Ngh'abi Nkinda @ Ng'ara and 3 Others vs Republic (Criminal Appeal No. 139 of 2022) [2024] TZCA 1133 (14 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA fCORAM: MWANDAMBO, J.A.. RUMANYIKA, J.A.. And KHAMIS. J.A.^ CRIMINAL APPEAL NO. 139 OF 2022 NGH'ABI NKINDA @ NG'ARA .............................................. 1 st APPELLANT MABULA MAGEMBE @ NKARANGO.....................................2 nd APPELLANT NDULU RUTAMLA @ MAKWENU .............................. . .......... 3 rd APPELLANT MASAN 3A MAIGE @ KUSHAA ................. . ............................ 4™ APPELLANT VERSUS THE REPUBLIC........................................ ............................... RESPONDENT (Appeal from the decision of the Resident Magistrates' Court of Shinyanga at Shinyaga) (Mbuva, PRM, Ext. Jur) dated the 18th day of February, 2022 in Consolidated Criminal Appeal Nos. 38 and 40 of 2021 REASONS FOR DECISION OF THE COURT 1s t & 14th November, 2024 RUMANYIKA. J.A.: Upon hearing the appeal by the appellants Ngh'abi Nkinda @ Ng'ara, Mabula Magembe @ Nkarango, Ndulu Rutamla @ Makwenu, and Masanja Maige @ Kushaa, and the contentions of the respondent Republic on 1 November 2024, we allowed it, set aside the sentences and ordered the appellant's release from the prison, forthwith unless held for other lawful

cause. We reserved our reasons for that decision, which we are now proceed to give. However, we shall give the background to the matter albeit briefly ahead of the reasons as we think it is necessary to do so. Before the District of Bariadi, the appellants stood charged jointly with seven counts, namely; one, unlawful entry into a game reserve contrary to section 15(1) and (2) of Wild Life Conservation Act No. 5 of 2009 (the WLCA) read together with Government Notice No. 275 of 1974; two, unlawful possession of weapon in a game reserve contrary to section 17(1) and (2) of the WLCA; three, unlawful hunting of scheduled animals contrary to section 47(a), (aa), and 47(a), (cc) of the WLCA; four, unlawful hunting of a scheduled animals contrary to section 47(a) (cc) of the WLCA; five, unlawful hunting of scheduled animals contrary to section 47(a) (cc) of the WLCA; six, unlawful possession of government trophies contrary to section 86(1), (2) and (b) of the WLCA; seven, unlawful possession of government trophies contrary to section 86(1), (2) and (c) (iii) of the WLCA and eight, unlawful possession of government trophies contrary to section 86(1) (2) (c) (ii) of the WLCA. The Prosecution had five witnesses, along with some trophies and copy of the respective valuation form and inventory, as exhibits PI and

P2 respectively. The appellants denied the charges and were the defence witnesses by themselves, without exhibits. Upon trial, the appellants were convicted on the first, second, sixth, seventh and eighth counts and sentenced to serve twenty years in jail for each count, except for the first count where they were sentenced to one -year imprisonment or fine of TZS. 200,000.00 in default. Aggrieved by the decision, they appealed to the High Court. However, their appeal was transferred to the Resident Magistrates' Court (Ext. Jur.) before Mbuya, PRM as the first appellate court, in terms of section 45(2) of the Magistrates' Court Act. They lost the war and battle. Undeterred by the decision of first appellate court, the appellants preferred this second appeal with four points of grievance. However, for the reasons that will come to light shortly herein, we shall not reproduce their grounds of appeal. At the hearing on 01 March 2024, the appellants appeared in person, unrepresented whereas Ms. Immaculata Mapunda, learned Senior State Attorney and Mr. Leonard Kiwango, learned State Attorney appeared representing the respondent Republic. The appellants elected the Republic to submit first while reserving the right of rejoinder.

From the outset, Ms. Mapunda supported the appeal arguing the four grounds together, as she viewed them to be interrelated. She pointed out that the proceedings before the trial court were invalid and vitiated hence the prosecution case not proved beyond reasonable doubt. Expounding the point, while referring to pages vi and vii of the record of appeal, Ms. Mapunda contended that, the consent of the Director of Public Prosecutions and the respective certificate conferring jurisdiction to the trial court were incurably defective. Regarding the consent, that it was made under Notice No. 294 of 2014 which was non-existent, instead of Notice No. 284 of 2014. She also asserted that, it was not clear which offences were consented to for trial, just as the corresponding certificate omitted the offence of unlawful entry in the game reserve charged on the first count. Citing the Court's decision in Chacha Chiwa Marungu v. R, Criminal Appeal No. 364 of 2020 [2023] TZCA 17311 (5 June 2023 TanzLII). Ms. Mapunda argued that, the said defects rendered the prosecution case a failure. On that account, she urged us to nullify the respective proceedings, quash the decision and set aside the subsequent orders, in terms of section 4(2) of the Appellate Jurisdiction Act (the AJA). However, on the basis of the short falls above, she did not pray for trial de novo for the reasons; one, that, the evidence adduced did not establish boundaries of the alleged game reserve for proof of the charged

first and second counts; two, that no certificate of seizure was tendered in evidence to prove the alleged offence of unlawful possession of government trophies charged on counts one, six, seven and eight and three, that, the chain of custody was not established about how the exhibits moved from the appellants, to the game wardens, to police and thereafter to court during trial connecting the appellants, as charged. The appellants welcomed the Senior State Attorney's concession to the appeal and prayed for an order to allow the appeal and restore their liberty. It will be recalled that our order which nullified the proceedings of the courts below and set the appellants at liberty was premised on one consideration, namely; the impugned proceedings and resultant decision being flawed for want of a valid consent and certificate of the Director of Public Prosecutions (the DPP). In terms of section 26(2) of the Economic and Organized Crimes Control Act (the EOCA), any trial of an economic case has to be preceded by consent of the DPP in exercise of the power conferred upon him pursuant to Economic Offences (Specification of Officers Exercising Consent) Notice No. 284. For all intents and purposes, it goes without question, that, the certificate issued under section 12(4) of the EOCCA

confers jurisdiction to court to try the charged offence. However, our scrutiny of the certificate appearing at page vii of the record of appeal which was issued by Yamiko Alfredy Mlekano, Senior State Attorney on behalf of the DPP on 28 February 2017 clearly omitted the first charged offence of unlawful entry into a game reserve. We agree with Ms. Mapunda that the omission rendered the purported certificate to be inconsequential both to proceedings and the resultant decision. The more so, it's issuance under a non-existent Notice No. 294 of 2014, as correctly pointed out and argued by Ms. Mapunda. Nonetheless, in the wake of the Principle of Overriding Objective, where substantive justice is our first charged priority, we are hesitant to discount the certificate on that basis only as we do not see the appellants being prejudiced by it. As for the way forward, we agree with Ms. Mapunda on a contention that on account of the shortfalls singled out in the prosecution evidence, an order for retriai is ruled out. It is common ground that a retrial is only ordered where there is prima facie evidence to suggest that a trial de novo would bring the same results. In other words, the general rule has been that not all situations shall call for retrials. One of the circumstances, as it is in this case, where a retrial is undesirable, is where chances of the prosecution to fill up the gaps are not overruled. See - Nduru John

Ng'waya & 2 Others v. R (Criminal Appeals 464, 465 and 466 of 2020) [2024] TZCA 540 (10 July 2024; TanzLII). As rightly observed and argued by Ms. Mapunda, we note at pages 18, 22 and 27-28 of the record of appeal that, none of the three game wardens (PW2, PW3 and PW5) clearly established the boundaries of Maswa Game Reserve as proof of the charged offence of unlawful entry. It will be recalled that, put to defence, the appellants denied to be found within boundaries of the Maswa Game Reserve. Therefore, the burden of proof lied on the prosecution which they did not discharge, as rightly said by Ms. Mapunda. On this aspect of the evidence, we shall follow our stance in Dogo Marwa @ Sigana & Another v. R (Criminal Appeal No. 512 of 2019) [2021] TZCA 593 (21 October 2021; TanzLII) where the Court restated that: "We need not re-emphasize that the prosecution... did not prove beyond reasonable doubt that the park rangers arrested the appellants within the statutory boundaries of the Serengeti National Park." (Emphasis added) Given the above principle, we stress that, as the law stands today, the demarcation between a National Park or Game reserve for that matter, and the surrounding public or community land, it needs not be established

casually by the witnesses who more seldom than not, are Park or Game Rangers. The other defect that similarly prompted Ms. Mapunda to concede to the appeal, rightly so in our considered view, is on the absence of a certificate of seizure of the trophies. We note, from the record that, indeed no certificate of seizure was presented as exhibit, let alone being countersigned by the appellants to prove possession of the purportedly corresponding government trophies and the weapons, as charged on counts six, seven, eight and two respectively. Moreover, we need not stress more on the required degree of proof of the charged offence than we have done several times and repeatedly, including in Simon Abonyo V. R, Criminal Appeal No. 144 of 2005, (unreported) and Barnaba Bazilia Honoli v. R (Criminal Appeal No. 659 of 2021) [2024] TZCA 997 (28 October 2024; TanzLII). With regard to the prosecution's failure to establish the chain of custody with respect to the trophies, we also agree with Ms. Mapunda that nothing on record suggested that chain of custody remained intact throughout the trial. In fact it was not clear how the alleged trophies moved from the appellants to the police and thereafter to court during trial, so as to establish chain of custody which is prerequisite factual

aspect to prove that the appellants unlawfully possessed the trophies. See- Nduru John Ng'waya & Others (supra). In conclusion, after we considered all the glaring defects above, as pointed out and argued by Ms. Mapunda, we were left with no option other than to nullify the proceedings of the courts below, in terms of section 4(2) of the A3A and for the aforesaid reasons allow the appeal. We set aside the resultant sentence and order the appellant's immediate release from prison unless held for some lawfully cause. DATED at DAR ES SALAAM this 13th day of November, 2024. L. S. J. MWANDAMBO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Reasons for decision of the Court delivered this 14th day of November, 2024 in the presence of Mr. Leonard Kiwango, learned State Attorney for the Respondent/Republic, through video link from High Court of Tanzania at Shinyanga and in the absence of the Appellants is hereby