CRIMINAL APPEAL NO 157 OF 2021 MARWA JOEL MARWA 5 OTHERS V REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MUGASHA, J.A.. LEVIRA. J.A. And MAKUNGU. J.A/> CRIMINAL APPEAL NO. 157 OF 2021 MARWA JOEL MARWA & 5 OTHERS...........................................APPELLANTS VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Luvanda. J.^ dated the 10th day of November, 2020 in Economic Case No. 03 of 2020 JUDGMENT OF THE COURT 5th & 10thJuly, 2024 LEVIRA, 3.A.: The appellants were charged in the High Court of Tanzania at Arusha (the trial court) with eight counts of unlawful possession of government trophies contrary to section 86 (1) and (2) (c) (iii) of the Wildlife Conservation Act, No.5 of 2009 (the WCA) as amended by section 59 (a) and (b) of the Written Laws (Miscellaneous amendments) No. 2, Act No. 4 of 2016 read together with Paragraph 14 of the 1st Schedule to, and sections 57 (1) and 60 (2) both of the Economic and Organised Crime Control Act, Cap 200 R.E. 2002 as amended by sections 16 (a) and 13 (b) respectively of the Written Laws (Miscellaneous Amendments) Act No. 3 i of 2016 (the COCCA) and one count of unlawful possession of weapons in certain circumstances contrary to section 103 of the WCA read together with paragraph 14 of the 1st Schedule to, and sections 57 (1) and 60 (2) both of the EOCCA. Upon a full trial, the appellants were convicted as charged and each was sentenced to 20 years imprisonment on each count which was ordered to run concurrently in respect of counts on unlawful possession of Government trophies and to pay a fine of TZS 200,000 or to serve a term of one year in prison in default in respect of the ninth count. The appellants were aggrieved by both, the conviction and sentence hence, this appeal. According to the record, the prosecution alleged that on 6th April, 2019 at Loliondo Game controlled area within Ngorongoro District in Arusha Region, the appellants jointly and together were found in unlawful possession of Government trophies; to wit, 25 Wild beast skins equivalent to 25 killed Wild beasts, valued at USD 650 each; 27 skins of Zebra equivalent to 27 killed Zebras valued at USD 1200 each; 2 skins of Topi equivalent to 2 killed Topis valued at USD 800 each; 2 skins of Hartebeest which is equivalent to 2 killed Hartebeest valued at USD 650 each; 3 skins of Thompson Gazelles which is equivalent to 3 killed Thompson Gazelles valued at USD 500 each; 1 skin of Warthog which is equivalent to one 2 killed Warthog valued at 450 USD; 1 skin of Eland which is equivalent to 1 killed Eland and 6 skins of Impala which is equivalent to 6 killed Impalas valued at USD 390 each and weapons, to wit, 1 sword, 1 knife and 89 wires for trapping animals. A brief account of the prosecution case was to the effect that: on 6th April, 2019 Simon Maswe Barnabas (PW3) working with Anti-Poaching Unit North Zone (KDU) in company with other three officers while patrolling Loliondo Game Controlled Area, they saw a camp of people which was not allowed to be there. When they approached them, those people were many and they started to run away but, eventually, they managed to arrest six of them and seized skins of various animals and weapons as indicated above together with meat and cooking utensils. / Seizure Certificate (exhibit P6) was filled and all the appellants signed it. PW3 and his fellow officers guarded the exhibits up to 7th April, 2019 in the morning when they were transported to Central Police Arusha and handed them to F7335 CPL Evance (PW2), exhibits keeper. According to PW2, having received the exhibits, he labelled and stored them in the exhibit room. On 8th April, 2019 Emmanuel Daniel Pius (PW4), Wildlife Officer and Government Trophy Valuer was summoned by his In charge to evaluate the seized trophies, which he complied and filled the valuation 3 certificate (exhibit P7) indicating the established values as demonstrated above. After closure of prosecution case, the trial court made a finding that prima fade case was established against all the appellants and thus accorded them a right to enter their defences. Each of them exonerated himself from the offence with common defence of alibi. Basically, each of them said was arrested for a different offence and they met at the police station each having his own case then were joined to answer the charges which led to their convictions, sentences and hence, the current appeal In this appeal, the appellants have presented a total of 17 grounds of appeal; 12 grounds in the Memorandum of Appeal filed in Court on 13th December, 2022 and 5 grounds in Supplementary Memorandum of Appeal filed on 26th June 2024. We have examined the grounds presented and find that they fall under two categories: One, those faulting the decision of the trial court on procedural irregularities and two, grounds faulting substantive matters or issues of evidence. We think that logically, we should start to determine procedural issues followed by substantive matters, if there will be a need to do so. For that reason, we shall not reproduce all the 17 grounds of appeal at ones. We choose to be economical and start with two grounds, each from the memorandum and supplementary memorandum of appeal, respectively; to wit ground 12 of the memorandum and ground 1 of the supplementary memoranda of appeal which we shall renumber and quote for the purposes of this appeal as follows: 1. That, the trial court erred in law and fact to convict and sentence the appellants while section 38 (3) o f the Criminal Procedure Act Cap 20 R. E. 2022 was totally violated. 2. That, the trial court erred in law by convicting the appellant on the basis o f exhibits P2 and P4 which were not listed and named at committal contrary to section 246 (2) o f the CPA Cap 20 R. E 2022. At the hearing of the appeal, the appellants appeared in person, unrepresented and they adopted their grounds of appeal as presented in the memorandum and supplementary memorandum of appeal together with written submissions to form part of their oral submission while reserving their right to rejoinder. They urged us to allow the appeal. The respondent had the services of Ms. Naomi Joseph Mollel, Mr. Charles L. Kagirwa and Ms. Helena Patson Sanga, all learned State Attorneys. The appeal was argued by Mr. Kagirwa who submitted on procedural matters and Ms. Mollel who dealt with grounds on substantive issues. The appeal was resisted by the respondent. 5 In response to the first ground of appeal, Mr. Kagirwa submitted that the appellants' complaint that the trial court convicted them without observing section 38 (3) of the Criminal Procedure Act, Cap 20 R. E. 2019 (the CPA), he conceded to the extent that this provision requires an officer seizing anything to issue a receipt acknowledging the seizure of that thing, but it was not the case in the present case. However, he argued that this ground is baseless because in the current position of the law, issuance of a receipt is no longer a mandatory requirement if an accused person signs certificate of seizure as in the case at hand where the appellants signed. He referred us to page 173 of the record of appeal where the certificate of seizure (exhibit P6) is found with a view of showing that all the seized items were listed, the appellants signed it and the date they were arrested was indicated. His argument was based on the decision of the Court in Papaa Olesikaladai @ Lendemu v. Republic, Criminal Appeal No. 47 of 2020 [2023] TZCA 51(20 February 2023, TANZLIII) where it was said that, 'the complaint o f non-issuance o f a receipt will have no place in cases where a certificate o f seizure is issued. Therefore, it was Mr. Kagirwa's further argument that, since the certificate of seizure was issued as alluded to above, it was a sufficient proof that the appellants were caught with the listed things. He urged us to dismiss this ground of appeal for being baseless. 6 The question as to whether receipt was necessary in the circumstances of the present case should not detain us. It is established position that whenever a certificate of seizure is filled and signed by accused person(s), like in the case at hand where all the appellants signed, the same constitutes evidence of seizure of that seized items even without a receipt being issued. See: Matata Nassoro and Another v. Republic, Criminal Appeal No. 257 of 2019 [2022] TZCA 690 (2 November 2022, TANZLII) and Papaa Olesikaladai @ Lendemu (supra). Therefore, we agree with Mr. Kagirwa that the appellants' complaint for non-issuance of a receipt is unfounded. Regarding the second ground of appeal in which the appellants faulted the trial court for convicting them on the basis of exhibits P2 and P4 which were not listed and named at the committal contrary to section 246 (2) of the CPA. Mr. Kagwira opposed the appellants' complaint asserting that, since it was indicated during committal that 'otherphysical exhibit shall be tendered during hearing o f the case'on page 25 of the record of appeal, it was sufficient information to the appellants regarding the substance of evidence to be tendered by the prosecution at the trial. He supported his argument with the decision of the Court in Edwin Cheleh Swen v. Republic, Criminal Appeal No. 649 of 2021 [2024] TZCA 272 (17 April 2024, TANZLII). Besides, he added that the charge 7 was read over to the accused persons /appellants so they knew the offence they were charged with, a fact which made them aware of the nature of prosecution evidence. Upon being inquired by the Court as to whether section 289 of the CPA was considered by the Court while dealing with the case of Edwin Cheleh Swen (supra), Mr. Kagirwa was quick to respond in the negative and added that the record does not show if any notice was issued by the prosecution for additional evidence. We have carefully considered the appellants' complaint and the response from Mr. Kagirwa, the pertinent issue for determination is whether the appellants were made aware of the substance of prosecution evidence during committal. It is a requirement of the law that when an accused person appears before subordinate court for committal, the court shall read and explain or cause to be read the statements or documents containing the substance of the evidence of prosecution. The provisions of section 246 (2) of the CPA provides for this requirement in the following terms: "(2) Upon appearance o f the accused person before it, the subordinate court shall read and explain or cause to be read to the accused person the information brought against him as well as the 8 statements or documents containing the substance o f the evidence o f witnesses whom the Director o f Public Prosecutions intends to call at the trial." The spirit behind the above provision is to accord an accused person a fair trial by ensuring that he understands the nature and magnitude of the case facing him so as to be able to prepare his defence accordingly. This tells the reason why section 289 (1) and (2) of the CPA safeguards against the possibility of prosecution calling a witness or exhibiting documentary evidence at the trial, whose substance of his evidence was not read during committal to testify, unless a notice is issued stating his name, address and the substance of his evidence. In the present case, the record shows on page 25 what transpired at committal is as follows: "COURT: The documents containing substance o f the evidence the prosecution side intends to produce during the trial at the High Court are read over and explained to the accused persons. 1. Certificate o f seizure. 2. Trophy valuation Certificate. 3. Inventory Form. 4. Handling over o f Exhibit Form (Police form No. 16). 5. Handling over o f Exhibit Form. 9 Other physical exhibit shall be tendered during hearing o f the case. Court: Rule 8 (2) o f the Economic and Organized Crimes Control (The Corruption Division) (Procedure), Rules 2016 has been complied with. Sgd: R. A. Ngoka RM 13/02/2020." [Underline added]. We wish to note that Rule 8 (2) of the Economic and Organized Crimes Control (the Corruption and Economic Crimes Division) (Procedure), Rules GN. 267 of 2016 (the CECD Rules) is a replica of section 246 (2) of the CPA. It reads: "Upon appearance o f the accused person before itthe district or a resident magistrate's court shall read and explain or cause to be read and explained to the accused person or if need be, interpreted in the language understood by him; the information brought against him as well as the statements or documents containing the substance o f the evidence o f witnesses whom the Director o f Public Prosecutions intends to call at the trial." 10 Therefore, as it can be observed above, by indicating that Rule 8 (2) of the CECD Rules complied with, it means that the appellants were made aware of the substance of prosecution evidence as required under section 246 (2) of the CPA. However, the appellants complained that exhibit P2 collectively and exhibit P4 were not read and explained to them during committal. According to the record of appeal, exhibit P2 was tendered by PW1 and admitted at the trial as it can be observed on page 60 of the record of appeal. It contains the following things: 27 skins of zebra, 25 skins of wildebeest, 2 skins of topi, 2 skins of hartebeest, 3 skins of Thomson gazelle, 1 skin of warthog, one skin of eland and 6 skins of impala. On page 72 of the record of appeal, PW2 tendered 7 pots, 6 torches, 2 bush knives, 1 long double edged knife and 1 wire metal which were admitted as exhibit P4 collectively. It is apparent on the record that various physical exhibits were tendered in evidence at the trial. The said items were just part of physical exhibits/ items mentioned in seizure certificate (exhibit P6) which included pieces of meat of various animals. In our considered view, since the content of seizure certificate was read as part of prosecution evidence and the prosecution decided not to charge the appellants with every item relating to government trophy mentioned therein, it was incumbent upon them to specify physical exhibits which they intended to tender at the trial ii as substance of the prosecution evidence. Failure to do so, in our view, prejudiced the appellants as they were not made aware in advance of what exactly would be the substance of prosecution evidence at the trial as required by law. Thus, circumstances of the present case are distinguishable from the case of Edwin Cheleh Swen (supra) relied upon by the respondent in the sense that, in that case the appellant was charged with the offence of trafficking in narcotic drugs and the Report from the Chief Government Chemist explaining the said drugs was read to the appellant. Unlike in the case at hand, we are not told that the said report contained mixture of things which could have brought confusion to the appellants. That is why the Court held: "In the circumstances, since the appellant was made aware that physical exhibits will be tendered in court at the trial, we are thus o f the firm view that he was dully informed and accorded an opportunity to know and understand in advance the substance o f the case for the prosecution for him to mount an informed defence." Therefore, we find that in the case at hand, a mere phrase during committal proceedings that "physical exhibit will be tendered at the trial" was not sufficient information on the appellants regarding the substance of prosecution evidence intended to be tendered at the trial. More so, as 12 the said phrase referred to 'exhibit' while at the trial various physical exhibits were tendered leaving behind others which were mentioned in the seizure certificate as indicated above. As to what should be the consequence, we cannot do better than what we did in our various decisions when faced with a similar situation and expunged exhibits for being admitted in contravention of section 246 (2) of the CPA; including, Simon s/o Shauri Awaki @ Dawi v. Republic, Criminal Appeal No. 62 of 2020 [2022] TZCA 51 (23 February 2022, TANZLII); Remina Omary Abdul v. Republic, Criminal Appeal No. 189 of 2020 [2022] TZCA 118 (15 March 2022,TANZLII); Mussa Ramadhani Magae v. Republic, Criminal Appeal No. 545 of 2021 [2023] TZCA 181 (11 April 2023, TANZLII); Said Shabani Malikita v. Republic, Criminal Appeal No. 523 of 2020 [2023] TZCA 17302 (5 June 2023, TANZLII); Kristina Biskasevskaja v. Republic, Criminal Appeal No. 65 of 2018 [2023] TZCA 17434 (20 July 2023, TANZLII) and Grace Teta Gbatu v. Republic, Criminal Appeal No. 84 of 2019 [2023] TZCA 17516 (23 August 2023, TANZLII), to mention but a few. Therefore, we accordingly expunge exhibits P2 collectively and P4 collectively from the record. Having expunged those exhibits from the record, we do not find any need of determining the remaining grounds of appeal as doing so will be 13 an academic exercise. We are satisfied that since the appellants were charged with an offence of unlawful possession of Government trophies which are no longer in existence having been expunged from the record, certainly, the prosecution case crumbles. We therefore, for the reasons stated above, allow the appeal, quash the appellants' convictions and set aside their sentences. We order the appellants to be released forthwith from prison, unless they are otherwise lawfully held. DATED at ARUSHA this 9th day of July, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 10th day of July, 2024 in the presence the Appellants in person and Ms. Caroline Isaya Kasubi, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of 14