MAHATA MASUNGA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SHINYANGA SUB REGISTRY

AT SHINYANGA CRIMINAL APPEAL NO.202407292000021158 (Arising from Economic Case No.81 of 2023, before Bariadi District Court) MAHATA MASUNGA @MABULA ..................................APPELLANT

VERSUS REPUBLIC .............................................................RESPONDENT

JUDGMENT 9th & 23rd September, 2024 F.H. MAHIMBALI, J The appellant herein was arraigned before the trial court facing a charge containing five counts namely; Unlawful entry into the game reserve, contrary to Section 15 (1) and (2) of the Wildlife Conservation Act, Cap 283 RE 2022, Unlawful Possession of Weapons into the Game Reserve -Contrary to section 17 (1) (2) of the Wildlife Conservation Act, read together with paragraph 14 of the First schedule to and section 57 1 (1) and Section 60 (2) of the Economic and Organised Crime Control Act, Cap 200 RE 2022 and Unlawful Possession of Government Trophies, contrary to section 86(1)(2)(c) (iii) Wildlife Conservation Act, read together with paragraph 14 of the First schedule to and section 57 (1) and Section 60 (2) of the Economic and Organised Crime Control Act. It was alleged that on the 24/10/2023 at Duma River area within Maswa Game Reserve, within Bariadi District in Simiyu region, the appellant was found being within the Maswa Game Reserve in the said mentioned area without permit and he was thus unlawfully found in possession of weapons: panga and knife. Further, he was found in unlawful possession of government trophies namely: one dry tail of wildebeest and five dry pieces of wildebeest meat valued Tshs 1,657,500/=, two dry leopard Paws equivalent to one Leopard unlawfully killed valued at Tshs 11,475,000/= and one fresh

carcass of Vulture (white backed vulture) unlawfully killed valued Tshs 825,750, the properties of Tanzania Government. The appellant had denied all the allegations laid against him, thus a plea of not guilty was entered. The prosecution vide their five witnesses had given oral testimony how they arrested the appellant on the material date while being within 2 Maswa Game Reserve unlawfully as he had no any permit authorizing him being therein, and that with him, he had carried weapons, to wit: one knife and panga. In addition to, he had been found with government trophies to wit: one tail of wildebeest and five pieces of dry meat of wildebeest, two leopard paws, and finally one fresh carcass of vulture (white backed vulture). All these in totality formed a total of five counts (entry into game reserve unlawfully, being in unlawful possession of weapons within Maswa Game Reserve three offences of being unlawful possession of government trophies within the said game reserve). Together with the oral testimonies of the five prosecution witnesses (PW1, PW2, PW3, PW4 and PW5), the prosecution also tendered six exhibits (P1 which is seizure certificate, P2= the alleged weapons (panga and knife), P3 = GPS Map of the alleged point of arrest, P4=chain of custody, P5 = Trophy Valuation Certificate, P6=inventory form of the alleged trophies). The trial Court after a thorough findings of

the evidence thereof, convicted the appellant and consequently sentenced him as follows; for the first and second counts he was sentenced to serve two years’ imprisonment for each count, for the third, fourth and fifth counts – he was sentenced to twenty years’ imprisonment for each count. 3 Aggrieved by both conviction and sentence, the appellant knocked the door of this Court armed with four grounds of appeal, namely; 1. That the learned Magistrate Court erred in law and in facts to hold conviction while he was forced to sign the certificate of seizure.

2. That the learned trial Magistrate court erred in law and in facts to hold conviction in weak evidence while the exhibits were not disposed in court as the law requires.

3. That, the prosecution side failed to prove the allegations even the photograph of exhibit was not tendered in Court.

4. That the learned trial Court misdirected himself when passed conviction based on contradictory evidence adduced by the prosecution witnesses. During the hearing, the appellant appeared in person and unrepresented, while the respondent/republic was represented by Mr. Kadata learned State Attorney. Arguing for his appeal, the appellant had no much to say but rather prayed for his grounds of appeal be adopted and form part of his submission. He however, basing on his grounds of appeal, pressed for his appeal to be allowed and that he be set at liberty. 4 On the side of the respondent, Mr. Kadata resisted the appeal. Responding to the first ground of appeal, he challenged it as being unmerited as it is merely an afterthought. He clarified that the appellant during his trial, had not stated anywhere after he was arrested that he was forced to sign as he alleges now. Even during cross-examination, he didn't resist the said fact nor asked any question on that fact. Therefore, as he neither resisted its admission (exhibit P1), nor questioned in cross- examination, to claim it now is an afterthought issue. When evidence is admitted without being objected, it suggests truthfulness of the alleged facts, reminded Mr. Kadata. He boosted his argument by making reference to the case of Ana Moses Chisano vs. Republic, Criminal Appeal No. 273 of 2019). On the second and third grounds of

appeal, Mr. Kadata submitted jointly that, according to section 101 of the WCA, it allows the exhibits which are of speed decay, can be disposed of through inventory. Upon full compliance to the law, the relevant inventory can be admitted as exhibit of the case in lieu of the real exhibit. In this case, Exhibit P.E 6 (inventory form) was admitted by the Court vide PW5 to represent the alleged trophies. Other exhibits such as Panga, Kisu etc, were also admitted as exhibit P2. Thus, a mere absence of still pictures, does not 5 weaken the prosecution’s case as it is not a mandatory legal requirement for that need, insisted Mr. Kadata, leaned state attorney. On the fourth ground of appeal, Mr. Kadata responded that, all the prosecution witnesses had testified coherently and consistently. The testimony of PW1 who had been with the PW2 and that had seen the appellant with the said panga and Kisu, and the said trophy i.e tale of wildebeest animal, wildebeest dry meat and a carcass of the vulture animal. He insisted that, the evidence by Pw2 is very clear and it corroborates the testimony of PW1. The PW3's testimony added that, he printed the GPS map after he had taken the coordinates map of the scene of crime. PW4's testimony, had explained how he established the same trophies and weapons arrested with as being the same produced in court. He also testified how he invited the PW5 for

his trophy valuation report, and in the course, he issued chain of custody report (P4 exhibit). Lastly, PW5's testimony collaborated the testimony of PW4 who valued the said trophies (P5 exhibit - valuation certificate). He also issued inventory form (Exhibit P.6), clarified Mr. Kadata. With all these connected events, Mr. Kadata was of the view that the chain custody was well observed as it kept doing and there is nothing left hanging. Thus, the prosecution's case was established beyond reasonable doubt as per law. If there are any contradictions, nothing went to the root of the case for it to be affected. 6 Mr. Kadata finally pressed the appeal be dismissed for being bankrupt of any merit. The conviction and sentence meted be upheld by this court. There was no rejoinder, the appellant kept his stance as submitted in chief and needed wisdom of this Court to consider the grounds of his appeal for proper evaluation. Having heard parties on merit, I have now to determine this appeal and the major issue for consideration is whether this appeal has been brought with sufficient cause. Before I go into the merit of the case, I must first state that the trial Magistrate failed to apprehend the charge in question, since the charge provided that the appellant was arrested at mto Duma within Maswa game reserve, but the impugned decision at page 2 of the trial court’s judgment, the trial

magistrate acknowledges that the appellant was arrested within Serengeti National Park. I think this was an error committed by the learned Magistrate. Back to the case, on the first ground of appeal, the appellant had complained for the trial Court to pose its decision basing on the certificate of seizure which he was forced to sign. In other words, the appellant meant that the seizure certificate was obtained unlawfully which 7 proposition was strongly objected by Mr. Kadata contending that it is a new issue which need not to take a part in consideration as the principle of law that matter not raised at the trial cannot be raised at appeal stage. I agree with Mr. Kadata that a matter not raised at the trial Court cannot be raised at appeal stage. As correctly ruled in the case of Ana Moses Chisano vs Republic, (supra) as cited to me by Mr. Kadata. In addition, is the case of Mohamed Enterprises (T) Limited vs Masoud Mohamed Nasser, Civil Application No. 33 of 2012. However, upon a thorough scanning of the trial court’s records; indeed, I do not agree with Mr. Kadata’s proposition on the reason that when the said exhibit was tendered, the accused objected for its admission. See at page 8 of the trial typed proceedings. Worse, the trial Court did not explore any more as to why the appellant denied to know it instead, proceeded with admission of such exhibit. However, the records

are not clear as to why after its admission, the said exhibit was not read out by PW1 but the PP. This was a gross error. That has been the position of the Court of Appeal in many cases including, Robinson Mwanjisi and Three Others v. R, [2003] TLR 218, Mwinyi Jamal Kitalamba @ Igonzi and Four Others v. R, 8 [2020] T.L.R. 508 and Huang Qin and Xu Fujie v. R, Criminal Appeal No. 173 of 2018 (unreported). Meanwhile, during the preliminary hearing of the case at the trial court, the list of exhibits to be relied by the prosecution was not properly stated as it did hide what exactly exhibits were to be relied. The Court of Appeal in Mussa Ramadahani Magae vs. Republic, Criminal Appeal No545 of 2021 ruled out that exhibits intended to be relied during trial need to be properly listed during the committal/Preliminary hearing, contrary to that it is fatal. With that analysis, I must therefore conclude that exhibit P1 was erroneously admitted as the procedures was not adhered, thus it is correct to state that the alleged exhibit was not in the appellant’s knowledge. The appellant also had complained that the trophy exhibits were not disposed in court as the law requires and thus no photographs were tendered to ascertain the same. That to my grasp of the point is, whether the procedures for disposal of perishable Government trophies like game meat under section 101 of the WCA extend to

police officers handling these trophies during the investigation stage. I think, a distinction must be drawn between the disposal of perishable Government trophies by the police during their investigations; and the disposals of perishable 9 Government trophies during the course of court proceedings which is outlined under section 101 of the WCA. While referring to section 101 of the WCA, the prosecution should have applied to the court having jurisdiction over the offences facing the appellant for an order to place the trophies which were subject to speedy decay, destruction or depreciation, at the disposal of the Director of Wildlife. It is apparent that section 101 of the WCA can only apply to perishable Government trophy when the court with requisite jurisdiction is already seized of the matter, and does not extend back to the period when the police are still carrying their investigations over the same matter. The relevant section 101 states: 101 (1)-“Subject to section 99 (2), at any stage of the proceedings under this Act, the court may on its own motion or on an application made by the prosecution in that behalf order that any elms, trophy, weapon, vehicle, vessel or other article which has been tendered or put in evidence before it and which is subject to speedy decay, destruction or depreciation be placed at the disposal of the Director. ” To me the phrase “at any stage

of the proceedings” in section 101 of the WCA implies the proceedings are already in court with requisite 10 jurisdiction over the matter. Again, the phrase "be placed at the disposal of the Director' in the same section seems to indicate that the end result of the order of the court over perishable Government is to hand over the exhibit to the Director of Wildlife for disposal. The police, while carrying out investigations have a very different procedure for handling perishable Government trophies. This different procedure is provided for under the Police General Orders (PGOs). Now to avoid the destruction of exhibit prepare and fill in a special form (Inventory Form) and submit it to the magistrate for further order normally allowing the disposition of the said exhibit. The accused person is not involved in that exercise (Involved in Preparing Inventory). In other words, there is no specific court proceedings to ascertain the same. We only see the Magistrate asking the appellant about the trophies, who replied he does not know it. It is not clear whether he objected the disposal of the trophies or not? According to paragraph 2 (a) of the Police General Orders (PGO), the Police Force recognizes the above duty to protect every exhibit, perishable or otherwise, which comes into their possession: The police are responsible for each exhibit from the time it comes into the

possession of 11 the police, until such time as it is admitted by the Court in evidence, or returned to its owner, or otherwise disposed of according to instructions. In consideration of the fact that the Police are required to handle perishable exhibit when are 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 of any so that the Magistrate may note the exhibits and order immediate disposal. Where possible, such exhibits should be photographed before disposal. The above paragraph envisages any nearest Magistrate, who may issue an order to dispose of perishable exhibit. This paragraph 25 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. In the instant appeal, it’s not known as records are silent as to whether the appellant was taken before the court and heard before the magistrate issued the disposal order (exhibit P 6). In addition, no photographs of the perishable Government trophies were taken as 12 directed by the PGO. See Mohamed Juma @Mpakama vs Republic, Criminal Appeal No.385 of 2017. With the above analysis, I must therefore conclude that the procedure

for disposal of the alleged trophies were not strictly adhered and thus in the absence of the photographs to ascertain the same, I am declined to agree with Mr. Kadata. This then defeats charges in counts no. 3, 4 and 5 on the unlawful possession of the alleged trophies. As regards to the offences in count no. 1 and 2, they closely depend each other. The offence of being unlawful possession of the alleged weapons (knife and panga), only becomes relevant only when it is established that the appellant was really found within the coordinate points of the alleged game reserve. With the second offence, which is unlawful possession of weapons within the Game Reserve, this offence is established by PW1 and PW2 that they saw the appellant within the Game Reserve being in possession of weapons to wit. One knife and panga. These are pure domestic utensils in which even a minor of 10 years can perfectly hold it for domestic activities. Thus, it is not necessary that every holding of such weapons should be considered as unlawful unless one is established being within the coordinate points of a particular protected area. Unfortunately, in this matter, PW1 and PW2 could not clarify the 13 exact location of the appellant’s point of arrest. There was also no mention how the point of arrest was within Maswa Game Reserve. No boundaries of the Maswa Game Reserve were stated and established for

the said satisfaction if the arrest point was within the Maswa Game Reserve area. (See Mosi Chacha Iranga and Another vs Republic, Criminal Appeal No 508 of 2019, CAT at Musoma at page 15 and 16) for one to be said to be found within the National Park or Wildlife conservation, the arresting officers (PW1 and PW2) ought to establish that the arrested appellant was within the protected area. Though there were some attempts by PW3 vide exhibit P3 to tell the trial court the coordinate points of the point of arrest, however, the attempt fell short for lack of clarification from the PW3 how the said P3 exhibit depicted the point of arrest of the appellant. The issue for consideration is whether this description is sufficient to be scientific explanations that the point of arrest is within Maswa Game Reserve. Did a mere production of exhibit P3 by itself sufficed the purpose? According to law, an expert witness is expected to furnish the court with necessary scientific criteria for testing the accuracy of their conclusions so as to enable the court to form its own independent judgment by application of these criteria to the facts proven in evidence 14 (see Rep V. Kerstin Cameron [2003] T.L.R 85). That said, the offences in counts 1 and 2 were not established as per law. Thus, the appellant was unlawfully convicted for want of this establishment of the said offence. With the last

grounds that the prosecution witnesses contradicted each other, thus erroneously posed its decision. I have scanned the trial Court’s records, perhaps this ground is misplaced. I have failed to apprehend the complaint. The prosecution witnesses were in line with their testimonies. PW1, PW2 testified on how they arrested the appellant with exhibits and taken the appellant to the police. PW3 drew a map after has been called by PW1 and PW2 to justify that the appellant was within the game reserve. PW4 was a police officer assigned with investigation function of the case, and PW5 testified on evaluation he made concerning the trophies seized. With above regards, I do not agree with the argument by the appellant, and so I hold that there was no contradiction of evidence as alleged. The aforesaid notwithstanding, with all these observations, I find this appeal to have been brought with sufficient cause, I allow it and order 15 the appellant’s immediate release from custody unless otherwise lawfully held. Right of appeal explained. DATED at SHINYANGA this 23rd day of September, 2024. F.H. Mahimbali Judge. 16