RABECHI MALESHI DINNA endorse consent and certificate final final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF SHINYANGA)

AT SHINYANGA CRIMINAL APPEAL NO. 33569 OF 2024 (Arising from decision of the District court of Meatu at Mwanhuzi before M.M Mtemi-SRM dated 28th February 2024 Economic Case No. 18 of 2023) RABECHI MALESHI DINNA….…..............................APPELLANT

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

JUDGMENT 16th January & 14th February, 2025 Massam, J:- The appellant herein above was charged before the District Court of Meatu at Mwanhuzi with two counts. One, unlawful entry into a Game Reserve c/s 15 (1) and (2) of the Wildlife Conservation Act National Parks Act [Cap 282 R:E of 2002]. Second, Unlawful Possession of the Government Trophies Contrary to Section 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 Section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap 200 R.E 2022]. The briefs facts of the case are that, on 22nd August, 2023, accused person was found unlawfully in possession of the Government Trophies to wit two pangolin scales valued at USD 960 Equivalent to 1 Tshs. 2,404,684/= the property of Tanzania Government in the Game Reserve W.M A Makao without a written permit from the Director of Wildlife. After the full trial, the appellant was found guilty with two offences, convicted and sentenced, to pay fine of Tshs. 100,000/= or to serve three months (3) imprisonment for first offence and to pay fine of Tshs. 24,046,880/= or to serve (20) twenty year imprisonment for second offence. Aggrieved therein, the appellant rightly lodged his appeal in this court with 3 (three) grounds as follows; - 1. That, the trial court magistrate erred in law and in fact when failed to observe that PW5 Joseline Domini Mpelasoka (Game officer) who assumed with power to prepare the certificate of valuation and inventory and tendered before the court as exhibit without explain which provision of the law gives him power to do so. Contravene with section 353 of the Criminal Procedure Act Cap 20.

2. That, the whole trial court was vitiated with very serious procedural irregularities lead to the miscarriage of justice 2 3. That, the prosecution did not prove the charge beyond reasonable doubt. During the hearing of this appeal, the same was argued orally and the appellant appeared in person unrepresented, while the respondent was represented by Mr. Saguya Learned State Attorney. In submitting his appeal, the appellant submitted that, he was aggrieved with decision meted by lower court, so he prayed this court to consider his grounds of appeal. In response, the Learned State Attorney for respondent strongly opposed the appeal on the 2nd count while supported the conviction and sentence meted by the trial court on the 1st count. Also he prayed to this court to argue all grounds of appeal separately. Starting with ground of appeal no 1, appellant complained that trial court did not observe the evidence of PW3 Josephine Dominic a wildlife officer who assumed with the power to prepare the certificate of valuation and inventory and had no power to tender the said certificate as she did not mention the law which allow her to prepare and tender the same. Moreover, Mr. Saguya argued that the said witness had power under section 114 (3) of Wildlife Conservation Act to prepare the said valuation report and tender it to the court. Also appellant 3 complained that there was no

inventory which was filed. It was submission of Mr. Saguya that the said trophy has no nature of being damaged so there was no need of inventory to be conducted. Finally, he prayed this court to find this ground of appeal without merit and dismiss the same. Coming to ground No 2, appellant complained that the hearing of that case was vitiated with serious irregularities which lead to the miscarriage of justice. Mr. Saguya submitted that in his perusal to the proceedings and judgment, he didn’t see any procedural irregularities which vitiated miscarriage of justice. He prayed this court to find ground no 2 to have no merit and be dismissed. Responding to the third ground, appellant complained that prosecution side failed to prove its case beyond reasonable doubt. Mr. Saguya argued that it is true on the 1st count of entering in the Game Reserve was not proved because no sketch map was tendered to prove that appellant was arrested in Game Reserve therefore he agreed that 1st count was not proved. However, in regards to the second count, Mr. Saguya said that the offence was proved through prosecution witnesses, PW1 testified that he arrested appellant and found him with two scales of pangolin without 4 any permit from Director of Wildlife. After that he seized the said trophy and sign the certificate of seizure and the same was admitted as exhibit P1 and P2 with no objection from

the appellant. Similarly, the evidence of PW2 was the same as that of PW1. Moreover, PW3 a wildlife officer identified trophy to be pangolin scales by its nature and colour and prepared trophy valuation certificate which was admitted as exhibit P4. PW4 was the exhibit keeper who said that he was given trophy as exhibit to register it in his exhibit register book PF No 16 and the same was admitted as exhibit P5. PW5 an investigator testified that the appellant was arrested in Game Reserve with the Government Trophy and make sure that the said exhibit was not changed and he tendered chain of custody. Finally, Mr. Saguya said that from the above evidence no doubt the 2nd count was proved and prayed this court to find this appeal with merit in count No 1 and without merit in 2nd count. In his rejoinder the appellant, prayed this court to consider his grounds of appeal with merit and left him free to join his family who depend on him. Upon going through the entire records and carefully considered the submission from both sides, it is in view that the appellant is challenging 5 the conviction and sentence meted against him on the reason that the prosecution did not prove its case against him beyond reasonable doubts. Therefore, the main issue to be determined by this court is to whether the prosecution proved the case against the appellant beyond reasonable doubt. There is no

objection that it is a common legal principle that in criminal law the burden of proof lies to the prosecution and the standard is beyond reasonable doubts see Section 110 and 112 which read together with Section 3 (2) (a) of the Evidence Act [Cap 6 R:E 2019]. Also, the same principle was stated in the case of Woodmington Vs. DPP (1935) AC 462, the court held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. This is a universal standard in criminal trials and the duty never shifts to the accused, See also the case of Christian Kale & Another Vs. The Republic (1992) T.L.R 302 CAT and John Makorobera & Another Vs. The Republic (2002) T.L.R 296, where it was firmly held that the accused person should only be convicted of an offence, he is charged with on the basis of the strength of the prosecution case not on the weakness of the defense case. 6 Starting with ground of appeal No 1, appellant complained that trial court did not observe the evidence of PW3 Josephine Dominic a wildlife officer who assumed with the power to prepare the certificate of valuation and inventory and had no power to tender the said certificate as she did not mention the law which allow her to prepare and tender the same. Mr. Saguya argued that the said witness had power under section 114 (3) of Wildlife Conservation Act to prepare the

said valuation report and tender it to the court. Also appellant complained that there was no inventory which was filed. It was submission of Mr. Saguya that the said trophy has no nature of being damaged so there was no need of inventory to be conducted. Before, I respond this ground of appeal, I wish to quote section 114 (3) of Wildlife Conservation Act which reads that; In proceedings for an offence under this section, a certificate signed by the Director or wildlife officers of the rank of wildlife officer, shall be admissible in evidence and shall be prima facie evidence of the matters stated therein including the fact that the signature thereon is that of the person holding the office specified therein. Now, from the extracted provision of the law, PW5 Joseline Dominick Mpelasoka being a wildlife officer has power to prepare the 7 valuation report and tender it. Thus, I support the submission from respondent that PW5 had power to prepare valuation report and there was no need of preparing of inventory because the said trophy was not in nature of damaged(decay) and therefore I disagree with the appellant that there was violation of section 353 of Criminal Procedure Act Cap 20. From the observation above, I find the first ground of appeal has no merit and it is dismissed. Coming to ground No 2, appellant complained that the hearing of that case was vitiated with serious

irregularities which lead to the miscarriage of justice. Mr. Saguya submitted that in his perusal to the proceedings and judgment, he didn’t see any procedural irregularities which vitiated miscarriage of justice. I have scanned submission from both parties and going through the trial records. In the trial record shows that there are two charges i.e. Economic Case No. 18/2023 admitted on 4th September, 2022 with two counts, first count; unlawful entry into the Game Reserve and second count; unlawful possession of Government Trophies and the second charge with Economic Case No……of 2023 admitted on 13/02/2024 with only one offence of unlawful possession of Government Trophies. The proceedings are silent if there was substitution of the charge. Under 8 such circumstances, it is difficult before this court to ascertain at which charge the prosecution was prosecuting for between the two and if it was proved beyond reasonable doubt. See the case Emmanuel @ Magesa Chacha and Another v. Republic, Criminal Appeal No. 538 of 2020, [2024] TZCA (2 May 2024) and Mohamed Haruna@ Mtupeni & Another vs. R, Criminal Appeal No. 25 of 2007. Moreover, there is no endorsement on the document constituting the consent and certificate by the trial Magistrate that the instrument was dully admitted by the trial court. Thus the certificate and consent had no legal force as they were not endorsed by the

trial magistrate as having been admitted on record. See the case of John Julius Martin and Another vs Republic, Criminal Appeal No. 42 of 2020 CAT Arusha. From the above analysis. I agree with the appellant that there were procedural irregularities lead to the miscarriages of justice and therefore I find the second ground of appeal has merit and it is hereby allowed. Responding to the third ground, appellant complained that prosecution side failed to prove its case beyond reasonable doubt. Mr. Saguya argued that it is true on the 1st count of entering in the Game Reserve because no sketch map of the scene was tendered to prove 9 that the appellant was arrested in Game Reserve therefore 1stcount was not proved. Having considered submission from both parties and going trial record. I agree with Mr. Saguya that there was no sketch map which marking the boundaries of the game reserve and to prove that the appellant was arrested in game reserve. See the case of Dogo Marwa Sigina and Another vs Republic, Criminal Appeal No. 512 of 2019. In the premises I find the third ground of appeal has merit in first count and it allowed. Now, in regards to the second count, Mr. Saguya said that the offence was proved through prosecution witnesses, PW1 and PW2 a wildlife rangers who arrested appellant with two scales of pangolin and had no permit. After that they seized the said trophy and sign

the said certificate of seizure which was admitted as exhibit P1 and P2. PW3 a wildlife officer identified the said trophy to be pangolin scales by its nature and colour and prepared trophy valuation certificate which was admitted as exhibit P4. PW4 was the exhibit keeper who gave an exhibit to PW3 for valuation, and exhibit register book was admitted as exhibit P5. PW5 was investigator who said that the appellant was arrested in 10 Game Reserve with the said trophy and the said exhibit was not changed, and tendered the chain of custody. I have scanned submission from both parties and going through trial records. The trial court record shows that there was no independent person witnessed the arrest. In the case of Tongora Wambura vs. DPP, Criminal Appeal No. 212 of 2006 CAT Arusha where the court held that ‘’ As to why there was no independent person to witness the arrest, that, in our considered view, depend on the particular circumstances of each case. However, it should be emphasized that the absence of such people, perse, did not render the operation illegal or the prosecution case fatal’’. Being guided by the authority above and submission of the both parties. This court is in the view that the absence of independent witness in this case renders the prosecution case fatal because there was no independent witness different from park rangers who were arresting officers. It

is settled law that during search and seizure; there should be an independent witness. I understand that a court being a court of law cannot be blind in respect of this issue simply because the said certificate of seizure was signed. The law provides that, during search 11 and seizure, there should be an independent witness. The rationale behind having an independent witness is to provide independent evidence, as was emphasized in the case of Jibril Okash Ahmed Vs. Republic, Criminal Appeal No. 331 of 2017; CAT (unreported). In the case of Shaban Said Kindamba vs. Republic, Criminal Appeal No. 390 of 2019 at page 18 the Court of Appeal also emphasized that; "We are inclined to take it as logical that an independent witness to a search must be credible, or the whole exercise would be rendered suspect..." In the instant matter, the certificate of search and seizure was signed by Rajabu Semuye, who was the complainant. I am of the considered opinion that the complainant could not be an independent witness. Therefore, since the said certificate of seizure was not signed by an independent witness, then the trial magistrate erred in law in relying on it in convicting the appellants." Guided by the above authority, it is my considered view that since the evidence shows that PW1 and PW2 were on the same operation and arrested a suspect of Government Trophy therefore they could not

have been a credible and impartial witness in the search and seizure exercise 12 as they were one of the arresting officers, thus having an interest in the matter. Moreover, where a place of commission of the offence is mentioned in the charge, evidence must be led to prove that, indeed the appellant committed the offence at that place. See Marki Said @ Mbega vs. R, Criminal Appeal No. 204 of 2018 and Salum Rashid Chitende vs. R, Criminal Appeal No. 204 of 2015 (both unreported). In the latter case, this Court in no uncertain terms stated: "When specific date, time and place is mentioned in the charge sheet, the prosecution is obliged to prove that the offence was committed on that specific date, time and place" [Emphasis added] Now, if the first offence of entering in the Game Reserve was not proved. I think even the second count cannot stand because it was alleged that he was found W.M A Makao Game Reserve with Government Trophy without permit and there was no prove that the appellant was found in Game Reserve because he may be found anywhere else. 13 Therefore, from the foregoing analysis, I am satisfied that this appeal has merit. Based on the above reasons I allow this appeal. Therefore, a conviction against the appellant is hereby quashed and the sentence set aside. I hereby order the release of the appellant from custody immediately, unless held for other lawful reason. It is so ordered. DATED at SHINYANGA this 14th day of February, 2025. R.B. Massam Judge 14