WAMBURA NCHANGWA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000018373 OF 2024 (Arising from the District Court of Bunda (M.P. Kamuntu-SRM) in Economic Case No. 05 of2023) BETWEEN WAMBURA NCHAGWA...........................................................................APPELLANT VERSUS THE REPUBLIC.................................................................................... RESPONDENT JUDGMENT OF THE COURT 05/03/2025 & 26/03/2025 Kafanabo, J.: This is a judgment in respect of an appeal emanating from the District Court of Bunda at Bunda (hereinafter referred to as the 'trial Court'), in Economic Case No. 05 of 2023 and in respect of a judgment dated 17th May 2024 (M.P. Kamuntu-SRM). The Appellant herein was arraigned before the District Court of Bunda at Bunda on a charge containing two counts as demonstrated herein below. In the 1st count, the Appellant was charged with the unlawful possession of weapons in the National Park contrary to section 24(l)(b) and (2) of the National Parks Act, Cap. 282 R.E. 2002. In the particulars of the offence, it was alleged that on the 16th day of April 2023 in the 'Kipekecho' area, in the Serengeti National Park, within the Bunda District in the Mara Region, the Appellant was found in unlawful possession of weapons, namely 'one machete and one knife' without a permit, and he i failed to satisfy an authorized officer who arrested him that the same were intended to be used for purposes other than hunting, killing, wounding or capturing of animals. In the second count, the Appellant was charged with the offence of unlawful possession of government trophies contrary to sections 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 sections 57(1) and 60(2) of the Economic and Organised Crime Control Act [Cap.200 R.E. 2022]. In this count, it was alleged that on the 16th day of April 2023 in the 'Kipekecho' area, in the Serengeti National Park, within Bunda District in the Mara Region, the Appellant was found in unlawful possession of government trophies, namely two (02) limbs of wildebeest killed and valued at USD 650, equivalent to TZS 1,519,700/= the property of the United Republic of Tanzania without a permit from the Director of Wildlife. On 15/05/2023 the charge was read over to the Appellant who pleaded not guilty, hence the matter proceeded to a full trial. Upon closure of the evidence for both sides, the trial Magistrate was satisfied that the Respondent proved her case beyond a reasonable doubt. Accordingly, the Appellant was convicted of both counts leveled against him. The Appellant herein was thus sentenced to pay a fine of TZS 20,000/= or serve one (01) year imprisonment for the first count, and serve nineteen (19) years imprisonment for the 2nd count. The Appellant was dissatisfied with the said decision and thus preferred the present appeal. The Appellant's petition of appeal sets forth seven grounds of appeal whose substance is as follows: 2 1. The evidence presented before the court was totally fabricated raising doubts about the validity of the accusation. 2. The evidence adduced by witnesses was obtained through coercion and thus undermining their credibility and the prosecution's case. 3. The Court erred in handling evidence, the mishandling and misrepresentation of the artifact as a government trophy compromised the integrity of evidence. 4. The Appellant's constitutional rights might have been violated during the arrest, interrogation, and evidence collection process. 5. There were insufficient and biased investigation procedures, that led to unfair trial. 6. The trial Court misinterpreted the relevant laws and regulations in reaching its decision. 7. The trial Court erred in law and fact by convicting and sentencing the Appellant in respect of the 1st and 2nd counts while the prosecution failed to prove the said counts beyond a reasonable doubt. At the hearing of the appeal, the Appellant entered an appearance in person and Ms. Grace Madikenya, Senior State Attorney, entered an appearance for the Respondent. The parties were thus invited to address the grounds of appeal. The Appellant supporting the appeal, and having little to say, submitted that there are seven grounds of appeal, he prayed that the Court be pleased to accept and believe in them. The Appellant urged the Court to be pleased to release him so that he could join his family. 3 Responding to the Appellant's submission and the grounds of appeal the learned State Attorney, setting the ground level, submitted that the Respondent opposes the Appeal. She also submitted that the Appellant's seven grounds of appeal boil down to one major ground, that the prosecution did not prove the charge against the Appellant beyond a reasonable doubt. The learned State Attorney also elucidated that the Appellant was charged with two offences, one is the unlawful possession of weapons in the national park which she prayed that the Appellant be discharged from because, currently, there is no that offence. She thus unveiled that her submissions would focus on the offence of unlawful possession of the government trophy addressing the three ingredients of the offence of unlawful possession of the government trophy, the chain of custody of the government trophy, and the inventory form. As regards ingredients of the offence, she submitted that the testimonies of PW1 and PW2, who were the arresting officers, explained how they arrested the Appellant with two limbs of wildebeest on 16/ 04/2024 without a permit. The Appellant signed exhibit P2 (seizure certificate) admitting to be found with the said two limbs of the wildebeest. Also, PW4, the valuer and the identifier of the government trophy identified the trophy as being that of wildebeest and he explained how he identified the limbs to be that of the wildebeest by the colour of the skin as dark brown and the kind of hooves to the effect that they were of the wildebeest as they were single fused. 4 It was further submitted that the inventory form of the government trophy, exhibit 'P5', together with the testimony of PW4, Gift Sanga- the valuer, who explained well how they took the Appellant to the Magistrate, and he was asked to give his opinion or comment and the Court gave the order to dispose of the trophy. The Appellant was asked about his comments and exhibit 'P5' indicates that after the comments of the Magistrate, the suspect said that the exhibit was his and he signed the inventory form by affixing a thumbprint on the inventory form, and the date was indicated as 17/04/2023. It was further submitted that disposal of the government trophy was done according to section 101(l)(2) of the Wildlife Conservation Act, Cap. 283 R.E. 2022, and the PGO 229 which provides on how the exhibit should be handled. The learned State Attorney also submitted that the exhibit was handled as per the guidance explicated in the case of Buluka Leken Ole Ndidai & Another vs Republic (Criminal Appeal No. 459 of 2020) [2024] TZCA 116. Moreover, it was argued that the chain of custody of the exhibit (government trophy) from arrest to disposition was well explained both orally and in writing as evidenced by exhibit 'P6', a chain of custody record. From the arresting officer, PW2, to Juma and PW5, the investigator, who took it from Juma and handed it over to PW4, and the valuer, who took it to the Magistrate to seek a disposal order. It was further argued that according to the paper trail, and oral testimony, the chain of custody of the government trophy did not break. 5 Therefore, it was submitted that the offence of unlawful possession of a government trophy was proved beyond reasonable doubt, and it was prayed that the decision of the trial Court as regards the 2nd Count be upheld, and the appellant should continue to serve the sentence imposed on him by the trial Court. Having heard the parties on their submissions regarding the grounds of appeal, this Court, as rightly observed by the learned State Attorney, is if the view that all seven grounds of appeal as set forth by the Appellant pucker to one major ground; that the Respondent (Republic) did not prove the charge against the Appellant beyond a reasonable doubt. Therefore, this appeal's epicenter is to determine whether the charge against the Appellant was proved beyond reasonable doubt. As regards the first count of unlawful possession of weapons in a national park, the learned State Attorney, Ms. Grace Madikenya, submitted that the Appellant be discharged of the offence because, currently, it is not an offence under the law. However, the learned State Attorney did not cite any provision of the law making the said act of 'unlawful possession of weapons in a national park' not an offence under the law in respect of which the Appellant was charged. Currently, this Court understands that the complained act is an offence under the relevant law. Upon review of the law, this Court is of the view that the learned State Attorney, with profound respect, overlooked and/or misapprehended the offence with which the Appellant was charged. 6 As alluded to earlier, the 1st count levelled against the Appellant is that of unlawful possession of weapons in the national park. The section under which the accused was charged reads as follows: '24.-(1) No person shall, save under and in accordance with a permit in writing signed by an authorised officer, within any national park- (a) dig, lay, or construct any pitfail, net, trap, snare or other device whatsoever, capable of killing, capturing or wounding any animal; (b) carry or have in his possession or under his control any weapon in respect of which he fails to satisfy the Trustees or any authorised officer that it was intended to be used for a purpose other than the hunting, killing, wounding or capturing of an animal. (2) Any person who contravenes any of the provisions of this section commits an offence and is liable on conviction to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding two years or to both." In light of the above provision, the offence of unlawful possession of weapons in the national park is still an offence under the statute, and this Court is not aware of any amendment of the law either repealing or altering the substance of the said section. 7 Moreover, this Court is aware that 'Unlawful entry into the national park' which was initially an offence under the National Parks Act, was affected by the amendments brought by the Act. No. 11 of 2003, and it is, currently, not an offence under the law. This position was also clearly stated by the Court of Appeal in the case of Dogo Marwa @ Sigana & Another vs Republic (Criminal Appeal No. 512 of 2019) [2021] TZCA 593 (21 October 2021). The Court observed that: "It is now apparent that the amendment brought under Act No. 11 of 2003 deleted the actus reus (illegal entry or illegal remaining in a national park) and got confusion in section 21(1) of the NPA. As far as we are concerned, the appellants were charged, tried, convicted, and sentenced for a non-existent offence of unlawful entry into Serengeti National Park." Therefore, this Court concludes that the 1st count of unlawful possession of weapons in the National Park is still an offence under the National Parks Act and the Court shall proceed to determine whether it was proved beyond reasonable doubt by the Respondent. It follows that the issue of whether the 1st count of unlawful possession of weapons in the national park was proved beyond reasonable doubt will not detain this Court because the Respondent failed to prove that the Appellant was found within the Serengeti National Park whilst carrying or possessing, or controlling any weapon. This is due to the fact that the prosecution was supposed to prove, which they did not, that the Appellant's point of arrest was within the Serengeti National Park. 8 The aborted attempt to prove that the Appellant was found in the Serengeti National Park with weapons was through the prosecution's witnesses PW1 and PW2 who were arresting officers, and PW3 who was the cartographer who drew the map showing the Appellant's point of arrest. Both PW1 and PW2 testified that, after they had arrested the Appellant, they took the coordinates of the point of arrest. However, they did not state specifically who amongst them took the alleged coordinates, and the worst case is that in their testimonies before the trial Court, PW1 and PW2 did not mention the coordinates they allegedly took at the point of arrest. Besides, the ailment of not mentioning the coordinates was contagious as PW3 was, also, infected. He testified that he received information about the arrest of the poacher and the coordinates in respect of which he was asked to draw the map showing the point where the poacher was arrested. However, he, also, did not testify from whom he received the coordinates and he did not mention the coordinates he allegedly received. Perplexingly, PW3 drew the said shaky map which was admitted by the trial Court as exhibit 'P3' by using the coordinates whose source is unknown. It follows that the said exhibit 'P3' which was key in proving that the Appellant was arrested with weapons in the Serengeti National Park is unreliable and should not have been given evidential weight because of the following: 9 One, the person who took the coordinates is unknown as was not mentioned by PW1 and PW2. Two, PW1 and PW2 did not mention even a single digit of the coordinates in their testimonies. Three, there is no chain of custody or audit trail of the unproven coordinates from the unknown person who took the coordinates to PW3 who allegedly drew the map. Four, PW3 did not testify on the source of information and coordinates that he used to draw the map. Five, since the coordinates are part and parcel of electronic evidence in terms of section 64A(3) of the Evidence Act, Cap. 6 R.E. 2019, read together with section 3 of the Electronic Transactions Act, 2015, the coordinates in the present case were taken, and the map was drawn, in contravention of sections 18 and 19 of the Electronic Transactions Act, 2015. The said sections require the originator of electronic data to be properly identified, the authenticity of the data, the reliability of the device used to take the data, and the manner in which the data was conveyed from one person to another to be verified. All of the above are missing in the present case. Also see the decision of this Court in Richard Changei Ng'ombe vs Republic (Criminal Appeal 40809 of 2023) [2024] TZHC 1585 (24 April 2024). In light of the above, it is clear to this Court that the deficiencies above indicate that there are serious doubts on whether the Appellant was arrested in the Serengeti National Park whilst carrying weapons as alleged by the Respondent. io Steering, now, to determine whether the 2nd count was proved beyond reasonable doubt, this Court bears in mind that the learned State Attorney fervently argued that the same was proved beyond reasonable doubt referring to testimonies of witnesses and the exhibits she deemed relevant. In light of the testimonies of PW1 and PW2, the Appellant was arrested with two fresh forelimbs of wildebeest, which gained support from a certificate of seizure which was admitted as exhibit 'P2'. However, the chain of custody document which was admitted by the trial Court as exhibit 'P6' indicates that there were two limbs suspected to be of the wildebeest, one being a forelimb and the other being the rear/hindlimb. This contradicts the testimonies of PW1 and PW2 and the contents of exhibit 'P2'. Moreover, all other persons whose names appear in the chain of custody record, exhibit 'P6' received one fore limb and one rear/hind limb both of wildebeest contrary to the testimonies of the arresting officers. The confusion is also fueled by the contents of the trophy valuation certificate admitted as exhibit 'P4' by the trial Court, and contents of the inventory form admitted as exhibit 'P5' by the trial Court. Both exhibits 'P4' and 'P5' indicate two limbs of wildebeest without indicating whether they were forelimbs or hind limbs. The deference detaches exhibits 'P4', 'P5', and 'P6' from the testimonies of PW1, PW2 and exhibit 'P2'. The expounded contradiction, though may seem trivial at the outset, is key in determining which trophy the Appellant was allegedly arrested with. This question cannot be confidently, and without a doubt, answered 11 by the evidence on record situation which casts doubt on the Respondent's case. Another aspect that this Court deems necessary to address in determining whether the second count was proved beyond reasonable doubt, is whether the inventory form, which stands as a substitute for a trophy allegedly ordered to be disposed of by the Court, tendered and admitted as exhibit 'P5', met the basic requirements to be relied upon by the trial Court in convicting the Appellant for being found with unlawful possession of the government trophy. The starting point in determining the manner of handling a perishable government trophy like the one in the present case is governed by section 101( 1 )(2) of the Wildlife Conservation Act, [Cap. 283 R.E. 2022] which provides that: "101.-(1) The Court shall, on its own motion or upon application made by the prosecution in that behalf- (a) prior to commencement ofproceedings, 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 ofproceedings, order that- (i) any animal or trophy which is subject of speedy decay; or 12 (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. (2) The order of disposal under this section shall be sufficient proof of the matter in dispute before any court during trial. In light of the foregoing, it is clear that before the commencement of the proceedings, the Court shall, upon application made by the prosecution on that behalf, order the disposal of a trophy that is subject to a speedy decay. It is also clear that apart from giving the mandate to the Court to order the disposal of a government trophy which is subject to a speedy decay no procedure to be followed has been set by the said Act. A little rescue in that respect comes from paragraph 28 PGO 229 which also is not exhaustive, but provides as follows: "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." The above provision of the PGO requires that an exhibit that cannot be easily preserved, like the one in the present case, be brought before the Magistrate, together with the prisoner (if any) so that the Magistrate may note. In addition to the above requirements, other key steps have been explained and developed by case law. In the case of Buluka Leken Ole 13 Ndidai & Another vs Republic (supra), cited by the learned State Attorney, (Criminal Appeal No. 459 of 2020) [2024] TZCA 116, the Court of Appeal held that: "Nonetheless, it is worthwhile to note that indeed, there is a lacuna in the law. Presently, there is no statutory procedure providing for the proceedings to put into effect the requirements of section 101(1) and (2) of the WCA and paragraph 25 of PGO No. 229, which provisions are necessary for procuring a disposal order for a perishable exhibit. In our view, as an interim measure pending promulgation of any rules of procedure for that purpose, it will be sufficient for a magistrate before whom an order to dispose of a perishable Government trophy or trophies, to make such order, provided that; one, the prayer to issue the order to dispose ofperishable exhibits may be made by the investigator or the prosecution informally before a magistrate in chambers; two, if the order is likely to be relied upon in any future court proceedings against any suspect, that suspect must be present at the time of making the prayer and; three, the suspect must be asked as to his comments, remarks or objections as regards the perishable exhibits sought to be destroyed. Four, if that suspect does not make any comments, remarks or objections, the magistrate shall record the fact that, the suspect was invited to make any comments, remarks or objections, but he opted to make none. Five, if the suspect makes any comments, remarks or objections, they shall be recorded as appropriate either on the reverse side of the Inventory Form or on 14 any separate piece of paper or papers and shall be signed by the magistrate. In her submissions, the learned State Attorney adamantly submitted that all requirements of the law including the conditions in the above case law were duly met by the inventory form admitted as exhibit 'P5' and the trophy disposal proceedings thereof. However, this Court, by considering the guidance of the authorities above, and the contents of the relevant inventory form, which have been duly examined by this Court, the following observations have been made: One, the said inventory form bears no proceedings of whatsoever nature. This means that the District Court of Bunda whose stamp is seen on the inventory form did not conduct any proceedings before ordering the disposal of the said government trophy. The learned State attorney banked on the purported suspect's comments appearing on the said inventory form and the alleged thumbprint as proof that proceedings were conducted. Nevertheless, this Court is far from convinced because all that the learned State Attorney relied on are assumptions not found on the basis of the contents of the inventory form. Two, the record of the said inventory form does not indicate who attended the proceedings before the Magistrate. The proper proceedings would have indicated what transpired in Court, especially between the Court, the prosecution, or any person on that behalf, and the suspect/Appellant in order to establish that the Appellant was presented before the Magistrate for purposes of the Court to satisfy itself on the status of the alleged trophy. It 15 is apparent that, based on the record, the Appellant was not present before the Court when the disposal order was given. See the case of Mosi s/o Chacha @ Iranga & Another vs Republic (Criminal Appeal No. 508 of 2019) [2021] TZCA 598 (22 October 2021). Further, this Court humbly declines the invitation to act on impulses and assumptions. The declined invitation, as offered by the Respondent's State Attorney, was that since there are comments of the suspect and thumbprint in the inventory form, then it should have been obvious that the Appellant was present when the disposal order was given. This is not acceptable for being extremely unsafe. The record of the Court should speak for itself by explicitly and unambiguously demonstrating the details of the Court's business on a particular Court's transaction. Acting on assumptions would create a very perilous precedent and would amount to introducing new proceedings into the Court's record contrary to the law. Three, also there is no record indicating that the alleged government trophy was presented to the Magistrate together with the Appellant for the Court's observation and noting. Four, not presenting the Appellant and the alleged government trophy to the Court for noting robbed the Appellant of an opportunity to verify whether what was allegedly presented to the Court was the trophy the Appellant was supposedly arrested with. Five, generally, the inventory form is extremely scanty with no proceedings at all that would make this Court appreciate that the Appellant was accorded his right to be heard before the disposal order of the alleged 16 government trophy was given by the Court. What is available is a disposal order which is hanging with no basis on how it was arrived at by the Court. It is trite law that courts make orders after both parties have been duly heard, any order made affecting the rights of parties without affording them a right to be heard is a nullity. The justification for this cognition is provided herein below. The right to be heard is enshrined under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977 as one of the basic and incontrovertible rights for purposes of ensuring a fair and just hearing before any adverse order is made against any person. The article provides: "(6) To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely: (a) when the rights and duties of any person are being determined by the court or any other agency, thatperson shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned; " Additionally, the Courts have jealously protected the right to be heard as allowing abrogation from it would have calamitous consequences in the dispensation of justice. The Court of Appeal in the case of Mary Mchome Mbwambo & Amos Mbwambo vs Mbeya Cement Company Ltd (Civil Appeal 161 of 2019) [2022] TZCA 179 (4 April 2022), quoting with 17 approval the case of Abbas Sherally & Another v. Abdul S. H. M. Fazalboy, Civil Application No. 33 of 2002 (unreported), held that: "The right to be heard before adverse action or decision is taken against such a party has been stated and emphasized by courts in numerous 18 decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard because the violation is considered to be a breach of naturaljustice." The Court went on to hold that: The violation of the right to be heard is a breach of the cardinal principle of natural justice and an abrogation of the constitutional guarantee of the basic right to be heard as enshrined under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. See: Mbeya Rukwa Auto Parts and Transport Limited v. Jestina George Mwakyoma [2003] T.LR. 251. Relapsing to the present case, and in light of the above authorities, it is clear that the disposal order of the alleged government trophy was given in violation of the Appellant's right to be heard. The question that follows is what is the consequence of the said violation of the right to be heard? The answer is the nullification of the decision that breached the right to be heard, see the case of Mary Mchome Mbwambo (supra). Further, in the case of Mohamed Juma @Mpakama vs Republic 18 (Criminal Appeal 385 of 2017) [2019] TZCA 518 (26 February 2019) the Court when specifically addressing an inventory form containing a disposal order made in violation of the right to be heard, held that: '[...the resulting Inventory Form (exhibit PE3) cannot be proved against the Appellant because he was not given the opportunity to be heard by the primary court Magistrate " Moreover, in the case of Buluka Leken Ole Ndidai & Another vs Republic (supra), the Court held that: "Finally, in view of this Court's consistent position as regards affording the suspects the right to be heard at the time of issuing a disposal order, exhibit P5 in this case was illegally procured. In Juma Mohamed @ Mpakama (supra), we said "the resulting Inventory Form (exhibit PE3) cannot be proved against the Appellant because he was not given the opportunity to be heard by the primary court magistrate." Based on that authority, we expunge exhibit P5 from the record. In the absence of the Inventory Form, which stands in the place of the destroyed trophies, there is no way legally conceivable, that the appellants can still legally remain blameworthy of the offence charged, in the aftermath of discarding exhibit P5." Given the position of the above-mentioned authorities, this Court is of the unwavering view that considering the breaches poked in the inventory form and the alleged disposal order relevant to this case, which was admitted 19 as exhibit 'P5Z by the trial Court, the inventory form was unlawfully obtained. It follows that the said exhibit 'P5' is hereby expunged from the record. Having expunged exhibit 'P5' from the record, there is nothing on record that would hold the Appellant culpable for the offence of unlawful possession of government trophies. Therefore, in light of the deliberations and conclusions made herein above, it is a finding of this Court that the Respondent failed to prove both counts of unlawful possession of weapons in the National Park and unlawful possession of government trophies levelled against the Appellant beyond a reasonable doubt in terms of section 3(2)(a) of the Evidence Act, Cap. 6 R. E. 2019. Since the above disposes of the appeal on the failure of the prosecution to prove the case beyond a reasonable doubt, other grounds of the appeal will not be considered because determining the same would be an exercise in futility. Accordingly, the trial Court's finding of guilt and a conviction thereof are hereby quashed and nullified correspondingly. The sentences imposed on the Appellant on both counts are set aside. Further, the Appellant unless held for another lawful cause, is set at liberty and should be immediately released from the prison facility where he is currently held. It is so ordered. The Judgment was delivered in the presence of Martha Mbosoli, a learned State Attorney for the Respondent, and in the presence of the Appellant. Right of Appeal explained. K. I.K&fanabo Judge 26/03/2025 21