James Yassin Lati vs Republic (Criminal Appeal No. 173 of 2023) [2025] TZCA 1031 (7 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: SEHEL. J.A., MAKUNGU, J.A. And FELESHI, 3.A .) CRIMINAL APPEAL NO. 173 OF 2023 JAMES YASSIN LATI .................................................................. APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Mwaseba, J.^ dated the 8th day of September, 2022 in DC. Criminal Appeal No. 39 of 2022 JUDGMENT OF THE COURT 30th September & 7th October, 2025 SEHEL, J.A.: The appellant, James Yassin Lati and four others, namely; Juma s/o Malongo Muhumpa, Malongo s/o Malongo Muhumpa, Mazengo s/o Malongo Muhumpa and Zacharia s/o Abson Kiwale (the then 1s t, 2n d , 3r d and 4th accused persons respectively but not parties to the present appeal) were jointly and together charged before the Court of the Resident Magistrate of Arusha at Arusha (the trial court) with three counts. The first count was unlawful possession of Government trophy contrary to section 86 (1) and (2) (c) (iii) of the Wildlife Conservation Act (the WCA) read together with paragraph 14 of the First Schedule to,

and sections 57 (1) and 60 (2) (sections 58 and 61 R.E. 2023 respectively) of the Economic and Organized Crime Control Act (the EOCCA). The particulars of offence alleged that, on 19th May, 2018, at Orkiu-Ngaboro area within Kiteto District in Manyara Region, the appellant and his co-accused persons were jointly and together found in unlawful possession of one (1) meat of Greater Kudu which is equivalent to one (1) killed Greater Kudu valued at USD 2200 equivalent to Tanzanian Shillings four million nine hundred fifty-eight thousand eight hundred (TZS. 4,958,800.00), the property of the Government of the United Republic of Tanzania without a permit from the Director of Wildlife. The second count was unlawful possession of Government trophy contrary to section 86 (1) and (2) (b) of the WCA read together with paragraph 14 of the First Schedule to, and sections 57 (1) and 60 (2) of the EOCCA. The particulars of offence alleged that, on the same date and place, the appellant and his co-accused persons were jointly and together found in unlawful possession of one (1) meat of Dik-dik which is equivalent to one (1) killed Dik-dik valued at USD 250 equivalent to Tanzanian Shillings five hundred sixty-three thousand five hundred (TZS. 563,500.00), the property of the Government of the United Republic of Tanzania without a permit from the Director of Wildlife. 2

In the third count they were charged for unlawful possession of weapons contrary to section 103 of the WCA read together with paragraph 14 of the First Schedule to, and sections 57 (1) and 60 (2) of the EOCCA. It was alleged that, on the same date and place, the appellant and his co-accused persons were jointly and together found in unlawful possession of weapons to wit; one (1) panga and one (1) slasher (commonly known as "nyengo" or " mundW ) in a circumstance which raised reasonable presumption that they were used in the commission of offences under the WCA. The appellant and the 4th accused person pleaded not guilty to the charges, whereas, the 1s t, 2n d and 3r d accused persons jumped bail and the trial proceeded against them in absentia in terms of section 243 (1) of the Criminal Procedure Act. At the trial, the prosecution relied on four witnesses, namely; Felix Meshack Muyumbirwa (PW1), Elidaima Akyoo (PW2), Hassan Haruna (PW3) and Abdul Aziz Athumani (PW4). In addition, physical evidence, namely; two machetes were collectively tendered and admitted in evidence as exhibit P5, and five pieces of documentary evidences, namely; a trophy valuation certificate, an Inventory Form, two handing over certificates and a certificate of seizure which were tendered and admitted in evidence as exhibits PI, P2, P3, P4 and P6 respectively. 3

Essentially, the prosecution evidence was such that; on 19th November, 2018 at night hours, PW3, a wildlife officer, was on patrol with his fellow wildlife officers within Orkiu Ngabor area. While on patrol, they saw a torch light illuminating from far away. They suspected it was from poachers. They followed the lead and found the appellant and his co-accused persons in possession of Government trophies in the form of a front leg of the Greater Kudu and Dik-dik meat with its head. They were also in unlawful possession of one machete with light blue plastic handle and one nyengo. They asked them if they had any permit for possessing the meat, they replied that they did not have it. PW3 seized the meat and weapons, arrested the appellant and his co-accused persons and sent them to Anti-Poaching Unit (KDU) in Arusha. They arrived at KDU Arusha on the next day and on the same date, PW3 handed over the seized items to PW2, an exhibit keeper. On 21s t May, 2018, PW2 handed over the meat to PW1, a wildlife officer and an expert in identifying and valuing government trophies for valuation and identification of the trophies. PW1 examined them by their colour, features and shape and concluded to be of a Greater Kudu and Dik-dik worth USD 2200 and 250 respectively. PW1 used the Bank of Tanzania exchange rate and established that the total value of the seized Government trophies equalled to TZS. 5,522,300.00. 4

In their defence, the appellant and the 4th accused person strongly denied any involvement in the commission of the alleged offences. They said that they were charcoal bag makers and were in Orkiu Ngabor area looking for charcoal. That, on the fateful day, they were arrested by Maasai people who called KDU officers claiming to have arrested poachers. The officers arrived, arrested them and took them to KDU offices in Arusha. At the end of the trial, the trial court found PW1, PW2, PW3 and PW4 established beyond reasonable doubt that the appellant and his co accused persons were in unlawful possession of Government trophies and weapons. Accordingly, they were convicted in all three counts and each sentenced to serve twenty years imprisonment for each count. It was further ordered that the terms of imprisonment were to run concurrently. Aggrieved, the appellant appealed to the High Court of Tanzania at Arusha (the first appellate court) but his appeal was dismissed. Still undaunted, he has appealed to this Court. On 11th September, 2024, the appellant filed a memorandum of appeal comprised of five (5) grounds which are: "1. That, the first appellate court erred in law and fact by holding that the prosecution had 5

proved the case beyond reasonable doubt through identification o f the seized meat while it given was too general. 2. That, the first appellate court erred in law and fact for its failure to draw adverse inferences to the prosecution case as the inventory form, exhibit P2, was not proved against the appellant\ that ; the appellant was not given an opportunity to be heard by the Resident Magistrate Court which disposed the exhibit 3. That, the first appellate court erred in law and fact for its failure to note that\ apart from KDU officers, there was no independent witness given the circumstances o f the case. 4. That, the first appellate court erred in law and fact for its failure to consider the appellant's defence. 5 . That, the first appellate court erred in law and fact for its failure to evaluate the entire evidence and hold that the case against the appellant was not prove to the required standard o f law." On 27th September, 2025, the appellant presented a supplementary memorandum of appeal containing the following ground: 6

" That\ the Resident Magistrate's Court o f Arusha had no requisite jurisdiction to try Economic Case No. 42 o f 2016 for lack o f certificate conferring jurisdiction to try Economic Case." At the hearing of the appeal, the appellant had legal services of Messrs. George Yonazi Mzava and Vicent Stewart Nyange, learned advocates. Whereas, Ms. Janeth Sekule, learned Senior State Attorney assisted by Ms. Janeth Masonu, also learned Senior State Attorney and Mr. Stanslaus Halawe, learned State Attorney, appeared for the respondent Republic. Before hearing of the appeal could commence in earnest, the Court drew the attention of the counsel for the appellant on the certificate and consent conferring jurisdiction to the Court of the Resident Magistrate of Arusha at Arusha found in the original case file. Having adverted to the file, Mr. Mzava opted to drop the ground in the supplementary record of appeal and informed the Court that they would argue the second ground of appeal in the memorandum of appeal. All other grounds in the memorandum of appeal were abandoned. Submitting in brief on the legality of the Inventory Form (exhibit P2), Mr. Mzava contended that the Inventory Form was prepared without involving the appellant. Citing the case of Buluka Leken Ole Ndidai & Another v. The Republic [2024] TZCA 116, he asserted 7

that, although section 101 (1) (a) (i) and (2) of the WCA does not provide for a procedure for seeking a disposal order for perishable Government trophy, the issue of involvement of a suspect(s) when seeking a disposal order is paramount as provided in paragraph 25 of the Police General Orders (the P.G.O.) No. 250. He asserted further that the suspect(s) is not only required to be present during the disposal exercise but also, he has to be given a right to see the alleged exhibit and raise objection, if any. On this he referred to the case of Mohamed Juma @ Mpakama v. The Republic [2019] TZCA 518. Mr. Mzava went on to argue that the omission rendered the Inventory Form invalid and was not supposed to be acted upon by the trial court. In that respect, he urged us to expunge exhibit P2 from the record of appeal and submitted that, after its expunction, there would be no any other evidence to sustain the appellant's conviction and sentence. In the end, he prayed for the appeal to be allowed. When probed by the Court on whether the third count would still stand, Mr. Mzava quickly responded that it would not as it suffered the same consequences because it was framed basing on the first and second counts. Mr. Halawe responded to the appeal on behalf of the respondent. He outrightly conceded to the appeal on that sole ground of appeal. He

admitted that the Inventory Form (exhibit P2) was received in contravention of a fundamental principle of a right to be heard. He pointed out that, according to the evidence on record, PW1 went alone before the Court of the Resident Magistrate to seek a disposal order of the perishable Government trophy without involving the appellant. He added that exhibit P2 showed the appellant and his co-accused persons were not given a chance to be heard. He therefore supported the contention made by the appellant's counsel that the appellant was denied a right to be heard. Relying on the authority in the case of Buluka Leken Ole Ndidai & Another v. The Republic (supra), he stressed that where the suspect is denied a right to be heard when issuing a disposal order of perishable Government trophy, the resulting Inventory Form cannot be proved against him. He therefore conceded for exhibit P2 to be expunged from the record of appeal. In the end, Mr. Halawe argued that, having expunged it, the remaining evidence was insufficient to sustain conviction and sentence against the appellant on all the three counts. Having heard the concurrent submissions by the counsel for the parties, the issues before us are whether the dispsoal order was procured according to law and whether exhibit P2 was valid.

As rightly submitted by Mr. Mzava, section 101 (1) (a) (i) of the WCA empowers the court, either on its own motion or upon being moved by the prosecution, to make a disposal order(s) of any perishable Government trophy which cannot be easily preserved until the case is fully heard. For ease of reference, we wish to reproduce the said section as hereunder: "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) not relevant\ and is intended to be used as evidence, be disposed of by the Director." Further, pursuant to subsection (2) to section 101 of the WCA, the disposal order will be sufficient to prove the case before any court during trial in place of the physical tendering of the seized perishable Government trophy. In the case of Buluka Leken Ole Ndidai & Another v. The Republic (supra), we observed that there is a lacunae in the law on the procedure to be adhered by the court when issuing a disposal order of a 10

perishable Government trophy. That apart, after tracing the origin of the Inventory Form and revisited the decisions of this Court on the subject of perishable Government trophy, we laid down the following procedures to be followed when seeking such an order: " one , the prayer to issue the order to dispose o f perishable 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 o f making the prayer. 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 o f the Inventory Form or on any separate piece o f paper or papers and shall be signed by the magistrate." In the present appeal, as correctly submitted by the counsel for the parties, the appellant was not present at the time when PW1 was 11

seeking a disposal order of seized Government trophy which were said to have started to decay. At this juncture, we find it prudent to reproduce part of the extract of the evidence of PW1 that: "After valuation ; I filled the Inventory Form as they were in a condition to decay. I then took it to RM's court looking for an order to destroy them. The order to destroy them was granted. I returned and destory (sick.) the said meat." From the above extract, it is obvious that the appellant and his co accused were not present at the time PW1 went to seek for a disposal order of the perishable Greater Kudu and Dik-dik meat. Given that the appellant was denied a fundamental right to be heard before the disposal order was made, the resulting Inventory Form (exhibit P2) was invalid and could not be relied on in upholding the appellant's conviction of unlawful possession of Government trophies as charged. Accordingly, we are satisfied that exhibit P2 cannot be acted upon and we hereby proceed to discount it from the record as prayed. After discounting exhibit P2, the prosecution evidence is left with nothing capable of proving beyond reasonable doubt the two counts of unlawful possession of Government trophies in the form of Greater Kudu and Dik-dik which the appellant stood charged with. In the same vein, 12

the third count of unlawful posession of weapons crambled as it was preferred basing on the first and second counts. For the reasons stated, we allow the appellant's appeal by quashing the convictions and set aside the sentences meted out to him. We, henceforth, order the immediate release of James Yassin Lati, the appellant, from prison if he is not otherwise retained for some other lawful cause. DATED at ARUSHA this 6th day of October, 2025. B. M. A. SEHEL JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 7th day of October 2025 in the presence of the Mr. Richard Manyota, learned counsel for the appellant, Mr. Philbert Msuya, learned State Attorney for the respondent and Mr. Musa Amry, Court Clerk; is hereby certified as a true copy of the