Mashaka Mohamed Njuju v Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 14410 OF 2024 (Originating from Economic Case No. 02 of2023 in the Manyara Resident Magistrate's Court) MASHAKA MOHAMED NJUJU..................................................... APPELLANT Versus THE REPUBLIC....................................................................... RESPONDENT JUDGMENT 3d July and 2tfh August 202J MIRINDO, J: Mashaka Mohamed Njuju was convicted by Manyara Resident Magistrate's Court of unlawful possession of a government trophy, namely, 78.50 kilograms of giraffe meat worth of 35,100,000/=. He was sentenced to pay a fine of 35,100,000/= TZS or serve a prison sentence of twenty years imprisonment. He has appealed against his conviction and sentence on six grounds of appeal. The appellant appeared in person at the hearing of the appeal. The respondent Republic was represented by Ms Esther Malima, State attorney. With leave of this Court, she argued a preliminary point of law to the effect that the 1 prosecuting Attorney In -Charge for Manyara Region issued prosecutorial consent under section 26 (1) of the Economic and Organised Crime Control Act [Cap 200 RE 2022]. She argued that in view of the interpretation stated in Peter Kongori Maliwa and Others v R (Criminal Application 254 of 2020) [2023] TZCA 17350 the consent was invalid and asked this Court to quash the proceedings and order retrial. She maintained that even if the consent was to be held to be valid the prosecution had proved its case beyond reasonable doubt. Considering the most recent interpretation of section 26 (1) of the Economic and Organised Crime Control Act in Nassib Abubakar Mwazyega alias Ras v R (Criminal Appeal No. 146 of 2021) [2024] TZCA 576 and in light of the earlier authorities on this point in particular, Hamidu Abdallah Bila v R, Criminal appeal 73 of 2004, this point has no merit. I now proceed to consider the merits of the appeal before me. The appellant had nothing to add to his six grounds of appeal which boil down to one question: Was the charge of unlawful possession of giraffe meat proved beyond reasonable doubt? The offence of unlawful possession of government trophy with which Mashaka Mohamed Njuju was charged with falls under section 86(1) and (2) of the Wildlife Conservation Act [Cap 283 RE 2022] read together with paragraph 14 of the First Schedule to the Economic and Organised Crime Control Act [Cap 2 200 RE 2022] and section 57 (1) of the latter Act. Section 86 (1) creates the offence of unlawful possession of government trophy while subsection (2) of Wildlife Conservation Act and the provisions of the Economic and Organised Crime Control Act provide for aggravating factors in sentencing. A valid conviction of unlawful possession of government trophy under section 86 (1) of the Wildlife Conservation Act arises whenever an accused person is a possessor, buyer, seller of a government trophy or otherwise deal with a government trophy. It is a defence to the charge of unlawful possession of government trophy if the accused proves he or she had a permit from the Director of Wildlife issued under the various provisions of the Wildlife Conservation Act. Generally, possession in criminal law including unlawful possession of government trophy means that the accused person exercised some degree of control over the item and had knowledge of its existence. See Moses Charles Deo v R [1987] TLR 134 at 139; Nurdin Akasha alias Habab v R [1995] TLR 227 and Song Lei vs Director of Public Prosecutions and Others (Consolidated Criminal Appeals 16 of 2016) [2019] TZCA 265 (30 August 2019). With these principles in mind, I proceed to review the evidence adduced by the prosecution to prove the charge of unlawful possession of giraffe meat against the appellant, Mashaka Mohamed Njuju. 3 The primary facts of the prosecution case are that on prosecution case is that on 14 February 2024, wildlife officers who were on patrol at Ndedo Village in Makame Wildlife Management Area were informed about gunshots around Mondotu area. They went to Mondotu area and set a barrier on the main road and stayed until 12 midnight when they heard another gun shot. Around 5 in the morning they heard a sound of a motorcycle that was moving towards them. They hid themselves in the bushes and along with their motor vehicle. Hearing the sound of a motorcycle and seeing its lights from a distance, they blocked the road with their motor vehicle and set themselves to ambush a suspect. Two motor vehicles arrived. One motor cycle arrived with a parcel on its carrier but its driver managed to flee. A driver on a second motor cycle which also had a parcel tied to its carrier jumped from the motor cycle, attempted to flee but he was apprehended. On being interrogated he introduced himself as Mashaka Mohamed Njuju. He was searched and was found to be in possession of a gun powder and Gobore (a locally made gun). On the motor cycle, they found a knife and two sulphate bags. Inside the bag raw meat was found and it was soon discovered to be giraffe meat. Mashaka admitted that he had no permit to possess the giraffe meat. The appellant's defence was that he was first arrested by a group of Masai people who took him to the bushes, assaulted him and then called wild life officers who brought him to Babati Police Station. The appellant called one 4 witness, Yahaya Ramadhani Mwinyi who testified that the appellant had no firearm or motorcycle and on the day of the arrest the appellant was on his farm. I find the appellant's account and that of his witness quite puzzling. The appellant admitted that he was along the road around 5 in the morning when he was arrested by the Masai and then taken to Wildlife Officers. This fact is consistent with prosecution account that the appellant was arrested about 5 in the morning. Under normal circumstances, a group of people cannot arrest someone and hand him or her over to investigating authorities unless they suspect something unlawful. Although the appellant, in response to questions of clarification asked by the court, stated that "they" had dispute with Masai people over grazing land, his witness denied the existence of such dispute. The appellant's witness, being a chairperson of Bagamoyo Kitongoji was better placed than the appellant to know the existence of the conflict over the grazing land. In any case, there is no plausible explanation from the appellant as to why a group of Masai people would arrest and hand over to wild officers an innocent person who then proceed to suspect and charge an innocent person without lawful cause. The only plausible explanation is that the appellant was under suspicious circumstances regardless of who first arrested him. 5 After all, the appellant's witness was not with the appellant while on the road at the time of the arrest. The witness testified that he was at home and the appellant was on the farm. The appellant's witness conclusion that the appellant was a very poor person who could not commit the offence in question cannot exculpate the appellant. At the trial, the prosecution duly tendered in evidence the chain of custody form (exhibit P. 1), the motorcycle (exhibit P.2), the sulphate bags containing giraffe meat (exhibit P.3), certificate of seizure (exhibit P.4). There was confusion on numbering the knife and the confirmatory letter of the weight and measurement of the giraffe. I will deal with these issues in relation to the appellant's second ground of appeal. The appellant's complaint in the second ground of appeal is that the weapon alleged to be used in in the killing of the giraffe was not tendered in evidence. The appellant did not elaborate all his grounds of appeal and including the present one. From the trial court's proceedings, Daniel Kaaya and Melayeki Kibori, who were second and third prosecution witnesses respectively, testified that a knife with a black handle was one of the items seized from the appellant upon being searched. This knife was tendered in court by F. 2449 Sgt/ James, exhibit keeper at Babati Police Station who testified as the first prosecution 6 witness. It was admitted in evidence as exhibit P 6 after the trial court overruled the appellant's objection disowning the knife. In fairness to the appellant, the knife was produced in court on 24 April 2024 after the first prosecution witness was recalled and not on 20 February 2023 when that witness testified. I find nothing prejudicial to the appellant or irregular to the recalling of the first prosecution witness. The recalling of a witness is mandated by the provisions of section 195 (1) of the Criminal Procedure Act [Cap 20 RE 2022] and section 147 (4) of the Evidence Act [Cap 6 RE 2022]. The reason for recalling a witness, set forth in section 195 (1) of the Criminal Procedure Act, is if the evidence of such "appears" to the court "essential to the just decision of the case." The prosecuting attorney asked for the recalling of the first prosecution witness so as he could tender an exhibit he mentioned in his testimony and to testify on gobore and the gunpowder. The only oversight is that the prayer was granted without according the appellant an opportunity to comment on the propriety of the prayer. Nonetheless, the appellant was, in terms of section 147 (4) of the Evidence Act, allowed to cross-examine the first prosecution witness when he was recalled and objected to the admissibility of the knife. Similarly, the charge facing the accused was one of unlawful possession. Proof of existence of 7 a knife or its use was simply corroborating evidence which in the facts of the instant appeal was hardly necessary. In connection with gobore, the first prosecution witness narrated that it was taken to a forensic section by the sixth prosecution witness for investigation in relation to another criminal case. The sixth prosecution witness confirmed that the gobore was taken to the forensic section in Dar es Salaam. These accounts cannot in a proper case discharge the prosecution burden to prove its case beyond reasonable doubt. Were it not for the fact that the proof of Gobore was not an essential fact in proving the charge of unlawful possession of giraffe meat, I would have held that failure to prove its use in obtaining the government trophy was a material omission attracting adverse inference against the prosecution. While it is clear that the gobore was not tendered, I hold that it was not, in the circumstances of this appeal, a material fact to prove the charge of unlawful possession of giraffe meat. Whatever way the appellant obtained the giraffe meat, his possession of the meat without permit is what constitutes the offence. Whether he personally killed giraffe or not is immaterial. I, therefore, dismiss the second ground of appeal. In his first and second ground of appeal, the appellant, Mashaka Mohamed Njuju, complains that there was no proof that the meat was of a wild animal and 8 specifically pointed lack of chemical identification to prove that it was giraffe meat. The prosecution evidence on the identity of the raw meat came from its fifth witness, Christopher Peter Laizer, a wild officer. His testimony was that the government trophy may be identified by its physical and chemical characteristics. Physical identification is done when the trophy is still raw while chemical identification is for trophies that have been destroyed. He explained that he was summoned to identify the meat on 16 February 2024 at Babati Police Station. In his identification of the meat, he stated that, in the handwritten version of the proceedings: The raw meat was in big stakes weighing Kg 78.5. So, I did start to identify the trophy by physical appearance so the meat was red, and I proceed to check the Masele alignment, so since the meat was raw, fresh meat without any skin remains, the meat was cut from front leg and other meat was cut from rear legs of an animal and this was seen from the alignment of muscles found in those meat. The tender fiber of the meat had a layer dececerte [s/d] which can only be found from a big animal lack a Giraffe [s/c]. These feature [s/c] are unique and they can only be found on a giraffe, so I did satisfy myself that the raw meat was properly called giraffe.... He also stated that: Given my identification, I came to conclude the raw meat came from one giraffe. Also the meat is not that red and it is soft, the muscles are aligned to follow longitudinal alignment of animal. ... 9 These were the identification features stated by the fifth prosecution witness. The sixth prosecution witness, E 6749 D/gt Donald, who wrote a letter to Manyara's office of the national agency known as Weights and Measures Agency Tanzania, took the giraffe meat to the regional officer and witnessed its weighing. He tendered in court a confirmatory letter of the weight of the giraffe meat to be 78.50 kilograms. This witness was knowledgeable on the document prepared by the Weights and Measures Agency Tanzania, Manyara Office. In the leading cases of DPP v Sharif s/o Mohamed and 6 Others (Criminal Appeal 74 of 2016) [2016] TZCA 635; DPP v Kristina d/o Biskasevkaja (Criminal Appeal 76 of 2016) [2017] TZCA 278 and DPP v Mirzai Pirbakhshi alias Hadji and 3 Others, Criminal Appeal 493 of 2016, Court of Appeal of Tanzania at Arusha (2017), it has been that the admissibility of a piece of evidence depends on the competency of the witness who seeks to tender it. Knowledge about the potential exhibit is part of the witness competency. In DPP v Mirzai Pirbakhshi alias Hadji and 3 Others, Criminal Appeal 493 of 2016, Court of Appeal of Tanzania at Arusha (2017), the Court of Appeal outlined categories of witnesses who have knowledge about a particular piece of evidence to be produced in court: A person who at one point in time possesses anything, a subject matter of trial...is not only a competent witness to testify but he could also tender the same. It is our view that it is not the law that it must always be tendered by a 10 custodian...The test for tendering the exhibit therefore is whether the witness has the knowledge and he possessed the thing in question at some point in time, albeit shortly. So, a possessor or a custodian or an actual owner or alike are legally capable of tendering the intended exhibits in question provided he has the knowledge of the thing in question. In light of these authorities, I am satisfied that the sixth prosecution witness was competent to testify about the weight and measures of the giraffe meat. I have no reason to doubt his evidence. In the fourth ground of appeal, the appellant argues that the trial court erred in not taking account the prosecution failure to bring independent witness before it. The second and third prosecution witness testified that when they were interrogating the appellant they saw another person who introduced himself as Abdallah Juma and requested him to witness the search of the appellant. The third prosecution witness described how Abdallah Juma came to witness the search. He said that when they were interrogating the appellant they heard another motor cycle crossing the road and he chased it in order to find out if its driver could be another culprit. On being satisfied that the driver was an innocent person, he requested the driver to witness the search of the appellant. The witness testified as the fourth prosecution witness entitled Abdallah Juma Kidina. I would dismiss the fourth ground of appeal as having no merit. 11 At this stage, it is unnecessary to consider the fifth and sixth grounds of appeal which raises the general complaint that the conviction was premised on insufficient evidence and the charge was not proved beyond reasonable doubt. For the reasons given above, there is sufficient evidence to prove the charge of unlawful possession of government trophy and the appeal has no merit. I affirm the decision of Manyara Resident Magistrate's Court and dismiss the appeal in its entirety. DATED at BABATI this 7th day of August, 2024. F.M. MIRINDO JUDGE COURT: Judgment delivered in chambers this 28th day of August, 2024 in the presence of the appellant in person and in the presence of Ms Anifa Ally, State Attorney. B/C: William Makori (RMA). Right of appeal explained. F.M. MIRINDO JUDGE 12