IN THE COURT OF APPEAL OF TANZANIA

AT MUSOMA

fCORAM: JUMA. C.J.. KITUSI. J.A. And MASHAKA, J.A.)

CRIMINAL APPEAL NO. 510 OF 2019

CHEYONGA SAMSON @ NYAM BARE................................................. APPELLANT

VERSUS
THE REPUBLIC............................................................................. RESPONDENT
(Appeal from the Judgment of Resident Magistrate's Court of Musoma
(Extended Jurisdiction) at Musoma)

(Ng'umbu, RM EXT. JUR.)

dated the 17th day of October, 2019

in
Criminal Appeal No. 26 of 2019

JUDGMENT OF THE COURT

22nd & 25th October, 2021

JUMA. C.J.:

CHEYONGA S/O SAMSON @ NYAMBARE, the appellant, appeared before the District

Court of Serengeti at Mugumu, charged with the following three counts. The first

count charged the appellant with unlawful entry into the game reserve contrary

to section 15(1) and (2) of the Wildlife Conservation Act No. 5 of 2009 (the

WCA). The particulars alleged that on 16/06/2018, the appellant entered into

the Ikorongo/Grumeti Game Reserve at Sirisiriba area without prior permission

of the Director of Wildlife.

 The second count which the appellant faced related to unlawful possession

of weapons in the game reserve. This offended section 17(1) and (2) of the

WCA read together with paragraph 14 of the First Schedule of the Economic

and Organized Crime Control Act Cap. 200 R.E. 2002 (the EOCCA) as amended

by the Written Laws (Miscellaneous Amendments) No. 3 of 2016. The

particulars of this count were that the appellant possessed a weapon, a

machete, at Sirisiriba area in the Ikorongo/Grumet Game Reserve without a

permit, and he failed to satisfy an authorized officer that the machete was not

for hunting or killing, wounding, or capturing of wild animals.

The third count the appellant faced related to unlawful possession of

government trophies in the form of eight pieces of dried wildebeest meat. This

offended section 86(1) and (2) (c) (iii) of the WCA read together with

paragraph 14 of the First Schedule to of the EOCCA as amended by the Written

Laws (Miscellaneous Amendments) No. 3 of 2016.

The prosecution built its case on the testimonies of four witnesses. These

were, the two Game Scouts from Ikorongo/Grumeti game reserve, Mwikwabe

Joseph @ Kichambati (PW1) and Gideon Timani (PW2); a wildlife warden,

Wilbroad Vicent (PW3); and a police officer at Mugumu in Serengeti District,

WP 5665 detective constable Sijali (PW4).

The appellant's encounter with the law enforcement officers began on

16/06/2018 at around 08:40 am. While on patrol along an area PW1 described

as Risiriba, PW1 and PW2 saw a person walking and carrying a luggage on his

head, and they accosted him. That person introduced himself to the scouts as

CHEYONGA S/O SAMSON @ NYAMBARE (the appellant). The scouts arrested

him, and upon searching his luggage, they found eight dried pieces of

wildebeest meat and a machete. After establishing that Cheyonga did not have

a permit to enter and possess government trophies and weapons in reserve,

they transported him to Mugumu Police Station. Thereafter, the police

registered the case as Number MUG/IR/2059/2018.

The following morning, PW4 received an assignment to investigate the

case. After labelling the exhibits (a machete and eight pieces of dried

wildebeest meat), PW4 invited PW3, a wildlife warden, to identify and also

determine the value of the impounded government trophies. PW3 duly

identified the eight dried pieces of wildebeest meat by their colour, which he
described as "slightly grey to darker brown, with white oil." He evaluated eight

pieces of meat to be equivalent to one killed wildebeest. He placed the

value of a wildebeest at 650 USD at the exchange rate of 1 USD to Tshs. 2180,

the total value of the wildebeest killed was Tshs. 1,417,000/=. The appellant

did not object when PW3 offered to tender the government trophy valuation

certificate (exhibit PE. 2). On 18/06/2018, PW4 prepared an inventory form to

take to a magistrate to obtain an order for the disposal of the perishable pieces

(eight) of dried wildebeest meat.

The appellant testified in his defence. He explained at around 6 am on the

day of his arrest, he had gone to his area within Mbilikili village to cut building

poles. The site was near the Ikorongo Game Reserve. Around 9 am, game

scouts from Ikorongo Game Reserve came by where he was. They assaulted

him, asking whether he had seen cattle grazing within the game reserve pass

by. The scouts first took him to their camp before taking him to Mugumu Police

Station. He denied the scouts' claim that he was carrying luggage when they

arrested him at Risimbe river. He was on his farm fetching building materials

(poles), he insisted.
 The trial learned trial magistrate, Hon. Ismael Ngaile—RM, found the

appellant guilty and convicted him on all three counts. In the first count of

unlawful entry into the game reserve, he sentenced the appellant to serve one

year in prison. The trial magistrate ordered him to serve two years in

prison for the second count of unlawful possession of weapon, and twenty

years for the third count of unlawful possession of government trophy. These

sentences ran concurrently.

The appellant was dissatisfied with his conviction and appealed to the High

Court at Musoma. Hon. J.R. Kahyoza (Judge in-Charge) transferred the appeal

to the Resident Magistrate's Court of Musoma under Section 45(2) of the

Magistrates Courts Act, Cap. 11 and directed W.S. Ng'umbu-RM to hear that

first appeal on extended jurisdiction (EJ).

Hon. W.S. Ng'umbu-RM (EJ) dismissed the appeal, holding that the

prosecution had proved the case on all counts beyond a reasonable doubt, and

the defence did not cast any doubt against the prosecution's case.

Being dissatisfied with the dismissal of his first appeal, the appellant filed

his memorandum of appeal containing five grounds of appeal, which we

paraphrase as follows.
 Firstly, the two courts below did not consider his defence and relied on

prosecution evidence to convict him.

Secondly, the two courts below grossly misdirected themselves in

relying solely on the evidence of game ranger and game scouts without any

support of independent evidence.

Thirdly, the trial and first appellate courts were wrong to rely on the

exhibits the game scouts created purposely to convict him.

Fourthly, the courts below failed to allow the appellant to call his witness

to support his defence.

Fifthly, the first appellate court failed to evaluate the appellant's

grounds of appeal.

At the hearing of this second appeal, the appellant appeared in person

by video link to Musoma Prison in Musoma. The Senior State Attorney, Mr.

Valence Mayenga, appeared for the respondent Republic. Learned State

Attorneys, Mr. Yese Temba, and Mr. Roosebert Nimrod Byamungu, assisted

Mr. Mayenga. The appellant adopted his five grounds of appeal and reserved

his submissions till after hearing from the learned State Attorneys.
 On behalf of his colleagues, Mr. Roosebert Byamungu began his

submissions by faulting the judgment of the Court of Resident Magistrate of

Musoma with Extended Jurisdiction, which sat as the first appellate court. He

elaborated that Hon. Ng'umbu, RM (EJ) failed to consider the five grounds of

appeal that the appellant raised through his appeal petition. Like the trial

District Court before him, the learned first appellate Resident Magistrate (EJ)

also raised issues for his determination and then made generalized statements

that the prosecution had proved its case beyond reasonable doubt.

In so far as Mr. Byamungu is concerned, the first appellate court had no

business raising issues like trial courts, he should rather have addressed the

petition grounds. Therefore, he urged us, the judgment of the first appellate

court was not a judgment in the eyes of the law. He asked us to invoke our

power of revision under section 4(2) of the Appellate Jurisdiction Act, Cap 141

R.E. 2019 (the AJA), to nullify the decision of the first appellate court. He

submitted that we took similar measures in SIMON EDSON @ MAKUNDIV.

R, CRIMINAL APPEAL NO. 5 OF 2017 [TANZLII].

With our nullification of the judgment of the Resident Magistrate's Court

of Musoma exercising extended powers, Mr. Byamungu submitted, the Court

cannot consider the appellant's grounds of appeal because they emanate from

a judgment that no longer exists on record. He suggested two possible

alternative ways forward. The first possible way is for the Court to order the

return of the record of this appeal to the Resident Magistrate's Court of

Musoma for that subordinate Court to hear the appellant's grounds of appeal

on extended jurisdiction. The second option is for us to assume the role of the

first appellate Court, to re-evaluate the evidence available in the trial

court's record. According to Mr. Byamungu, returning the record to the

Resident Magistrate's Court will entail much delay. He prompted us to adopt

the second option of stepping into the shoes of the first appellate court to re­

evaluate the evidence on record. He considers this approach as more in

keeping with the best interests of justice.

The learned State Attorney next took us through the evidence of both the

prosecution and the defence regarding the third count of unlawful possession

of government trophies (eight pieces of dried wildebeest meat).

In order to prove this third count, he explained, the prosecution, through

PW4, tendered an inventory (exhibit P.E.3), showing how on 18/06/2018, a

magistrate allowed the disposal of the perishable pieces of dried wildebeest

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meat. Mr. Byamungu gave reasons why he thought exhibit P.E. 3 could not

suffice to convict the appellant in the third count of unlawful possession of

government trophies. First, because exhibit P.E.3 does not show that the

magistrate gave the accused person (the appellant) the opportunity to be

present before he ordered the disposal of the dried wildebeest meat. Secondly,

the magistrate did not hear the appellant's version of how the eight pieces of

dried wildebeest meat were found in his possession. The learned State Attorney

cited the case of MOHAMED JUMA

@MPAKAMA V. R., CRIMINAL APPEAL NO 385 OF 2017 (TANZLII), where

this Court gave helpful guidance emphasizing the right of an accused person

to be present before a magistrate issues an order to dispose of the perishable

exhibit, together with the accused person's right to be heard. All said, Mr.

Byamungu urged us to allow the appellant's appeal concerning the third count

of unlawful possession of government trophies.

Mr. Byamungu did not however relent on first count of unlawful entry into

the Ikorongo/Grumet Game Reserve, and on the second count of unlawful

possession of weapons in the Ikorongo/Grumet Game Reserve. Based on his

view of the evidence on record, he demonstrated why he believes that our re­
evaluation of evidence will still convict the appellant on the first and on the

second counts.

In support of his proposition that we should convict the appellant on the

two counts, Mr. Byamungu urged that the game scouts (PW1 and PW2) who

arrested the appellant gave direct evidence under section 62(1) of the Evidence

Act, Cap 6 R.E. 2019. They asserted that they stopped the appellant at Sirisiriba

within Ikorongo Game Reserve. The learned State Attorney was however, not

forthcoming when we prodded him whether the area of arrest was within the

statutory limits of the Ikorongo Game Reserve.

He urged us to believe the prosecution evidence that placed the appellant

within the Ikorongo Game Reserve carrying a machete.

Mr. Byamungu moved on to the sentencing provisions. He referred to the

sentences of one year imprisonment, which the trial court imposed for the first

count of unlawful entry into the game reserve, and the two years in prison for

the second count of illegal possession of a weapon in the game reserve. He

asked us to enhance the sentences to comply with the minimum sentences of

twenty years because on 16/06/2018 when the appellant committed these two

offences, the EOCCA had already been amended by the Written Laws

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(Miscellaneous Amendments) Act, 2016 [Act No. 3 of 2016] to prescribe a

minimum sentence of twenty years for unlawful entry into the game reserve,

and for unlawful possession of a weapon in the game reserve. He cited the

case of NG'WAJA JOSEPH SERENGETA @ MATAKO MEUPE V. R.,

CRIMINAL APPEAL NO. 417 OF 2018 [TANZLII] where the Court stated that

following the amendment of the EOCCA by Act No. 3 of 2016, the law now

requires a person convicted of corruption or economic offence, to serve prison

term for not less than twenty years but not exceeding thirty years.

In his submissions earlier, Mr. Byamungu invited us to nullify the

judgment of the Resident Magistrate's Court of Musoma (EJ) because the first

appellate court did not consider the appellant's grounds in the appeal petition.

We agree with the learned State Attorney that the failure by the first appellate

court to consider the grounds of appeal which the appellant presented through

his petition of appeal was a fatal irregularity calling for the exercise of our

power of revision under section 4(2) of the AJA. The first appellate court failed

to heed what we directed appellate courts in MALMO MONTAGEKONSULT

AB TANZANIA BRANCH V. MARGRET GAMA, CIVIL APPEAL NO. 86 OF

2001 (unreported) that:

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 "... the first place ; an appellate court is not expected to
answer the issues as fram ed a t the trial. That is the role
o f the tria l court It is, however, expected to address the
grounds o f appeal before it Even then, it does not have
to deal seriatim with the grounds o f appeal as listed in the
memorandum o f appeal. It may, if convenient, address
the grounds generally or address the decisive ground o f
appeal only or discuss each ground separately".

Given the failure of the first appellate court to consider the grounds of

appeal petition, we invoke our revisional powers under section 4(2) of the AJA

to nullify and quash the judgment of the Resident Magistrate's Court of

Musoma (EJ) in Criminal Appeal No. 26 of 2019.

After nullifying the judgment of the first appellate court, we shall take the

role of the first appellate court. Because Mr. Byamungu conceded the appeal

against the third count of unlawful possession of Government trophies, we shall

re-evaluate the evidence relating to the remaining first and second counts of

unlawful entry into the game reserve and unlawful possession of a weapon in

the game reserve. Whether we should agree with the learned State Attorney

to enhance the sentences on conviction in the first and second counts will

depend on the outcome of our re-evaluation of evidence.

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 We now have to re-evaluate the competing evidence, whether the

appellant entered the Ikorongo Game Reserve, specifically, whether the

appellant is the person PW1 claims he saw at Risiriba within Ikorongo Game

Reserve, "carrying a luggage" which upon search contained eight pieces of

dried wildebeest meat. Particulars of the offence in the first and second counts

allege that the game scouts arrested the appellant at the Sirisiriba area of

Ikorongo/Grumeti Game Reserve. PW1 testified that he and other game scouts,

who included PW2 arrested the appellant within Ikorongo/Grumeti reserve.

PW2 testified that they stopped the appellant at RUSIRI inside that game

reserve.

The appellant defended himself that the game scouts arrested him at

MBILIKILI Village while harvesting building poles outside the Ikorongo/Grumeti

Game Reserve.

After receiving conflicting versions of evidence on where the game scouts

arrested the appellant, we expected the trial magistrate to consider and weigh

the competing evidence before concluding that the prosecution evidence

outweighed the appellant's evidence. The particulars of the offence in the first

and second counts mention "Sirisiriba area into Ikorongo/Grumeti." PW1

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mentions "Risiriba within Ikorongo Game Reserve." PW2 identifies the "Rusiri

area." The specific area where the game scouts arrested the appellant is an

essential ingredient (actus reus) of both unlawful entry into the game reserve

and the offence of unlawful possession of weapon in the game reserve.

The prosecution did not cross-examine the appellant on his testimony that

the game scouts accosted and arrested him at his village outside the Ikorongo

Game Reserve. Cross-examination would at least have shown that

the prosecution did not accept the appellant's version as accurate. Failure to

cross-examine suggests that the prosecution did not dispute the appellant's

version of evidence that the game scouts stopped and arrested him at his farm

which was outside the Ikorongo Game Reserve.

We disagree with Mr. Byamungu that we should give the evidence of the

game scouts (PW1 and PW2) more credence than the appellant. We shall stick

by the position this Court took in GOODLUCK KYANDO V. R. [2006] TLR

363, 367 that, "every w itness is entitled to credence and m ust be believed, and

his testim ony accepted unless there are good and cogent reasons for not

believing a w itness." The learned State Attorney did not show us any

convincing why reason we should not believe the appellant.

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 Since the Ikorongo Game Reserve boundaries are statutorily defined, the

evidence on record must place the appellant inside the statutory limits of this

reserve. It will not suffice to shift the evidential burden to the accused person

where PW1 and PW2, the two prosecution witnesses, merely narrate that the

game scouts arrested the appellant inside the Ikorongo Game Reserve without

demonstrating the area of the arrest of the appellant to be within the statutory

boundaries of that reserve. At very least, Mr. Byamungu conceded that the

First Schedule of the Wildlife Conservation (Ikorongo and Grumeti Game

Reserves) (Declaration) Order, 1993 (GN NO. 214 of 1994) provides the

boundaries of the Ikorongo Game Reserve.

We disagree with the trial magistrate's evaluation of evidence, which

concluded that the evidence of PW1 and PW2 proved that the game scouts

arrested the appellant within the Ikorongo Game Reserve in unlawful

possession of a machete.

After finding that the prosecution evidence did not prove beyond

reasonable doubt that the game scouts arrested the appellant inside the

Ikorongo Game Reserve, we shall not bother ourselves with the question of

whether the appellant wielded a machete when the scouts stopped to arrest

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him. Also, we shall not address Mr. Byamungu's urging to enhance the

sentences to the minimum of twenty years.

In the upshot, we allow this appeal, quash the appellant's conviction by

the trial court, and set aside the sentences. The appellant shall be set at liberty

immediately unless he is otherwise lawfully held.

DATED at MUSOMA this 23rd day of October, 2021.

I. H. JUMA
CHIEF JUSTICE

I. P. KITUSI
JUSTICE OF APPEAL

L.L. MASHAKA
JUSTICE OF APPEAL

The Judgment delivered this 25th day of October, 2021 in the Presence
of Mr. Kainunura Anesius, learned Senior State Attorney and Mr. Moses Mafuru,
learned State Attorney for the Respondent/Republic and the Appellant
appeared remotely via Video link from,Musoma Prison is hereby certified as a
true copy of the original. f| [

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