Mayenga James Nyakashero

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA CRIMINAL APPEAL CASE REFERENCE NO. 202409092000025818 MAYENGA JAMES @NYAKASHERO …………........................................ APPELLANT Versus REPUBLIC……..……………………………………………………………...… RESPONDENT (Originating from the Decision of the District Court of Bariadi at Bariadi) (Hon. M.M. Nyangusi - SRM) Dated the 14th August 2024 in Economic Case No.24 of 2024 ----------------------------- JUDGMENT 13th February & 21st February 2025. F.H. MAHIMBALI, J The appellant in this case has been aggrieved by the decision of the District Court of Bariadi in which he was convicted of two offences in Economic Case No.24 of 2024 filed against him. It was alleged in the charge sheet convicting him (first offence) that Contrary to Section 17(1)(b) and (2) of the National Parks Act, [Cap 282 R.E. 2002], on the 14th day of June, 2024 at Mto Duma area in Serengeti National Park within Bariadi District in Simiyu 1 Region, was found in unlawful possession of weapons to wit: One Panga, One Knife and Three animal trapping wires and failed to satisfy the authorized officers that the same were intended to be used for purposes other than hunting, killing, wounding or capturing of wild animals. In the second offence, it was alleged that on the same date, place and time, the appellant was found in unlawful possession of Government trophy to wit, four pieces of Wildebeest fresh meat equivalent to One Wildebeest unlawfully killed valued at a total of USD 650 equivalent to Tanzania Shilings One Million Six Hundred Ninety-Nine Thousand Seven Hundred and Fifty (1,699,750/=) Only, the Property of the United Republic of Tanzania. The appellant pleaded not guilty to the charge on the both offences charged, whereby the prosecution brought a total of four witnesses and tendered six Exhibits in efforts to establish the charge. The appellant fended himself and had no exhibit to tender. In digest to the prosecution’s case in totality and as well as the defense testimony, the trial court found the appellant guilty of the both offences charged, convicted him and consequently sentenced him to serve one-year imprisonment for the first offence and 20 years’ jail imprisonment for the second offence. Thus, this appeal against both conviction and sentence: 2 1. That, the investigator of this case lied in court that he tendered a chain of custody in court as exhibit thus lead magistrate to enter wrong decision and left a shadow of doubts. 2. That, the prosecution side failed to prove the case beyond reasonable doubts. 3. That, the trial court erred in law and in fact to hold conviction without sufficient evidence because he was not arrested in the scene of the crime. Wherefore, on these three grounds of appeal, the appellant is seeking the indulgence of this court to allow his appeal quash the conviction, set aside the imposed sentences and in its place he be set at liberty. During the hearing of the appeal, the Respondent was represented by Mr. Kadata, learned state attorney while the appellant had no one to fend him, but himself. Submitting for the appeal, the appellant had no more to add save his prayer that this court should digest his grounds of appeal and on them, his appeal be allowed as he had no more material to add. In resisting the appeal, Mr. Kadata learned state attorney for the respondent argued against the appeal submitting as follows: 3 On the first ground of appeal, the issue of chain of custody is very clear. There is nothing of cheating as alleged. PW4 who is the investigator of the case, tendered the said chain of custody report which was admitted as P6 exhibit. The said exhibit established the chain of custody of the said Exhibits from the point of arrest and seizure until its production in court. Thus, he submitted that this ground of appeal that the investigator had lied, is of no significance. On the second ground of appeal, he submitted that the argument that the case was not established beyond reasonable doubt as per law is unfounded on the strength of the evidence in record which has clearly established the both charged offences beyond reasonable doubt as per law. With the first count of unlawful possession of weapons within the National Park, the prosecution was duty charged to establish three things: Firstly, that the appellant was found being within the National Park, secondly is whether the appellant was in possession of the alleged weapons and thirdly that the appellant had no permit. He clarified in his submission that, with the first ingredient that he was found being within the National Park, two prosecution witnesses (PW1 and PW2) testified that they arrested the appellant being within Serengeti 4 National Park at an area called Mto Duma which was within Serengeti National Park. The coordinate points of the said point of arrest was taken and the map was printed establishing the point of arrest. The said printed map was admitted as exhibit P2 establishing that it was within the National Park. Thus, the evidence in his considered view, correctly established the said ingredient of being within the National Park. That the appellant was found being within Serengeti National Park, the prosecution through PW1 had well stated how they arrested the appellant being within the said National Park armed with a knife, panga and animal trapping wires. This PW1 tendered two exhibits: certificate of seizure (P.1) and the weapons themselves- panga, knife and trapping wires (exhibit 3). Thus, the issue of possession of weapons is well established, he concluded. On the third ingredient that the appellant had no in his possession the authorized permit of possession of the alleged weapons within the National Park, he submitted that, PW1 had stated all that was required and added that when the appellant was inquired whether he had any permit in his possession, he tendered none and stated nothing of the permit authorizing his possession of the said weapons there in. Until the close of the defense 5 case, the appellant had established nothing of the said permit authorizing him possession of the said weapons lawfully therein. As to the second offence of being in unlawful possession of government trophy, Mr. Kadata submitted that the Prosecution was duty bound to establish also three ingredients: that he was in possession of the alleged trophy, secondly that what he was possessing was actually government trophy as per law, and thirdly that he had no authorized permit. With the first ingredient of being in possession of four pieces of wildebeest, PW1 said it all. Also the certificate of seizure was tendered as exhibit P1 in which the appellant participated fully by signing on it. On the second ingredient whether what was being possessed was really trophy, the prosecution brought PW3 - Wildlife Officer who in his testimony said well in his scientific explanation that what was arrested with, was actually nothing but wildebeest. This PW3 also tendered trophy valuation report which was admitted as exhibit P4. Also in his testimony, he tendered the inventory form (P.5) which tells how the said trophies as were material of high rancid were ordered to be disposed and its report tendered in court in lieu of the physical trophy. 6 As the appellant failed to show any valid permit authorizing him being in possession thereof, he had no justification of being in possession of the alleged government trophy. So, this offence was as well, was established beyond reasonable doubt as per law. As regards to the third ground of appeal, he had nothing more to add, saying that it has already been covered in his submission above, it being a question of fact. With this, he found this appeal being devoid of any merit, thus liable to be dismissed. In the circumstances, he prayed that this appeal be dismissed and that conviction and sentence meted out be upheld by this Court as per strength of the prosecution's evidence. That was all about his submission in chief. The appellant had nothing for his rejoinder submission, thus maintained his earlier stand. I have critically digested the rival submissions of both sides: for and against the appeal. The vital question to pose is only one, whether the appeal has been brought with sufficient cause. To arrive at that end, since all three grounds of appeal revolve on the question of fact, my take is, whether the prosecution had established their case beyond reasonable doubt as per law. 7 As far as the appellant’s grief in ground number one, I agree with Mr. Kadata that on the first ground of appeal, the issue of chain of custody is very clear. There is nothing of cheating as alleged. PW4 who is the investigator of the case, tendered the said chain of custody report which was admitted as P6 exhibit. The said exhibit established the chain of custody of the said Exhibits from the point of arrest and seizure until its production in court. Thus, it is void of any merit. As regards to the remaining two grounds of appeal, on their seriousness, and as they concern the central issue of the case, whether the prosecution had established their case beyond reasonable doubt as per law, as first appellate court, I am privileged to revisit the whole evidence and come up with my own findings. Anyway, I node head on the manner Mr.Kadata had submitted on the important ingredients to be established on the both offences charged with. With the unlawful possession of weapons within the National Park, three ingredients to be established were: firstly, that the appellant was found being within the National Park, secondly is whether the appellant was in possession of the alleged weapons and thirdly that the appellant had no permit. With the second offence of unlawful possession of government trophy, that the prosecution was duty bound to establish also three ingredients: firstly, that he was in possession of the 8 alleged trophy, secondly that what he was possessing was actually government trophy as per law, and thirdly that he had no authorized permit. It is Mr. Kadata’s firm and convincing submission that the prosecution had established all the three ingredients in both counts and beyond reasonable doubt. Thus, the appeal is devoid in both grounds for both counts. In my thorough scanning of the whole of the prosecution’s evidence, firstly suggests that the point of arrest of the appellant was at Mto Duma which is within Serengeti National Park. To back up their assertion, the prosecution relied on the testimony of PW1 and PW2 and their exhibit P.2 – Printed out map which state to be at GPS 36M 0654329, UTM 9713524. There is no accompanying explanation what this GPS numbers stand for and means what as far as the point of arrest of the appellant is concerned. A mere production of it convincing the trial magistrate vide the said GPS Map, is it a conclusive proof that the said point is within the restricted area of Serengeti National Park? Secondly, in my keen digest to the testimonies of PW1 and PW2, and how the appellant denied the charge saying that he was arrested by Park rangers just at the border of the National Park with the bundle of “poles” and they were two of them, and asked them about the permit. They had 9 replied they did not have. With this denial of the charge, I had expected there to be clear, cogent, credible or unimpeachable evidence and irresistible testimony that the appellant was actually arrested within Serengeti National Park at an alleged area called Mto Duma. The evidence tendered by the prosecution establishing the proof of the said fact is the GPS Map print out describing the point of arrest as with coordinate points 36M 0654329, UTM 9713524. I am aware with the genesis of this requirement of producing coordinate points as proof of the point of arrest being within the National Park, is the Court of Appeal’s decisions rebutting the prosecution’s assertion on a point of arrest to offences related to entry into game reserve or National Park areas. See the Court of appeal’s decision in Dogo Marwa @ Sigana & Another vs Republic (Criminal Appeal No. 512 of 2019) [2021] TZCA 593 (21 October 2021), where the Court of Appeal had this to say on proper description of the point of arrest in offences of such nature, that: “We were somewhat surprised by the very casual and perfunctorily way; the national park rangers testified that they arrested the appellants at Milima Soroi areas, within the Serengeti National Park. We pointedly asked the learned Senior State Attorney whether the Milima Soroi area is within statutory boundaries of the Serengeti National Park. Mr. Mayenga submitted that section 5 (1) read together with the First Schedule 10 to the NPA, describe the statutory boundaries of the Serengeti National Park: "5. -(1) The area specified in the First Schedule to this Act is declared a National Park to be called the Serengeti National Park:" After reading through the First Schedule, which provides the outlines of the boundaries of the Serengeti National Park, Mr. Mayenga conceded the Milima Soroi area where the park rangers supposedly arrested the appellants, does not appear under the First Schedule marking the boundaries of the national park. We need not reemphasize that the prosecution evidence on record, did not prove beyond reasonable doubt that the park rangers arrested the appellants within the statutory boundaries of the Serengeti National Park”. Now, the issue for digest is whether by a mere tendering the GPS Map print out describing the point of arrest as with coordinate points 36M 0654329, UTM 9713524 established the fact the said particular point of Mto Duma was within the statutory boundaries of Serengeti National Park. It appears the prosecution had expected the Court/trial magistrate to go and search the statutory boundaries of Serengeti National Park and establish whether at that particular point, is really within the restricted geographical boundaries of Serengeti National Park as per these coordinate points. A mere production 11 of the GPS Map was neither sufficient nor the proper interpretation of the conditions imposed in the case of Dogo Marwa @ Sigana & Another vs Republic (supra). So, in my considered view, a mere production of that GPS Map printout per se was not a conclusive proof that the alleged area was within the restricted statutory boundaries of Serengeti National Park. The production of that Map print out was just one step to the full proof of the alleged fact. By the way, it was not elaborated how the coordinate points were taken and by what device (its make for its authenticity etc) and how the said coordinate points really reflect the said arrest point. Secondly, the print out map is an electronic evidence in the eyes of the Electronic Transactions Act, Cap 442 R.E 2022 which provides for the legal recognition of electronic transactions, the use of information and communication technologies in collection of evidence, admissibility of electronic evidence, etc. Under section 18 of the said Act, clearly provides for the conditions of admissibility of electronic evidence. I quote: 18.-(1) In any legal proceedings, nothing in the rules of evidence shall apply so as to deny the admissibility of data message on ground that it is a data message. (2) In determining admissibility and evidential weight of a data message, the following shall be considered- 12 (a) the reliability of the manner in which the data message was generated, stored or communicated; (b) the reliability of the manner in which the integrity of the data message was 10 Electronic Transactions Act [CAP. 442 R.E. 2022] maintained; (c) the manner in which its originator was identified; and (d) any other factor that may be relevant in assessing the weight of evidence. (3) The authenticity of an electronic records system in which an electronic record is recorded or stored shall, in the absence of evidence to the contrary, be presumed where- (a) there is evidence that supports a finding that at all material times the computer system or other similar device was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of an electronic record and there are no other reasonable grounds on which to doubt the authenticity of the electronic records system; (b) it is established that the electronic record was recorded or stored by a part to the proceedings who is adverse in interest to the part seeking to introduce it; or (c) it is established that an electronic record was recorded or stored in the usual and ordinary course of 13 business by a person who is not a part to the proceedings and who did not record or store it under the control of the part seeking to introduce the record. (4) For purposes of determining whether an electronic record is admissible under this section, an evidence may be presented in respect of any set standard, procedure, usage or practice on how electronic records are to be recorded or stored, with regard to the type of business or endeavours that used, recorded or stored the electronic record and the nature and purpose of the electronic record. In digest to the manner PW1 had testified, there has not been any proof of reliability of the said information how it was generated, stored, produced, its integrity, authenticity and its weighty in evidence. Thus, the production of the said purported evidence did not make any strict adherence and compliance to the mandatory section 18 of the Electronic Transactions Act, for it to have a legal value. It is thus unbelievable. I now turn on the proof material of the second offence of unlawful possession of government trophy to wit four pieces of wildebeest meat. As to why the said four pieces of fresh meat were of wildebeest, PW3 – an expert (Wildlife Officer) who said holds Bachelor Degree in Wildlife Science at Mweka University with five years’ experience in his work and that amongst his duties are to identify and evaluate the Government trophies. As 14 to why the said alleged trophy is wildebeest, PW3 – Mr. Kondea Make Senso says: “I discovered that due to the experience I have, I found that it was a wildebeest meat due to dark red colour and it has rich Migrobeen which allow oxygen to pass through, but has cumulative of type I muscle fibres and which small diamine which are many. ….. So due to such features I discovered that it was wildebeest”. Though I agree with the value of expert opinion, however, the same must be very clear and convincing for it to carry the weight of evidential value. In this case, PW3 had described on how he managed to identify the alleged trophies to be of wildebeest meat on the above description. He tried to clarify its uniqueness features, but did not tell how those features are distinguishable from other animals, which makes its uniqueness. My insistence has always been this, with expert opinion, we expect there to be production of real expert opinion based on scientific investigation or analysis for the proof to be clear, cogent, credible, or unimpeachable evidence. In William Maganga @ Charles Vs. Rep, Criminal Appeal No. 104 of 2020 and Evarist Nyamtemba vs. Rep, Criminal Appeal No. 196 of 15 2020 (unreported), where in a case involving identification and valuation of elephant tusks, it was observed that: "The testimony of PW5 lacked all this information. As rightly submitted by the learned State Attorney, PW5 gave a generalized statement that exhibit PI was elephant tusks with no further explanation as to the peculiar features of it that led him to conclude that exhibit PI was truly elephant tusks hence a government trophy." A generalized statement is not acceptable, because anybody can make such a sweeping statement. In wildlife conservation related cases, identification of a particular specie of the animal affected or part of it in relation to an offence charged, is a matter of considerable significance. That aspect of the case, is provable by tendering a properly scientific finding based on scientific analysis. It must be based on scientific findings which founded on scientific analysis such as DNA. I wonder if the holder of Bachelor Degree in Wildlife Science was to give his opinion just verbally like that. It be noted that the witnesses are the eyes and ears of the court in reaching its final determination or findings. The expert opinion must thus be very convincing in making Court be persuaded by that finding. 16 Tendering of that certificate must go hand in glove with a proper explanation of a wildlife expert detailing the distinctive features of a given animal. Though such oral explanation or description may be based on animal science or the witness's experience in wildlife conservation and management (See William Maganga @ Charles, supra), yet it is important to tell how he reached that finding scientifically. The issue for consideration after all this discussion is whether the description by PW3 that the said alleged trophy meat is wildebeest simply because it was dark red colour and it has rich Migrobeen which allow oxygen to pass through is by itself sufficient to be scientific features of wildebeest animal? Can those features not be borne by any other domestic animals? 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 (see Rep V. Kerstin Cameron [2003] T.L.R 85). In our situation, I think with the development of science and technology, there ought to have been said more by the said expert (PW3) scientifically such as subjecting the said samples to scientific analysis, the conclusion was none but the said mammal group. I am not questioning the quality and competency of the PW3, but he being an expert, 17 ought to have said more to convince the Court in the discharge of its noble duty. Otherwise there is a danger of convicting innocent persons on domestic carcass. It is high time now; DNA analysis is implored to make such evidence credible and believable. In my considered view as to the present facts of the case, the explanations offered by PW3, being an expert in animal science and having explained the distinctive features of wildebeest animal, I find it hardly convincing that such finding is nothing, but strictly a scientific explanation to be wildebeest meat only. It was expected such a trophy to subjected to scientific analysis for it to give a scientific result. Otherwise, it was not necessary for it to pass this legal process of scrutiny. Such an explanation by PW3 cannot stand the test in the current era of the developed science and technology. Instead, I consider it as a degree of proof of the old stone age era and not the current era of 4th Industrial revolution. To accept this explanation as a scientific description differentiating it from other animal features, is more general than a real science. It was important such a scientific explanation is supported by a scientific report. With me, such an explanation is not scientifically worth of value, and thus I accord no any weight. Therefore, in totality of my analysis 18 above, the prosecution’s case has failed on the value of the whole evidence from the arrest point connecting it with the appellant, to the production of the said evidence in court. This being a criminal charge, it is the trite law that the prosecution in the Common wealth jurisdictions (Tanzania inclusive) is placed with a heavier burden to prove their case than that of the accused. See John Makolobela & 2Others V. Rep, (2002) T.L.R 296. See also Joseph John Makune vs. Republic [1986] TLR 44 at page 49 and Mohamed Haruna@ Mtupeni & Another v Republic, Criminal Appeal No. 25 of 2007. The first long- established principle in criminal justice is that of onus of proof in criminal cases, that the accused committed the offence for which he is charged with is always on the side of the prosecution and not on the accused person. This is reflected under Section 110 and Section 112 of the Evidence Act Cap.6 [R.E 2022] (The evidence Act). Secondly, is the principle that the proof of the said charge is beyond reasonable doubt (See section 3(2) (a) of the Tanzania Evidence Act, Cap 6. With due respect to Mr. Kadata, his submission in opposition of this appeal has fallen short on account of the reasoning above which in essence, critically speaking have not been convincing for this court to sustain 19 conviction. We must make the law grow and that those charged with the investigation duties, they do it scientifically. We should not use investigative machineries applied in the old stone age era to work and apply in the current era of 4th industrial revolution – nuclear era. With all the above discussion and the analysis made, I find this appeal to have been brought with sufficient cause; and thus, it is accordingly allowed. The trial court’s decision on both findings: conviction and sentence is hereby quashed and set aside. The appellant is thus consequently ordered to be released from prison unless lawfully held by other cause. Right of further appeal to any aggrieved party is hereby explained. DATED at SHINYANGA this 21st February, 2025. F.H. Mahimbali Judge 20