Benedict Tibel Kalinga & Another vs Republic (Criminal Appeal No. 09 of 2022) [2024] TZCA 1233 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA ( CORAM: MKUYE. 3.A„ MGEYEKWA, 3.A.. And NGWEMBE, 3.A.^ CRIMINAL APPEAL NO. 09 OF 2022 BENEDICT TIBEL KALINGA ....... ...... ............... 1st APPELLANT GEORGE ERNESTO @ BWADE......... .... ..... ....... 2 nd APPELLANT VERSUS REPUBLIC ................................. ............ .. ....... . ............... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Corruption and Economic Crimes Division at Iringa) fMatoaolo. 3.1 ! dated the 10th day of November, 2021 in DC. Consolidated Criminal Appeals No. 29 and 30 of 2021 JUDGMENT OF THE COURT 6h & lO"1 December, 2024 MGEYEKWA. 3.A.: The appellants, Benedict Tibel Kaiinga, and George Ernesto @ Bwade, were charged in the District Court of Iringa in Economic Crime Case No. 23 of 2019 with four counts under the Wildlife Conservation Act No. 5 of 2009 (the WCA) and the Economic and Organized Crime Control Act, Cap 200 (the EOCCA). In the first/ second and third counts, they were charged with the offences of unlawful possession of

Government trophies, unlawful possession of weapons in a game reserve, and unlawful entry into a game reserve contrary to sections 86 (1) and (2) (c) (i) of WCA, read together with Paragraph 14 of the First Schedule to and sections 57 (1) and 60 (1) and (2) of the Economic and Organised Crime Control Act, Cap 200 (the EQCCA], and section 24 (1) (b) and 29 (1), (2) of the National Parks Act, Cap 282 (the NPA) respectively. It was alleged that on 29th September, 2019 at River Madogolo area within Iringa Rural District in Iringa Region, the appellants were found in possession of Government trophy to wit; one hundred and thirty-six dove valued TZS. 31,265,856.00, greater kudu meat valued TZS 5,057,712.00 and nine guinea fowls valued TZS. 3,103,596.00, being properties of the Government of United Republic of Tanzania without any permit or valid licence, thus, having committed the offences charged in the first, second and third counts respectively. In the fourth count, it was alleged that on the same date and place, the appellants were found with one machete and two knives without a permit or valid license. The appellants denied ail four counts and as a result, the prosecution called six witnesses, a Game Ranger and two Guardsmen

who arrested the appellants, and the Game Officer who identified and conducted valuation of the Government trophy, the Police Officer who received the .exhibits and tendered them in court and Police Officer the investigator of this case who recorded the cautioned statements of the appellants. The substance of their evidence is that on 29th September, 2019 while on patrol in Iringa Ruaha National Park, Pius Patrick Lyambisi, Madrick Mlaga and Lessi Ningo (PW1, PW2, and PW3 respectively) saw smoke coming from the direction of Madogolo River within Ruaha National Park. When they moved closer to that place, they saw two persons who were drying meat. According to PWl, they ambushed and arrested the suspects who were later identified to be the appellants. Both PWl, PW2, and PW3 adduced that the appellants were found with the weapons and the Government trophies listed in the first to third counts. On his part, the Game Officer, David Mgovela (PW4) gave evidence that, on 1st October, 2019, he was assigned and conducted a valuation of the Government trophies which were alleged to have been found in possession of the appellants. PW4 identified the Government trophies as, two hooves and two legs of greater kudu, guinea fowls

meat. He valued the same which was equivalent to TZS. 39,427,164.00. He then prepared the trophy valuation certificate which was adduced into evidence (exhibit P3). Assistant Inspector Said Toiage (PW5), directed PC Maganga to prepare an Inventory Form of the seized Government trophies, the same was tendered and adduced into evidence (exhibit 4), No. F. 874 DCPL Mrisho (PW6), recorded the cautioned statements of both appellants. The appellants repudiated the statements but after a trial within trial was conducted, the court found that the statements Were recorded contrary to the law, as a result, the same were not admitted. The appellants pointblank denied all the charges, asserting that they were neither arrested within the game reserve nor found in possession of any weapons or Government trophies, as claimed by the prosecution witnesses. The first appellant maintained that he was arrested at Mapogolo Village, outside the game reserve. As for the second appellant, he contended that he was arrested together with his co-appellant. He had no much to state in defence evidence other than adopting what was adduced by the first appellant Upon a fully- fledged trial, the trial court was satisfied that the prosecution had proved its case against the appellants beyond

reasonable doubt regarding all four counts. Upon their conviction, they were each sentenced to 20 years imprisonment in respect of each of the 1s t, 2n d and 3r d counts and the sentences were to run concurrently. On the 4th count, they were each ordered to pay the fine at the tune of TZS. 100,000.00 and in case of default to serve six months in jaii. Aggrieved by the trial court's convictions and sentences in respect of the first, second, third and fourth counts, the appellants appealed to the High Court. Their first appeal was unsuccessful, as the High Court upheld the trial court's finding that the prosecution witnesses' testimony was credible and that the appellants' defense did not raise any reasonable doubt in the prosecution case. Still unfazed by the dismissal, the appellants brought their appeal to this Court. In the memorandum of appeal filed on 4th March, 2022, a total of seven grounds were raised by the appellants. In determining this appeal, we do not intend to consider all grounds presented, but only ground seven which in the circumstances of this matter is sufficient to dispose of this appeal for reasons which will unfold in the course of this judgment. The seventh ground of appeal is paraphrased to read: "That, the prosecution side failed to prove the case against the appellant beyond reasonable doubt"

At the hearing of the appeal, the learned Senior State Attorney Ms. Magreth Mahundi appeared for the respondent Republic. The appellants appeared in person; they preferred to let the learned counsel for the respondent first respond to their grounds of appeal, and they would come in later if the need arises. At the outset of her address, the learned Senior State Attorney supported the appeal. Submitting on the seventh ground of appeal, she faulted all the counts for which the appellants were charged, tried and convicted. She argued that there was no clear established chain of custody from the recovery of the Government trophies to the time of their disposal. In her further submission, Ms, Mahundi argued that there was no oral evidence establishing how the exhibits left the appellants to PW5's hands who finally produced them in court. She referred us to page 26 of the record of appeal and argued that, following the arrest of the appellants, PWl took the appellants and the seized Government trophies to Iringa Central Police. In her further submission, Ms. Mahundi argued that to ensure the chain of custody was preserved, PWl was required to name the person who received and stored the exhibits.

The learned Senior State Attorney continued to submit that, PW4 after valuation returned the exhibits to the Game Officers without mentioning their name. She added that, PW5 instructed PC Maganga to prepare Inventory Form but he did not state how the exhibit rendered into the hands of PC Maganga. It was unclear, if indeed, the exhibits that the appellants were arrested with, were the same ones that were subject to the disposal, she warned. She bolstered her submission by citing the decision of the Court in Kwabi Nila @ Limbu v. Republic, Criminal Appeal No. 26 of 2021 [2024] TZCA 1028 (4 November 2024 TanzLII), the Court faced a similar situation and held that the chain of custody was compromised, She went on to submit that PC Maganga was a materia! witness who could explain how the exhibit came into his possession. Regarding the procedure for disposing of Government trophies, the learned Senior State Attorney contended that the prosecution did not adhere to procedures prescribed under section 101 (1) (i) and (2) of the WCA as amended by clauses 37 (a) of the Written Laws (Miscellaneous Amendments) Act, 2017 Act No. 2 of 2017 to dispose of perishable Government trophies. She thus, argued that, the appellants were not afforded the opportunity to see the perishable exhibits and asked if they had any objection. She buttressed her contention by

referring us to our own reasoning in Kwabi Nila @ Limbu (supra) in which it was underscored that the disposal of perishable exhibit must be conducted in the presence of a suspect and should be accorded opportunity to be heard and raise objection, if any. In her further submission, Ms. Mahundi argued that, worse stilt, the disposal form does not show the appellants' signatures to prove that they were involved in the whole process of disposing of the said exhibits. In her contention, the exhibit P4 ought to be expunged by the first appellate court. She thus, implored us to expunge exhibit P4 from the record, and after its expungement, the Court to find that, there is no remaining evidence upon which to convict the appellants. In conclusion, the learned Senior State Attorney beckoned upon us to allow the appeal, quash the lower courts' judgment and set aside the sentences imposed by the trial court and acquit the appellants. We have considered the conceding arguments of both parties on the seventh ground. This ground primarily challenges the lower courts' failure to find that the prosecution did not prove the case beyond a reasonable doubt. We wish to point out at the outset that, we agree with the learned Senior State Attorney that in the present case, there was no clear

established chain of custody from the recovery of the Government trophies to their eventual disposal. Gleaning from the record of appeal (pages 22 to 33), it is clear that, the evidence of PW1, PW4 and PW5 did not suggest if the Government trophies were intact from the time they were seized, transported, stored, valued and disposed. As rightly submitted by Ms. Mahundi, the trial court proceedings clearly reveal significant gaps in the prosecution testimony. PW1 failed to name the persons who handed the exhibits to the storekeeper and the trophy valuer, while PW4 did not name a person who provided him with the exhibits. PW5 claimed that the exhibits were given to PC Maganga, who was responsible for preparing the inventory. However, the person who tendered the inventory in court was not PC Maganga. The prosecution's incoherence evidence cast doubt on whether the Government trophies in question were the same ones that were seized, stored, valued, and ultimately destroyed. We reiterate what we previously stated when confronted with a similar situation in Kwabi Nila @Limbu (supra) which was also referred to us by Ms. Mahundi, as follows: "On chain o f custody, the evidence o f PW l and PW3 did not suggest if the trophy was intact from the time it was seized, transported, stored and disposed. PW3

did not state as to whom the trophies were handed to. Likewise, PW4 did not state how the said trophies came to his possession, and PW2 did not state who handed to him the trophies for valuation as he oniy asserted that he was called by PW4 . This creates doubt if the Government trophies were the same as those which were seized, valued and destroyed. Therefore, the chain o f custody was compromised." Besides the aforementioned shortcomings, no explanations were provided as to why the Game Officers, the exhibit keeper and Maganga were not called to testify in court. We are mindful that, the law under section 143 of the Evidence Act does not specify any number of witnesses required to prove a fact. However, in the present case, where the chain of custody is questionable, it was important for them to be called to testify in court because they were in better position to explain the missing links in the prosecution's case. Failure to call material witness(s) to prove the case against the accused persons entitles the court to draw adverse inference to the prosecution. This mandatory requirement has been emphasized in numerous decisions of this Court. See for instance, Aziz Abdallah v. Republic [1991] T.L.R. 71 and Kijonju v. Republic, Criminal Appeal

63 of 2002) [2006] TZGA 72 (28 June 2006TanzLII). In Aziz Abdallah (supra), the Court held that: "The genera! and well-known rules is that the prosecutor is under a prima facie duty to call those witnesses whof from their connection with the transaction in question, are able to testify on materiaI facts. I f such witnesses are within reach but are not called without sufficient reason being shown the court may draw an inference adverse to the prosecution." We, therefore, find and hold that failure of the prosecution to call the material witnesses to prove if the chain of custody was intact, their evidence fell short to prove whether the appellants were arrested with, the said exhibits that were subject of the disposal. We now turn to the issue concerning the procedure for disposing of perishable Government trophies. Before, we address this issue, we wish to clarify that, in the context of this case, the applicable law is not the WCA, as asserted by Ms. Mahundi. We make this distinction because section 101 (1) of the WCA applies in situations where such exhibits have not been tendered in court. For ease of reference, we reproduce the section 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) any weapon, vehicle, vessel or other article which is subject o f destruction or depreciationf and is intended to be used as evidence, be disposed o f by the Director; or (b) at any stage ofproceedings, order that- (i) any animal or trophy which is subject o f 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 o f by the Director. (2) The order of disposal under this section shaii be sufficient proof of the matter in dispute before any court during trial ." [Emphasis added] In the present case/ the perishable exhibits had not yetbeen tendered, therefore, the relevant applicable law is the PoliceGeneral Orders No. 229 (PGO). In addressing this issue, we begin by referencing paragraph 25 of PGO which states as follows: "2 5 . 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." [Emphasis added] The plain meaning of paragraph 25 of the PGO, as reproduced above, makes it mandatory for the prisoner/appellant to be present to witness the disposal of an exhibit that cannot be preserved. In the present case, the record of appeal does not show if the appellants were accorded opportunity to comment or object to the exhibits, at the time the perishable trophies were destroyed. The omission offended the procedure of procuring orders for destruction of perishable exhibits. See: Ngasa Tambu v. Republic, Criminal Appeal No. 168 of 2019 [2022] TZCA 455 (21 July 2022TanzLII), Mohamed Juma @ Mpakama v; The Republic, Criminal Appeal No. 385 of 2017 [2019] TZCA 518 (27 February 2019 TanzLII and Juma Mgendwa v. Republic, Criminal Appeal No. 18 of 2021 [2024] TZCA 136 (23 February 2024 TanzLII). Since the exhibit P4 was improperly procured, we thus outrightly expunge it. In totality, we find that the prosecution failed to prove its case against the appellants beyond reasonable doubt. Our position is premised on the fact that, since the conviction of the appellants was based on the exhibit P4 which has been found to be discrepant, then all

evidential gaps identified are resolved in favour of the appellants. Consequently, we allow the appeal, quash the convictions and set aside the sentences. We order their release from prison forthwith unless they are otherwise lawfully held. Order accordingly. DATED at IRINGA this 9th day of December, 2024 R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in presence of the 1s t and 2n d Appellants in person and Mr. Sauli Makori, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. ! 6 1 ' I - DEPUTY REGISTRAR \ * COURT OF APPEAL