ECONOMIC APPEAL RHOBI MGAYA NYANCHOGOINE

IN THE HIGH COURT OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA ECONOMIC APPEAL NO. 000020482 OF 2024 REFERENCE NO. 202407222000020482 (Arising from Economic Case No. 01 of2023 of the District Court of Tarime at Tarime) RHOBI MGAYA NYANCHOGOINE...............................................APPELLANT VERSUS REPUBLIC................................................................................... RESPONDENT JUDGMENT 14th & 21st August, 2024 M. L. KO MBA, J.: Rhobi Mgaya is in custody for twenty years as an implementation of the sentence uttered to him by the Tarime District court following the conviction on two counts namely; unlawful possession of Government trophies contrary to section 86 (1) and (2) of the Wildlife Conservation Act No. 05 of 2009 Cap 283 RE 2022 (the WCA) read together with Paragraph 14 of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap. 200 R. E. 2002] (EOCCA) and unlawful possession of weapons in the National Park without permit contrary to section 24(l)(b) and (2) of the National Parks Act (the NPA). As Page 1 of 9 per judgment delivered in 29/08/2023 he has to serve 20 and 2 years respectively. It was on 18/12/2022 at Mto wa Mara area into Serengeti National Park within Tarime District, the appellant and one Babere Zakaria (who is not part of this appeal) did enter into the National Park and found in possession of weapons to wit; one machete and three trapping wires and Government trophy to wit; two hind limbs fresh meat of Zebra the property of United Republic of Tanzania without permit. The two denied the charges, action which attract full trial where the trial court was satisfied that ail counts were proved hence convicted and sentenced the appellant and that other person as stated herein above. The trial court's decision aggrieved the appellant and knocked the door of this court armed with seven (7) grounds of appeal which I hereby reproduce for easy of reference; 1. That, there is no evidence from the detention book which indicates at material time I was sent to sign the inventory order. This lacuna left uncurable doubt, (sic) 2. That, the presiding magistrate failed to append his signature soon after been accomplished to record the testimony of each witnesses for it's authenticity. Therefore, did not observe S. 210 of CPA, (Cap Page 2 of 9 20, R.E2022). Failure to do for render an entire proceedings and Judgment being nullity, (sic) 3. That, no evidence laid down to prove that those weapons were intended for commission such offence. What transpired the Hon. Magistrate guided by speculation to reach it's decision which does not room in Criminal Case, (sic) 4. That, the chain of custody was not established as required by law case and PGO. See the case of MUSTAPHA DARAJANI V. R, Cr Appeal Re 242 if2008-CAT-Iringa. (sic) 5. That, all documented exhibits were not read out to me before the court of law soon after been and milted and marked as an exhibits. I beseech the court to expunge form the court records, (sic) 6. That, the prosecution side failed to prove the alleged offence laid against. I beyond all reasonable doubt considering the lower court relied upon inconsistence and contradictory piece of evidence, (sic) 7. That, no print out tendered to show that I was arrested within the National Park area as what prescribed U/S18 and 19 of the electronic transaction Act, (Cap 44, 44, RE. 2022). (sic) Mr. Isihaka Ibrahim, State Attorney represented the respondent, Republic when the appeal was due for hearing while appellant stood solo without any representation. When he was informed that he has to start submitting his appeal he prayed this court to adopt his petition of appeal and was waiting for rejoinder after respondent submission. Mr. Isihaka registered the position of the respondent that they resist the appeal and supports the conviction, then he argues each ground separately. Page 3 of 9 Starting with the 1st ground it was his submission that appellant did not dispute that he was arrested neither disputed his presence to the Magistrate when the disposition order was sought. He went on and explain further that when PW4 testified that appellant was present before the Magistrate when the order was issued, appellant did not cross examined PW4 and defence has nothing about his removal from police lock up and prayed the ground to be found with less merit. State Attorney wonders the complaint on the second ground about endorsing signature after testimony of each witness. It was his position that Hon. Magistrate signed at the end of each testimony just as required by law under section 210 (1) (a) of the CPA. He cemented his submission by Hado Dowido vs Republic, Criminal Appeal No. 107 of 2018 CAT at Arusha that if all witnesses testified and the Magistrate endorse signature at the end that is enough. On the 3rd ground State Attorney was of the position that the offence of being found with weapon within National Park is found under section 24 of Cap 282 and it provide conditions to be used to determine if a person is unlawful possessing the weapon within the National Park, that he lacks permit and must be in possession. He further elaborated that it is the duty Page 4 of 9 of accused person prove he did not intend to use weapons in National Park. In the case at hand State Attorney insisted the appellant failed to prove in his testimony while PW1 and Exh Pl and Exh P3 collaborate the commission of the offence. Mr. Isihaka insisted that chain of custody was intact as PW1 and PW2 testified how they arrested accused persons and how they seized their belongings which were surrendered at Nyamwaga Police Station and item seized were surrendered to exhibit keeper. He further submitted that Exh. P2 were admitted to prove the movement of the exhibits and he finds the 4th ground lacks merit. Submitting on ground number 5th State Attorney presented that during trial there was six documentary exhibits and the record shows all exhibits were read after admission and he prayed this court to find the ground lacks merit. About proving the offence beyond reasonable doubt, he informed this court that appellant was charged with two offences. One; found with weapons within National Park as submitted in the 3rd ground and two; be found with Government Trophy. It was his submission that all Prosecution witnesses explain how they found appellant with Government trophy and during hearing the appellant was supposed to raise some issues when Page 5 of 9 prosecution witnesses were in witness box so as to cast doubts. He pray the court to read Joseph Kanankira vs Republic Criminal Appeal 240 of 2019 at page 19. That was the submission on ground number 6. On the 7th ground about the map showing the place where appellant was arrested State Attorney relied on PW5 who tendered the Exh. 6 which was not objected. He said he is aware that Exh 6 was electronic Evidence which is governed by Electronic Transaction Act, Cap 442 RE 2022 at section 18 with its amendment by Act No. 11 of 2023 which detached the issue of admissibility and so far, as it is the issue of procedure, he posed that amendment can be acted retrospective. However, he said if it could be found there was a legal issue that misfortune can apply to the 1st count of being found with weapon in National Park as the possession of the Government trophy anywhere is an offence. He prayed the appeal be found with less merit and dismissed. During rejoinder appellant prayed this court to read between the lines and found he is innocent. I shall analyse this appeal by combining all grounds and find if the offence was proved beyond reasonable doubt. The appellant was convicted in two Page 6 of 9 counts one of them is being found in possession of Government Trophy, which is two hind limbs fresh meat of Zebra. The trophy being perishable, under PGO there must be sought for it be disposed before full trial. It is the Magistrate who has power to issue disposition order as per paragraph 25 of PGO No. 229 which reads; 25. 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. [Emphasis added].' The above quoted paragraph 25 envisages any nearest Magistrate, who may issue an order to dispose of perishable exhibit. This paragraph in addition emphasizes the mandatory right of an accused (if he is in custody or out on police bail) to be present before the Magistrate and be heard. See Mohamed Juma @ Mpakama vs Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27th February, 2019). From the proceedings, after arrest the Certificate of seizure (Exhibit PE 1) was filled and the appellant was taken to Nyamwaga police station together with exhibits. Later on, inventory form of claimed government trophy found Page 7 of 9 with the appellant (Exhibit PE 4) was prepared and presented before the Magistrate who issued the disposal order (Exh PE 5). PW3 testified at page 20 of typed proceedings that the declaration of destruction of Government trophy was filled and marked by the Magistrate where the accused (now appellant) was present. There is no proceedings showing what happened before the Magistrate, exhibit PE 5 was the declaration for destruction in which Magistrate is narrating what happened in court that on 20/12/2022 as she saw two fresh joined hind limb of Zebra which was suspected to belong to the appellant. Magistrate further reported that accused denied to be found with Government’Trophy before her. In the said declaration or rather the exh PE7, there is no proceedings show accused was before the Magistrate and was asked about the offence and the plea. What is recorded is a report of what happened and there is no plea. Narrating what accused admitted is not enough to concluded there was proceedings and there was a plea. That is to say, paragraph 25 was violated as appellant was not heard before the disposition order was issued. Hearing of the parties upon disposition of the perishable exhibit is a mandatory procedure. See also the case of Ngasa Tambu vs Republic (Criminal Appeal 168 of 2019) [2022] TZCA 455 (21 July 2022). It is the Page 8 of 9 position of this court that find Exh P5 was illegally procured and tendered and must be removed from court record, as I hereby do. See Ngasa Tambu vs The Republic (Criminal Appeal 168 of 2019) [2022] TZCA 455 (21st July, 2022) The remaining evidence are not sufficient to warrant the appellant's conviction on the 1st count. In the second count, appellant is charged being found with weapon within the National Park. I find the evidence prove so. Since the second count was not disturbed, the appellant has to complete the sentence as was imposed on 29/08/2023. That is the appellant's sentence of one year imprisonment. The appeal is allowed to the extent above. 19th day of August, 2024. Sgd: M. L. KOMBA JUDGE chamber in the presence of appellant and Ms. Natujwa Bakari, State Attorney for respondent. DR 21st August, 2024 Page 9 of 9