PAULO HIMIDI JOHN EDITED 2222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CONSOLIDATED CRIMINAL APPEALS NO. 17050 AND 17097 OF 2024 (Originating from Economic Case No. 4389 of2024 before Babati district court at Babati) PAULO HIMIDI JOHN..................................... 1st APPELLANT ATHUMANI ISA MISANYA..................................... 2nd APPELLANT VERUS THE REPUBLIC............................................................. RESPONDENT JUDGMENT 14" August & 23" September, 2024 Kahyoza, J.: Paul Himidi John and Athumani Isa Misanya (the appellants) were both charged and convicted with the offence of unlawful possession of government trophy. After convicting the appellants, Babati district court sentenced them to serve an imprisonment term of twenty years. Aggrieved, Paul Himidi John and Athumani Isa Misanya appealed against both conviction and sentence contending generally that the prosecution did not prove the case beyond reasonable doubt because its evidence were insufficient and contradictory, exhibits were seized and tendered improperly, and that the prosecution was conducted irregularly. 1 | Page A brief background from the prosecution's evidence was that; on 2.2.2024 at around 06:00am while patrolling Burunge Wildlife Management Area, Simon Maswi Barnabas (Pw2) with other park rangers, Mandao Eggo and Florian Mofura saw people at Vilima Vitatu. They set to arrest them. They managed to arrest two and two persons escape arrest. They found them with a motorcycle with Reg. No. MC 361 EDY, two big buckets with fresh meat, one sulphate bag white in colour with 25 pieces of fresh meat, one head and one skin of giraffe. Simon Maswi Barnabas (Pw2) added that there were two knives, two rechargeable torches. Simon Maswi Barnabas (Pw2) introduced himself and requested the two suspects introduced themselves. They introduced themselves as Athuman Isa Misanya (Dw3) and Paul Himidi John (Dwl). He prepared a certificate of seizure which Athuman Isa Misanya (Dw3), Paul Himidi John (Dwl) and other park rangers signed. He tendered collectively two certificates of seizure as exhibit PE.VIII. He identified the knives and the motorcycle with Reg. No. MC 361 EDY which were tendered by F2449 SGT James (Pwl). He also identified PE.II which were the government trophy as one giraffe head with its skin, one fresh skin reddish in colour with colostrum, and a tail of giraffe. He also identified two buckets with pieces of meat and a sulphate bag with 25 pieces of meat. 2 | Page F2449 SGT James (Pwl) narrated that receive exhibits from Simon Maswi Barnabas (Pw2) on 2/2/2024, which were one head of giraffe, one skin of giraffe, two torches, two knives, two big buckets with wild animal meat and sulphate bag with 25 pieces of meat. He also received one motorcycle (synoray) with registration number MC 361 EDY and two mobile phone handsets. He kept the exhibits. On 3/2/2024 Goodluck James (Pw3) identified the exhibits room. Goodluck James Kalebawi (Pw3), a wildlife officer went to police station and took the exhibits from F2449 SGT James (Pwl) for examination and identification which were one tail, two plastic buckets with fresh meat, one sulphate bag with 25 pieces of fresh meat, suspected to be giraffe meat. Based upon his knowledge a wildlife officer he found meat, head and skin to be that of giraffe. He stated that giraffe is a unique animal, from its skin, body, head, tail and the meat. Giraffe's head looks like it has tusks but they are not tusks. They are ossicones, its horns have hair. Its skin has spots with yellow colour which is separated with white lines, giraffe is different from "okapi", "tandala" and "pongo". The tail of giraffe is beautiful as it turns around in different way rather not like elephant and buffalo. Giraffe's meat is not reddish with big muscles and fat one. 3 | Page Having identified the trophy, Goodluck James Kalebawi (Pw3) prepared a trophy valuation certificate. He tendered the trophy valuation certificate as exhibit PE. X. Goodluck James Kalebawi (Pw3). The appellants defended themselves on oath and affirmation. Paulo Himidi John (Dwl) defended deposed that he was motorcyclist riding a motor cycle tax, a property of Aloph Hamid (Dw2). He was required to pay Aloph Hamid (Dw2) an amount agree daily. After Paulo Himidi John (Dwl) paid the agreed amount, he would acquire title from Aloph Hamid (Dw2). He testified further that Athman Isa Misanya (Dw3) was his customer and he was trading in fish from Lake Buruge. He knew Paulo Himidi John (Dwl) and Mwenda as fisherman at Lake Buruge for quit a long time. Athman Isa Misanya (Dw3) lived at Magugu. Buruge Wildlife management area was located at Buruge village and lake Buruge is along Buruge Wildlife management area. Paulo Himidi John (Dwl) added that there is a road from Buruge Wildlife management area to Arusha- Babati High way via Mdori area. It is the only way to lake Buruge. On 2/2/2024 Paulo Himidi John (Dwl) was at home (Magugu), Athman Isa Misanya (Dw3) told him that he wanted to go to Lake Buruge to collect fish. He rode to Lake Buruge and filled the buckets with fish. They commenced their journey back to 4 | Page Mamire and on their way two men stopped them. They introduced themselves as park rangers and asked them where they were coming from. They told them that they were coming from lake Burunge to take fish. They beat them and asked them if they had a permit. They notified their colleagues who came with the vehicle and they were ordered to board it. They boarded and went across the main road to a place where they found two sulphate bags which parker rangers loaded in the vehicle. Paulo Himidi John (Dwl) testified that the park rangers took them to their camp, tortured them forcing them to sign a document. To save his life, he signed the document. Then they took them to the Babati police station together with those two sulphate bags and kept the buckets of fish in their vehicle. He denied to know anything about the offence he stood charged. Athman Isa Misanya (Dw3) deposed that he was a fishmonger. He was selling fish from Lake Burunge. Paulo Himidi John (Dwl) was a motorcyclist who packed at Magugu. Athman Isa Misanya (Dw3) added that he hired Paulo Himidi John (Dwl) from Magugu to lake Buruge and that he knew Paulo Himidi John (Dwl)'s name while at police station. He deposed that after Paulo Himidi John (Dwl) dropped him at Buruge 5 | Page Lake, he left. He remained at Lake Buruge buying fish. While still at the Buruge Lake, the park rangers arrived and asked him tell them his name. He told them his name. They arrested him. He found Paulo Himidi John (Dwl) in that vehicle. He deposed that he was alone at the time of arrest. He added that the parker rangers took them to certain place where he was interviewed. He was signed a paper. He denied the allegations that he was found in possession of meat. It is from the above facts the trial court convicted the appellants. The appellants instituted two different appeals with different grounds of appeal. I resolved to consolidate the appeals and write one judgment. The grounds of appeal are ex facie different but they are the same as they raise one fundamental issue whether the prosecution proved the appellants guilty beyond reasonable doubt. At the hearing, Paulo Himidi John (Dwl) enjoyed the services of Mr. Mwita advocate while Athman Isa Misanya (Dw3) fended for himself. Mr. Bizaman state attorney appeared for the respondent. I will refer to the submissions while replying to the issues raised, thus, I am not reproducing the submissions. Paul Himidi John and Athumani Isa Misanya (the appellants) were both charged and convicted with an offence of unlawful possession 6 | Page of Government trophy contrary to section 86 (1) and (2) (c) (iii) of the Wildlife Conservation Act, [Cap. 283 R.E. 2022] (the WCA) read together with paragraph 14 of the First Schedule to and section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap. 200 R.E 2019] (the EOCCA) at Babati District Court. After their conviction and sentence, they lodged two different petitions of appeals. Paulo Himidi John (Dwl)'s petition of appeal had three grounds of complaint whereas Athman Isa Misanya (Dw3)'s petition of appeal had seven grounds of appeal. All grounds of appeal raised the following issues in common of separately- 1. was the prosecution evidence insufficient and contradictory? 2. were the proceedings procured by irregularities leading to breach of appellants' fundamental rights? 3. were the trophies disposed properly? 4. Was the trial a nullity for want of DPP's consent? 5. was it proper to tender two mobile phone handsets as exhibit in the circumstance of this case? 6. was it proper to tender two mobile phone handsets as exhibit in the circumstance of this case? 7. did the prosecution prove its case beyond reasonable doubt? 7 | Page Was the prosecution evidence insufficient and contradictory? Paulo Himidi John (Dwl) complained in his first ground of appeal that the prosecution evidence was contradictory, insufficient and that the trial court erred to rely on such evidence to convict. He argued that the charge sheet differed from the evidence. The charged demonstrated that the appellants were found with 40 pieces of meat while the evidence of F.2449 SGT James (Pwl), Simon Maswi Barnabas (Pw2) and Goodluck James Kalebawi (Pw3) was that the appellants were found with 25 pieces of meat. They tendered 25 pieces of meat. He added that it was alleged that the appellants were found with the head, pieces of meat, tail and animal skin which were in the buckets and sulphate bag but the evidence depicted that they were from a deep freezer and the buckets were empty. He referred the court to page 7 of the proceedings. He averred that F.2449 SGT James (Pwl)'s evidence was contradictory, he received the exhibit in the bucket and tendered them while in the deep freezer. The prosecution did not offer an explanation as to what happened that led the prosecution to find the exhibits in deep freezer. Paulo Himidi John (Dwl)'s advocate added that the prosecution witness tendered one head, a tail and skin of giraffe. The record showed 8 | Page that the prosecution tendered one head (dry), one skin and a rotten tail in a container. The contradiction proved that the exhibits were not in existence and that there was no sufficient evidence to lead to the Paulo Himidi John (Dwl)'s conviction. He argued further that F.2449 SGT James (Pwl) did not indicate in the chain of custody from the time the Paulo Himidi John (Dwl) was arrested until when the exhibits were marked. Mr Bizmana the respondent's state attorney replied to the first complaint that there was variance or contradiction between the evidence and the charge sheet. The charge sheet showed that there were 40 pieces of giraffe meat and the witnesses testified that there were 25 pieces, referring to pieces which were in the white sulphate bag. He added that a certificate of seizure, exhibit PE. VIII and the chain of custody, Exh.PE.I, showed that there were 40 pieces of meat. There is no contradictory evidence. He contended that the fact that meat was in the deep freezer and not in buckets, both are containers and that difference do not go to the root of the matter. He contended that the appellants were charged with the offence of being found in possession of government trophy. To determine whether contradictions in the prosecution evidence went to the root of the matter, I considered the rival submissions and 9 | Page the evidence on record. While doing that it did not escape my mind that it is trite law that due to frailty of human memory, if the discrepancies are on details, the Court may overlook such discrepancies. See the decision of the Court of Appeal in John Gilikola v. R., Criminal Appeal No. 31 of 1999 (unreported), Dickson Elia Nsamba Shapwata v. R., Criminal Appeal No. 92 of 2007 (unreported). Paulo Himidi John (Dwl)'s advocate submitted that the charge sheet varied with the evidence on record. The state attorney contended that there was no variance. I am of the position that there was no variance between the charge sheet and the evidence on record, if the evidence is considered as whole and carefully. It is true that the charge sheet demonstrates that the appellants were found with 40 pieces of evidence. The prosecution witnesses deposed that there were 25 pieces of meat in a white sulphate bag and several pieces meat was in two buckets. The prosecution evidence did not imply that there were 25 pieces of meat only. One of the certificates of seizure tendered as exhibit PE.VIII specified that the 25 pieces of meat were in a sulphate bag while one bucket had 7 pieces and the other bucket had 8 pieces of meat. Thus, the appellants were found in 40 pieces of meat. The chain of custody form, exhibit PE.I and the trophy evaluation certificate exhibit PE.IX clearly illustrated that the appellants were in 10 | Page possession of 40 pieces of meat in total. It is my firm opinion that there was no variance between the charge sheet and the evidence on record. Paulo Himidi John (Dwl)'s advocate complained that there was no explanation why F.2449 SGT James (Pwl) tendered the exhibits from a deep freezer and not from the bucket and sulphate bag. Like the state attorney, I find no merit in the complaint. It is true the evidence showed that the appellants were found with pieces of meat in the buckets and in sulphate bag and not in a deep freezer. F. 2449 SGT James (Pwl) tendered the pieces of meat while stored in the deep freezer. The fact that F. 2449 SGT James (Pwl) received the pieces of meat in buckets and a sulphate bag but stored them in a deep freezer does not in any way vitiate the credibility of F. 2449 SGT James (Pwl) that he received the exhibits from Simon Maswi Barnabasi (Pw2) in a sulphate bag and two buckets. The testimony of F. 2449 SGT James (Pwl) and Simon Maswi Barnabasi (Pw2) together with the exhibits proved beyond reasonable doubt that pieces of meat were in the buckets and a sulphate bag. F. 2449 SGT James (Pwl) stored the meet exhibit in deep freezer for obvious reason, that is to keep them safe from decaying. To add on that, the appellants were not charged with the offence of unlawful possession of government trophy in the buckets and 11 | P a g e sulphate bag but with the offence of unlawful possession of government trophy. To prove the offence the prosecution was required to prove that the appellants were in possession of the trophy and not how they kept the trophy. I find no merit in Paulo Himidi John (Dwl)'s compliant that the prosecution evidence was contradictory. Consequently, I dismiss Paulo Himidi John (Dwl)'s first ground of appeal. Were the proceedings procured by irregularities leading to breach of appellants' fundamental rights? Paulo Himidi John (Dwl)'s advocate complained that the trial court erred to convict his client on the proceedings, which were procured with irregularities, hence breach of the fundamental rights of his client. Paulo Himidi John (Dwl)'s advocate submitted that exhibits received and marked P.E. V, which were a motorcycle, exhibit P.E. VI sulphate bag and exhibit P.E. VII which were meat, one giraffe head, skin were not properly cleared for admission. Even after, they were cleared for admission the procedure of admitting the exhibits was not observed as they were admitted collectively. He contended that the exhibits were different in nature. To buttress his contention, he cited the case of Robinson Mwanjisi and three others v. R, [2003] TRL 12 | P a g e 218. He concluded that Paulo Himidi John (DW1) did not object to the exhibits as he did not appreciate which exhibit belonged to him and what he should say. Thus, he was denied the right to defend himself. He added F. 2449 SGT James (Pwl) did not describe the exhibits, but he simply tendered them. To buttress his contention, he cited the case of Anthony M Msanga v. Pennina (Mama Mgesi) and another, Civil Appeal 2015 CAT (unreported) tanzlii [2015] TZCA 556. He prayed the court to find that the exhibits were not properly admitted and expunge them from the record. The state attorney replied that the exhibits were properly admitted. He denied the allegation that the exhibits were admitted collectively. He contended that Exh.PV was a motorcycle, Exh. P.VI and Exh. P.VII were not admitted collectively. The exhibit admitted collectively were sulphates bags which were of the same nature and did not prejudice the appellant. He added that Paulo Himidi John (Dwl) admitted that the exhibits belonged to him, at page 8 of the proceedings. He contended that the case of Robinson Mwajisi is distinguishable as it referred to documentary exhibits which is different from this case. As to the submission that F. 2449 SGT James (Pwl) tendered exhibit without first giving description of exhibit, the state attorney 13 | Page contended that F. 2449 SGT James (Pwl) gave the description of the exhibit on page 7. He explained the colour of the motorcycle and the mark he put on it. He explained the characteristics of the head of giraffe, he described the tail and skin, that they were rotten. It is settled that exhibits must be cleared for admission and then admitted and if they are documentary exhibits must be read out to the accused person. See Erneo Kidilo & Another vs Republic (Criminal Appeal No. 206 of 2017) [2019] TZCA 253 (22 August 2019). To determine whether the exhibits were properly admitted, I visited the record. The record showed that exhibit PE.l was the chain of custody form. F. 2449 SGT James (Pwl) explained that the chain of custody had his name, force number and signature. After the explanation, F. 2449 SGT James (Pwl) prayed to tender it as exhibit. After the court admitted the chain of custody form, the witness read the contents. I am of the view that the trial court admitted the chain of custody form properly. Exhibit PE II were two torches and Exhibit PE III were knives. F. 2449 SGT James (Pwl) explained how he received the torches and knives, marked, and stored them. He described the knives that they had wooden handle and one had "a/a/1'. He added that was one sharp on one side. As to torches, the witness stated that one was black and blue 14 | Page in colour and the other was red in color. He prayed to tender them. The appellants objected but the court overruled the objections and admitted the exhibits as shown above. I see nothing wrong. The same procedure was used to admit the motorcycle. The witness described that the motorcycle had registration number MC 361 EDY, labeled with police case number BAB/IR/416/2024. He added that its make was Synoray marked AUJUE on its tank. He also gave explanation as to the meat and other exhibits. He gave explanation of all exhibit as they were outside and then went out of the pointed out the marks he had referred to regarding the motorcycle and the meat which they found them in deep freezer. The court then asked the accused person if they had any objection to any of the exhibits. The appellant stated they had none. The court admitted the motorcycle as exhibit PE.V and the pieces of meat, one tail and one skin as exhibit PE.VI collectively. I see nothing wrong on admitting pieces of meat, one tail and one skin as exhibit PE.VI collectively. I find that the witness prayed to tender a motorcycle and the pieces of meat, one tail and one skin as exhibit PE.VI at once and the trial court asked the appellants to state if they had objection. It is my firm opinion that the witness ought to have prayed to tender first the motorcycle and followed the pieces of meat, one tail and 15 | P a g e one skin. However, considering the fact the witness explained the exhibits separately before he prayed to tender them and the appellants together with the court went out and examined the exhibits, I find the error not fatal. The irregularity is curable under section 388 of the CPA as no injustice was caused. The appellants had an opportunity to object to any of the exhibit if they had any objection. Hence, Paulo Himidi John (Dwl) did not convince me that the exhibits were wrongly admitted. It is true that in collective admission of exhibits is discouraged but the nature of the exhibits must be considered before holding that the exhibits were wrongly admitted because they were admitted collectively. In the present case, the trial court admitted collectively; one, pieces of meat, one tail and one skin which the trial court admitted collectively as exhibit PE.VI. The items admitted collectively were of the same nature and obtained in the same circumstances and allegedly all were pieces of one animal, the giraffe. I see nothing wrong; two, the trial court admitted collectively, two certificates of seizure. The first certificate of seizure was connected with the commission of the offence. It contained information as to pieces of meat, particulars of the motor cycle, knives and torches. Whereas the second certificate of seizure contained information regarding the accused persons' mobile phone handsets 16 | Page which the witness deposed that he obtained them after searching the appellants and after he had filled the first certificate of seizure. The trial court received, admitted and marked the two certificates of seizure as exhibit PE.VIII. Simon Maswi Barnabasi (Pw3) explained how he prepared each certificate of seizure and prayed to tender them. After they were admitted, the witness read the contents. Given the nature and contents of the certificates of seizure and the fact the prosecution tendered physical exhibits specified therein, I am of the firm view the appellants were not prejudiced by admitting them collectively. Paulo Himidi John (Dwl)'s advocate argued further that there was another irregularity that the trial court did not consider Paulo Himidi John (Dwl)'s defence. He contended that the trial court stated that Athuman Isa Misanya (Dw3) gave contradictory evidence by stating that he knew Paulo Himidi John (Dwl) for the first time on that day. The proceedings show that Athuman Isa Misanya (Dw3) said he knew the name of the respondent as Paulo Himid John (Dwl) and not that he knew the appellant for the first time at police station. The trial court misconstrued the evidence. Failure to consider the defence evidence goes to the root of the matter. He opposed the contention that trial court did not consider Paulo Himidi John (Dwl). He submitted that the court considered the 17 | Page appellants' defence and found no merit. The accused persons cannot be found guilty due to the weakness of his defence but on the strength of the prosecution's case. I had a cursory review of the appellants' defence and the judgment. To say the least, the trial court did consider the defence. It is trite law that a court cannot convict an accused person on the weakness of his defence but on the strength of the prosecution's case. In the present case, the trial court considered the appellants' defence and found that it was contradictory. The trial court found that Paulo Himidi John (Dwl) deposed that Athuman Isa Misanya (Dw3) was his customer while Athuman Isa Misanya (Dw3) stated that he did not know Paulo Himidi John (Dwl) before the material date. In addition, Paulo Himidi John (Dwl) deposed that he rode Athuman Isa Misanya (Dw3) to the lake and waited for him and rode him back before they met park rangers who arrested them. Whereas Athuman Isa Misanya (Dw3) deposed that Paulo Himidi John (Dwl) rode him to the lake and left him there to buy fish and returned alone. Athuman Isa Misanya (Dw3) added that he was arrested at the lake shore after the park rangers went there asking for him and that he found Paulo Himidi John (Dwl) in the vehicle. 18 | Page It is obvious that the appellants' defence was contradictory. It was fair for the trial court to give no weight to the defence as it did not raise doubt in the prosecution's case. I cannot fault the trial court for not giving weight to Paulo Himidi John (Dwl)'s evidence after considering the defence evidence in total. Paulo Himidi John (Dwl)'s advocate pointed out yet another irregularity, that the Paulo Himidi John (Dwl) was denied the right to be represented. When the case came for the first time, the accused persons told the court that his advocate was on safari and prayed to communicate with their advocate. The court told the accused persons (the appellants) that it will proceed if anything the advocate will join in future. Later, the appellant's advocate appeared and prayed the court to recall the witnesses for examination who testified prior to his engagement under section 147 (4) of the Evidence Act, [Cap. 6 R.E. 2022]. The court did not afford the advocate that opportunity. We contend that this was against the law, Article 13(6) (a) of the Constitution of the United Republic of Tanzania [Cap. 2 R.E. 2002]. He concluded that the prosecution did not prove the case beyond reasonable doubt. He prayed the second ground of appeal to be allowed and the appeal allowed. 19 | Page As to the argument that Paulo Himidi John (Dwl) was denied the right to legal representation, he argued that the absence of his advocate was not for good reason. The appellants had no advocate from when the case commenced, hence, the court was right to not to grant the prayer to the appellants' advocate to cross-examine the witnesses who had testified before he joined. Section 147(2) of the Evidence is not in the mandatory terms. The advocate did not give sufficient reason why he wanted the witnesses to be summoned for cross-examination. To support his contention, he cited the case of Keneddy Paul Mosha v. R. Cr appeal no 578/2020, tanzlii [2024] TZCA 413. Paulo Himidi John (Dwl) was given an opportunity to ask questions and told the court that he had no cross-examination. I totally agree with Paulo Himidi John (Dwl)'s advocate that the right to representation is fundamental. If the right to representation is denied the proceedings is vitiated. The Court of Appeal held in Samwel Kitau vs Republic (Criminal Appeal No. 390 of 2015) [2016] TZCA 723 (27 June 2016) that- "The right to legal representation is a human rights issue. It is of prime importance for an accused person to have a fair trial. Access to counsel is therefore very important” Yet section 310 of the Criminal Procedure Act, [Cap. 20 R.E. 2022] the CPA provides the right of a person to be defended as follows- 20 | Page "Any person, accused before any criminal court, other than a primary court, may of right be defended by an advocate of the High Court subject to the provisions of any other written law relating to the provisions ofprofessional services by advocate." The record shows that when the matter came for hearing for first time on 21.2.2024, Athuman Isa Misanya (Dw3) prayed for adjournment as Mr. Ndandu, their advocate had traveled. The trial court refused to grant the adjournment because there was no advocate in the name of Ndandu and that the record did not depict that the appellants had an advocate. As the Roll of advocates bears testimony there is no advocate by name Ndandu. For that reason, the appellants' request for adjournment to await Mr Ndandu advocate was baseless and not genuinely made. They must have an intention best known to them and not that they wanted to be represented. However, the fact when the case came for hearing the following day the appellants had engaged the services of Mr. Festo, the learned advocate, established that they had intended to engage the services of an advocate. Mr. Festo, the appellants' advocate appeared in court on 22.2.2024 prayed for the adjournment to peruse the file. The trial court granted the prayer and adjourned the hearing to allow the appellants' advocate to peruse the file. On the day fixed for further hearing, Mr. Festo, the appellants' advocate prayed to the trial court to recall the two 21 | P a g e witnesses who had testified on 21.2.2024. The court denied the request holding that Mr. Festo did not give reasons why he wanted to cross- examine the witnesses. Mr. Festo had argued that section 147(4) of the Evidence Act, [Cap. 6 R.E. 2022] did not impose a condition to be satisfied before a person prior to invoking the section. The trial court denied the prayer. As pointed above, the appellants had a right to be defended and they asked the trial court to adjourn the hearing to give a chance to their advocate to appear. The Court of Appeal in Lucas Gisland vs Republic (Criminal Appeal No.89 of 2021) [2023] TZCA 17465 (1 August 2023) agreed with the appellant that he was denied the right to fair trial, noting that he was not represented by a counsel during the testimonies of three key prosecution witnesses, despite his expressed intention to engage one. It observed that- "Therefore, as conceded by the learned Senior State Attorney there was no legal representation for the appellant during the testimonies of F.2449 SGT James {Pwl), Simon Maswi Barnabasi (Pw2), and Goodluck James Kalebawi (Pw3), despite his quest to be given time to engage one. We have already alluded to above the importance of a party being legally represented especially in this case where he had shown intention to engage an advocate to represent him." 22 | Page The Court of Appeal in the recent case of Kennedy Paul Mosha vs Republic (Criminal Appeal No. 578 of 2020) [2024] TZCA 413 (7 June 2024) was of the position that an advocate engaged after some prosecution witnesses have testified must give reason when applying the witness to be re-called for further cross-examination. It observed- "As far as this ground of grievance is concerned, we agree with the respondent's counsel that the complaint has no merit. The reason for our stance is from the record of this appeal at pages 10, 11 and 12 where the appellant in this case was allowed to cross examine the witnesses. Therefore, after engaging the advocate who prayed for the witnesses to be recalled for further cross examination, there ought to have been sufficient reasons stated by the appellant's advocates for consideration by the magistrate. Reading from page 23 of the record of appeal, it is vivid that Mr. Raymond Cosrnas, learned advocate did not cite any reason for the witnesses to be recalled for further cross examination. Therefore, provided that section 147(4) of the Evidence Act is not couched in mandatory terms, we uphold Ms. Mlenza's submission that the advocate's prayer was unwarranted and unjustified. Thus, this ground is meritless" (Emphasis added) I find that since the appellants were given a chance to cross- examine the witness who testified before they engaged an advocate and the advocate prayed to recall the witnesses under section 147(4) of the 23 | Page Evidence Act without assigning reason, the denial to recall the witness did not amount to denial of the right to be defended. I find no merit in the complaint. Paulo Himidi John (Dwl)'s advocate complained regarding the third ground of appeal that the exhibits were not properly seized and tendered as the chain of custody was not proved. It is against section 38(3) of the CPA read together with section 22(1) of EOCCA. The law required the police to issue a receipt but the receipt was not signed by the appellant. Athman Isa Misanya (Dw3) also, complained that the trial court erred to admit the seizure certificate when there was no proof that the arresting officer gave them a receipt under section 22(3)(b) of EOCCA. It is true that the appellants were not issued with the receipt as the arresting officer seized the exhibits. The law requires the arresting officer to issue a receipt acknowledging the seizure of that thing, bearing the signature of the owner or occupier of the premises. However, the Court of Appeal took a position that where the certificate of seizure was issued and signed by the appellant (accused person), the same is sufficient evidence to prove that the seized items were obtained from him. See the decision of the Court of Appeal in Papaa Olesikaladai @ Lendemu & Another v. R., Criminal Appeal No. 47 of 24 | Page 2020 [2023] TZCA 51. The Court further held in Shukuru Victor Ngonyani vs R., (Criminal Appeal No. 488 of 2022) [2024] TZCA 698 (9 August 2024) that failure to issue receipt is inconsequential and does not affect the admissibility of exhibit. The Court of Appeal quoted with approval its former holding in Jibril Okash Mohamed vs R., (Criminal Appeal No. 331 of 2017) [2021] TZCA 13 (11 February 2021) that- "We however, don't think that such an anomaly affects the substance of the seizure certificate. The omission or contravention is minor and legally speaking, cannot invalidate the seizure certificate or its admissibility or even cause it to be expunged from the record. On that we are reinforced by our finding in the case of Nyerere Nyague v. Republic; Criminal Appeal No. 67 of 2010 where we Stated that, it is not therefore correct to take that every apparent contravention of the provisions of the CPA automatically leads to the exclusion of the evidence in question" Inspired by the holding in Jibril Okash Mohamed vs R., (supra), the Court of Appeal held that- "Being guided by the above position of the law, it is our settled view that the learned Senior State Attorney was correct that, the absence of the receipt was inconsequential and therefore, it did not affect the substance of exhibit P8. We therefore find the first ground with no merit." I am of the firm position from the above authorities that the absence of the receipt issued acknowledging the seizure of the exhibits 25 | P a ge under section 38(3) of the CPA or section 22(3)(b) of the EOCCA did not render the seizure certificate inadmissible. So, I find no merit in the complaint. Paulo Himidi John (Dwl)'s advocate complained further that the chain of custody was broken. The exhibits were taken to F. 2449 SGT James (Pwl). F. 2449 SGT James (Pwl) was required to hand the exhibits using the chain of custody as directed the PGO. F. 2449 SGT James (Pwl) deposed that on 3.2.2024 Goodluck James Kalebawi (Pw3) took the exhibits from him for valuation and returned the exhibits to him. F. 2449 SGT James (Pwl) did not state in the chain of custody how he kept them and he did not state that the package changed from the original package. He added that the chain of custody shows that he took the exhibit from Athuman Isa Misanya (Dw3) alone. The chain of custody does not show anywhere that the exhibits were taken from him. Paulo Himid John (Dwl) was not found with any exhibit as per the chain of custody. It is unfortunate that the evidence shows that the exhibits were found with Paulo Hamid John (Dwl). This raises doubts. The state attorney opposed the third ground of appeal. He argued that the chain of custody form, Exh. P.l and the evidence of the witnesses proved that the chain of custody did not break. The exhibits were seized from the appellants by Simon Maswi Barnabas (Pw2) who 26 | P a g e took them to . 2449 SGT James (Pwl), the exhibit keeper. Goodluck James Kalebawi (Pw3) went to 2449 SGT James (Pwl) took the exhibits for valuation and identification and handed them back to 2449 SGT James (Pwl). He added that the fact that the chain of custody did not have the name of Paulo Himid John (Dwl), the omission was not fatal as Athuman was charged with Paulo Himid John (Dwl). Having heard the submissions and considered the evidence on record, I am of the view that the chain of custody did not break. The chain of custody and the evidence of the prosecution witnesses proved that the chain did not break. Simon Maswi Barnabas (Pw2) arrested the appellants and seized the exhibits. Simon Maswi Barnabas (Pw2) took the exhibits the same day to 2449 SGT James (Pwl) who kept them. He gave them to Goodluck James Kalebawi (Pw3) for valuation and identification. Goodluck James Kalebawi (Pw3) returned them to 2449 SGT James (Pwl) who tendered them in court. Even if the chain of custody form, exhibit PE. PI is expunged for any reason, still there is ample evidence that the chain of custody did not break. It is trite law that where there is no chronological documentation or paper trail of the movement of exhibits, oral evidence on record can suffice depending on the circumstances, to prove the unbroken chain of custody. This position was taken by the Court of Appeal in Wallenstein Alvares Santillan vs 27 | P a g e R., (supra), Charo Said Kimilu and Another v R., Criminal Appeal No. 111/ 2015 (unreported) and Abas Kondo Gede v. R., Criminal Appeal No. 72/2017 (unreported). Paulo Himidi John (Dwl)'s advocate complained that the certificate of seizure was prepared in the absence of an independent witness. He argued that the certificate of seizure raised doubts. The state attorney submitted that it is not in every situation an independent witness is required. The offence was committed in the wildlife Management area. For that reason, it was not likely to get an independent witness. I agree with the state attorney that it is not in every circumstance, an independent witness is required to be present. The appellants were found in the Wildlife Management area where it was not likely finding an independent witness. The law mandatorily requires the presence of an independent witness for offences under the WCA when searching a dwelling house. Section 106 (1) of the WCA allows a search to be conducted in the absence of an independent witness in a situation like the one under consideration. It states- "1O6.-(1) Without prejudice to any other law, where any authorized officer has reasonable grounds to believe that any person has committed or is about to commit an offence under this Act, he may- 28 | P a g e (a) require any such person to produce for his inspection any animal, game meat, trophy or weapon in his possession or any licence, permit or other document issued to him or required to be kept by him under the provisions of this Act or the Firearms and Ammunition Control Act; (b) enter and search without warrant any land, building, tent, vehicle, aircraft or vessel in the occupation or use of such person, open and search any baggage or other thing in his possession: Provided that, no dwelling house shall be entered into without a warrant except in the presence of at least one independent witness; and (c) seize any animal, livestock, game meat, trophy, weapon, licence, permit or other written authority, vehicle, vessel or aircraft in the possession or control of any person and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest and detain him." Were the trophies properly disposed? Paulo Himidi John (Dwl)'s advocate argued further that, the disposition of the exhibits allegedly found with the appellants raises doubt. The tail, meat, head and skin as exhibits which are subject to speed decay. After the exhibits were seized by the arresting officer, the PGO directs under Order 229 para 25 at page 524 to dispose the exhibit by going to the magistrate for him to take note of the exhibits and order 29 | P a g e their disposal. The law was not complied with. To support his stance, he cited the case of Mohamed Juma @ Mpakama v. Rv Criminal Appeal No. 385/2017 CAT. Athman Isa Misanya (Dw3) also, complained that the inventory was not properly prepared. He did not explain. The state attorney opposed the complaint submitting that the trial court did not properly dispose exhibits. He submitted that there are different options of disposing the exhibit. The first one is when the case is proceeding in court as it was done in this case. Secondly, is by preparing the inventory and praying for the order to dispose the exhibit and the third option is by the prosecution making formal application praying to dispose the exhibit. He submitted that the exhibits were properly disposed. I will not dwell on this issue as the law is settled that the exhibits may be disposed following the procedure provided under the PGO as discussed in Mohamed Juma @ Mpakama v. R., (supra) cited by Mr. Mwita advocate or as provided under section 101 of the WCA. The exhibits in this case were disposed as per section 101 of the WCA, thus there was nothing wrong. Section 101 of the WCA allows the court to order suo motto or upon application, disposal of trophies during the 30 | P a g e proceedings. The order of disposal made by the court is sufficient proof of the matter in dispute. It states- 1O1.-(1) The Court shall, on its own motion or upon application made by the prosecution in thatbehaif- (a) prior to commencement ofproceedings, order that- (i) any animat 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- (i) any animal or trophy which is subject of speedy 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 the end, I find not merit in the complaint that the exhibits were not properly disposed as no inventory was prepared. There was no required to prepare an inventory when the trophy is disposed under section 101 of the WCA. Consequently, I dismiss the complaint raised by the appellants that the exhibits were not properly disposed. 31 | P a g e Having discussed the grounds of appeal Paulo Himidi John (Dwl)'s advocate raised and some complaints raised by Athman Isa Misanya (Dw3), I will now consider the ground of appeal raised solely by Athman Isa Misanya (Dw3). Was the trial a nullity for want of DPP's consent? Athman Isa Misanya (Dw3) complained that he was tried, convicted and sentenced in the absence of consent of the DPP as required by law. The state attorney opposed the complaint arguing that the DPP issue a consent and certificate as per the law. It is on the record that the Prosecution Attorney in charge issued consent under section 26 (2) of the EOCCA. The prosecuting state attorney prayed the trial court to endorse the consent and certificate conferring title. The court granted the prayer. I find nothing wrong with that. It is my firm view that consent and certificate were tendered and endorsed by the trial court. Paragraph 3 (4) of the Economic Offences (Specification of Offences for Consent) G.N. No. 496H of 2021 provides that- "The power to consent to the prosecution of economic offences specified in part III of the schedule to this notice is hereby delegated to and may be exercised by the Regional prosecutions Officer of the Region or District Prosecution Officer of the District where the offence took place or the Prosecution 32 | Page Attorney In-Charge of the court of Resident Magistrate or District Court where the economic Offence is Charged". Was it proper to tender two mobile phone handsets as exhibit in the circumstance of this case? Athman Isa Misanya (Dw3) raised a complaint that the trial court grossly erred both in law and in fact for failure to note that two mobile phones wrongly tendered as they were personal properties. Hence, the trial court violated section 22 (4) of the EOCCA. The state attorney replied that the mobile phones were admitted according to law. I wish to state at the outset that exhibit PE V, the mobile phones were not relevant to the case. The appellants were charged with the offence of unlawful possession of government trophy and not possession of mobile phone handsets. There was no evidence that the mobile phone handsets were used in commission of the offence. The mobile phone handsets ought to have been returned to the appellants as they have no bearing with this case. Did the prosecution prove its case beyond reasonable doubt? Lastly, Athman Isa Misanya (Dw3) complained that the case was framed up and that the prosecution did not prove the case beyond reasonable doubt. 33 | Page The learned stated attorney submitted that the prosecution proved the appellants guilty beyond reasonable doubts. He submitted that Goodluck James Kalebawi (Pw3) proved that the trophy was meat of giraffe. Goodluck James Kalebawi (Pw3), a wildlife officer identified the trophy by stating specific characteristics of giraffe meat at page 19. He referred the Court to the case of William Maganga @ Charles v. R. Cr. appeal 104/2022 tanzlii [2023] TCZA 17742. The witness tendered a trophy valuation certificate. The state attorney submitted that the prosecution tendered evidence to prove that the appellant was found in possession of the government trophy. Simon Maswi Barnabas (Pw2) proved that the appellant was found in possession of giraffe meat. The prosecution tendered a certificate of seizure exhibit PE. VIII. The appellants' act of signing the certificate of seizure signifies acceptance. He prayed to cite the case of Waziri Shabban Mizogi v R. Cr. appeal No. 476/2019 tanzlii [2023] TZCA 17344 The prosecution established the chain of custody from time of his arrest and seizure on 2.2.2024 until when court issued a disposal order on 21.2.2024. The exhibits were taken from the appellants by Simon Maswi Barnabas (Pw2), who handed the exhibit to F. 2449 SGT James (Pwl), the exhibit keeper on the same day. F. 2449 SGT James (Pwl) kept the exhibit until when he gave them to Goodluck James Kalebawi 34 | Page (Pw3) on the 3.2.2024. Goodluck James Kalebawi (Pw3) returned the same to F. 2449 SGT James (Pwl) on the same day. F. 2449 SGT James (Pwl) kept the exhibit until when he issued them to the court for destruction on 21.2.2024. Given the evidence on record they proved the prosecution's case beyond reasonable doubt. I am total in agreement with the state attorney that the prosecution proved the appellants guilty beyond reasonable doubt. Simon Maswi Barnabas (Pw2) deposed that during patrol, saw people in the WMA. They arrested two and others escaped. They found them with in possession of pieces of meat, tail, skin and head which were later identified by Goodluck James Kalebawi (Pw3), as meat and parts of giraffe. The appellants refuted to be found in unlawful possession of trophy. Paulo Himidi John (Dwl) deposed that Athman Isa Misanya (Dw3) was his customer. On the material date rode him to the Lake to take fish and rode him back. On their way back, the park rangers arrested them and took them to their camp. Later, the park rangers took them to police with meat leaving the buckets of fish in their vehicle. Athman Isa Misanya (Dw3) raised denied to have been together with Paulo Himidi John (Dwl) at the time of his arrest. Athman Isa Misanya (Dw3) told the court that he was arrested whilst at the shore 35 | P a g e of the lake buying fish. He deposed that he did not know Paulo Himidi John (Dwl) before but he knew his name whilst at police and that on the material date Paulo Himidi John (Dwl) rode him to the lake and left him there to buy fish. Later, the park ranger arrested him and took him to the vehicle where he found Paulo Himidi John (Dwl). I had time to consider the evidence of both sides to determine which one to trust. I know it is trite law that the evidence of the accused person must not be believed but it is enough if it raises a reasonable doubt. See John Makolebela Kulwa Makolobela and Eric Juma alias Tanganyika [2002] T.L.R. 296 the Court held that: "A person is not guilty of a criminal offence because his defence is not believed; rather, a person is found guilty and convicted of a criminal offence because of the strength of the prosecution evidence against him which establishes his guilt beyond reasonable doubt. It is trite law that witnesses must be trusted unless, there is a reason to question their credibility. The Court of Appeal in Goodluck Kyando v. R., [2006] TLR 363 and in Edison Simon Mwombeki v. R., Cr. Appeal. No. 94/2016, stated that- "Every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness." 36 | P a g e I did not find any cogent reason to question the credibility Simon Maswi Barnabas (Pw2) and Goodluck James Kalebawi (Pw3). Simon Maswi Barnabas (Pw2) had no interest to serve apart from bringing the accused person behind the bar. He deposed how the found the appellants in possession of trophy. Whereas considering the appellants' defence the same was full of contradictions. Paulo Himidi John (Dwl) deposed that they arrested whilst together and Athman Isa Misanya (Dw3) contended that they were arrested at separate places. Athman Isa Misanya (Dw3) deposed further he was arrested last while at lake shore buying fish. Paulo Himidi John (Dwl) deposed that Athman Isa Misanya (Dw3) was his customer and that he went to his place to request him to ride him while Athman Isa Misanya (Dw3) deposed that he knew his name whilst at police station, that implying that it was his first time to meet Paulo Himidi John (Dwl). I find that the defence evidence was contradictory and for that reason, it did not raise a reasonable doubt in the prosecution's evidence. I cannot fault the trial court for not giving weight to the defence evidence. In the end, like the trial court, I find that the prosecution proved the appellant guilty beyond reasonable doubt. Consequently, I uphold 37 | Page the conviction and sentence the trial court imposed. However, as to exhibit PIV, mobile phones, I order the same to be returned to the appellant as there is no proof that they used in the commission of the offence. I order accordingly. Dated at Babati this 23rd day^of September, 2024. John R. Kahyoza Judge Court: Judgment delivered in the presence of the appellants, Mr. Mwita advocate for Paul Himidi John and Ms. Mosha, S/A for the respondent. B/C. Ms. Fatina (RMA) present. Right of appeal explained to the appellants. John R. Kahyoza Judge 23. 9. 2024 38 | P a g e