CRIMINAL APPEAL NO KERARYO MWITA MWIKWABE

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 38910 OF 2023 REFERENCE NO. 20231204000038910 (Arising from the decision of the District Court of Tarime at Tarime in Economic Case No. 07 of2023) BETWEEN KERARYO MWITA MWIKWABE........................................ APPELLANT VERSUS THE REPUBLIC............. ........ RESPONDENT JUDGMENT l9th & 28th Jur)e, 2024 M. L. KOMBA, J.: 'Concerning the way the Police are required to handle perishable exhibit when still at the stage of criminal investigation, paragraph 25 of PGO No. 229 (INVESTIGATION - EXHIBITS) applies, and states: 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 Page 1 of 8 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." This excerpt is from the decision of the Court of Appeal of Tanzania in the case of Mohamed Juma @ Mpakama vs. Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (26 February 2019). In this case at hand, the appellant was arraigned before the District Court of Tarime at Tarime, charged with two counts to wit; One, Unlawful Possession of Weapons in National Park and Two, Unlawful possession of Government Trophies. The offences were contrary to the relevant sections of the laws in Wildlife Conservation Act No. 5 of 2009 and Economic and Organized Crime Control Act [CAP 200 R.E 2002]. In a nutshell, the prosecution evidence was to the effect that, on 18th day of January, 2023 at about 08:30 am the appellant was arrested at Mihungi area within Serengeti National Park without any permit. He was in possession of fresh hind limb of Eland (pofu), three trapping wires and one spear. Certificate of seizure (Exhibit P.E 1) was filled and the appellants were taken to Nyamwaga police station where the case file No. NYAMWAGA/IR/159/2023 was opened. Later on, inventory form of claimed government trophy found with the appellants (Exhibit P.E 6) Page 2 of 8 was prepared and presented before the Magistrate who issued the disposal order. After a full trial, the trial court found the appellant guilt in both counts charged with and proceeded on convicting him and sentenced him to twenty years imprisonment for the 2nd count, and to pay fine to the tune of Tsh. 100,000/= or to serve one (1) year imprisonment for 1st count. Dissatisfied by the conviction and sentence meted against him by the trial court, the appellant lodged the present appeal to challenge the same with 7 grounds of appeal. The seventh which was the last reads; 'That the prosecution side faiied to prove its case beyond ali reasonable doubts.' When the appeal was placed before me for hearing, the appellant was fended for himself whilst on the other hand the respondent was represented by Mr. Jonas Kivuyothe learned State Attorney. The appellant then prayed his petition to be adopted and further prayed his appeal to be found with merit while retain his right of rejoinder. Mr. Kivuyo submitted in all grounds and prayed this court to find the appeal lacks merit. After the submission of parties, as the argument were regarding the exhibits and testimony of witnesses, I concentrated on exhibits and noted two faults concerning valuation of the seized Government Trophy which was done by Muhkusin Mustapha, a wildlife Page 3 of 8 conservation officer who testified after PW4; and disposition order which was issued by Hon. Kayoza 0, R. Following those faults, I invited parties to address this court on the qualification of a person allowed by law to value government trophy and how the disposition proceedings was conducted. Mr. Kivuyo was of the submission that the valuer decided to add more title in his name, he clarified that Muhkusin Mustapha, is a wildlife officer who studies and graduated bachelor degree in wild life management in Mwika Collage and he has experience of seven years. His duties include valuation of Government Trophy as seen at page 22 of the typed proceedings. It was his position that valuer had qualification to conduct valuation. About disposition proceedings, after reading the exhibit he submitted that he noted disposition order was issued by Magistrate Kayoza after the plead by the accused who admitted and leave the rest to court. Appellant informed this court that he has nothing to submit on the addressed issue. May be because he was a lay person in law. After the parties' submission, I find there are two issues need attention of this court. I shall start with the 1st issue which is valuation of the seized Government trophy. For the offence of possession of the Page 4 of 8 Government Trophy to be filed in court, the value of the said Government trophy has to be known as it is the determinant factor in punishing the offender as per Section 86 of Wildlife Conservation Act No. 5 of 2009. For the value to be known there must be a valuer and the legislature had this while crafting the relevant provision of section 86(4); In any proceedings for an offence under this section, a certificate signed by the Director or wildlife officers from the rank of wildlife officer, stating the value of any trophy involved in the proceedings shall be admissible in evidence and shall be prima facie evidence of the matters stated therein including the fact that the signature thereon is that of the person holding the office specified therein.' The law went further and define wildlife officer at section 3 to mean a wildlife officer, wildlife warden and wildlife ranger engaged for the purposes of enforcing the Act. Reading typed proceedings at page 21 and hand written proceedings, as stated the person who valued the Government trophy and who tendered a valuation report which is subject of this appeal introduced himself as a wildlife conservation officer. He is not among the officers mentioned by the Act. That is to say the exhibit (valuation report) was wrongly procured as it was made by unqualified person as per law. Basing Emmanuel Lyabonga vs Republic (Criminal Appeal 257 of 2019) Page 5 of 8 [2021] TZCA 152 (29 April 2021) I hold the valuation report was of no evidential value. After disregarding the said exhibit there remains the second count. The 2nd issue is an alternative, is about disposition of the seized Government trophy, specifically on whether the appellant was present and accorded the right to be heard when seeking the disposition order of the Government trophy. As was observed from the passage above in the case of Mohamed Juma @ Mpakama (supra) hearing of the parties upon disposition of the perishable exhibit is a mandatory procedure. See also the case of Ngasa Tambu vs Republic (Criminal Appeal 168 of 2019) [2022] TZCA 455 (21st July, 2022). In the case at hand, before the trial court, PW4 testified at page 24 of typed proceedings and even on the hand written version that the declaration of destruction of Government trophy was filled and marked by the Magistrate where the accused (now appellant) confessed to commit the offence. There is no proceedings showing what happened before the Magistrate, exhibit PE7 was the declaration for destruction in which Magistrate is narrating what happened in court that on 18/01/2023 he saw one fresh hind limb which was suspected to belong Page 6 of 8 to the appellant. Magistrate further reported that accused admitted without clarified what he was admitted. In the said declaration or rather the exh PE7 there is no proceedings show accused was before the Magistrate and was asked about the offence and the plea. What is recorded is report of what happened and there is no plea. Narrating what accused admitted is not enough to concluded there was proceedings, there was a plea as it is trite that plea must be unequivocal. See Mkula Mkama vs Republic (Criminal Appea No. 308 of 2020) [2024] TZCA 458 (13th June 2024). Reading exhibit PE 7 this court find there is no proceedings which was required under paragraph 25 of the PGO. The cited paragraph as indicated in very first page of this judgment and the analysis done by justices in Mohamed Juma @ Mpakama vs Republic (supra) shows the appellant was not heard before the disposition order was issued. The only way forward is to expunge exhibit P.E 7 a declaration to destroy Government trophy which was illegally procured as I hereby do. See Ngasa Tambu vs The Republic (supra). The remaining evidence are not sufficient to warrant the appellant's conviction on the 2nd count. Consequently, I hereby quashed the conviction and set aside the sentence imposed against the appellant regarding the 2nd count. Page 7 of 8 Since the first count was not disturbed, the appellant has to complete the sentence as altered on 04/08/2024. That is the appellant's sentence of one year imprisonment. The appeal is allowed to the extent above. DATED at MUSOMA this 28th day of June, 2024. w M. L. KOMBA JUDGE Page 8 of 8