Mwita Ikabwe @ Babere vs Republic (Criminal Appeal No. 228 of 2022) [2024] TZCA 1188 (3 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARIJSHA (CORAM: MWARIJA. J.A.. LEVIRA. 3.A. And MASOLID. 3 . A 1 CRIMINAL APPEAL NO. 228 OF 2022 MWITA IKWABE @ BABERE..................................................... APPELLANT VERSUS THE REPUBLIC ..................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Arusha at Arusha) (Massam. SRM. Ext. Jur.^ Dated the 5th day of May, 2022 in Criminal Appeal No. 79 of 2021 JUDGMENT OF THE COURT 25th November & 3rd December, 2024 MWARIJA, J.A.: The appellant, Mwita Ikwabe @ Babere was charged in the Resident Magistrate's Court of Arusha at Arusha with three counts under the Wildlife Conservation Act, No. 5 of 2009 (the WCA). In the 1s t and 2n d counts, he was charged with 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 Economic and Organized Crime Control Act, Chapter 200 of the Revised Laws as amended by the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016 (the EOCCA). i

The particulars of the offence in the 1s t count are that, on or about 19/10/2018 at Harashi, Serengeti National Park's buffer zone in Loliondo within Ngorongoro District in Arusha Region, the appellant was found in unlawful possession of dried zebra meat, 14 pieces of zebra skin, equivalent to 4 killed zebras each valued at USD 1200 all total valued at USD 4800, which is equivalent to TZS 10,885,728.00, the property of the Tanzania Government without a permit from the Director of Wildlife. As for the 2n d count, it was alleged that, on the same date and place stated in the 1s t count, the appellant was found in unlawful possession of dried giraffe meat, 2 pieces of giraffe skin, equivalent to 2 killed giraffes each valued at USD 15,000 all total valued at USD 30,000, which is equivalent to TZS 68,035,800.00, the property of the Tanzania Government without a permit from the Director of Wildlife. In the 3r d count, the appellant was charged with the offence of unlawful possession of weapon in certain circumstances contrary to section 103 of the WCA read together with the provisions of the EOCCA stated in the 1s t count. The particulars of the offence allege that, on the same date and place stated in the 1s t count, the appellant was found in unlawful possession of 49 wires in the circumstances which raised

reasonable presumption that the same were used in the commission of offences under the WCA. At the trial, the prosecution relied on the evidence of four witnesses; Getrude Kaliongi (PW1), Michael Edson Msokwa (PW2), Naonawelu Mkali (PW3) and William John Keko (PW4). On his part, the appellant (DW1) was the only witness for the defence. Having heard the evidence of the prosecution witnesses and the appellant in his defence, the learned trial Senior Resident Magistrate was satisfied that, the prosecution had proved its case beyond reasonable doubt on all the three counts. The appellant's defence was considered an afterthought and was thus found to have not raised any reasonable doubt against the prosecution's case. Following his conviction, the appellant was sentenced to 20 years imprisonment on each count with an order that, the sentences should run concurrently. Aggrieved by the decision of the trial court, the appellant preferred an appeal to the High Court. The appeal was transferred to the Resident Magistrate's Court of Arusha under s. 256A (1) of the Criminal Procedure Act, Chapter 20 of the Revised Laws (the CPA) to be heard by Massam, SRM-Ext. Jur (as she then was). The learned SRM-Ext. Jur upheld the findings of the trial court that the oral evidence of the prosecution

witnesses and the tendered exhibits proved the case against the appellant to the required standard. She thus dismissed the appeal hence this second appeal. The background facts leading to this appeal may be briefly stated: On 19/10/2018 in the afternoon, PW2, who was until the material time a Wildlife officer working with the Anti-Poaching Unit (KDU), was on patrol with his colleagues along the buffer zone of the Serengeti National Park (the National Park). While on that duty, they were told by an informer that, there were poachers who had set a hunting camp at Harashi Village within the National Park's buffer zone. He led them to the scene where PW2 and his colleagues found a suspect preparing a meal consisting of wildlife meat. According to PW2's evidence, the suspect, who identified himself as Mwita Ikwabe Babere, was cutting wildlife meat for the purpose of cooking it. It was PW2's evidence further that, at the scene, there were also sulphate bags containing dried wildlife meat. He thus sought an independent witness so as to conduct a search. He secured the presence of PW4 who was at his ranch in the Village. He witnessed the search as an independent witness. When the search was conducted, apart from other items including cooking pots, a torch and a machete which were

collectively admitted in evidence as exhibit P5, 49 animal trapping wires stated in the 3r d count as well as the Government trophies specified in the 1s t and 2n d counts were also found. The evidence of PW2 was supported by PW4 who testified that, the trophies and the animal trapping wires were listed in the certificate of seizure and the same was signed by the suspect. It was tendered and admitted in evidence as exhibit P3. After their seizure, the Government trophies and the animal trapping wires were handed over by PW2 to PW3, the exhibits keeper. On 22/10/2018, PW3 handed over the Government trophies to PW1, a Wildlife Officer for identification and valuation. In her evidence, PW1 stated that, she identified the meat and 14 pieces of skin to be of zebra and the other meat and 2 skins to be of giraffe. She said that, all the trophies were in total valued at TZS 78,921,528.00. She tendered the valuation report which was admitted in evidence as exhibit PI. It was her evidence further that, because the meat had started to decompose, she sought and obtained a disposal order from the Resident Magistrate's Court of Arusha. She tendered the inventory containing the disposal order and the same was admitted in evidence as exhibit P2.

In his defence, the appellant distanced himself from the offence contending that, the case was framed against him by one Mwita Magoile. He testified that, on 17/10/2018 at about 23:00 hrs while at his residence, policemen arrived and arrested him on the allegation that, he prevented the said Mwita Magoile from taking his cattle to drink water from his (the appellant's) private pond. He stated further that, after his arrest, he was blindfolded and transported to a police station which he did not know and upon arriving there, he was locked up. On 21/10/2018, he was taken to Arusha Police Station where he was, again, locked up. On the next day, he was taken out of the lock up and sent to a room in which he was tortured and required to sign a three pages document, the contents of which were not known to him. Later on 5/11/2018 he was taken to court and charged as stated above. In this appeal, the appellant has raised nine grounds in his memorandum of appeal filed on 28/7/2023. For reasons which will be apparent herein however, we are not going to consider ail the nine grounds as the 1s t ground suffices to dispose of the appeal. That ground of appeal may be paraphrased as follows: That the first appellate court erred in law and fact in upholding the appellant's conviction based

on the offence which he was not called upon to plead. On the date of hearing the appeal, the appellant appeared in person, unrepresented while the respondent Republic was represented by Ms. Eliainenyi Njiro assisted by Mses. Rose Sulle and Neema Mbwana, all learned Senior State Attorneys. Before we could proceed to hear the appellant's submissions in support of his grounds of appeal, Ms. Mbwana expressed, at the outset, that the respondent was supporting the appeal on the basis of the 1s t ground of appeal, she argued that, from the record, the trial court did not comply with the provisions of s. 228 (1) of the CPA which requires a subordinate court to state to the accused person the substance of the charge and thereafter, require him to plead thereto. The learned Senior State Attorney submitted that, since the appellant was not afforded that opportunity, the trial was a nullity. She cited the case of Jurna Guluka and Others v. Republic (Criminal Appeal No. 279 of 2022) [2023] TZCA 17580 (31s t August 2023) to bolster her argument. In the circumstances, Ms. Mbwana submitted that, the proceedings and judgment of the trial court deserve to be quashed and

the conviction set aside, the consequence of which should extend to the proceedings and the judgment of the High Court. On the way forward, the learned Senior State Attorney did not seek a retrial order. She submitted that, since some of the Government trophies, the subject matter of the charge were disposed of, there would be no sufficient evidence to prove the charge at the second trial. She argued that, under the circumstances, a retrial order will not be appropriate. The appellant supported the position taken by the learned Senior State Attorney. He urged us to allow his appeal and release him from prison. We have considered the submissions made by Ms. Mbwana in support of the 1s t ground of appeal. We agree with her that, the same has merit. Indeed, from the record, at the commencement of the trial on 29/1/2020 the appellant was not called upon to plead to the three counts leveled against him. What transpired, as can be gleaned at page 21 of the record of appeal, is that a preliminary hearing was conducted without the reading of the three counts to the appellant and requiring him to plead. After the preliminary hearing, the case was adjourned on several occasions until on 1/4/2020 when the hearing commenced,

again, without requiring the appellant to enter his plea. The omission breached s. 228 (1) of the CPA which provides that: "228-(l). The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge . " The corresponding provision of the CPA for a trial conducted in the High Court is s. 275 (1) which states as follows: "275-(l). The accused person to be tried before the High Court upon an information shall be placed at the bar unfettered\ unless the court shall see cause otherwise to order, and the information shall be read over to him by the Registrar or other officer of the court, and explained\ if need be, by that officer or interpreted by the interpreter of the court, and he shall be required to plead instantly thereto, unless, where the accused person is entitled to service of a copy of the information, he objects to the want of such service, and the court shall find that he has not been duly served therewith . " In the case of Juma Guluka (supra), cited by the learned Senior State Attorney, the Court had the occasion of considering the omission

by the High Court to call upon the accused to plead to the information, before it heard and determined the case. It observed as follows: "It is a requirement of the law that after a charge or information is read over to the accused, he must reply. Thus, where no piea is taken the trial is a nullity." The Court relied on its previous decision in the case of Naoche Ole Mbila v. Republic [1993] T.L.R 253 in which, it was held that: "1. One of the fundamental principles of our criminal justice is that at the beginning of a criminal trial the accused must be arraigned, i.e. the court has to put the charge or charges to him and to require him to plead. 2. Non-compliance with the requirement of arraignment of an accused person renders the trial a nullity." In the case at hand, the trial was conducted in breach of s. 228 (1) of the CPA. The appellant had the right to be informed of the substance of the three counts and be called upon to plead. It follows therefore that, going by the above cited authorities, the omission rendered the trial a nullity. In that regard, we agree with the learned Senior State Attorney that, the first ground of appeal has merit. Since the finding on this ground suffices to dispose of the appeal, the need to 10

consider the other grounds of appeal does not arise. In the event, we allow the appeal. The proceedings and the judgment of the trial court are quashed and as a result, the conviction and sentence are set aside. Likewise, the proceedings of the High Court emanating from the proceedings of the trial court which were a nullity are hereby quashed and the judgment therefrom is set aside. Next for our consideration is whether we should order a retrial of the case. It is trite principle that a retrial may be ordered where the original trial was illegal or defective. That should however, be done only where the interests of justice require. A retrial order should not be made if a second retrial will cause a miscarriage of justice. - See the case of Fatehali Manji v. Republic [1966] 1 EA 343. Having considered the available evidence on record, for a different reason, we agree with Ms. Mbwana that, an order of retrial will not be appropriate. In the 2n d ground of appeal, the appellant has challenged the validity of the consent of the Director of Public Prosecutions and the certificate of transfer of the case to the Resident Magistrate's Court of Arusha. The complaint by the appellant is that, the two documents issued under sections 26 (2) and 12 (3) respectively of the EOCCA are invalid because the same were not admitted and endorsed by the court.

The record reflects the position stated by the appellant. So, even though the decision on that ground has to be based on the effect of the omission, if a retrial is ordered, the prosecution will likely fill in the gap in its evidence by rectifying the anomaly. For this reason, we find that, under the circumstances of this case, issuing of a retrial order is not suitable. We therefore, order the release of the appellant from prison forthwith unless he is otherwise lawfully held. DATED at ARUSHA this 2n d day of December, 2024. The Judgment delivered this 3r d day of December, 2024 in the presence of the appellant in person, Mses. Eliainenyi Njiro and Rose Sulle, learned Senior State Attorneys, Ms. Witness Mhosole, learned State Attorney for the Republic/respondent; is hereby certified as a true copy of the A. G. MWARIJA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL original SENIOR DEPUTY REGISTRAR COURT OF APPEAL