image0017

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [MOROGORO SUB-REGISTRY] AT MOROGORO CRIMINAL APPEAL NO.40803 OF 2023 (Arising from the Judgement of the District Court of Kilombero at Ifakara in Economic Case No. 11 of 2023 dated 27^'' November, 2023 by Saning'o, RM) SAIDI ALLY @MBUZI APPELLANT VERSUS REPUBLIC RESPONDENT JUDGEMENT 26/03/2024 & 29/04/2024 KINYAKA, 3.: At the District Court of Kilombero at Ifakara, hereinafter, "the trial court", the appellant was charged with and convicted of two counts of unlawful possession of government trophies contrary to section 86(1),(2)(c)(ii) and (3) of the Wildlife Conservation Act, Cap. 283 R.E. 2022, hereinafter, "the WCA" read together with paragraph 14 of the First Schedule to sections 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap. 200 R.E. 2022, hereinafter, "the EOCCA", in Economic Case No. 11 of 2023. It was alleged before the trial court that on 10^^ February 2023, at Msakamba area within Nyerere National Park, within Kilombero District in Morogoro 1 W- Region, the appellant was found in possession of government trophies namely, front body part of hartebeest(unskinned head and neck with horns) valued at US$ 650 equivalent to TZS 1,493,700; and front body part of common duiker (unskinned head and front body part with two fore limbs) valued at US$ 250 equivalent to TZS 574,500, both the properties of the United Republic of Tanzania without permit from the Director of Wildlife. Upon hearing the evidence of the prosecution and the defence, the trial court found the offences were proven by the prosecution beyond reasonable doubt, hence it convicted the appellant of both counts and sentenced him to twenty years imprisonment for each count which were to run concurrently. Dissatisfied with the conviction and sentence, the Appellant appealed to this Court preferring five grounds of appeal as reproduced below: 1. That the trial court had no jurisdiction to try the economic case; 2. That the prosecution failed to establish chain of custody; 3. That the trial court erred in law and facts for convicting and sentencing the appellant based on respondent's contradictory evidence; 4. The trial court's proceedings were marred with procedural irregularities; and ... 5. That the charge against the appellant was not proved to the required standard by the prosecution. At the hearing of the appeal, the appellant appeared in person and unrepresented. The respondent was duly represented by Mr. Josberth KItale, learned State Attorney. Mr. Kitale was quick to concede on the first ground of appeal attacking the jurisdiction of the trial court to try the economic offence without the consent and certificate of the Director of Public Prosecution, hereinafter, "the DPP" being endorsed and reflected in the trial court's proceedings. He pointed out that though the jurisdiction to hear economic cases lies to the High Court Corruption and Economic Crimes Division under section 3(1) and (3) of the EOCCA, section 26(1) gives mandate to the DPP to confer jurisdiction upon subordinate courts to hear ecpnomic cases or under 26(2) to delegate his powers to issue certificates and consents under section 26(2) of the EOCCA. He added that although the consent and the certificate were attached to the charge sheet, it was not indicated in the proceedings how the same were admitted by the trial court. He argued that the defect vitiates the entire proceedings of the trial court relying on the case of Salum Andrew Kamande v. R, Criminal Appeal No. 513 of 2020 which referred to the case of Aloyce Joseph v. R., Criminal Appeal No. 35 of 2020, where the Court of Appeal held the proceedings of the trial court a nullity for failure to reflect on the record the formal recording and endorsement of the certificate and consent. On the way forward, guided by the decision in the case of Fatehati Manji V. R.,(1966)1 E.A. 343, Mr. Kitale urged the Court to order retrial as the respondent adduced sufficient evidence which proved that the appellant was arrested with government trophies; seizure certificate was filled and later on the trophies were sent to the exhibit officer together with the appellant; valuation was conducted and filled; the exhibit was sent to the magistrate for destruction in the presence of the appellant, destroyed and inventory form was tendered in court. He argued that as for the fact that the appellant signed seizure certificate, it is clear that the appellant was found with government trophies as held in the case of Shabani Waziri Mizogi V. R, Criminal Appeal No. 476 of 2019 where the Court of Appeal cited the case of Song Lei v. DPP, Criminal Appeal No. 16 of 2017. He prayed for an order for retrial of the criminal case before the District Court of Kilombero before another magistrate. On his part; the appellant strongly submitted that the prosecution evidence was not sufficient to establish the offence against him. He contended that he was forced to sign the document and that he didn't know what he was signing as he did not know how to read and write. He argued that if he knew the nature and contents of the documents, he would not have signed the same. He faulted the prosecution evidence which contained contradictions of evidence of PWl and PW5. He contended that PWl testified that the trophies were rotten but PW5 testified that the same were fresh. The appellant added that the chain of custody of the trophies was not established. He argued that the police who interrogated him was not the one who testified in court. He added that hearing of the case before the trial court was delayed unnecessarily. In resolving the present appeal, I will start with determining the first ground of appeal faulting the trial court to hear, convict and sentence the appellant without jurisdiction. In his submissions, the respondent conceded to the ground based on the trial court's failure to record and acknowledge the certificate and consent issued under section 26(2) of the EACCA. I have read the proceedings of the trial court. Although the consent and certificate were duly issued by the State Attorney in Charge and filed in the trial court on 16^^ February 2023, the proceedings do not reflect if the same were received and acknowledged by the court to form part of the trial court's records. It has been the position of law through decided cases which I subscribe, that failure to record and acknowledge the consent and certificate of the DPP or his delegate vitiates the entire proceedings. For instance, in the case of Salumu s/o Andrew Kamande (supra), the Court of Appeal upon citing with approval its decisions in the cases of Aloyce Joseph v. The Republic, Criminal Appeal No. 35 of 2020 [2022] TZCA 771; [05 December, 2022, TANZLII] and Maulid Ismail Ndonde v. The Republic, Criminal Appeal No. 319 of 2019 [2021] TZCA 538;[29 September, 2021, TANZLII], held on page 13 of the decision that: Since there is no dear indication discerned from the record of appeai as to how the consent and certificate find their way into the triai court record, we are in agreement with the counsei for the parties that the appeiiant was tried without a prior consent ofhis prosecution and there was no certificate issued to confer jurisdiction on the District Court of Mufmdi at Mafmga. Given that there was no consent and certificate, the triai court lackedjurisdiction to try the appeiiant with an economic offence. ■t'" Accordingly, we find that the trail court proceedings and that of the first appellate court were a nullity. Similarly, I find the appellant was tried without prior consent of his prosecution and lack of certificate to confer jurisdiction on the District Court of Kilombero at Ifakara to try the offence he stood charged with. Consequently, I nullify the trial court's proceedings and the resultant decision 1 of the District Court of Kilombero at Ifakara In Economic Case No. 11 of 2013. As to whether an order for retrial is proper In the circumstances, I am guided by the principle articulated in the case of Fatehali Manji (supra) cited by Mr. Kitale, learned State Attorney which stated: "In general, retrial will be ordered only when the original trial was illegal or defective. It will not be ordered where conviction is set aside t)ecause of insufficiency of evidence or for the purpose of enabiing the prosecution to fill up the gaps in its evidence at the first triai. Even where a conviction is vitiated by a mistake ofthe triai court for which the prosecution is not to be biamed, it does not necessarily follow that a retrial shall be ordered; each case must depend on its own facts and circumstances and an order ofretrialshould only be made where the interests ofjustice require. In assessing whether or not the prosecution managed to prove the offences against the appellant beyond reasonable doubt, I will assess, albeit briefly, the evidence of the prosecution at the trial. The prosecution evidence at the trial was manned with five witnesses. The flow of evidence that was sought to establish the offences was that the appellant was found on 10^^ February 2023 at 3:00hrs at Msakamba within Nyerere National Park by PWl and his two fellow rangers in possession of government trophies namely, front body part of hartebeest(unskinned head and neck with horns), and front body part of common duiker (unskinned head and front body part with two fore limbs) without permit from the Director of Wildlife. Upon preparing the certificate of seizure which was read by PWl and duly signed by the appellant (Exhibit PEl), PWl took the appellant, trophies, appellant's bicycle (Exhibit PE2)and panga (Exhibit PE3) to Ifakara station. PWl testified that he handed the appellant and all exhibit to SSGT Charles (PW3). PW3 testified that he received the conservation rangers, the appellant and exhibits while on duty at about 04:30hrs on 10^^ February 2023. He was shown the trophies which he described as 'nyama ya kongoni, nyama ya funo, baiske/iyenye rangi ya damu ya mzee kamongo na panga moja. Nyama ya kongoni Hikuwa na kichwa na Hikuwa na mapembe na shingo; na nyama ya funo Hikuwa kichwa, kifua na miguu yote ya mbele. That at about 06:30hrs in the morning CPL Aidan, the Exhibit Keeper arrived at the police station where he handed him the bicycle and panga for keeping them at the exhibit room. It was until 7:00hrs when D/Sgt. Rehema (PW4) was appointed to investigate the crime, when PW3 handed the meat for filing inventory form and other procedures. PW4 testified that it was the OCCID who informed her about the trophies and she later on went to D/SGT Charles who handed her the meat which she described as ^nyama ya kongoni iiiyoungana na kichwa pamoja na pembe na nyama ya paa ambayo nikichwa kimeungana na miguu ya mbeie'at 7:00hrs. She handed the meat to the Valuer (PW5) who conducted valuation and confirmed that the meat was that of kongoni and paa. In turn, PW5 gave her the valuation form and the trophies where she took them to the magistrate known as Mashabara (PW2) together with the accused person and Sgt. Magoso. PWS's evidence was that she reached at Ifakara police station at 7:00 hrs where PW4 handed her a white sulphate bag with meat. Upon opening the bag, she found uncooked meat of common Hartebeest (kongoni) with head connected with neck and the other was common Duiker (paa/funo) with head connected with a neck and two fore limbs. After her valuation, she returned the sulphate bag to D/Sgt Rehema. PW2 testified to have disposed of the trophies on 10^^ February at 12:00hrs infront of the appellant and D/Sgt Rehema. He described the trophies which had bad smell as 'kongoni alikuwa kichwa na pembe na shingo, mnyama mwingine alikuwa funo/paa aiikuwa kichwa, shingo na sehemu ya juu inayoungana na kifua na kidaii' The inventory was admitted as Exhibit PE4. From the foregoing flow of evidence, I find that there are clear manifested gaps on the chain of custody of the government trophies. The main gap is occasioned by lack of documentation in the process of handling of the trophies. Even by assuming that the documentary evidence was not all that was required, but I cannot safely rely on the oral testimonies of the prosecution witnesses to hold that the chain of custody was intact. The reasons for so holding are obvious. At the trial, the prosecution failed to prove how the trophies were stored or kept immediately upon their receipt by PW3. It is not stated why PW3 handed only the bicycle (Exhibit PE2) and panga (Exhibit PE3) to the Exhibit keeper, one CPL Aidan and not the trophies as reflected on page 20 of the proceedings. It was not established 10 how the trophies were stored in the CRO while awaiting OCCID to appoint the investigator. PW3 did not establish where, how and from whom he took the trophies which he later on handed to D/SGT Rehema at 7:00hrs. PW4 did not establish how and for how long the trophies were kept at the police station and how and for how long the same were transported from Ifakara police station to PW2 for destruction. To make it worse, PW2 gave a different description of the duiker where he stated to have received the duiker as "mnyama mwingine alikuwa funo/paa alikuwa kichwa, shingo na sehemu ya juu inayoungana na kifua na kidair contrary to the description of the same trophy by PW3, PW4 and PW5 as 'nyama ya paa ambayo nikichwa kimeungana na miguu ya mbde'. Despite the fact that the trophies changed hands, there is no paper trail of the movement of the exhibits and the evidence of the prosecution witnesses is not intact. Again, the contradiction in the description of the duiker between PW2 on one hand and PW3, PW4 and PW5 on the other is fatal especially in the present matter where PW2's description does not match his description of the same in the inventory form admitted as Exhibit PE4. In the circumstances, it cannot be clearly established that the trophies were not tempered with.That said, I find the chain of custody was broken. 11 Based on the above observations, despite the procurement of inventory form which was admitted by the trial court as Exhibit PE4,1 accord lesser weight to the same based on the contradictions in description of duiker between the evidence of PW2, the magistrate who saw the trophies, and what was contained in Exhibit PE4 together with the evidence of PW3, PW4 and PW5. If what PW2 who ordered destruction of the trophies saw funo/paa aiikuwa kichwa, shingo na sehemu yaJuu inayoungana na kifua na Zr/iy^Z/'contrary to what was written in Exhibit PE4 and testified by PW3, PW4 and PW5 as 'nyama ya paa ambayo ni kichwa kimeungana na miguu ya mbeie', the trophy (duiker) was tempered with. Because, one would wonder where were the duiker's fore limbs seen by PW3, PW4 and PW5 that before the duiker was handed to PW2 for inventory purpose? Why the duiker was found with drumstick without its fore limbs? I find the contradiction as fatal and impaired the credibility of the testimonies of PW2, PW3, PW4 ahd PW5 as well as Exhibit PE4 which sought to prove the existence of the trophies found in possession Of the appellant. Upon according lesser weight to Exhibit PE4 and the evidence of the prosecution that sought to establish the chain of custody, the remaining evidence to prove that the appellant was found in possession of the trophies 12 is the evidence of PWl and Exhibit PEl, the certificate of seizure. PW2 testified to have prepared the certificate of seizure, read the same to the appellant which the appellant duly signed. On the other hand, the appellant testified that he was not found with the trophies but he found PWl and his colleagues with luggage on three bicycles which contained the trophies. He testified that he was beaten as appear in his testimony on page 35 of the proceedings. When he was cross examined, DWl testified that: ''The witness (PWl) explained that he filled the certificate of seizure. Isaw them holding a piece ofpaper,Idon t know what they wrote. Ialso signed on thatpaper,Idon tknow to readand write, so Isigned the thing which Idon t know. Iexplained that T was beaten by conservation rangers when they arrested me. I have read the proceedings including Exhibit PEl, the certificate of seizure, Exhibit PE4, the inventory form and the hand written proceedings of the trial court where the appellant had in some Instances been required to put his signature on the respective case file, and found that he has always been affixing his thumbprint thereon. To me, this proves that the appellant did not know how to read and write. As to the prosecution, the evidence of PWl that he and his colleagues found the appellant with the trophies, and that he read Exhibit PEl to the appellant 13 after he filled the same, was not corroborated. The prosecution did not call any of the two conservation rangers, Emmanuel Wegesa and Musai Julius, who were with PWl and the witnesses to Exhibit PEl. As there was doubt casted by DWl on the proper procurement of Exhibit PWl,there should have been cogent evidence from the prosecution side to prove that the certificate of seizure was properly and independently procured. My above observations leads me to disagree with Mr. Kitale that the signing of the certificate of seizure by the appellant meant acceptance that the trophies were found in his possession. It means that the decisions of the Court of Appeal in the cases of Shabani Waziri Mizogi (supra) and Song Lei (supra) cited by Mr. Kitale are distinguishable from the circumstances of the present case. I also accord lesser weight to the Exhibit PEl. Following my above findings, there remain no cogent evidence on part of the prosecution to prove that the appellant was found in possession of the government trophies. It means that the prosecution failed to prove the two counts constituting the offence of unlawful possession of the government trophies against the appellant beyond reasonable doubt. In the circumstance, I find that an order for retrial is not justified. I find merit in the appeal and proceed to quash the trial court's conviction against 14 the appellant, set aside the sentences and order his immediate release from prison, unless he Is held therein for other lawful cause. It Is so ordered. DATED at MOROGORO this 29'^ day of April 2024. ^coi)Rr H, A. KINYAKA JUDGE 29/04/2024 I, . ,- - ., 5?oro&o^ .• •• > , • • f 15 Court Judgment delivered in the presence of Ms. Edina Aloyce, learned state Attorney for the Respondent and the Appellant who appeared in person. F.Y. Mbelwa DEPUTY REGISTRAR 29/04/2024 Right of Appeal explained to the parties. rO^RT F.Y. Mbelwa i DEPUTY REGISTRAR a 29/04/2024 MOROtiO*' 16 J .V' , K I