ABDALLAH HAMADI JUMA VS REPUBLIC 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI CRIMINAL APPEAL NO. 9473 OF 2024 (Originating from Economic Case No. 08/2022 of Mwanga District Court at Mwanga) ABDALLAH HAMADI JUMA ……………………………. APPELLANT VERSUS REPUBLIC ………………………………………………. RESPONDENT JUDGMENT 15/10/2024 & 12/11/2024 SIMFUKWE, J. The appellant, Abdallah Hamadi Juma, was aggrieved by the decision of the District Court of Mwanga (the trial court), which convicted and sentenced him to pay a fine of TZS 11,435,000/= or serve twenty years of imprisonment. 1 Before the trial court, the appellant was charged with the offence of unlawful possession of Government trophy, contrary to section 86 (1) (2) (b) of the Wildlife Conservation Act, Cap 283 R.E 2022, read together with paragraph 14 of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act [CAP 200 R.E. 2019]. The prosecution alleged that on the 21st day of June 2021, at Reli Juu village within Mwanga District in Kilimanjaro Region, the appellant was found in unlawful possession of a government trophy, to wit: fresh meat of dik-dik equivalent to two killed dik-dik valued at 500 USD (TZS 1,143,500/=), the property of the United Republic of Tanzania. The appellant denied the charge, leading to a full trial. The prosecution built its case upon the testimonies of three witnesses and seven exhibits, while the appellant was the only witness in his defence. Before the trial court, the prosecution claimed that on the material date, PW3 and his fellow police officers were returning from Mwanga Primary Court when they met two individuals on a motorcycle. Suspecting them, the police officers stopped them, identifying the driver as the appellant. PW3 narrated that the motorcycle had a blue sulphate bag at the front. 2 When the individuals failed to stop, PW3 and his colleagues pursued them. The suspects abandoned both the luggage and the motorcycle. The officers called one woman to witness the scene. The items were taken to the police station and handed over to PW2, the exhibit keeper. The meat in question was examined by PW1 and confirmed to be a Government Trophy. The exhibit was then presented before Mwanga District Court, which ordered the meat to be destroyed, after which an inventory was filled. PW3 further testified that the motorcycle belonged to one Mohamed Shaban Msuya, who stated that he had hired the appellant as a bodaboda driver. He produced an agreement as evidence. The appellant was then arrested on 30/07/2021. It was alleged that, on interrogation, the appellant confessed to had committed the offence. The handover form, the certificate of seizure and the cautioned statement were admitted as exhibits PE6, PE7, and PE8, respectively. In his defence, the appellant stated that he was arrested while cleaning his motorcycle, which belonged to one Issa Ndaghine. He averred that the case had been framed against him. 3 At the end of the trial, the trial court found the prosecution’s evidence, sufficient to prove the offence charged beyond reasonable doubts. Consequently, the appellant was convicted as charged and ordered to pay a fine of TZS 11,435,000 or to serve twenty years imprisonment. Dissatisfied with the decision, the appellant filed the present appeal on the following grounds: 1. That, the learned trial Magistrate strayed into error of law when he failed to note that the alleged meat alleged to be found with the appellant was never proved to be dik dik meat or government trophy. 2. That, the learned trial Magistrate grossly erred both in law and fact when he failed to note that the appellant was not positively identified at the scene of crime as the circumstances and conditions favouring a proper and correct identification were not conducive. 3. That, the learned trial Magistrate grossly erred both in law and factual analysis when he failed to note that PW3 failed to give any description, complexion, attire or peculiar mark of the one alleged to be at the crime scene and ran away 4 as such it is unknown how he identified the appellant and in what features (sic). 4. The learned trial magistrate erred in law and factual analysis when he failed to note that the credibility of a witness is enhanced by the ability of a witness to name a suspect at the earliest opportunity. 5. The learned trial magistrate strayed into error of law when he made remarks in his judgment which are not reflected in the evidence adduced. 6. The learned trial Magistrate erred in law and factual analysis when he failed to give weight the appellant’s objection in regard to the admissibility of the alleged cautioned statement Exh PE8, as such, he even failed to make the assessment that the said statement was also out of time prescribed by the law. 7. The learned trial Magistrate erred in law and factual analysis when he relied on weak, contradictory, inconsistency with material discrepancies and uncorroborated prosecution evidence. 5 8. The learned trial Magistrate erred in law and factual analysis when he failed to consider that the charge against the appellant was not proved beyond reasonable doubt. At the hearing, the appellant was unrepresented whereas Ms Bora Msafiri Mfinanga, learned State Attorney argued the appeal for the respondent. On the second ground of appeal, the appellant submitted inter alia that the position of the law is well settled that a court should not act on evidence of visual identification unless all possibilities of mistaken identity are eliminated. He submitted further that visual identification is a class of evidence that is vulnerable to mistake, as even in recognition cases instances of mistaken identity may occur. That, apart from factors favouring accurate identification, credibility of witnesses has to be considered equally. The appellant supported his argument with the famous case of Waziri Amani v. Republic [1980] T.L.R 250 in which the Court of Appeal observed that: “…… Although there are no hard and fast rules can be laid down as to the manner a trial judge should determine questions of disputed identity …… we would, for example expect to find on record questions such as the following posed and resolved by him the time 6 the witness had the accused under observation; the distance at which he observed him; the condition in which such observation occurred, for instance, whether it was day or night time, whether there was good or poor lighting at the scene, and further whether the witnesses knew or had seen the accused before.” The appellant stated that, in the present appeal, the time which PW3 Cpl Mahengera had the appellant under observation is unknown. The distance at which he observed him was never stated. Although PW3 identified the appellant, it is unknown how he came to recognize him by that name as PW3 never explained whether he knew or had seen the appellant before and whether he had any special reason for remembering him. The appellant stated further that there was no ample time for proper observation and identification. It was submitted further that, even if it is assumed that PW3 never knew the appellant before the incident, there were other shortfalls. It was insisted that PW3’s evidence on how he identified the appellant is generalized. He did not describe the appearance of the appellant in terms of body build, complexion, size or even attire. Hence, the same made PW3’s evidence unreliable. To the same effect the case of Omari Iddi 7 Mbezi and 3 Others v. Republic, Criminal Appeal No. 227 of 2009 (unreported) was cited, in which the Court of Appeal reiterated the need for the trial court to adhere to several guidelines in order to avoid mistaken identity of suspects. The appellant continued to state that, PW3 testified that he was with another fellow officer called J. 153 PC Oscar (who never appeared to testify). That, PW3 never gave any first report to his colleagues in regard to the identification he made, including the exhibit keeper PW2 Cpl Grasiano to whom he handed over the alleged dik-dik meat. The appellant referred evidence of PW2 at page 13, 15th line of the typed proceedings where he said that he did not know the appellant. Outlining different types of identification, the appellant subscribed to the case of Jumapili Msyete v. Republic, Criminal Appeal No. 110 of 2014 (unreported) in which the Court of Appeal stated that: “In visual identification, description of the suspect build or attire may be necessary but in recognition cases, naming the suspect would be sufficient.” 8 It was stated further that credibility of a witness is enhanced by the ability of a witness to name a suspect at the earliest opportunity. Whereas, in our case, PW3 did not mention the appellant to anyone. Thus, his credibility is questionable and essentially PW3 made dock identification which was not preceded by a proper conducted identification parade. He cemented his submission by citing the case of Francis Majaliwa and 2 Others v. Republic, Criminal Appeal No. 139 of 2005 (unreported) which adopted the reasoning in Gabriel Kamau Njoroge v. Republic (1982 – 1988) 1 KAR 1134 where the Court of Appeal of Kenya stated that: “Dock identification is worthless (the court should not rely on dock identification) unless this had been preceded by a properly conducted identification parade.” On the first ground of appeal, the appellant submitted that identification of the government trophy made by PW1 Bahati had no detailed explanation on how the meat was identified and distinguished from meat of other domestic animals. He was of the view that an expert has to provide the criteria and material for adjudging situations. He cited the case of Davie v. Edinburgh Magistrates, 1953 S.C 34 at page 40 9 which was cited with approval in the case of The DPP v. Shida Manyama @ Selemani Mabuba, Criminal Appeal No. 285 of 2012 (unreported), elaborating the duty of an expert to be: “To furnish the court with the necessary scientific criteria for testing the accuracy of their conclusion so as to enable the court to form its own independent judgment by the application of these criteria to the facts proven in evidence.” It was explained that an expert has to go beyond making mere assertions as it was cautioned by the Court of Appeal in the same case of DPP v. Shida Manyama (supra) when it cited the case of Romesh v. Regency Hospital Ltd (2009) 9 SCC 709, that: “Mere assertions without mentioning the data or basis is not evidence, even if it comes from an expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value ….” Weighing evidence of PW1 in light of the above dimensions, the appellant averred that it was no evidence worth being relied on. He suggested that 10 the trial court ought to have had taken it that the alleged trophies were not properly identified. The same affected the evidential value of the trophy valuation certificate, Exh P.E 2, inventory form Exh P.E 1 rendering them useless in the eyes of the law. It was stated that the type of trophy and its value is significant in the determination of a proper sentence in terms of section 86(1) (2) (a) (b) and (c) of the Wildlife Conservation Act No. 5 of 2009. Thus, failure to establish the type of trophy render it impossible to assess the sentence upon conviction. Also, the appellant faulted the trial court for its failure to involve the appellant when the disposal order of exhibits was made by the Magistrate. It was disclosed that the inventory form, exhibit P.E.1 lacked the comments of the appellant, which reveals that the appellant was not asked to give his comments, if any. To buttress his submission, the appellant cited the case of Buluka Lekeni Ole Ndidai and Another v. Republic, Criminal Appeal No. 459 of 2020 (unreported) which held that reflection of accused’s comments on the inventory form saves important purpose such as being proof that he was present before the magistrate when the disposal order was made. Significantly, that he was heard and his comments were taken by the magistrate before the order 11 was made. That, absence of appellant’s comments in exhibit P.E.1 affected its credence and it was improperly relied on. In conclusion, the appellant submitted that, the cumulative effect of the contradictions, flaws and deficiencies which were never considered by the lower court, was to render the purported prosecution evidence suspect and doubtful. He urged this court to find merit in the appeal and allow it. In his reply submission, Ms Bora submitted among other things that the Republic is not supporting the appeal. She prayed that the appeal be dismissed for lack of merit. On the first ground of appeal, the appellant contended that PW1 was the competent person to assess, value, weigh and issue the trophy valuation certificate as per section 86 (4) and 114 (3) of the Wildlife Conservation Act (supra). Ms Bora supported her submission with the case of Shabani Ally Athuman, Criminal Appeal No. 151 of 2021 (unreported), in which the Court referred to its earlier decision in the case of Jamali Msombe & Another v. Republic (Criminal Appeal No. 28 of 2020) [2022] TZCA 165 (30 MARCH 2022) which held that: 12 “ …. In the present appeal, the designation of the person who assessed, valued, weighed and issued the trophy valuation certificate was a principal game officer. It is common ground that the main task of any game officer is to protect wildlife and ensure proper implementation of the WCA. We are therefore, satisfied that PW6 was a competent person to assess, value, weigh and issue the trophy valuation certificate….” In the case at hand, it was submitted that PW1 described how he identified the government trophy by stating the distinguishable feature which was the morphology features that helped him to conclusively find that the said meat was dik-dik, weighed 5 kilograms and valued at 500 USD. Hence, the first ground of appeal has no merit. On the second and third grounds of appeal, Ms Bora replied that the appellant was properly identified at the scene of crime by PW3 G. 4623 Cpl Mahengera as shown at page 13 to 16 of the typed trial court proceedings. That incident took place at 12:00 pm which means it was noon and there was enough sunlight to enable PW3 to identify the motorcycle drove by the appellant with the parcel which he was carrying on the motorcycle. At page 14 of the typed proceedings, PW3 pointed at 13 the appellant as the person who was the driver of the said motorcycle. On 30th July 2021, PW3 was able to identify the appellant and apprehended him. On interrogation, the appellant confessed that he was the one who was carrying the dik dik meat on a motorcycle with registration number MC 574 CCF make King lion. On the fourth ground of appeal, the learned state attorney was of the opinion that the principle of naming a suspect at earliest opportunity is applicable in sexual offences. That, the principle cannot be applied to the case at hand since the facts of the said case are very distinguishable from the case at hand. It was reiterated that PW3 who was the arresting and investigation officer, clearly narrated that he was able to seize the government trophy from the appellant on 21st June 2021. However, the appellant ran away from the crime scene and PW3 was able to identify him as it was afternoon. That, when PW3 went back to Mwanga Police Station, he opened the case MWG/IR/740/2021. On 22nd June 2021 PW3 was ordered to proceed with investigation. Given the facts, PW3 was not obliged to mention the accused to other police officers since he had already recorded his statement in the case file and he was assigned to proceed with the investigation of the case. 14 On the fifth ground of appeal, the learned State Attorney responded by referring to section 312 of the Criminal Procedure Act which provides that: “312. –(1) Every judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Act, be written by or reduced to writing under the personal direction and superintendence of the presiding judge or magistrate in the language of the court and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer as of the date on which it is pronounced in open court.” (Emphasis added) In our case, it was submitted that the above requirements are clearly reflected in the trial court judgment. The same reveals that after reproducing evidence of both sides, the trial magistrate did proceed to assess the evidence the by showing the points or issues which were to be determined, the decision thereon and the reasons for the decision as imperatively required in the above quoted provision of the law. Ms Bora 15 was of the view that there were no remarks which the trial magistrate made that are not reflected in the evidence adduced by the witnesses. On the sixth ground of appeal, the learned state attorney stated that the cautioned statement of the appellant was properly admitted and it complied with all requirements provided under section 50 (1) (a) and (b) of the Criminal Procedure Act (supra). It was stated further that the trial court typed proceedings at page 17 shows that the trial court conducted an inquiry after the appellant raised an objection to the admission of his cautioned statement. The said objection was in respect of the issue of voluntariness and not the issue of time limit. Notwithstanding the above, responding to the raised issue of time of recording the cautioned statement, Ms Bora said that, the prosecution called PW3 who testified that the appellant was arrested on 30th July 2021 by J. 153 PC Oscar with the assistance of the motorcycle owner one Mohamed Shaban around 12:00 hrs. Then, the appellant was taken to Mwanga police station where he was interrogated by PW3 from 14:45 pm to 16:00 hrs. Thus, the cautioned statement of the appellant was recorded within four hours since his arrest. 16 On the seventh ground of appeal, the learned state attorney opposed the assertion that conviction and sentencing the appellant was based on weak, contradictory, inconsistent, material discrepancies and uncorroborated prosecution evidence. She was of the opinion that the prosecution evidence against the appellant was watertight and strong enough to secure conviction against the appellant. That, evidence of all prosecution witnesses corroborates each other and the same was never contradictory as alleged by the appellant. It was explained that PW3 explained how he was able to seize the meat suspected to be dik-dik and he called PW4 an independent witness who signed the certificate of seizure. Also, PW3 stated that he handed over the exhibits to PW2 the exhibit keeper. Thereafter, the exhibit was examined by PW1 who came into conclusion the said meat was dik-dik meat. That, the meat was later disposed of before the Resident Magistrate of Mwanga District Court. The learned state attorney referred the case of Dickson Elia Nsamba Shapwata vs Republic, Criminal Appeal No. 92 of 2007 at page 7 to emphasise that normal errors of observation do not affect the credibility of witness. On the eighth ground of appeal that the prosecution did not prove the case beyond reasonable doubt, Ms. Bora submitted that the prosecution 17 was able to prove all the elements of the offence of unlawful possession of government trophy. She reiterated that the first element on whether the meat was government trophy was proved by PW1 who proved that the seized meat was dik-dik meat. That, the second and third ingredients that the appellant was found in possession of government trophy without legal permit was elaborated by PW3 and PW1 at page 7, 13 and 14 of the trial court proceedings. In her final remarks, Ms. Bora prayed the court to dismiss the entire appeal for lack of merit. I have gone through the grounds of appeal, the written submissions of both parties and the records of the lower court. Having done so, I will address the grounds of appeal seriatim. Starting with the first ground of appeal, the appellant faults the evidence of PW1 on the ground that it does not explain how he identified the said meat and how he distinguished it from that of other domestic animals. Ms. Bora replied that PW1 was a competent person authorized to access, value, weigh, and issue the trophy valuation certificate. I have examined the entire evidence of PW1 in conjunction with other 18 prosecution evidence, and it is notable that the appellant explained in his cautioned statement (exhibit PE8) that the said meat was dik-dik meat. He stated, 'Kuna kijana anayeitwa Ally Jumanne alinikodi nimtoe mjini nimpeleke reli juu apeleke hiyo nyama pori ya dikidiki ambapo niliongozana nae.' It is astonishing to note that the appellant is now doubting whether the said meat was dik-dik or not. Be that as it may, PW1, the District Game Officer and an expert from Mwanga District Council, identified the said meat through its morphology, as evident at page 8 of the trial court proceedings. As an expert, it is my observation that PW1’s evidence cannot be faulted without strong evidence to the contrary. In the case of Mussa Ernest vs Republic (Criminal Appeal 463 of 2019) [2022] TZCA 655 (27 October 2022) at page 17, the Court stated that: “An expert witness is required to provide the court with a statement of his or her opinion on any matter in dispute calling for the expertise by the witness provided that they have the necessary qualification to give such an opinion.” Emphasis added 19 PW1 being a District Game Officer, I am convinced that he had necessary qualifications to give such opinion that the seized meat was dik-dik. Therefore, the first ground of appeal is without merit. Moving to the second and third grounds of appeal, the appellant argued that he was not properly identified. In his detailed submission, supported by case laws, the appellant contended that PW3 failed to provide a description of the culprit in his evidence. In response, Ms. Bora submitted that the appellant was properly identified, given the fact that the incident occurred during the day and there was sufficient light. She added that PW3's evidence establishes that the owner of the motorcycle appeared at the police station and identified the appellant as the person he had hired as the driver of the seized motorcycle. At the outset, I concur with Ms. Bora that the issue of identification has no merit in this case. The cited cases, which involved night time incidents where proper identification was contested, are distinguishable from the present case. As rightly submitted by Ms. Bora, it is an undisputed fact that the incident, as per the evidence of PW3 and PW4, occurred in the afternoon. Furthermore, as evident at pages 14 and 15, the owner of the 20 motorcycle, which was carrying the said meat, testified that they had hired the appellant as their driver. Consequently, it is my considered opinion that the appellant's claim that he was not properly identified and thoroughly described lacks a legal foundation. On the fourth ground of appeal, the appellant challenges the credibility of PW3's evidence, arguing that he failed to name the suspect at the earliest possible opportunity. In response, Ms. Bora submitted that, as a police officer who witnessed the incident and as an investigator, PW3 was not obliged to identify the accused at the earliest opportunity. I acknowledge the principle of law cited by the appellant, which holds that failure to name a suspect at the earliest possible opportunity can cast doubt on the credibility of a witness. However, with due respect to the appellant, I find that this principle is inapplicable to the present situation. As Ms. Bora pointed out, PW3 was both the arresting officer and the investigator. Consequently, there was no need for PW3 to name the culprit at the earliest possible time, rendering the principle inapplicable in this case. Based on the above findings, I hereby find that this ground of appeal lacks merit and it is accordingly dismissed. 21 Turning to the fifth ground of appeal, the appellant faulted the trial magistrate for making remarks that are not supported by the adduced evidence. However, the appellant failed to specify the alleged remarks. After reviewing the judgment in light of the entire evidence, I respectfully conclude that there is no any remark that is not supported by evidence on record. This ground of appeal is therefore unfounded. On the sixth ground of appeal the appellant argued that the trial magistrate erred in failing to give due weight to his objection regarding the admissibility of the cautioned statement, which was allegedly taken out of the prescribed time. In response, Ms. Bora, among other things, pointed out that the cautioned statement was recorded within the prescribed time frame. She added that the inquiry which was conducted before the trial court focused on the voluntariness of the cautioned statement and not whether the same was recorded within the prescribed time. With due respect to the appellant, the allegations that the cautioned statement was recorded out of the prescribed time was not among his objections before the trial court. Thus, he cannot at this stage blame the trial magistrate to that effect. 22 Without prejudice to the foregoing, according to the evidence of PW3, as reflected at page 15 of the trial court proceedings, the appellant was arrested by PW3 at 11:00 hours. The interrogation commenced at 14:45 hours, which falls within the four-hours timeframe prescribed by section 50(1)(a) of the Criminal Procedure Act, Cap. 20 R.E 2022. Therefore, the allegations that the cautioned statement was recorded out of the prescribed time is without merit. The last issue for determination is in respect of the seventh and eighth grounds of appeal. Essentially, under these grounds of appeal, the appellant claimed that the trial magistrate relied on the evidence which was contradictory, inconsistency with material discrepancies and uncorroborated. On the eighth ground of appeal, the appellant believed that the prosecution case was not proved beyond reasonable doubt. On the other hand, Ms. Bora submitted that all the elements of unlawful possession of government trophy were proved beyond reasonable doubt and there was no any material contradiction. I have carefully studied the prosecution evidence; the appellant was charged with an offence of unlawful possession of government trophy. According to the evidence of PW1, the meat which appellant was found 23 in possession was confirmed to be dik-dik. PW3 and PW4 testified that the appellant was the driver of the said motorcycle which was carrying the said government trophy. The evidence was supported by the cautioned statement (exhibit PE8) of the appellant which explained that the meat which he was found in possession was dik-dik. In that regard, it is my considered opinion that the prosecution case was proved beyond reasonable doubt. The appellant claimed that the prosecution evidence was contradictory. However, the appellant did not mention the area of contradiction nor did he explain how such evidence was inconsistent. Therefore, the seventh and eighth grounds of appeal as well are devoid of merit. Based on the above findings, I dismiss this appeal in its entirety. Order accordingly. Dated and delivered at Moshi this 12th day of November 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 12/11/2024 24 25