CRIMINAL APPEAL MASUNGA MASANYIWA

IN THE HIGH COURT OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA ECONOMIC APPEAL NO. 000031766/2024 OF 2024 202411072000031766 (Arising from Economic Case No. 38156 of2023 of the District Court of Serengeti at Mugumu) MASUNGA S/O MASANYIWA ©MASUNGA.......................................APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT JUDGMENT 26th November & 11th December, 2024 M, L, KO MBA, J,: Masunga Masanyiwa is in custody for twenty years as an implementation of the sentence uttered to him by the Serengeti District Court following the conviction on the offence of unlawful possession of Government trophies contrary to section 86(1) and (2)(c) (iii) of the Wildlife Conservation Act No. 05 of 2009 Cap 283 RE 2022 (the WCA) read together with Paragraph 14 of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap. 200 R. E. 2022] (EOCCA). Page 1 of 8 It was on 10/11/2023 at Robanda village within Serengeti District in Mara Region, the appellant was found in found in unlawful possession of Government trophy to wit; six pieces of fresh meat of Giraffe valued at Tsh. 49,500,000/= the property of United Republic of Tanzania without permit. Appellant denied the charges, action which attract full trial where the trial court was satisfied that prosecution managed to prove one count out of two which the appellant was charged with, the trial Magistrate proceeded to convict and sentence the appellant. The trial court's decision aggrieved the appellant and knocked the door of this court armed with four (4) grounds of appeal which I hereby reproduce for easy of reference; 1. That, the trial magistrate erred in laws and the fact to conviction and sentences the appellant because the trial magistrate was admitted wrong evidence from PW1, PW2, PW3 and PW4 the produced by prosecution side, (sic) 2. That, the trial magistrate erred in laws and the fact to conviction and sentence the appellant because there were no any exhibit like the Government trophy that tendered by the prosecution side as during this case, (sic) Page 2 of 8 3. That, the trial magistrate erred in laws and the fact to conviction and sentences the appellant because the prosecution side did not prove the case beyond reasonable doubt, (sic) 4. That, the trial magistrate erred in laws and the fact to conviction and sentence the appellant because I was not there at the time of disposing ofgovernment trophies as the law say. (sic) Ms. Joyce Matimbwi, State Attorney represented the respondent, Republic when the appeal was due for hearing while the appellant stood solo without any representation. When he was informed that he has to start submitting his appeal he prayed this court to adopt his petition of appeal and was waiting for rejoinder after respondent submission. Ms. Matimbwi registered the position of the respondent that they resist the appeal and supports the conviction and submitted that it was PW1 who was informed of the killed Zebra (sic) and when PW1 and village chairman visited the area they found appellant with six pieces of meat. When he was asked where he got the said meat, he said was from two other people who were acquitted. She went on submitting that PW1 seized the meat and certificate was signed by the appellant and village Chairman. The said was identified by PW3 that belong to Zebra while differentiate it from domestic animals and PW4 who was the chairman of Robanda Village testified in Page 3 of 8 court and identified exhibit Pl seizure. She submitted that the prosecution testimony was perfect and prayed this court to find this ground lacks merit. Then she combined the 2nd and the 4th grounds about Government trophy and presence of appellant during disposition. It was her submission that section 101(2) of the Wildlife Conversation Act provides how Government trophy which is perishable may be treated. It is prosecution who supposed to pray for disposition order and accused and the Government trophy must be present in court. Further she said Police General Order (PGO) 229(28) make it mandatory that when seeking for disposition order, the accused must be present. In the case at hand she submitted that the appellant and Government trophy were taken by PW5 to Mugumu Primary Court for disposition order. She relied on the decision and analysis in Buruka Lekeni Ole gindai and Others vs Republic, Criminal Appeal 459 of 2020 and presented that the procedure was adhered as shown in exhibit 3 the appellant was taken before the Magistrate and signed the exhibit P3 and police asked for disposition order which was issued. However, she insisted it is not requirement of the law that appellant to be present when disposition is done and prayed these grounds to be found lacks merit. Page 4 of 8 On the 3rd ground about proving the offence beyond reasonable doubt she submitted that in the case of this nature prosecution need to prove appellant was found with Government trophy. When arrested she insisted that appellant failed to prove he has permit to possess the said trophy, the Government trophy was identified by PW3 that it was Zebra meat (sic) which was valued and the report was prepared. She submitted that appellant was arrested in the presence of PW1, PW2 and PW4 and therefore prosecution had eye witnesses. Further prosecution had exhibit and PW5 testified that appellant was arrested with Zebra Meat (sic) and so the offence was proved beyond reasonable doubt and the counsel prayed conviction and sentence to be uphold. When given time for rejoinder, appellant submitted that he was keeping cows in a farm and he did not commit any offence. I shall analyse this appeal by combining all grounds and find if the offence was proved beyond reasonable doubt. The appellant was convicted with one count of being found in possession of Government Trophy, which is six pieces of Zebra meat (sic). The trophy being perishable, under PGO there must be sought for it be disposed before full trial. It is the Magistrate who Page 5 of 8 has power to issue disposition order as per paragraph 25 of PGO No. 229 which reads; 25. Perishable exhibits which cannot easily be preserved until the case is heard, shall be brought before the Magistrate, together with the prisoner if any so that the Magistrate may note the exhibits and order immediate disposal. Where possible, such exhibits should be photographed before disposal. [Emphasis added].' The above quoted paragraph 25 envisages any nearest Magistrate, who may issue an order to dispose of perishable exhibit. This paragraph 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. See Mohamed Juma @ Mpakama vs Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 and Buruka Lekeni Ole Gindai and Others vs Republic (supra). It is not the requirement of the law that appellant must be present during disposition of perishable exhibit. That is analysis of the 4th ground. I shall then combine the rest of the ground to find if prosecution managed to prove the offence beyond reasonable doubt. Page 6 of 8 From the proceedings, appellant was arrested by PW1 and PW2 who were informed of the presence of carcass of Giraffe within Robanda village. They went to the village and managed to find appellant with six pieces of meat which was identified by PW3 as Giraffe meat. After arrest of the appellant, the Certificate of seizure (Exhibit PE 1) was filled and the appellant was taken to police station together with exhibits. Later on, inventory form of claimed government trophy found with the appellant was prepared and presented before the Magistrate who issued the disposal order (Exh PE 3). Exhibit PE3 has proceedings when appellant was taken before a Magistrate and when asked about the meat appellant did not deny to be found in possession of the Government trophy. However, he had no permit. Proceedings in Exhibit PE 3 were prepared as per instruction in Ngasa Tambu vs Republic (Criminal Appeal 168 of 2019) [2022] TZCA 455. Further, exhibit PE 3 was the declaration for destruction in which what transpired before Magistrate was recorded and the Magistrate saw six pieces of meat which was found in possession of the appellant. PW1 and PW2 are arresting officer who are credible witness. They explained in court how they got information and managed to arrest appellant; their testimony Page 7 of 8 is collaborated with the testimony of PW3 village Chairman. Appellant complained that there was no Government trophy tendered as exhibit during trial, I find exhibit PE3 which is inventory replaced Government trophy in which there is proceedings and appellant was asked by the Magistrate about the pieces of meat where appellant admitted to be found in possession of the said meat just as submitted by State Attorney. The combined grounds have no merit as the offence was proved beyond reasonable doubt. In the upshot I find the appeal lacks merit and I hereby dismiss it. DATED at MUSOMA this 11st day of December, 2024. w M. L. KOMBA JUDGE Page 8 of 8