Majaliwa Simon v Republic Economic Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA ECONOMIC APPEAL NO. 000026758 OF 2024 MAJALIWA S/O SIMON .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT P. R. KAHYOZA, J The Appellant, Majaliwa Simon, was arraigned before the District court of Uvinza at Uvinza for the offence of unlawful possession of government trophies contrary to section 86 (1) and (2)(c)(iii) of the Wildlife Conservation Act, No. 5 of 2009 read together with paragraph 14 of the First Schedule and section 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act [CAP 200 R. E.] 2022. After a full trial, the Appellant was found guilty as charged and was accordingly convicted. He was sentenced to twenty (20) years imprisonment. Aggrieved, the Appellant has preferred an appeal to this court. He is appealing against both conviction and sentence. He has paraded five grounds of appeal which are reproduced here below for ease of reference. 1. That, the trial court erred in law and fact in holding that, the prosecution side proved the case against the Appellant beyond all reasonable doubt while it was not. 2. That, the trial court erred in law and facts by convicting and sentencing the Appellant basing on illegality procured inventory form (Exhibit P3) and the meat was legally disposed while it was not. 3. That, the trial Court erred in law and facts in holding that the alleged meat was positively identified as gazelle grant meat. 4. That, the trial court erred in law and facts in shifting burden of proof to the Appellant that he did not prove that the meat was goat meat while the prosecution side ought to have been the first to prove that the meat was gazelle grant meat but failed. 5. That, the trial Court erred in law and facts in admitting, hearing and deciding economic case contrary to the law. Page. 1 Hon... PROJESTUS KAHYOZA At the hearing, the Appellant was represented by Mr. Sadiki Aliki, learned advocate. On the other hand, Ms. Flora Lucas, learned State Attorney represented the Respondent Republic. Before Mr. Aliki could start to submit in relation to the grounds of appeal, Ms. Flora Lucas, learned State Attorney rose and informed the court that she was supporting the appeal. She listed three reasons as to why she was supporting the appeal. Firstly, she submitted that while the Appellant was charged with unlawful possession of government trophy, the element of possession as against the Appellant was, in her view, not proved beyond reasonable doubt. The learned State Attorney revisited the evidence before the trial court. The evidence shows that when the police officers went to the Appellant’s house for the purpose of conducting a search, the Appellant was not at home. Instead, it was his wife who was found in possession of the gazelle meat. It is therefore her stance that in such circumstances, possession on the part of the Appellant was never proved to the required standards. She added that it would have made sense, if both the Appellant and his wife had been charged together for the offence. Secondly, she submitted that there was no evidence led to show that the meat in in question was gazelle meat and not otherwise. PW6 told the court that he examined the meat and fount out that it was gazelle meat because of smell, little skin that was left over and also that it had fibres. But this kind of identification fell short of the legal requirements. To that end she made reference to the case of Mohamed Kimase vs Rep, Criminal Appeal No. 45/2020, (HC at Musoma). The court held that identification of this kind is weak, not scientific and unacceptable in evidence. Thirdly, the learned state attorney addressed the issue of inventory. She pointed out that the procedure in relation to preparation of the inventory was not complied with. She submitted that before an order is made for disposal of the subject, the suspect must be called upon to make his comments or observations in relation to the subject matter. But this was not done thus rendering the inventory, exhibit P3, inadmissible in evidence. To that end the learned state attorney made reference to the decision of the Court of Appeal in Mohamed Juma Mpakama vs Rep. Criminal Appeal No 385/2017. With all these glaring holes in the prosecutions case before the trial court, the learned state attorney was of the firm view that the case against the Appellant had not been proved beyond reasonable doubt. She invited the court to allow the appeal. On his part, Mr sadiki Aliki, learned advocate for the Appellant started by appreciating the stance taken by the learned state attorney. He categorically supported all the points pointed out by the learned state attorney. In relation to the procedure for filling the inventory, Mr. Sadiki added that when and where the procedure is not observed, the practice of the courts has been to expunge the exhibit in question from the record. The learned counsel made reference to the decision of the Court of Appeal in Joseph Richard vs Republic(Criminal Appeal No. 467 of 2022) [2024] TZCA 339 (8 May 2024). I must say from the outset that I entirely agree with both counsel on the points pointed out which clearly show that the case before the trial court was not proved beyond reasonable doubt. As to the identification of the meat (government trophy), it is patently clear that the way PW6 identified the said meat cannot be said to be scientific. Identification by scent and physical appearance alone (that the meat had fibres) Page. 2 Hon... PROJESTUS KAHYOZA cannot be in itself conclusive so as to ground a conviction. There must a scientific explanation from a dully qualified person showing both how scientifically identification was made and the conclusion arrived at. Short of that it remains a mere opinion upon which no court should act. With regard to the inventory, the position is clear as it was articulated in the case of Joseph Richard vs Republic (supra). In that case the Court of Appeal clearly stated that it was mandatory for the suspect to be called upon to make his comments or observation before an order for disposal is made. The Court stated: Secondly, in respect of the evidence of inventory (exhibit P4), it is clear at pages 64 and 93 of the record of appeal that the appellant 13 despite being present at the time of seeking the disposition order, he was not afforded by PW3 an opportunity to be heard before the issuance of the order. In Mohamed Juma @Mpakama v. Republic (supra), this Court emphasized the mandatory right of an accused person to not only be present, but also be heard before the magistrate makes any order for destruction of perishable Government trophies. Then the Court went ahead to state as to what happens when there is no compliance to the above procedure: “Since in the instant appeal, the appellant was not heard before the disposal order was made, the resulting inventory form (exhibit P4) could not be relied on in proving that the appellant was found in unlawful possession of Government trophies as charged. We are again in agreement with the learned State Attorney that exhibit P4 ought to have been discounted. We accordingly discount it from the record”. As it is, even in the present appeal, the Appellant was not accorded an opportunity to comment on exhibit P3 before an order for its disposal was made. This was done in total violation of the law. The attendant consequence is for exhibit P3 to be expunged from the record of the trial court. Once this exhibit is expunged from the record the prosecution’s case collapses altogether. The resultant conclusion is that the prosecution’s case before the trial court was not proved beyond reasonable doubt. Consequently, and for the above reasons, I allow the appeal, quash the conviction and set aside the sentence of twenty years imprisonment imposed on the Appellant. The Appellant must be released from prison forthwith unless he is held for any other lawful cause. Dated at KIGOMA ZONE this 21st of November 2024. P. R. KAHYOZA, J JUDGE OF THE HIGH COURT Page. 3 Hon... PROJESTUS KAHYOZA