MWITA MAKABI MAKERERO JDGM

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000020862 OF 2024 (Arising from the District Court of Serengeti (Hon. J.O. Ndira-SRM) in Economic Case No. 53 of2023) BETWEEN MWITA MAKAMBI @MAKERERO.......................................................... APPELLANT VERSUS THE REPUBLIC................................................................................... RESPONDENT JUDGMENT OF THE COURT 18/02/2025 & 10/03/2025 Kafanabo, J.: This is a judgment in respect of an appeal emanating from the District Court of Serengeti at Mugumu (hereinafter referred to as the 'trial Court'), in Economic Case No. 53 of 2023 and in respect of a judgment dated 22nd May 2024 (J.O. Ndira-SRM). A fleeting of facts of the matter as gathered from the trial Court's record is that on 14th June 2023 at 11.00 a.m., the conservation rangers from the Serengeti National Park were on patrol at 'Mkanda wa Dhahabu' area in the Serengeti National Park, and they arrested two persons namely; Nchuma Joseph @ Magige (hereinafter referred to as the 'co-accused') not part of this appeal, and Mwita Makambi @Makerero (hereinafter referred to as the 'Appellant') and, allegedly, found them in possession of one Panga and four animal trapping wires (wire snares), one fresh forelimb of Zebra and one fresh hind limb also of Zebra both unskinned, without a permit. The i conservation rangers took the coordinates of the alleged point of arrest and the accused were taken to the Mugumu Police Station where a police case was filed and assigned reference number MUG/IR/1661/2023. It followed that the Appellant herein, and the co-accused were jointly arraigned before the District Court of Serengeti at Mugumu on an indictment containing two counts as demonstrated below. In the 1st count, the Appellant and the co-accused were jointly charged with the unlawful possession of weapons in the National Park contrary to section 24(l)(b) and (2) of the National Parks Act, Cap. 182 R.E. 2002. In the particulars of the offence, it was alleged that on the 14th day of June 2023 at 'Mkanda wa Dhahabu' area, in the Serengeti National Park, within the Serengeti District in the Mara Region, the Appellant and the co-accused were found in unlawful possession of weapons, namely 'one panga' and four animal trapping wires (wire snares) without a permit, and they failed to satisfy an authorized officer that the same were intended to be used for purposes other than hunting, killing, wounding or capturing of wild animals. In the second count, they were charged with unlawful possession of government trophies contrary to sections 86(1) and (2)(b) of the Wildlife Conservation Act, [Cap 283 R.E. 2022] read together with paragraph 14 of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organised Crime Control Act [Cap.200 R.E. 2022]. In this count, it was alleged that on the 14th day of June 2023 at 'Mkanda wa Dhahabu' area, in the Serengeti National Park, within the Serengeti District in the Mara Region, the Appellant and the co-accused were found in unlawful possession of government trophies, namely one fresh forelimb of Zebra and one fresh 2 hind limb also of Zebra both unskinned, valued at USD 1200, equivalent to TZS 2,798,400/= the property of the United Republic of Tanzania. The Appellant and the co-accused pleaded not guilty to the charges, hence the matter proceeded to a full trial. Upon closure of the evidence for both sides, the trial Magistrate was satisfied that the Respondent proved her case beyond a reasonable doubt. Accordingly, the Appellant and the co­ accused (whose whereabouts were unknown on the date of the conviction) were convicted of the above-mentioned offences. The Appellant herein was thus sentenced to serve two (02) years imprisonment for the first count, and twenty (20) years imprisonment for the 2nd count. The Appellant was dissatisfied with the said decision and thus preferred the present appeal. The Appellant's petition of appeal sets forth four grounds of appeal whose substance is as follows: 1. The trial Magistrate erred in law and fact to convict and sentence the Appellant because at the time of disposing of the government trophies the Appellant was not present as required by law and no evidence such as a photograph was tendered. 2. The trial Magistrate erred in law and fact to convict and sentence the Appellant because the prosecution did not parade a key witness like the justice ofpeace. 3. The trial Magistrate erred in law and fact to convict and sentence the Appellant because no government trophy was tendered at the trial court. 4. The trial Magistrate erred in law and fact to convict and sentence the Appellant by admitting the wrong exhibit as PW1 testified that the area of arrest was marked with GPS coordinates 36M 0175295 UTM 9799303 which were not corroborated by the map drawing expert one Amani Massoro. 3 In support of the grounds of appeal, the Appellant submitted very briefly that the Court be pleased to accept his four grounds of appeal and release him so that he can look after his family. When the learned State Attorney was invited to address the Court regarding the appeal, at the outset he stated the position of the Respondent that they object to the appeal and support the conviction and sentence of the trial Court. Commencing with the 1st ground of appeal, the learned State Attorney dismissed the Appellant's claim that he was not present during the disposal of the government trophy, and the same was not photographed. He submitted that the Appellant was involved from the moment he was arrested with the government trophy. Moreover, during the proceedings of the disposal of the government trophy at the Mugumu Urban Primary Court, the Appellant was present as proved by the testimony PW4. It was further argued that the presence of the Appellant when the disposal order was given is evidenced by the inventory form (exhibit P4) and proceedings thereof. Further, it was argued that the Appellant being photographed with the government trophy is not a legal requirement. As regards the 2nd ground of appeal it was submitted that the prosecution brought key witnesses contrary to the Appellant's ground of appeal. Further section 143 of the Evidence Act, Cap, 06 R.E 2022 does not require a large number of witnesses to prove a fact, and the justice of the peace was not among the witnesses in this case and that is why he was not called as a witness. 4 Opposing the third ground of appeal, which is about the prosecution not tendering the government trophy itself in Court, the learned State Attorney submitted that the trial Court was right in convicting the Appellant and sentencing him to twenty years imprisonment based on exhibit P4 (an inventory form) which was tendered instead of the government trophy itself according to the law. The fourth ground of appeal is about the coordinates used to draw the map, which were not the coordinates issued by the person who took the coordinates who was PW1. The learned State Attorney submitted that the Appellant's ground of appeal has merits and thus the same be allowed. The Appellant be acquitted on the 1st count which is directly affected by invalidity of exhibit P5. Apart from the grounds of appeal set forth by the Appellant, the Court asked the parties to address two issues, one is whether the chain of custody of the exhibits which were used to convict the Appellant was intact and unbroken from point of arrest to tendering in Court. Two, the issue of the propriety of the proceedings of the disposal of the government trophy. As regards the chain of custody, and upon being probed by the Court, the learned State Attorney submitted that the record does not show that the arresting officer handed over the exhibits to the exhibit's keeper at the Mugumu Police Station. Also, the record does not indicate who handed over the government trophy to PW4 (the investigator of the case). Likewise, when PW4 returned the government trophy to the Mugumu Police Station it is not clear who received the same. Hence the chain of custody of the exhibits 5 broke. The Appellant being a layperson left the matter for the Court to determine. Again, upon being specifically probed by the Court on the propriety of the proceedings on the disposal of the government trophy, the learned State Attorney submitted that the proceedings for the disposal of the government trophy before the Magistrate of the Mugumu Primary Court in Serengeti District were wanting. It was submitted that the proceedings do not indicate that the inventory form was read over to the suspect before being questioned. Further, there is no explanation showing that PW4 entered an appearance before the Magistrate with the government trophy itself presented before the Magistrate during the proceedings of seeking a disposal order of the government trophy. The Appellant on his part simply submitted that he was not arrested with the alleged government trophy. Fortified with the submissions of the parties, this Court is called upon to determine the appeal in light of the grounds of appeal, submissions of the parties, and the relevant law. Taking the above grounds of appeal cumulatively and the matters raised by the Court and addressed by the parties, it is clear that they all boil down to the issue of whether the Respondent proved the case against the Appellant beyond a reasonable doubt. In determining the said issue, this Court commences with the fourth ground of appeal which solely touches on the coordinates used to draw a map that was purportedly relied upon by the Respondent and the trial Court to convict the Appellant for an offence of unlawful possession of weapons in the national park. This ground was not disputed by the Respondent, the 6 learned State Attorney supported this ground of appeal and prayed that this ground of appeal be allowed and the Appellant be acquitted of the first count. According to the record of the trial Court, especially the testimony of PW2, it is clear that the coordinates of the alleged point of arrest were 36M 0715295 UTM 9799303. This means that the point of arrest to be proved by the map was supposed to reflect the area as identified by the said coordinates. However, the point of arrest as indicated on the map which was admitted as exhibit P5, as rightly conceded by the State Attorney, is not a true reflection of the coordinates taken at the point of arrest. The point of arrest indicated on the map is beyond coordinates 36M 0720000 (Northings) and beyond UTM 9800000 (Eastings). It is therefore true that the coordinates used to draw the map locating the Appellant's alleged point of arrest were different from those taken by the arresting officers (PW1 and PW2). In light of the above, exhibit P5, the map showing the purported point of arrest, did not prove that the Appellant was arrested with weapons in the national park because it was prepared by using unknown coordinates and not in the Court's record. It was therefore wrong for the trial Court to convict the Appellant of unlawful possession of weapons in the national park based on exhibit P5. As regards proving the 2nd count of unlawful possession of the government trophy beyond reasonable doubt, this court will commence with the issue of chain of custody of the alleged government trophy (i.e. one fresh forelimb of Zebra and one fresh hind limb also of Zebra both unskinned) and 7 other exhibits namely one panga and four animal trapping wires (wire snares). As regards the chain of custody of the said exhibits, especially, the alleged government trophy, the testimonies of PW1 and PW2 indicate certainly that after arresting the Appellant and the co-accused with the alleged government trophy on 14/06/2023 they filled a certificate of seizure which was admitted as exhibit Pl and they took the Appellant and the co­ accused to the Mugumu Police Station, and upon arrival PW1 and PW2 wrote their statements and the case MUG/IR/1661/2023 was filed. None of the said PW1 and PW2 testified about the status of the exhibits upon reaching the Mugumu Police Station. On the trial Court's record, there is no iota of evidence suggesting how and to whom PW1 and PW2 handed over the alleged government trophies when they reached the Mugumu Police Station on 14/06/2023. This remains a conjecture that this Court is unable to resolve based on the evidence on record. Moreover, it is clear that in this case there was no documented (paper trail) chain of custody. This means that PW4, a police officer-the investigator of the case, and any other officer at the Mugumu Police Station who allegedly received the said exhibit did not comply with the Police General Orders (PGO) in handling the exhibits of this particular case. What the arresting officers and the investigating officer did in this case is a blatant violation of the law which is well settled in our jurisdiction. 8 It is a trite law that the integrity of the chain of custody should be strictly and properly maintained. See Paulo Maduka & Others vs Republic (Criminal Appeal 110 of 2007) [2009] TZCA 69 (28 October 2009). Also, in the case of Wallenstein Alvares Santillan vs Republic (Criminal Appeal 68 of 2019) [2022] TZCA 516 (22 August 2022) the Court held that: "It is settled that the chain of custody must be clearly indicated to establish that the exhibits were not tampered with (see Abuhi Omar Abdallah and Three Others v. The Republic, Criminal Appeal No. 28 of 2010 (unreported). It is also settled that it is important to have the chronological documentation and/ or paper trail showing the seizure, custody, control, transfer, analysis and disposition ofevidence to guarantee that the said evidence relates to the alleged crime [see Paulo Maduka and 4 Others v. The Republic, Criminal Appeal No. 110 of 2007 (unreported)]." Moreover, in Wallenstein Alvares Santillan vs Republic (supra) the Court held that: "Indeed, in Chukwudi Denis Okechukwu and Three Others v. The Republic, Criminal Appeal No. 507 of 2015 (unreported), the Court stated that the rationale for satisfactorily establishing a chain of custody from the time of the seizure of the exhibit to the time it is tendered in court at the trial as an exhibit include: - 'One, to ensure the integrity of the chain of custody to eliminate the possibility of the exhibit being tampered 9 with. Two, to establish that, the alleged evidence is in fact related to the alleged crime in which it is being tendered, rather than for instance having been planted fraudulently to make someone guilty." Besides, this Court is also cognizant that a chain of custody may also be proved orally as held in the case of Sano Sadiki & Another vs Republic (Criminal Appeal No. 623 of 2021) [2023] TZCA 17476 (9 August 2023). However, as demonstrated above, the oral chain of custody as narrated by the Respondent's witnesses is unreliable and unsafe to consider because it was broken when the alleged government trophy was taken to the Mugumu Police Station. PW1 and PW2 did not indicate to whom they handed over, the said exhibit. Moreover, PW4 a police officer and the investigator of the case was given a file to investigate by the OCCID on 15/06/2023 who also gave him an inventory form so that he could take the exhibit to the Magistrate. Nevertheless, PW4 did not testify from whom he received the alleged government trophy which he took to the Magistrate in order to secure a disposal order of the exhibit. Further, the exhibit keeper of the Mugumu Police Station was not called as a witness and thus the conjecture was excavated. It is thus clear that the prosecution's oral chain of custody narration, in this case, is a bird lost in the bush, and this pierced what seemed to be a prosecution's flying balloon. This Court's reflection on the oral chain of custody under the circumstances of this case is fortified with the decision of the Court of Appeal io in the case of Jumanne Galiyela Ghati and Another vs Republic (Criminal Appeal No. 21 & 28 of 2021) [2024] TZCA 991 (28 October 2024) where the Court observed that: "Furthermore, we have also gathered that the chain of custody was indeed compromised in the absence ofproof on certainty of the place of storage and custody of the seized items after seizure from the Appellants. The items included the weaponry and trophies alleged to have been found in possession of the Appellants within the Game Reserve.” Moreover, in the said case of Jumanne Galiyela Ghati and Another vs Republic (supra) the Court also remarked that: "However, the record raises the following unanswered questions: one, who was entrusted with the seized items at the police station for safe custody; and two, from who were the trophies retrieved by PW2 who conducted valuation and prepared the inventory. Apparently, while the exhibit keeper was not paraded as a witness to dear the doubts, none of the prosecution witnesses gave evidence to remedy the situation which poked holes on the prosecution case on the safe keeping and custody of what was seized from the Appellants. Therefore, the chain of custody was compromised and it cannot be ascertained what was seized from the Appellants which renders the Inventory Form highly suspect " In light of the above authority which falls squarely over the facts and circumstances of the present case, it is clear that the integrity of the chain li of custody as regards the exhibits tendered and admitted in this case was seriously compromised at the stage of the investigation. This casts serious doubt on whether the exhibit allegedly taken to the Magistrate seeking the disposal order was the same as that allegedly arrested with the Appellant. Another issue to consider is the Appellant's complaint that the government trophy he was allegedly arrested with was not tendered as an exhibit. This will be considered together with the issue of the propriety of the proceedings for the disposal of the government trophy conducted by the Magistrate of the Mugumu Primary Court in the Serengeti District. The issue that the government trophy was not tendered as an exhibit will not detain this Court because it is not mandatory that the same should have been physically tendered before the Court for admission during the trial of the case against the Appellant. The issue of handling a government trophy of nature like the one in the present case is governed by section 101( 1)(2) of the Wildlife Conservation Act Cap. 283 R.E. 2022 which provides that: "101, -(1) The Court shall, on its own motion or upon application made by the prosecution in that behalf- (a) prior to commencement ofproceedings, order that- (i) any animal or trophy which is subject to speedy decay; or (ii) any weapon, vehicle, vessel or other article which is subject of destruction or depreciation, and is intended to be used as evidence, be disposed of by the Director; or (b) at any stage ofproceedings, order that- 12 (i) any animal or trophy which is subject ofspeedy decay; or (ii) any weapon, vehicle, vessel or other article which is subject to destruction or depreciation, which has been tendered or put in evidence before it, be disposed of by the Director. (2) The order of disposal under this section shall be sufficient proof of the matter in dispute before any court during trial. In light of the foregoing, it is clear that the Court may order the disposal of any animal or trophy which is subject to a speedy decay. It is also crystal clear that an order of disposal should be sufficient proof that the trophy was disposed of and thus its physical tendering in Court during trial is not necessary provided that a proper order for disposal is tendered and admitted in Court as an exhibit. After determining the issue of physical tendering of the exhibit, now the Court reverts to determining the propriety of the proceedings for the disposal of the government trophy conducted by the Magistrate of the Mugumu Primary Court in the Serengeti District. Again section 101(l)(2) of the Wildlife Conservation Act is relevant to the order of disposal of a perishable exhibit, in this case, a government trophy. The said provisions simply provide for the mandate to order a disposal but do not provide for a procedure to be adhered to before a disposal order is given. However, the above section is also supplemented by clause 28 of the PGO 229 which provides that: 13 "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." The above provision requires that the exhibit, in this case, raw limbs of an animal, together with the suspect should be brought to a Magistrate for noting. Further guidance in that respect was demonstrated in the cases of Samuel Saguda @ Sulukuka & Sahili Wambura vs. Republic, Criminal Appeal No. 422 "B" of 2013 (unreported) and Mohamed Juma @Mpakama vs Republic (Criminal Appeal 385 of 2017) [2019] TZCA 518 (26 February 2019)). In the case of of Buluka Leken Ole Ndidai & Another vs Republic (Criminal Appeal No. 459 of 2020) [2024] TZCA 116, the Court of Appeal held that: "Nonetheless, it is worthwhile to note that indeed, there is a lacuna in the law. Presently, there is no statutory procedure providing for the proceedings to put into effect the requirements of section 101(1) and (2) of the WCA and paragraph 25 of PGO No. 229, which provisions are necessary for procuring a disposal order for a perishable exhibit. In our view, as an interim measure pending promulgation of any rules of procedure for that purpose, it will be sufficient for a magistrate before whom an order to dispose of a perishable Government trophy or trophies, to make such order, provided that; one, the prayer to issue the order to dispose ofperishable exhibits may be made by the investigator or the prosecution informally before a magistrate in 14 chambers; two, if the order is likely to be relied upon in any future court proceedings against any suspect, that suspect must be present at the time of making the prayer and; three, the suspect must be asked as to his comments, remarks or objections as regards the perishable exhibits sought to be destroyed. Four, if that suspect does not make any comments, remarks or objections, the magistrate shall record the fact that, the suspect was invited to make any comments, remarks or objections, but he opted to make none. Five, if the suspect makes any comments, remarks or objections, they shall be recorded as appropriate either on the reverse side of the Inventory Form or on any separate piece of paper or papers and shall be signed by the magistrate. In light of the above guidance, the proceedings of the Mugumu Primary Court in the Serengeti District have been examined and this Court pokes the same as follows: One, the proceedings do not indicate that the exhibit subject matter of disposition was presented together with the Appellant before the magistrate for noting. Only the Appellant and the other suspect seemed to have appeared before the magistrate. This was contrary to the requirement of the PGO 229 reproduced above together with the guidance from the relevant case laws cited above. Two, the omission above also illustrates that the Appellant had no opportunity to make a comparison as to whether what he was allegedly 15 arrested with as a government trophy by the arresting officers was the exact exhibit that was supposed to be presented before the Magistrate for noting. Three, the proceedings do not indicate any sort of informal application made by the arresting or investigating officer to the Court which would have moved the Court by providing the background information and the basis of presenting the suspect/appellant before the Magistrate. It was the Magistrate who started questioning the Appellant as if he was fully aware of what transpired between the Appellant and the arresting officers until the Appellant was arraigned before the Magistrate. The basis of the Magistrate asking the accused questions is unknown, as the Court started asking questions before any prayer or application was made by the arresting or investigating officers. This means that the Magistrate who presided over the trophy disposal proceedings considered extraneous matters not reflected in the proceedings. Four, the proceedings for disposal of the government trophy indicate that the Appellant was asked whether he was found in possession of the government trophy as indicated in the inventory form and the Appellant admitted to having been found with the same. However, it is not indicated whether the Appellant was afforded a right to read the said inventory form, or whether the same was read over to him in order to understand the contents of the inventory form and the substance of the question he was asked. In light of the foregoing, it is clear that the Appellant was not accorded a right to be heard in the trophy disposal proceedings, and that renders the 16 proceedings for the disposal of the alleged government trophy a nullity. See the case of Mary Mchome Mbwambo & Amos Mbwambo vs Mbeya Cement Company Ltd (Civil Appeal 161 of 2019) [2022] TZCA 179 (4 April 2022). Moreover, as regards the fate of Exhibit P4, the inventory form of the government trophy, and the disposal order thereof, this Court, in light of the above-demonstrated mishaps, concludes that the disposal order was illegally procured. The consequences of such an order were explained in the case of Buluka Leken Ole Ndidai & Another vs Republic (supra) where the Court held that: "Finally, in view of this Court's consistent position as regards affording the suspects the right to be heard at the time of issuing a disposal order, exhibit P5 in this case was illegally procured. In Juma Mohamed @ Mpakama (supra), we said "the resulting Inventory Form (exhibit PE3) cannot be proved against the Appellant because he was not given the opportunity to be heard by the primary court magistrate." Based on that authority, we expunge exhibit P5 from the record. In the absence of the Inventory Form, which stands in the place of the destroyed trophies, there is no way legally conceivable, that the appellants can still legally remain blameworthy of the offence charged, in the aftermath of discarding exhibit P5." In line with the above authority, this Court also expunges exhibit P4 from the record. It follows that in the absence of the inventory form and the 17 disposal order thereof which was a substitute for the alleged government trophy, the finding of guilt and conviction as regards the offence of unlawful possession of government trophies cannot stand. Therefore, it is a finding of this Court that the Respondent failed to prove the offence levelled against the Appellant beyond a reasonable doubt in terms of section 3(2)(a) of the Evidence Act, Cap. 6 R. E. 2019. Also, see the case of John Dickson @ Ngongole vs Republic (Criminal Appeal No. 477 of 2021) [2024] TZCA 144 (29 February 2024). Since the above disposes of the appeal on failure of the prosecution to prove the case beyond reasonable doubt, other grounds of the appeal will not be considered because determining the same would be an academic exercise adding no value to the determination of the present appeal. Consequently, the trial Court's finding of guilt and a conviction thereof are quashed and nullified respectively. The sentences imposed on the Appellant on both counts are set aside. Further, the Appellant unless held for another lawful cause, is set at liberty and should be released from the prison facility he is currently held immediately. It is so ordered. 18 The Judgment was delivered in the presence of Mses. Beatrice Mgumba and Happiness Machage, learned State Attorneys for the Respondent, and in the presence of the Appellant. Right of Appeal explained. K. I. Kafanabo Judge 10/03/2025 19