Peter Zacharia Chaula v R

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA

AT BABATI ECONOMIC APPEAL NO. 24315 OF 2024 (Originating from Economic Case No. 40 of 2022 in the District Court of Simanjiro at Orkesumet) PETER ZACHARIA CHAULA………………………………..………………. APPELLANT

VERSUS REPUBLIC…………………………………….………………………………RESPONDENT

JUDGMENT 23rd October and 21st November, 2024 MIRINDO, J.: Peter Zacharia Chaula and Ally Hassan Buyu were out of four persons arrested by wildlife officers in a forest at Losira Forest “B” on 5 November 2022. They were jointly charged and convicted by Simanjiro District Court of different counts relating to unlawful possession of government trophies, unlawful possession of firearm, and possession of weapon in a game-controlled area. Ally Hassan Buyu jumped bail and was tried and sentenced in absentia. Before me is an appeal by Peter Zacharia Chaula resting on nine grounds of appeal. The respondent Republic was represented by Mr. Raphael Rwezahula and Mr. Johnson Ndibalema, learned State Attorneys who readily supported the appeal. Mr. 1 Rwezahula highlighted various shortcomings in the trial. There were shortcomings in the prosecutorial consent, certificate conferring jurisdiction, insufficient identification of the trophies and defective inventory form. Arguing in respect of the prosecutorial consent, the learned State Attorney, stated that the consent from the DPP was issued by the delegate of the DPP who is the Regional Prosecutions Officer under section 26 (1) instead of section 26 (2) of the Economic and Organized Crimes Control Act. He argued that the appropriate section should have been section 26 (2) and there have been different decisions of the Court of Appeal that

inserting the wrong section is incurable and render the entire proceedings fatal. He cited the case of Mahada Kipara alias Kaemereri v Republic, Criminal Appeal 564 of 2021 which held that inserting section 26 (1) by the delegate was incurable. It is true that a close review of case laws indicates that there are conflicting decisions of the Court of Appeal concerning the prosecutorial consent under section 26 (1) which must be given by the DPP in person and the delegates consent issued under section 26 (2). However, the Court of Appeal’s position in Nassib Abubakar Mwazyega alias Ras v Republic (Criminal Appeal 146 of 2021) [2024] TZCA 576 is that the prosecutorial consent issued under section 26 (1) by the DPP’s delegate is a curable defect. In the view of the decision of the Court of Appeal in Nassib Abubakar’s case, I hold that the prosecutorial consent was validly issued. 2 On his second issue, Mr. Rwezahula stated that the consent of the DPP and the certificate conferring jurisdiction were not endorsed in court. I have examined the proceedings and noticed that on 10 March 2023 that the public prosecutor informed the trial court about the filing of consent and the certificate conferring jurisdiction and a new charge sheet. The consent and the certificate of conferring jurisdiction were jointly admitted as part of the proceedings. I would dismiss this point of

complaint. After disposing the jurisdictional issues, I proceed to consider the substantive points of complaint. Before proceeding with the points of complaints raised by the respondent, I would like to consider the question of possession of government trophies and firearm. The third prosecution witness, Benson Kanamkulu, and Mwelea Aloyce Mwere, the fourth prosecution witness testified arresting the appellant with several items. There is no evidence of description of the appellant’s possession of the government trophies and the firearm at the time of their arrest. Mr. Rwezahula contended that there was insufficient identification of the government trophies at the trial because the description provided by Happiness Mathias Msigwa was too general. The learned State Attorney argued that this generalised description has been frowned upon by the Court of Appeal in William Maganga alias Charles v R (Criminal Appeal No. 104 of 2020) [2023] TZCA 17742 where it has been held that there must be sufficient details distinguishing one animal from another. 3 It is clear that the second prosecution witness, Happiness Mathias Msigwa, provided generalised identification of the Kudu and Impala. She did not provide distinguishing features of the animals. On his fourth issue, Mr. Rwezahula contended that the inventory form was defective. He submitted that the procedure of destruction of exhibits

detailed under the Police General Orders, paragraph 225 was not complied with. There was no evidence that the accused persons were given an opportunity to comment on disposal of the exhibit. Worse still, the magistrate who ordered the disposal was not called to testify and it is unclear if the accused were accorded the opportunity to be heard. This was an important witness who should have been called. This omission gives rise to an adverse inference that the accused persons were not accorded the opportunity to be heard. For all these reasons, I allow the appeal, quash the conviction and sentence imposed by Simanjiro District Court and order that the appellant be released from custody unless he is otherwise withheld. As the appellant disowned the items seized from the crime scene, I make no order in respect of the forfeiture and disposal orders made by the trial court. As the appeal raises common questions of law and facts involving the appellant and Ally Hassan Buyu was convicted and sentenced in absentia and has not appealed, I invoke the revisional powers of this Court quash his conviction and sentence as the Court of Appeal did in Issa Athumani Tojo v R. [2003] TLR 199. I make no order for his release because he is still at large. 4 DATED at BABATI this 21st day of November 2024. F.M. MIRINDO

JUDGE COURT: Judgment delivered in chambers this 21st day of November 2024 in the presence of the appellant in person and in the presence of Mr. Johnson Ndibalema, State Attorney for the respondent Republic. Ms. Anna Mathayo (RMA) present. Right of appeal explained. F. M. MIRINDO

JUDGE 5