants. Furthermore, we have also gathered that the chain of custody was indeed compromised in the absence of proof on certainty of the place of storage and custody of the seized items after seizure from the appellants. The items included the weaponry and trophies alleged to have been found in possession of the appellants within the Game Reserve. We shall explain. The record shows that, the seized items were taken to the Police Station which was followed by the valuation conducted by Wilbrod Vicent, PW2 who confirmed that the trophies were parts of a zebra. However, the record raises the following unanswered questions: one, who was entrusted with the seized items at the police station for safe custody; and two, from who were the trophies retrieved by PW2 who conducted valuation and prepared the inventory. Apparently, while the exhibit keeper was not paraded as a witness to clear the doubts, none of the prosecution witnesses gave evidence to remedy the situation which poked holes on the prosecution case on the safe keeping and custody of what was seized from the appellants. Therefore, the chain of custody was compromised and it cannot be ascertained what was seized from the appellants which renders the Inventory Form highly suspect. Moreover, it was alleged by the prosecution both in the charge and evidence that the appellants committed offences and were arrested within the boundaries of Ikorongo/ Grumeti Game Reserves. Since the boundaries of Game Reserves are prescribed, it was incumbent on the prosecution to parade evidence placing the appellants within the prescribed boundaries of the respective Game Reserve where the appellants were arrested. We say so because in criminal trials, the general rule is that, it is the prosecution who has the burden of proving the case against the accused and the standard of proof is beyond reasonable doubt. In the case under scrutiny, PW1 gave the account as reflected at page 23 of the record as follows: " I am a game scout o f Ikorongo/Grumeti Game Reserve. ...I remember on 11/10/2019 at about 07.00 hours me and my fellows Game Scouts were on patrol...we were at the area known as Mto Grumeti within Ikorongo Grumeti Game Reserves, whiie on patrol we saw two people carrying luggages walking besides Grumeti River. We surrounded them and caught them. We searched them and found them in possession of one knife, one panga and a government trophy which is one head o f zebra, one neck o f zebra, two forelimbs, two ribs o f zebra, a ll were fresh...." The evidence of PW1 was flanked by PW4. The assertion that appellants were arrested within Ikorongo/Grumeti Game Reserve presupposes that this is one Game Reserve which is not the case. We are fortified in that regard because Ikorongo and Grumeti are two different Game Reserves with distinct boundaries according to the Wildlife Conservation (Ikorongo and Grumeti Game Reserves) (Declaration) Order, 1994. G.N 214 of 1994. The boundaries of Ikorongo Game Reserve and those of Grumeti Game Reserve are respectively prescribed in the First and Second Schedule to the said Declaration Order. In the premises, it is impracticable that on the material date the appellants were found in two different Game Reserves at the same time which pokes the prosecution case with doubt. Thus, the prosecution did not prove at the required standard that the appellants committed the offences within the boundaries of the Game Reserve. With such discrepant weak prosecution account, as alluded we do not think that a retrial is worthy as it will be utilized to fill in the evidence gaps by the prosecution. In view of the aforegoing, since the trial court embarked on null proceedings and in the absence of jurisdiction, we invoke our revisional powers under section 4 (2) of the Appellate Jurisdiction Act [CAP 141 R.E 2019] to nullify the trial proceedings and judgments of both courts below. Consequently, we quash the conviction and sentences meted on the appellants and order the immediate release of the appellants unless if held for some other lawful cause. DATED at MUSOMA this 28th day of October, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL The Judgment delivered this 28th day of October, 2024 in the presence of 1st and 2nd Appellants in person un-represented and Mr. Zarubabel Ngowi, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL