Jumanne Maro Msaro

IN THE HIGH COURT OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA ECONOMIC APPEAL NO. 000020863/2024 202407242000020863 (Arising from Economic Case No. 99 of2023of the District Court of Serengetiat Serengeti) JUMANNE MARO @ MSARO................................................................. APPELLANT VERSUS THE REPUBLIC............... ......... ....................... RESPONDENT JUDGMENT 05th&13thFebruary, 2025 M, L. KO MBA, J,; Above named appellant Jumanne Maro @ Msaro herein was charged and convicted with two offences, first; unlawful possession of Government trophies contrary to section 86(1) and (2)(c)(iii) of the Wildlife Conservation Act (Cap 283 R.E 2022) read together with paragraph 14 of the first schedule to, and section 57(1) and 60(2) both of Economic and Organized Crime Control Act (Cap 200 R.E 2022). Second offence was unlawful possession of weapons which amount to the commission of an offence contrary to section 103 of the Wildlife Conservation Act, [Cap 283 Page 1 of 18 R.E 2022], read together with paragraph 14 of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organised Crime Control Act, [Cap 200 R.E 2022]. The prosecution side alleged that on 15/09/2023 at Mapito area into Ikona Wildlife Management Area within Serengeti District and Mara Region, appellant was found in unlawful possession of Government trophy to wit; one fresh carcass of Thomson gazelle worth USD 500 which is equivalent to Tsh. 1,239,500/= the property of United Republic of Tanzania. He was also found in unlawful possession of weapons to wit; one machete, while in managed area, action which raise a reasonable presumption that the said machete was used in the killing of one unskinned fresh carcass of Thomson gazelle. When the charge was read over and properly explained to him, appellant denied having committed the offences, and thus plea of not guilty were entered and the matter went to full trial. The trial Magistrate was convinced by four (4) witnesses and five (5) exhibits that offences charged the appellant were proved to the required standard that is beyond reasonable doubt and proceed to convict on both offences and sentenced him to serve twenty years (20) imprisonment to each offence. However, after due consideration of the time already spent in Page 2 of 18 remand by the appellant, the trial court ordered the Appellant to serve nineteen (19) years of imprisonment and was discharged from serving a one-year sentence to each offence. Appellant was not amused by the decision hence this appeal with six grounds which may be summarized as follows; 1. That, the trial magistrate erred in laws and the fact to conviction and sentence the appellant admitted wrong evidence that testimony by PW1 who testify on carcass of impala the which evidence was not collaborated with the charge sheet read. 2. That, the trial magistrate erred in laws and die fact to conviction and sentences the appellant who was not present during disposition of the said trophy. 3. That, the trial magistrate erred in laws and the fact to conviction and sentence the appellant admitted wrong evidence PW3 which was not collaborated with the charge sheet read. 4. That, the trial magistrate erred in laws and the fact to conviction and sentence the appellant without establishing how the GPS was recorded. 5. That, the trial magistrate erred in laws and the fact to conviction and sentence the appellant by admitted wrong evidence from PW4 who testified that accused person was present at the time of disposing of government trophies while it was not true. Page 3 of 18 6. That, the trial magistrate erred in laws and the fact to conviction and sentence the appellant because the prosecution side did not prove its case against the accused person beyond reasonable doubt When this appeal was due for hearing, Ms. Joyce Matimbwi, State Attorney represented the respondent, Republic while appellant stood solo without any representation. When he was informed that he has to start submitting his appeal he prayed this court to adopt his petition of appeal and was waiting for rejoinder after respondent submission. Ms. Matimbwi registered the position of the respondent that they resist the appeal and supportsthe conviction. She decided to combine the l^and 3rd grounds of appeal, she also combined the 2ndand 5th ground and the rest two grounds submitted separately. In the first set of combined ground it was her submission that PW1 and PW3 testimony reflect the charge sheet while maintained that the offence was committed on 15/9/2023 as per charge sheet not as reflected in petition of appeal. She went on submitting that witness testified on what happened on 15/9/2023 and not otherwise where, PW1 was with other people where they saw a person who when arrested was found in possession of the carcass of Thomson gazelle. They seized properties and Page 4 of 18 coordinates of the place of arrest was recorded. State Attorney insisted that PW1 tendered certificate of seizure which was Exhibit PEI and Machete which was exhibit PE 2. PW3 examined and value the Government trophy and valuation report was admitted as Exh PE3. Her position was there is no contradiction of the two witnesses and prayed this court find the set of the grounds has less merit and dismiss. On the second set of combined grounds which are 2ndand 5th of the petition of appeal she said the law has set position that when the Government trophy is disposed it is not mandatory for the accused to be present. From the record, she submitted that the appellant was taken to Primary court Magistrate and was asked if he was found in possession and accused replied as seen in exhibit P5. She went on submitting that section 101 (1) and (2) of the Wildlife Conversation Act provides how disposition order may be applied and the order is supposed to be tendered during trial. She referred me to BurukaLeken Ole Ndidai vs Republic, Criminal Appeal 456 of 2020 where the Court provides procedures on how disposition should be done and relating the matter at hand that,Exhibit PE5 fulfilled the requirement as Government trophy was ordered by Magistrate to be destroyed and accused was present when the order was issued. It was her Page 5 of 18 position that accused (appellant) was not present and none of witness informed court that appellant was present when disposition was done. She also prayed this court to find grounds lacks merit. On the 4th ground she submitted that Geographical Position System (GPS) is taken at the point where a person stands or present. The point recorded in this case were taken at the point where accused was found and it is within Management area. State Attorney clarify that the recorded points (GPS) were taken to expert who reduced into a map and show appellant was within the reserved area. Submitting for the 6 ground she said appellant was charged of being found in possession of Government trophy and the second; is that he was found with weapon. In proving 1st offence PW1 explain while they were in patrol, they found a person with cargo which was carcass of Thomson gazelle and Exh PE2 and Pl proves that. The second offence was proved by Exh PE2 which is machete and Exh PE4 which is map that show he was arrested within the reserved area. Together with testimony of PW1 and PW2 respondent find they managed to prove offence beyond reasonable doubts and prayedthe appeal to be dismissed. Page 6 of 18 When appellant was given right to make rejoinder, he submitted he was not in the park and the fact is he was arrested in the village and prayed this court to read the map correctly. He prayed for release from prison. I shall analyse this appeal by combining 2nd and 5th ground as one set and the rest four grounds will be combined to checking whether the offence was proved beyond reasonable doubt. This decision of combining grounds had a backup from case of Firmon Mlowe vs Republic (Criminal Appeal 504 of 2020) [2022] TZCA 694that all grounds of appeal have to be analysed. Further, this being a first appeal, I will preface my determination with the position of the law as to the duty of the first appellate court as held in Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 (28 April 2021) thus; 'it is part of ourjurisprudence that a first appellate court is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision. See also Mwita Cornel Phffimon @ Gaucho vs Republic (Criminal Appeal No. 306 of2020) [2023] TZCA 17822 (10 November 2023).' Page 7 of 18 The appellant was convicted on two counts of being found in possession of Government Trophyand found with weapon within prohibited area. He complained that he was not present when the trophy was destroyed in ground number 2 and 5. The trophy being perishable, under PGO there must be sought for it be disposed before full trial. It is the Magistrate who has power to issue disposition order as per paragraph 25 of PGO No. 229 which reads; 25. Perishable exhibits which cannot easily be preserved until the case is heard, shall be brought before the Magistrate, together with the prisoner if any so that the Magistrate may note the exhibits and order immediate disposal. Where possible, such exhibits should be photographed before disposal. [Emphasis added].' The above quoted paragraph 25 envisages any nearest Magistrate, who may issue an order to dispose of perishable exhibit.This paragraph in addition emphasizes the mandatory right of an accused (if he is in custody or out on police bail) to be present before the Magistrate and be heard. See Mohamed Juma @ Mpakama vs Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 and Buruka Lekeni Ole gindai and Page 8 of 18 Others vs Republic (supra). It is not the requirement of the law that appellant must be present during disposition of perishable exhibit. However, reading inventory careful I found endorsed proceedings by Magistrate asking appellant if he was found with government trophy as written in inventory. By referring to what was written in inventory, it suggests that, the trophy was not taken to court. I had time to readthe charge sheet, I find the appellant on second count was charged to be found in possession of weapon in Wildlife Conservation Area contrary to section 103 of Cap 283, and further, Exhibit PE 4 show appellant was found within Wildlife Management Area. Then I read the Law, specifically the Wildlife ConservationArea and found; 31.-(1) The Wildlife Management Areas may be established for purposes of effecting community-based wildlife conservation in areas- (a) outside of core protected areas; (b) which are used by local community members; and (c) within the village land (2) Benefit sharing in the Wildlife Management Areas shall comply with guidelines issued by the Government and shall adhere to mechanisms of equitable distribution of costs and benefits targeted Page 9 of 18 at promoting wildlife conservation, enhancing economic development and poverty reduction. (3) The Wildlife Management Areas shall be established and managed in accordance with regulations made by the Minister and published in the Gazette From the excerpt above, the area so as to be the Wildlife Management Areas needs to beestablished by Minister through Government Gazette and that area may be part of the village. I further had tome to read prosecution testimonyand find none of them proved that there is Government Notice which established that Mapito area found in Robanda village was declared by a Minister as Wildlife Management Areas and therefore a protected area. That is to say, appellant was found with weapon in mapito area within a village which was not proved to be declared a Wildlife Management Area as per dictates of law and therefore it is not an offence to be found with weapon in the village. So far as prosecution filed to prove that existence of Government Notice which declare Mapito area to be the Wildlife Management area, I find the second count was not proved. Turning to the first count which was about found in possession of the Government trophy within Wildlife Management Area. It was prosecution assertion that appellant was found at the area where the GPS was Page 10 of 18 recorded. The GPS coordinated was recorded by PW1. Then PW3 was given coordinates and he drew the map which show appellant was in the Wildlife Management Area. Coordinates were received from PW4. There are three things established from respondent submission during appeal and even during trial; expertism in recording GPS, expertism in drawing maps from the coordinates and chain of custody of the coordinates from the point where they were originated to the point where the map was drawn. Ms. Matimbwi submitted that GPS was recorded at the place where arrest was done and that means it was recorded by arresting officers. It is a firm view of this court that the coordinates are part and parcel of electronic evidence in terms of section 64A(3) of the Evidence Act, Cap. 6 R.E. 2022, read together with section 3 of the Electronic Transactions Act, 2015. Moreover, section 18(2) of the Electronic Transactions Act, 2015 provides that; '(2) In determining admissibility and evidential weight of a data message, the following shaii be considered- fa) the reliability of the manner in which the data message was generated, stored, or communicated; Page 11 of 18 (b) the reliability of the manner in which the integrity of the data message was maintained; (c) the manner in which its originator was identified; and (d) any other factor that may be relevant in assessing the weight of evidence.' Section 3 of the Electronic Transactions Act, 2015 defines an originator as follows: ' "originator" means a person from whom the electronic communication purports to have been sent or generated' Reading proceedings, I find it was PW1 who record GPS at the place where alleged arrest was done. PW1 who introduced himself as conservation ranger,does he possess requisite expertism to record the GPS in terms of section 18 of the Electronic Transactions Act?. The answer is no. How that data was generated and where was it stored is not revealed. That being not enough, how coordinates reached PW4 who gave it to PW3 for the latter draw the map was also not revealed. PW3 who is conservation ranger with bachelor degree in wildlife conservation testified that he is the one who draw geographical map from coordinates given. This court (Kafanabo J,) once said; Page 12 of 18 'Moreover, given the sensitivity and fundamental role of GPS coordinates in identifying the geographical location of the Appellant's arrest, or any other suspect as the case may be, and taking into account the fact that die said coordinates are used to prepare maps upon which conviction of the accused/suspect is based on offences committed within the national parks and/or game reserves; their manner of taking, when taken, devices used to take them, the workability and accuracy of recording of the relevant devices, knowledge and expertise ofpersons using the devices, and taking the coordinates cannot, in any manner whatsoever, be underestimated, instead, they are of paramount importance. Otherwise, letting loose the grip, would be to allow and accept haphazard and arbitrary working methods by law enforcement agencies which is tantamount to blatant disregard ofproper administration ofjustice.'See. Richard Changei Ng'ombe vs Republic (Criminal Appeal 40809 of 2023) [2024] TZHC 1585 (24 April 2024). Further in Mohamed Enterprises (Tanzania) Limited vs Tanzania Railways Corporation and Another (Civil Case 7 of 2021) [2023] TZHC 17953 (24 May 2023) this court (Mambi, J.) held that: 'In my view the manner of authenticating electronic evidence depends on the type of evidence and the availability of witness with knowledge. In other words, the authenticity of computer­ Page 13 of 18 generated records or any electronic evidence is generally shown through the testimony ofa witness with knowledge of how the records are recorded, stored and maintained.' In light of the above authorities and as observed hereinabove, no evidence was given by any witness on knowledge of a person who took the coordinates, or with knowledge as to how the coordinates are taken. It is therefore,not unjust for this court to rule that coordinates whose originator/recorder, has no knowledge cannot be relied upon as evidence against the appellant specifically on its accuracy as it was not revealed which device was used. I find the said coordinates are unreliable and therefore the map which is the product also has no evidential valueand I hereby expunge the map from record. Having expunged the map from record, does remaining evidence enough to prove the first count? Am aware that under section 86 of Cap 283 being in possession of Government trophy without license anywhere within United Republic of Tanzania is an offence. However, it has to be remembered that in criminal case, prosecution are required to prove the charge against the accused in this case, appellant. Page 14 of 18 In the case at hand the appellant was charged of found in possession of one carcass of unskinned Thomsons gazelle. PW1 who arrested appellant testified that they found appellant holding carcass of Thomson gazelle but PW2 testified that they arrest appellant with carcass of Impala. PW3 identified and testify before trial court that carcass was of Thomson gazelle (swalaTom) and PW4 testified that they dispose Thomson gazelle. Was it Impala or Thomson Gazelle is not certain. Further, appellant was charged of found in possession of Government trophy within Wildlife Management Area (WMA). In order to win conviction, all prosecution witness were supposed to testify on how the appellant was found in WMA. However, reading testimony of prosecution witness (hand written) I find PW1 who was arresting officer during cross examination testify that he arrested appellant at the National Park and his testimony was collaborated with PW4, investigator of the crime, who testified that appellant was found within National Park. To the contrary, PW3 in his testimony insisted that appellant was found within boundaries of Ikona Wildlife Management Area. I find inconsistence on prosecution case. The Court had this to say on inconsistence when cerebrating the case of Mohamed Said Matula vs Republic [1995] T.L.R. 3 that: - Page 15 of 18 'Where the testimony of witnesses contains inconsistencies and contradictions, the court has a duty to address die inconsistencies and try to resolve them where possible, else the court has to decide whether the Inconsistencies and contradictions are only minor or whether they go to the root of the matter.' In the case at hand the arresting officer testified that he arrested appellant within National Park while other witnesses testify that appellant was found in Wildlife Management Area. This is major contradiction as it goes to the root of the case on whether the appellant was arrested. This court register the position of the arresting officer to be correct testimony and therefore, contradictions not only created doubts but also it was the testimony contrary to charge sheet. Moreover, it is the position of this court that the charge was not proved and therefore the offence was not proved to the required standard which is beyond reasonable doubt bearing in mind that it is criminal offence which has heavy punishment. Why am I saying so is because it is not known where exactly the appellant was arrested,there is possibility that the appellant was not arrested with the said Government trophy and this doubt has to benefit the appellant. See Syridion Michael vs Republic (Criminal Appeal No. 262 of 2022) [2024] TZCA 365 (15 May 2024). Page 16 of 18 On the variance of place of committing the crime between charge sheet and the testimony, the court of appeal had this to say in Godfrey Simon & Another vs Republic (Criminal Appeal No.296 of 2018) [2022] TZCA 8 (11 February 2022) that; 'In view of the stated position of the law, it was prudent to amend the charge. As this did not happen, the prosecution account regarding the place where the offence was committed did not support the charge. We say so because while the prosecution account from PW1 and PW3 revealed that the offence was committed at Matofarini as reflected at pages 10 and 15 of the record of appeal, the charge shows that It was committed at Dofa village. This had tiie effect of weakening tiie prosecution case and in the absence of requisite amendment.' * The court went on citing the case of Bainth and Another Vs Republic, Criminal Appeal No.339 of 2013, when faced with akin situation, the Court held thus: ' Where there Is a variation in the place where tiie alleged armed robbery took place, then the charge must be amended forthwith; if no amendment is effected the charge will remain unproved and the accused shall be entitled to an acquittal as a matter ofright Short of that a failure ofjustice will occur.' Page 17 of 18 In the light of the bolded expression, in the case at hand the omission to amend the charge not only occasioned a miscarriage of justice but also it rendered the prosecution case not proved at the required standard. In the premises, the charge against the appellant was not proved. All said and done we find the appeal merited and it is hereby allowed. In the result, the conviction is quashed and sentence set aside and the appellants should be set free unless if held for some other lawful cause. It is so ordered. DATED at MUSOMA this 13th day of February, 2025. K M. L. KOMBA JUDGE Page 18 of 18