MAGANYI SENTEU 0001 240606 130242

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: MWARIJA. J.A.. MWAMPASHI. J.A. And MURUKE. J.A.^ CRIMINAL APPEAL NO. 254 OF 2020 MAGANYI SENTEU MAGANYI...................................................... APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Galeba. J.^ Dated the 15th day of May, 2020 in Criminal Appeal No. 155 of 2019 JUDGMENT OF THE COURT 28™ May & 6thJune, 2024 MWARIJA. J.A.: The appellant, Maganyi Senteu @ Maganyi and another person, Majengo Bahebe @ Gombanila (the second accused person) were charged in the District Court of Serengeti at Mugumu with two counts under the Wildlife Conservation Act, No. 5 of 2009 (the WCA). In the 1st count, they were charged with the offence of unlawful possession of Government trophies contrary to section 86(1) and (2) (ii) of the WCA read together with paragraph 14 (d) of the first Schedule to and section 57(1) of the Economic and Organized Crime Control Act, Chapter 200 of the Revised Laws (the EOCCA). It was alleged that on 24/5/2013 at Singisi Village within Serengeti District in Mara Region, the appellant i and the second accused person were found in possession of two elephant tusks weighing 5.7 kgs valued at TZS 18,000,000.00, the property of the Tanzania Government without written permit from the Director of Wildlife. In the 2nd count, they were charged with unlawful hunting in a national park contrary to section 19 (1) and 2(a) of the WCA read together with paragraph 14 (a) of the EOCCA. That, on unknown date between 1/5/2013 and 23/5/2013 at Grumeti area in Serengeti National Park within Serengeti District in Mara Region, they unlawfully killed one elephant valued at TZS 18,000,000.00, the property of the Tanzania Government. When they were arraigned in Court on 29/1/2016, the appellant and the second accused person denied the charge and as a result the case had to proceed to a full trial at which, whereas the prosecution called four witnesses, the defence side relied also on the evidence of four witnesses. Having heard the evidence adduced by the prosecution and the defence witnesses, the trial court found that, both counts had been proved beyond reasonable doubt against the appellant. As for second accused person however, he was found not guilty of both counts and was therefore, acquitted. Following his conviction, the appellant was sentenced to 25 years imprisonment in the first count and 10 years imprisonment in the second count. It was ordered that the sentences should run concurrently. 2 The appellant was aggrieved by the conviction and sentence and therefore, appealed to the High Court. The appeal was partly allowed in that, the appellant's conviction on the second count was quashed and the sentence was set aside. The court found that the offence of unlawful hunting was not proved. As for the conviction and sentence in respect of the first count, the same were upheld. Aggrieved further by the decision of the High Court, the appellant has preferred this second appeal which is predicated on the following four grounds of appeal: "1. That the trial court erred in law and facts when it convicted the appellant while the prosecution did not establish the chain o f custody o f tendered exhibits. 2. That the trial court erred in law and fact to convict and sentence the appellant while the respondent did not prove its case beyond reasonable doubt as there are inconsistencies/contradictory evidence on search and/or seizure 3. That the trial court erred in law and fact when it convicted the appellant while he was brought in court outside the prescribed period according to the law and no explanation was given by the respondent. 4. That the trial court erred in law and fact when he convicted and sentenced the appellant without considering his defence though partly re-evaluated it but his evidence was not controverted on cross-examination by the respondent". 3 Before we proceed to consider the appeal, it is appropriate at this stage, to give the background facts leading to the appellant's arraignment and his conviction. The facts are as follows: On 22/5/2013, Assistant OCCID, Mugumu, Insp. Abdallah Mbwana Iddi (PW1) received information from a police informer that the appellant and the second accused person were in possession of Government trophies and a firearm. On that information, PW1 contacted the Park Warden, Stephen Msumi and Isenye Ward Executive Officer to seek their assistance so that the appellant and the second accused person, who were suspected of having committed the offence of being in unlawful possession of Government trophies could be arrested. Having been contacted, the Park Warden went to police station together with other Wardens and proceeded to Singisi Village. After having searched the appellant's house and compound as well as the second accused person's house, the said persons were arrested and later jointly charged with the above stated offence. In his evidence, PW1 stated that, when the second accused person's house was searched, one sword and one animal trapping wires were found. As for the appellant's house, upon being searched, a firearm, make; Riffle 458 and 13 bullets were found. The items were found to have been buried in ground near his second house. Two elephant tusks were also found hidden in a water well. 4 The elephant tusks and the firearm which were found at the appellant's compound and the items found at the second accused person's house were recorded in police Form B, that is; a Records of Search by Police Officer. PW1 stated further that, the appellant and the second accused person admitted to have hunted an elephant and led the arresting team to the place where an elephant carcass was lying. The pieces of the carcass were then taken. The elephant tusks were tendered in court and admitted in evidence as exhibit P2 collectively while the pieces of the carcass said to be of elephant were admitted as exhibit P3 collectively. The search was witnessed by among others, the Ward Executive Officer, Fordea Makuru Tukuki (PW4), the Village Chairman, Gilaida Gesura and one Giramsi Gerabi who signed the records of search. The two search forms dated 23rd and 24th May, 2013 were admitted in evidence as exhibits P4 collectively. As for the firearm, the same was admitted as exhibit P5 and the record of search for it was admitted as exhibit P6. On how the seized items including the elephant tusks were handled after seizure, it was PW l's testimony that the same were taken to Mugumu Police Station where they were labeled and were later tendered in court. The search was also allegedly witnessed by Robert Mbepwa (PW3), a Park Ranger who accompanied PW1 and other members of the team who went to arrest the appellant and the second accused person. He supported the evidence of PW1 that, although at first, when the 5 appellant's house was searched, only two saws and an axe were found, after being interrogated together with the second accused person, the latter persuaded the former to admitted that he had in his possession a firearm and the elephant tusk and the appellant agreed to show where he had hidden them around his compound. He allegedly led to the recovery of the firearm and 13 rounds of ammunition which had been buried in ground and the elephant tusks which were hidden in a water well. PW3 went on to state that, the appellant admitted that he did not have any permit to own the trophy, the firearm and the rounds of ammunition. The witness added that, the appellant admitted to have killed an elephant and led the team to where its carcass was lying. The evidence of PW1 was also supported by that of PW4. He testified that, as a Ward Executive Officer, he witnessed the search of the appellant's house and that of the second accused person. He stated that, the result of the search is that, the items stated by PW1 were found and seized. He stated further that, he signed the search orders (exhibits P4 and P6) which were prepared by PW1. The prosecution relied also on the evidence of a Wildlife Officer, Wilbroad Vicent who testified as PW2. He gave evidence that, he identified and valued the two elephant tusks. According to his evidence, at the time of the valuation on 28/5/2013, the two tusks weighed 5.7 kilograms and their total value was TZS 18,000,000.00. In his defence, the appellant gave brief evidence challenging the prosecution evidence. Although he admitted that his house and compound were searched by PW1 in the presence of PW3 and PW4, he denied that he was found in possession of the elephant tusks and other items stated by the prosecution witnesses. He denied existence of any water well at his compound. On the value of the elephant tusks, he challenged that evidence contending that, the identification and valuation was not conducted in his presence. DWl's evidence was supported by Pili Senteu (DW2), his mother. She testified that, on 21/5/2013 at 4:00 hrs some police officers arrived at her home and conducted search. She said that, the result of the search was that, nothing suspicious was found. Evidence for the defence was also given by the second accused person who testified as DW2. He opposed the prosecution evidence that he persuaded the appellant to lead the arresting team to where he had hidden the firearm and elephant tusks. He stated further that, he did not know the appellant before the date of the incident. When the appeal was called on for hearing, the appellant was represented by Mr. Cosmas Tuthuru assisted by Mr. Innocent John Kisigiro, learned advocates while the respondent Republic was represented by Mr. Yese Temba, learned State Attorney. Before the hearing could 7 start, the learned State Attorney informed the Court that, the respondent was not opposing the appeal. He submitted that, the respondent took that stance on the basis of the point of law regarding the consent for prosecution issued by the learned Senior State Attorney and Prosecution In-Charge of Mara Region. He stated that, the consent was wrongly issued under s. 26 (1) of the EOCCA and thus the learned Senior State Attorney exercised the powers which he did not have because the powers under that provision may be exercised by the Director of Public Prosecutions alone. He cited the case of Peter Kongori Maliwa and 4 Others v. Republic, Criminal Appeal No. 253 of 2020 (unreported) to bolster his argument. Mr. Temba submitted that the irregularity rendered the consent invalid having the effect of vitiating the proceedings. Having so submitted, the learned Senior State Attorney urged as to exercise the Court's powers of revision under s.4 (2) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws (the AJA) and nullify the proceedings of both courts below, quash the appellant's conviction and set aside the sentence. On the way forward, Mr. Temba submitted that, although ordinarily he would have prayed for a retrial, he was not inclined to seek that order. He contended that, a retrial will not be appropriate because of insufficiency of evidence. That, he said, is because there is no 8 documentary evidence establishing the chain of custody of the elephant tusks. Furthermore, according to him the oral evidence on record, does not as well establish how the tusks were kept from the time of seizure until when they were tendered in court. He submitted further that, the record of search in respect of the tusks (exhibit P4) was also not read out after its admission in evidence. For that reason, he submitted that, the document should have been expunged from the record and if that was done, the remaining evidence would not sustain the appellant's conviction. Mr. Tuthuru supported the position taken by the learned Senior State Attorney; that the consent was invalid thus rendering the trial a nullity. On the way forward, the learned counsel agreed that there is deficiency in the prosecution evidence on the aspects stated by Mr. Temba. The learned counsel added that, even the valuation report was not read out after its admission in evidence. Citing the case of William Maginga Charles v. Republic, Criminal Appeal No. 104 of 2020 (unreported) cited by the learned Senior State Attorney in his list of authorities, Mr. Tuthuru prayed that the same ought to have been expunged from the record. The position taken by the learned Senior State Attorney was also supported by Mr. Kisigiro. He argued that, when the consent is nullified, a retrial will not be appropriate on account of insufficiency of evidence as submitted by both the learned Senior State Attorney and Mr. Tuthuru. On those arguments, Mr. Kisigiro prayed that the appellant be released from prison. Having duly considered the submissions made by the learned counsel for both parties, we agree that the consent issued by the learned Senior State Attorney In-Charge is defective in that, it was issued under the provision of s.26 (1) of the EOCCA by exercising the powers which are vested to the DPP. The powers of a State Attorney and the Prosecution Attorney In-Charge are provided for under s.26 (2) of the EOCCA. In the case of Peter Kongori Maliwa and 4 Others (supra) in which, like in this case, a consent was issued by a State Attorney under s.26 (1) of the EOCCA, the Court observed as follows: "In this case, consent was issued by the State Attorney In-Charge instead o f the DPP. That was a serious irregularity as the power to issue a consent under section 26(1) o f the EOCCA is not delegable. It is absolutely vested in the DPP himself. As such, the consent under discussion having been issued by a person without mandate was incapable o f authorizing the trial court to try the economic offences". The above being the position which is applicable in the case at hand, we find that the irregularity rendered the trial a nullity. That is not, however, the only irregularity in the consent. The other irregularity is that the same does not indicate that the learned Senior State Attorney In- 10 Charge had consented to the prosecution of the appellant and the second accused person for the offence of unlawful possession of Government trophies under s. 86 (1) and (2) (ii) of the WCA. As shown above, only paragraph 14(d) of the First schedule to and ss. 57 (1) and 60 (2) of the EOCCA were cited in the consent. It means therefore, that the appellant and the second accused person were charged under s. 86 (1) and (2) (ii) of the WCA without the requisite consent. That is a fatal irregularity - See for example, the case of Mwanahamisi Salim Mshahara v. Republic, Criminal Appeal No. 403 of 2022 (unreported). In that case, in which a similar situation occurred, the Court held that the irregularity vitiated the proceedings. For the above stated reasons, in the exercise of the Court's powers of revision under s.4 (2) of the AJA, we hereby nullity the proceedings and judgments of the two courts below, quash the appellant's conviction and set aside the sentence. As for the way forward, we also agree with the learned counsel for the parties that an order of retrial will not be appropriate on account of what has been stated by the learned counsel for both parties. Indeed, the prosecution evidence is silent as regards the chain of custody of the elephant tusks. There is no documentary on oral evidence establishing how the tusks were handled from the time of their seizure to the date on which the same were tendered in court. As stated in the famous case of ii Paulo Maduka and 4 Others v. Republic, Criminal Appeal No. 110 of 2007 (unreported): "The chain o f custody requires that from the moment the evidence is collected, its every transfer from one person to another must be documented and that it be provable that no body else could have accessed it". The purpose of recording the chain of custody is to establish that the collected evidence, in this case the real evidence tendered in the trial court (the elephant tusks), are the same items which were alleged to have been seized from the appellant's compound. When there is a failure to establish the chain of custody, such evidence cannot be acted upon to found an accused person's conviction. It isequally correct, as submitted by the learned counsel for the parties that, the record of search which was prepared by PW1after the seizure of the elephant tusks (exhibit P4) from the appellant, was not read out after its admission in evidence, that was a serious omission which rendered it invalid - See for instance, the cases of Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2017 and Erneo Kidilo and Another v. Republic, Criminal Appeal No. 2017 (both unreported). That being the position, an order of retrial will not be in the interest of justice because of insufficiency of evidence. It would allow the 12 prosecution to fill in the gaps in its evidence thus occasioning a miscarriage of justice on the part of the appellant. As a result, we order that, the appellant be released from prison forthwith unless he is otherwise lawfully held. DATED at MUSOMA this 5th day of June, 2024. A. G. MWARIJA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgement delivered this 6th day of June, 2024 in the presence of the appellant in person/unrepresented and Mr. Yese Krita Temba, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. 13