Jdg Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 30377 OF 2024 (Originating from the judgment of Criminal Case No. 2024 of 2024 of the District Court of Babati at Babati) SHABAN ALLY MUNA .......................................... APPELLANT VERSUS THE REPUBLIC ...................................................... RESPONDENT JUDGMENT 12th February & 14th March, 2025 Kahyoza, J.: The trial court convicted Shaban Ally Muna (the appellant) with the offence of unlawful possession of government trophy and imposed a custodial sentence of 20 years. It was alleged that the appellant was on 28.01.2024 found in possession of government trophy to wit; one giraffe head and three pieces of giraffe meat valued at USD 20,000 which was equivalent to Tzs. 50,019,802 the property of the united Republic of Tanzania without permit. The appellant pleaded not guilty. After full trial, the court convicted the appellant and sentenced him. He appealed raising eight specific grounds of appeal and one general ground of appeal that the prosecution did not prove him guilty. Given the grounds of appeal, I will consider the general ground of appeal whether the prosecution proved the appellant guilty beyond 1 reasonable doubts. It is settled that where the appellant raises the general ground of appeal together with specific ground(s) of appeal, it is proper for the appellate court to consider the general ground of appeal only to determine the appeal. The Court of Appeal took that position in Rutoyo Richard vs Republic (Criminal Appeal No. 114 of 2017) [2020] TZCA 298 (16 June 2020), where it stated that: - “Although we find it not to be a good practice for an appellant who has come up with specific grounds of appeal to again include such a general ground, but where it is raised as was the case in the present case, it should be considered and taken to have embraced several other grounds of grievance.” A brief background is that; Simon Kurya (Pw3), a park ranger with other park rangers, Goodluck Kalambani, Florian Mofulu, Hamish Chande and Benson Kambulu were patrolling Burunge Wildlife Areas on 28.01. 2024. They saw three people with two motorcycles within the area. They resolved to arrested them as they suspected that, they had no permit to be within Wildlife Areas. Unfortunately, two persons escaped using the motorcycles leaving being the appellant. The appellant attempted to run from arrest, as lucky was not on his side, they arrested him. They found a sulphate bag with blue and green strips and a machete. The sulphate bag had fresh meat and 2 head of giraffe with its skin. Simon Kurya (Pw3) prepared a certificate of seizure which the appellant signed. He tendered the certificate as Exh. PE V and the read the contents to the appellant. Emmanuel Boid Duxo (Pw3), the wildlife officer, identified the trophy as being meat and head of giraffe. He deposed that the head and pieces of meat had skin so it was easy to tell that it was giraffe meat. He also explained distinct features of giraffe, giraffe skin and giraffe meat. He tendered a trophy valuation certificate as exhibit PE VI. G. 1659 D/C Jerry, (Pw4) deposed that he interviewed and recorded the appellant’s caution statement. He tendered the caution statement as exhibit PE VII. The prosecution tendered the government trophy through No. F. 2449 Sgt. James (Pw1), the exhibit keeper at Babati police station. The court admitted the exhibits as Exh. PE I and ordered their disposal. The appellant’s account of event on oath was simply, that on 28.01.2024 whilst at home three police officers arrested him. They took him to the bush, tortured him and took him to Babati police station. The police officers who arrested him did not involve a ten-cell leader. The trial court believed the prosecution’s evidence and convicted the appellant. Dissatisfied, the appellant appealed to this Court. During the hearing of the appeal, the appellant appeared in person and the respondent 3 appear through Ms. Rose Kayumbo, learned state attorney. The appellant did not expound his grounds of appeal. The state attorney submitted at length and I will refer to his submission when replying to issues raised by appeal. Was the appellant unlawfully found with the government trophy? The evidence was that the appellant was found in possession of fresh meat and head of giraffe with skin. Emmanuel Boid Duxo (Pw3), the wildlife officer, identified the trophy as being meat and head of giraffe due to the skin which had patches (madoamadoa). He described the patches as being orange and yellow separated by white stripes. The head had two ossicones like horns. The witness’ identification evidence were as follows- “Mabaka ya rangi ya chungwa iliyochanganyikana na njano na kuwa yametenganishwa na mistari mweupe. Ananyama nyekundu na yenye minyuzinyuzi minene kiasi kwamba hakuna mnyama mwingine mwenye hiyo misuli/minyuzinyuzi. Kichwa kilikuwa na ngozi yake ya Twiga. Kigegedu mbili kama pembe (ossicone). Kilikuwa na nywele zilizosimama kuelekea mgongoni black in colour…” The appellant did not oppose the contention that, the meat and head were of giraffe but that he contended that he did not possess them at the 4 time of his arrest. I have no reason to fault Emmanuel Boid Duxo (Pw3)’s identification evidence as it was based on animal science and his experience in wildlife conservation and management. He described peculiar features of giraffe head, skin and meat. Like the trial court, I am of the firm view that the meat and head tendered as Exh.PE I were government trophy to wit, giraffe head and meat. I considered the issue, whether the exhibits allegedly seized from the appellant, were the exhibits Emmanuel Boid Duxo (Pw3) examined. Simon Barnabas Kurya (Pw2) deposed that, they arrested the appellant on 28.11.2024 at 17:30pm, seized the exhibits from him and took him with the exhibits to Babati police station. He described the exhibits as meat and head of giraffe, which were in a sulphate bag. He gave the exhibits to Sgt. James [F. 2449 Sgt James (Pw1)]. F. 2449 Sgt. James deposed how he received exhibits from Simon Barnabas Kurya (Pw2), marked and kept them in the exhibit room at Babati police station. The day following the appellant’s arrest and surrender of the exhibits to Babati police station, that is on 29.01.2024, F. 2449 Sgt James (Pw1) handed the exhibits to Emmanuel Boid Duxo (Pw3) for identification. Emmanuel Boid Duxo (Pw3) examined, identified, and valued the exhibits. He returned them to F. 2449 Sgt James (Pw1) for custody on the same day. 5 F. 2449 Sgt James (Pw1) kept the exhibits until the day he tendered them before the court on 05.3.2024. The exhibits were not tempered with. The exhibits Simon Barnabas Kurya (Pw2) seized, were the same exhibits Emmanuel Boid Duxo (Pw3) identified and valued as giraffe meat, and the same exhibits F. 2449 Sgt James (Pw1) kept and tendered to the court, thus, 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. The Court of Appeal in Wallenstein Alvares Santillan vs Republic (Criminal Appeal 68 of 2019) [2022] TZCA 516 (22 August 2022) took a position that a chain of custody may be proved by oral evidence. It held that- “In the case at hand, it is not disputed that there is no chronological documentation of the handling of exhibits PI (a) and Pl(b) from the time of seizure to tendering in court. However, having critically evaluated the evidence on record, we entirely agree with the learned Senior State Attorney that there is sufficient direct oral evidence to show that the handling of the respective exhibits demonstrate that the chain of custody was not broken.” 6 Simon Barnabas Kurya (Pw2) narrated how he and other park rangers arrested the appellant and two suspects managed to escape. He seized the wild meat from the appellant who signed the seizure certificate (Exh. PE V). The appellant complained without elaborating that Simon Barnabas Kurya (Pw2) was not a competent witness. The state attorney replied that Simon Barnabas Kurya (Pw2) was a competent witness to testify. She referred the Court to section 127 of the Evidence Act [Cap 6 R.E. 2022] (the TEA) which provides that each person is competent to testify. Simon Barnabas Kurya (Pw2) was not a younger person or incapacitated, hence he was competent to testify, she argued. I agree with the state attorney that in the absence of explanation as to why Simon Barnabas Kurya (Pw2) was not a competent person, he was a competent witness. Section 127(1) of the TEA provides that every person shall be competent to testify unless the court considers that he is incapable of understanding the questions put to him or of giving rational answers to those questions by reason of tender age, extreme old age, disease (whether of body or mind) or any other similar cause. There is no evidence to suggest that Simon Barnabas Kurya (Pw2) was incapable of understanding the questions put to him or of giving rational answers to those questions. I find appellant’s complaint baseless and dismiss it. 7 The appellant complained that the case was fabricated against him. The state attorney refuted the complain that the case was fabricated. I do not find any reason of holding that the case was fabricated against the appellant. The appellant did not tell what may have made Simon Barnabas Kurya (Pw2) to fabricate the evidence against him. The appellant complained that the inventory was prepared in violation of the law. Like the state attorney, I find the complaint baseless there was no inventory tendered as exhibit. The trial court ordered the exhibits, the trophy, to be disposed after they were tendered in court under section 101(1)(b) of the WCA. Section 101(1) of the WCA states that- “101.-(1) The Court shall, on its own motion or upon application made by the prosecution in that behalf- (a) prior to commencement of proceedings, order that- (i) any animal 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 of proceedings, 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.” 8 The procedure adopted by the trial court was permissible by the law. I examined the record and found that the appellant was given an opportunity to comment before the court issued the disposal order. The appellant did not oppose the exhibits to be disposed as he was not the owner. The appellant did not convince me that exhibits were not properly disposed. The appellant complained that, the DPP did not issue consent to the trial court to prosecute him with an economic offence. The state attorney submitted that the complaint was baseless as a consent and certificate were tendered in court. She argued that the prosecutor informed the trial court that the consent and certificate were attached to the charge sheet. She argued the trial court’s failure to endorse that it had received the consent and certificate is not a proof that the consent and certificate were not tendered. To support her contention, she cited the case of Shamim Omari Mwasha and another v. R, (consolidated Criminal Appeals No. 173 and 182 of 2021) [2024] TZCA 1105 (14 November, 2024). It is beyond disputed that the consent and certificate conferring jurisdiction to the subordinate court to prosecute an economic offence were annexed to the charge sheet. The prosecutor did notify the court that the consent and certificate were annexed to the charge sheet. The court did not endorse that the consent and certificate were tendered. The Court of Appeal 9 held in Shamim Omari Mwasha and another v. R (supra) the case the state attorney cited, that the omission to endorse was procedural omission which may be cured under section 388 of the CPA. It held that- “Thus, non-endorsement, being a procedural omission which was not demonstrated to have affected the appellants, is, in our fortified view, curable under sections 388 of the CPA. Next, we will consider the point raised by the learned State Attorney that there is no statutory procedure in place to file a consent to the High Court.” I agree with the state attorney that, the court’s failure to endorse the consent and certificate did not affect the fact that the DPP issued a consent and conferred jurisdiction to the district court to try an economic offence. I dismiss the complaint. I wish to point out that the prosecution tendered the appellant’s caution statement as exh. PE.VI. However, upon scrutiny of the record, I found that the appellant told the court the police forced him to sign the caution statement. The court overruled the appellant’s objection. It is obvious the appellant’s contention that police forced him to sign the caution statement, he challenged the prosecution’s testimony that the caution statement was obtained voluntarily. Thus, after the appellant stated that he was forced to sign the caution statement, the trial court had a duty to 10 conduct an inquiry to establish whether the appellant made the statement voluntarily. The Court of Appeal in Twaha AH & 5 Others Vs R., Criminal Appeal No. 78 of 2004 (unreported) explained what should be done when an accused person objects to the caution statement being tendered in evidence. It stated that- "If that objection is made after the trial court has informed the accused of his right to say something in connection with the alleged confession, the trial court must stop everything and proceed to conduct an inquiry (or trial within a trial) into the voluntariness or not of the alleged confession. Such an inquiry should be conducted before the confession is admitted in evidence” The Court of Appeal in Makumbi Ramadhani Makumbi and 4 Others (Criminal Appeal No. 199 of 2010) [2013] TZCA 2186 (26 November 2013) explained the effect of failure to conduct an inquiry in a situation where it was supposed to be held. It stated that- "Failure to conduct a trial within a trial is, in our settled view, a fundamental and incurable irregularity and inevitably leads to the admitted confessional statement being expunged from the record and/or vitiating the trial either wholly or partially depending on the facts of each case.” In the present case, I am of the position that the trial court’s failure to conduct an inquiry renders the caution statement, Exh. PE VI to have been 11 wrongly admitted and of no use. I expunged it from the record. Apart from expunging the caution statement, I find there is still evidence to support the appellant’s conviction. Finally, I find the appeal without merit, dismissed it and uphold the appellant’s conviction and sentence. It is ordered accordingly. Dated at Babati, this 14th day of March, 2025. J. R. Kahyoza Judge Court: Judgment delivered in the absence of the appellant and Ms. Rose Kayumbo, State Attorney for the Respondent, who could not connect to the virtual Court. Mr. Shedrack (RMA) present. John R. Kahyoza Judge 14.03.2025 12