YONA ZEPHANIA Judgment 28 March 2025

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA CRIMINAL APPEAL NO. 202411222000033229 (Arising from the decision of the District Court of Meatu at Mwanhuzi before Hon. G. RWEKITI – SRM, dated 30th April, 2024 from Economic Case No. 4217 of 2024) YONA s/o ZEPHANIA @JISANZA ………………………………….….. APPELLANT VERSUS THE REPUBLIC……………………………………………….……..…… RESPONDENT JUDGMENT Date of Last Order 08.01.2025 Date of Judgment: 28.03.2025 MWAKAHESYA, J.: In the District Court of Meatu District, at Meatu, the appellant was tried and convicted of two counts: Unlawful possession of a weapon in a wildlife management area c/s 103 of the Wildlife Conservation Act (the WCA), 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 (the 1st count); and Unlawful possession of a government trophy c/s 86(1) and (2)(c)(iii) of the Wildlife Conservation Act (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 (the 2nd count). 1 At the end of the trial the appellant was convicted as charged and sentenced to a fine of TZS 200,000/= or one-year imprisonment in lieu of the fine on the first count and twenty (20) years imprisonment on the second count. It was the prosecution’s case that, on 15.10.2023 at Makao Wildlife Management area within Meatu District in Simiyu Region, the appellant was found in possession of a knife and seven dikdik carcasses, without a permit. And to prove its case the prosecution paraded a total of four witnesses and tendered five exhibits. Dotto Makanga Darusi (PW1) a wildlife ranger, testified that on the night of 15.10.2023 he was on patrol in Mwalubushu area alongside fellow rangers. They then apprehended the appellant in possession of seven dikdik carcasses and a knife, without a permit. He then filled a certificate of seizure and signed it. His fellow rangers, Dotto Lucas and Shimba Tungu also signed the same. They then took coordinates of the area which were 36M 705290 UGM 9620561, the purpose being to indicate that the appellant was within a reserved area. PW1 also tendered the certificate of seizure mentioned earlier, it was admitted and marked as exhibit P1. PW1 also tendered a knife (exhibit P2) uncontested. 2 Dotto Lucas Mhangwa (PW2) a wildlife ranger, gave evidence mirroring that of PW1, and went further to state that the appellant was arrested while carrying the carcasses on his shoulders. Joselyn Dominic Mpelasoka (PW3) a District Wildlife Officer and holder of a Bachelor’s Degree in Wildlife Management, gave evidence that, one of her duties is to identify trophies and on 15.10.2023 she was tasked with identifying and valuating trophies which she found to be seven carcasses of dikdik. An extract of her evidence ran as follows: “…I realized the head, hind limbs and tail were of a wild animal known as Dikdik as they have the peculiar characteristics which include brownish and greyish color, a gland mark under their eyes which helps the animal release “ute” which helps the animal identify their pastures and a hair line in the middle of the face to the head with a length 15 millimetres and height of 14 to 15 inches, the animal has also a white color on the stomach.” PW3 also made a valuation and established that the value of one dikdik was USD 300 and multiplying it with the seven carcasses found with the appellant it made a total value of the trophies to be USD 2100 and also considering the present time exchange rate of one USD being equivalent to TZS 2504.11, the total value of the trophies was TZS 5,258,631/=. Thereafter, an inventory form was filled and signed and a magistrate ordered the carcasses to be destroyed since they were prone to deterioration. 3 PW3 tendered the inventory form (exhibit P3) and the trophy valuation certificate (exhibit P4) uncontested. F. 9840 D/Cpl. Hussein (PW4) was tasked with investigation subsequent to the appellant being handed over to the police. He gave evidence on how he carried out the investigation including writing witness statements and handing the trophies to PW3. He tendered a chain of custody form (exhibit P-5). In his defence, the appellant denied committing the offences he was charged with and went on to give evidence that he was arrested by people with green uniforms in the evening of 14.10.2023 when he was inspecting his farm. He was then taken to a camp within a game reserve and forced to admit that he was found in possession of dikdiks. He was then taken to the police the following morning. As highlighted previously, the trial magistrate found the appellant guilty of the offences he was charged with and punished him accordingly. Dissatisfied with the conviction and sentence, the appellant lodged the present appeal based on the following grounds: 1. The trial court magistrate grossly erred in law and fact to convict the appellant basing on weak and doubtful evidence adduced by prosecution witnesses to prove the case that the appellant was found in unlawful possession of Government trophies, were prosecution 4 evidence was not in compliance with section 24(b), 41 (a) – (d) and 42(2) and (3) of the Criminal Procedure Act; 2. The trial Court Magistrate erred in law and fact when she failed to consider the defence’s evidence that he denied to have been found in possession of the government trophies, rather he was preparing his farm nearest the boundaries of the National Park and the said exhibits were planted by the Park Rangers; 3. That, the trial court magistrate erred in law and fact when she failed to observe that the arrest of the appellant was not in compliance with section 31(1) of Criminal Procedure Act, The Accused was arrested on 14.10.2023 around 1830hrs and was handed over to Meatu Police Station on 16.10.2023 the Park Rangers remained with appellant at a Camp unnecessarily and without explanation to the cause of doing so; 4. The whole trial court proceeding was vitiated with serious procedural irregularities leading to miscarriage of justice; and 5. That, the prosecution did not prove the charge beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person, unrepresented, while the respondent Republic, resisting the appeal, was represented by Ms. Nyamnyaga Magoti, learned State Attorney. The appellant opted to argue his appeal first. On the first ground of appeal, the appellant submitted that, the subordinate court erred when it convicted him while the case against him was not proved beyond reasonable doubt. 5 On the second ground of appeal, the appellant submitted that he did not enter into a national park but he was arrested while he was preparing his farm for farming activities. On the third ground of appeal, the appellant simply submitted that, the trial court erred in convicting him while the prosecution did not tender any exhibit during trial. On the fourth and fifth grounds of appeal, and the appeal in its totality, the appellant beseeched the court to allow all his grounds of appeal and set him free. In reply Ms. Magoti, started off with the fifth ground of appeal and then responded to the rest of the grounds seriatim. Submitting on the fifth ground of appeal, initially, it was the learned State Attorney’s submission that the first count was proved beyond reasonable doubt as PW1’s evidence proved that on 15.10.2023 he and his fellow rangers arrested the appellant within Mwalubushu National Park, the latter being in possession of a weapon without a permit. She was also adamant that PW1’s evidence was corroborated by that of PW2. However, after a thorough analysis, the learned State Attorney withdrew her initial stance. She admitted that at the time of arrest, GPS 6 coordinates were taken by the arresting officers and the same were intended to be used in producing a map to prove that the appellant was arrested within a national park. However, the said map was not tendered in evidence during trial. Thus, the first count was not proved to the hilt. Regarding the second count, the learned State Attorney was adamant that, the same was proved beyond reasonable doubt through the evidence of PW1 which is corroborated by the evidence of PW2 and PW3, on top of that, various exhibits (P1, P2 and P3) which include an inventory form and a trophy valuation certificate established the offence of unlawful possession of Government trophy. She therefore, beseeched the court not to dismiss the entire fifth ground of appeal. Turning to the first ground of appeal, Ms. Magoti was of the position that, the provisions cited by the appellant are irrelevant since the appellant was arrested pursuant to the WCA. Regarding the second ground of appeal, the learned State Attorney conceded that the trial court failed to consider the appellant’s defence before convicting him. However, she submitted that, this court can step into the shoes of the trial court and do what was required. Responding to the third ground of appeal, Ms. Magoti submitted that, the same lacks merit. The appellant was arrested on 15.10.2023 and this was proved by exhibit P1. 7 Lastly, on the fourth ground of appeal, Ms. Magoti submitted that, the appellant had failed to prove any procedural irregularities and thus the ground lacked merit. In rejoinder the appellant prayed for the court to allow his appeal and set him free. Having gone through the record and the parties’ respective submissions what is left is to determine the merit, or otherwise, of this appeal. On the first ground of appeal, the appellant is of the view that the prosecution’s evidence was weak and doubtful and then goes on to assail the search and seizure of the Government trophies. The gist of the first count, according to the prosecution is being in possession of a weapon in a wildlife management area. It is trite that I reproduce the charge and the provision under the WCA which creates the offence. Section 103 of the WCA reads: “A person who is found in possession of any weapon or any other object in circumstances which raise a reasonable presumption that he has used or intends or is about to use the same for the purpose of the commission of an offence under this Act, unless he shows lawful cause for such possession, commits an offence, and shall be liable on conviction to a fine of not less than two hundred thousand shillings but not exceeding five million shillings or to 8 imprisonment for a term of not less than one year but not exceeding three years or to both.” Meanwhile, the charge, in respect of the first count, read: “CHARGE 1ST COUNT STATEMENT OF OFFENCE UNLAWFUL POSSESSION OF WEAPON IN THE WILDLIFE MANAGEMENT AREA: Contrary to section 103 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] PARTICULARS OF OFFENCE YONA ZEPHANIA SANZA, on the 15 th day of October, 2023 at Makao Wildlife Management Area within Meatu District in Simiyu Region, was found in unlawful possession of weapons to wit; One knife without a written permit from the Director of Wildlife previously sought and obtained.” There is nothing in section 103 of the WCA which makes a prerequisite of obtaining a written permit from the Director of Wildlife in order to posses a knife, be it a wildlife management area or else. What the provision forbids is the possession of a weapon or object which raises a reasonable presumption that it has been used or is intended to be used to commit an offence under the WCA. The mere fact that the offence charged contained particulars unrelated to the provision in which it was created failed to inform the appellant of the nature of the offence he was facing and undoubtedly disabled him to make his defence accordingly. And in actual fact, 9 concerning the first count, the appellant was charged with a non- existing offence. Turning to the second count, what was needed by the prosecution was to prove that the appellant was found in possession of government trophies without a permit from the Director of Wildlife. PW1 and PW2 gave evidence on how they arrested the appellant with dikdik carcasses on the night of 15.10.2023. The same was proved to be dikdik by PW3 who gave a detailed description of the peculiar features of a dikdik. Moreover, PW1 tendered exhibit P1 which was a certificate of seizure of the knife and seven dikdik carcasses. Exhibit P1 bore the appellant’s thumb print, in fact exhibit P1 was tendered in evidence uncontested and when asked if he had any objections when it was being tendered, the appellant is on record having said that: “No objection I signed it but I did not know it.” Thus, by appending his thumbprint on exhibit P1 and acknowledging doing so, as well as allowing it to be tendered in evidence without protest, the appellant confirmed that indeed he was arrested with the Government trophies. The importance of a witness challenging the admission of a document and the repercussions for 10 failure to do so was highlighted by the Court of Appeal in the case of Anna Moises Chissano v. The Republic, Criminal Appeal No. 273 of 2019 (unreported) where it was held: “… an accused is expected to challenge a witness's testimony by way of cross-examination or object to the tendering of a documentary or physical exhibit during the trial. Once certain evidence goes into the record unchallenged it is, in law, taken to have been admitted by the accused...” The appellant stating that he did not know exhibit P1 when signing it was a mere afterthought and provided no reason, let alone a plausible one, for holding that contention. Therefore, dikdik being a Government trophy in terms of section 85 of the WCA and the appellant having been found in possession of seven carcasses of the same whilst lacking a permit from the Director of Wildlife, leads to the inevitable conclusion that the second count was proved beyond reasonable doubt. The appellant has tried to discredit the seizure of the Government trophies he was found in possession of and was adamant that the prosecution’s evidence did not comply with section 24(b), 41 (a) – (d) and 42(2) and (3) of the Criminal Procedure Act (the CPA). As correctly pointed out by the learned State Attorney for the Republic, the appellant 11 was arrested in pursuant of the WCA which has its own manner in which search and seizure is to be conducted, the same is provided in section 106 which reads: “106. -(1) Without prejudice to any other law, where any authorised officer has reasonable ground to believe that any person has committed or is about to commit an offence under this Act, he may- (a) require any such person to produce for his inspection any animal, game meat, trophy or weapon in possession or any licence, permit or other document issued to him or required to be kept by him under the provisions of this Act of the Firearms and Ammunition Control Act; (b) N/A; and (c) seize any animal, livestock, game meat, trophy, weapon, licence, permit or other written authority, vehicle, vessel or aircraft in the possession or control of any person and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest and detain him. (2)- (9) N/A.” Meanwhile, section 24(b) of the CPA caters for the search, by the police or private person, of an arrested person and thus inapplicable. Likewise, section 41(a)-(d) and 42(2) and (3) of the CPA deals with search and seizure conducted by the police and search in emergencies, thus equally inapplicable as well. 12 Having observed the flaws regarding the first count and having found the second count to have been duly proved, the first and fifth grounds of appeal are partly allowed. Turning to the second ground of appeal, the appellant faults the trial magistrate for failing to consider his defence. The learned State Attorney for the respondent Republic readily conceded to this, and rightly so. The trial court’s record show that what the trial magistrate did was to sum up the appellant’s defence without proceeding to evaluate and analyze it. This was a serious oversight on the part of the learned trial magistrate. In Anna Moises Chissano (supra) the Court had this to say: “…Another complaint is the trial court's failure to accord due weight to the defence evidence. We shall discuss this ground while alive of the constitutional right of an accused to be afforded an opportunity to be heard before his rights are determined by the courts as enshrined in article 13(6)(a) of the Constitution of the United Republic of Tanzania. That provision in plain and dear words declares that all persons are equal before the law. It imposes a duty on the court to hear both sides before passing a judgment. The rule operates as a guard against being condemned unheard. In giving effect to the clear dictate of the Constitution, the legislature enacted sections 294 and 295 of the Criminal Procedure Act, Cap. 20. R. E. 2019 (the CPA). Under that section it is imperative that upon closure of the prosecution case, the accused person 13 shall be called upon to enter defence either in person or led by an advocate and has the right to call witnesses. We entertain no doubt that such right will be illusory if after presenting his defence no due weight is accorded to it. We have belaboured to state the above cognizant of the fact that one of the appellant's complaint is banked on the trial court's finding that his defence was an afterthought…” [Emphasis mine]. However, as correctly submitted by the learned State Attorney, this being a first appellate court it can step into the shoes of the trial court and do what was abdicated by the trial magistrate. In Kaimu Said v. The Republic, Criminal Appeal No. 391 Of 2019 (unreported), the Court of Appeal held that: “…In the event a trial court fails to perform its duty under the law to consider the defence evidence, a High Court, being a first appellate court has powers to step into the trial court's shoes and reconsider the evidence of both sides and come up with its own finding of fact…” Having established the legal basis, I shall proceed to reconsider the appellant’s defence vis a vis that of the prosecution. It was the appellant’s version of events that following his arrest when he was inspecting his farm he was taken to a camp, the wildlife rangers’ camp I presume, and was later put in a car which had the dikdiks, he was told that the trophies were his but he denied. Later on, 14 having gone through numerous threats to his life, he agreed that the trophies were his. He was subsequently taken to Meatu police station and handed over to the police. The appellant’s defence seems incredible because while he was participating in the procurement of the order for disposal of the dikdik carcasses, at the Primary Court of Meatu, it is on record according to exhibit P3 (the Inventory Form) that the appellant had made the following comments before the primary court magistrate: “Nawatambua kuwa digidigi 7 tumewakamata kwa kutumia mbwa leo usiku nikiwa na mwenzangu mmoja Gamba s/o Ndimube.” This can be translated as: “I recognize the 7 dikdik, me and my fellow, Gamba Ndimube, caught them tonight with the assistance of a dog.” The primary court magistrate was following the procedure for disposing off perishable exhibits as laid out in the Court of Appeal decision of Buluka Laken Ole Ndidai v. The Republic, Criminal Appeal No. 456 of 2020 (unreported) where it was held that the participation of the suspect is paramount and any remarks made by his should be recorded in the inventory form. It should also be noted that when exhibit P3 was tendered by PW3 the appellant did not object and actually avowed that he knew it as he 15 had signed it meaning he admitted their contents. (see: Anna Moises Chisano v. The Republic (supra). Furthermore, if the appellant was indeed wrongfully arrested by the rangers and coerced into admitting that he was found with the government trophies, once that threat had ceased and he was placed in the custody of the Meatu police, why did he not inform the police of what had transpired at the wildlife camps? Again, he had the chance to do the same before the Meatu Primary Court Magistrate, a magistrate the appellant himself deemed to be just, during the procurement of the inventory, but he did not take the chance. In fact During cross examination when he was testifying on his behalf in his defence, the appellant stated: “…I did not mention that there is a conflict between me and those rangers but we have the conflict. It is true that I was taken to a magistrate who I believe does justice therefore there was no reason for him to frame me with a case. And he did not force me to sign on the inventory form.” [Emphasis mine] Lastly, as alluded earlier, the appellant did not object to tendering of exhibit P1 which is a certificate of seizure for the dikdik carcasses. In his version of events he only narrated that he was forced into admitting that he was found in possession of the seven dikdik carcasses, he did not even remotely hint that he was forced to sign a certificate of seizure. 16 I therefore, find that, had the trial magistrate analyzed the appellant’s defence she would still arrive at the conclusion that the prosecution’s case was proved to the standard required by the law, that is beyond reasonable doubt. Having found so, the second ground of appeal lacks merit and is dismissed. The third ground of appeal need not detain us. The appellant alleges that he was arrested on 14.10.2023 and handed over to the Meatu police station on 16.10.2023. This allegation is implausible as exhibit P3 (the inventory) was filled by the primary court magistrate on 15.10.2023 in the presence of the appellant. Also, the appellant himself did recognize the exhibit and acknowledged signing it when it was being tendered during trial. Furthermore, in his own testimony during his defence the appellant categorically stated that he was arrested on 14.10.2023 by people in green uniforms, he then narrates the alleged threats made to him and later goes on to say that in the morning he was taken to Meatu police station and put under arrest and then taken to the primary court. He does not mention that he spent more than one night in the custody of the rangers and therefore the morning he refers to must inevitably be either 14.10.2023 or 15.10.2023 and not any day further. The morning 17 of 15.10.2023 is further corroborated by his participation in procuring the disposal of the Government trophies on 15.10.2023. The appellant has also suggested that his arrest was not in compliance with section 31(1) of the CPA. The said provision reads: “31. -(1) Any private person arresting a person without a warrant shall without unnecessary delay hand over the person so arrested to a police officer or to the nearest police station or, in the absence of either, to the Ward Secretary of the Secretary of the Village Council for the area where the arrest is made.” As the learned State Attorney for the respondent submitted, the above quoted provision is unrelated as the arrest of the appellant was not done by a private person. With regards to the appellant’s submission that the prosecution did not tender any exhibit during trial, this is untruthful. The prosecution tendered a total of five exhibits, viz: a certificate of seizure and a knife (exhibit P1 and P2, respectively) tendered by PW1; an inventory form and trophy valuation certificate (exhibits P3 and P4, respectively) tendered by PW3; and a chain of custody form (exhibit P5) tendered by PW4. This ground of appeal therefore, lacking merit, is also dismissed. The appellant’s gist of complaint in the fourth ground of appeal is that the proceedings before the trial court were vitiated with serious 18 irregularities. Unfortunately, the appellant failed to expound the alleged illegalities when given the floor at the hearing of this appeal. Regardless, I have gone through the entire record of trial and such illegalities have not come across my gaze. This ground of appeal, lacking merit, is dismissed. In light of the above, this appeal is partly allowed. The conviction on the first count of unlawful possession of a weapon in a wildlife management area is quashed and the sentence of a fine of TZS 200,000/= or one-year imprisonment in lieu of the fine is set aside. Meanwhile, the conviction and sentence of 20 years imprisonment for the offence of unlawful possession of government trophies is upheld. It is so ordered. DATED at SHINYANGA this 28th day of March, 2025. N.L. MWAKAHESYA JUDGE 19