ahamad so hamisi nampamba others vs republic 2013 tzhc 2135 26 june 2013

IN THE HIGH COURT OF TANZANIA AT LINDI [MTWARA REGISTRY] CRIMINAL APPEAL NO. 48 OF 2012 [Original Lindi District Court Economic Criminal Case No.4 of 2009] Before: Hon. Ndunguru, Esq: RM AHAMAD % HAMISI NAMPAMBA & TWO OTHERS ~ APPELLANTS VERSUS ' THE REPUBLIC..................................................... RESPONDENT Date of last order - 24/6/2013 4 Date of Judgment - 26/6/2013 *I JUDGMENT KIBELLA, J. In the District Court of Lindi at Lindi, the appellants Ahmad s/0 Hamisi Nampamba, Mohamed s/o Mtange, and Bakari s/0 Ibrahim Songea, together with one Njile s/0 Dotto Saida who did not appeal were jointly and together charged^with the offence of being in unlawful possession of Government Trophies Contrary to section 70(1) and (2) (b) of the Wildlife Conservation Act, [Cap.283 R.E 2002] read together with paragraph 14(d) of the first schedule and section 57(1) both of the Economic and Organised % Crimes Control Act [Cap.200 R.E 2002]. They were all convicted as charged and sentenced to serve twenty (20) years imprisonment under section 70(1), (2)(b) of the Wildlife l Conservation Act, Cap.283 [R.E 2002]. The appellants herein were aggrieved by the trial court’s findings on both conviction and sentence and lodged this appeal. The particulars of the charge, laid before the trial court show that, on 2nd day of December, 2009, during night hours at Kineng’ene village within the District and Region of Lindi, the appellants were found in unlawful possession of twenty three pieces of Elephant tusks* valued at TShs.6,240,000/= the property of the United Republic ^ T a n z a n ia without any written permit or licence. The evidence leading to the conviction of the appellants, included that \ of ASP Taisamo, Police Officer, OC-CID®Lindi District, who told the trial court that on 30/11/2009 in the morning while in his office, two people arrived and reported that, they saw some people with elephant tusks and they were looking for customer. That PW.1 decided to call D/Sgt. Ramadhan (PW.2) and told him to act as customer of the said trophies. He (PW.1) told D/Sgt Ramadhani to make arrangement with informers. That they arranged the business to be done next day. PW.1 went on saying that he made arrangement of the private vehicle for that purpose, and prepared other two policemen who were D/C Joel (PW.3) and D/C Kazinza (PW.4). %V *He went on testifying that on 2/12/2009 having communicated by the owner of trophies (1st accused) through informer he (1st accused) said he was at Mchinga and that they had to collect him at Mchinga village, when they reached at Mchinga he (1st accused) was not there, he said he was at Mtumbikile village. They went to Mtumbikile village, when phoned him he said he was at Kitomanga. Then, PW.1 said, they went to Kitomanga and met the 1st and 2nd accused (1st appellant), on the road waiting for them at Mkwajuni. That their vehicle stopped and greeted the informer and boarded the vehicle. £1 • ‘ That having boarded the vehicle they said the trophies were at Namkongo village, that they started a journey to Namkongo. That at Namkongo village the 1st and 2nd accused (1st appellant) told them to wait ;v , while they were going to take the luggage, but returned with the 3 accused (2nd appellant) who introduced as Mohamed, they said the trophies were at Moka village, they then started a journey to Moka village. While on the way they said the trophies were at Kineng’ene, they then turned the way to Kineng’ene. That at Kineng’ene the accused (1st and 2nd appellant inclusive) left saying they were going to take the trophies. It took almost 30 minutes from the time they left. When phoned to them they .v instructed them (policemen) to follow the road going to Lindi. That they travelled almost two Kilometres. It was when they met the 4th accused (3rd ,A;._ appellant) who introduced himself as Songea. They said the trophies were at the farms. {T h e y started going to the farms direction till where the vehicle could no! longer go. ... xA A R W .1 , went on stating that, he and the driver remained in the vehicle while the informer, went away. That after a short period of time, D/Sgt. Ramadhan (PW.2) and the informer returned followed by the appellants who carried the trophies in the sulphate bags. They loaded them in the vehicle and themselves boarded the vehicle, knowing that the vehicle was going direct to Dar es Salaam. That he (PW.1) instructed the driver to go direct to the Police station and arrested the appellants. That when counted, the tusks were 23 pieces. Then PW.1 called the District Wildlife Officer for valuation of tusks. The tusks weighed 50 kgs and valued at Tshs.6,240,000/= and the valuation report was admitted as exhibit “P2” for the prosecution. PW.2, D.7397 D/Sgt. Ramadhan, also testified that on 30/11/2009 in the morning while he was in the office of the RCO, he was called by OC- CID and instructed to prepare a trap for the arrest of people who were in possession of elephant tusks. PW.2 further said, in that trap he acted as a customer as he was yet known at Lindi. That he and the informer made an arrangement that, the transaction be done at Mchinga on 1/12/2009. PW.2 went on saying that on 1/12/2009 at about 10.00 a.m. he was phoned by the informer who told him that the owner of the elephant tusks wanted to talk with the customer. That they met at Magereza Club, that it was him f * ' ■■■ - (PW.2), the informer and the owner (1st accused) who introduced himself as Njile. That the 1st accused told them that he had 20 kgms which will be sold Tshs.30,000/= per kgm. PW.2 agreed the price. £• S • 'Sc**- ¥ % PW.2 further testified that he told Njile (1 accused) that he will have one police officer for safeguarding the luggage and other two persons for carrying the luggage. Then OC-CID having been given the feedback he arranged for transport. He went on stating that on 2/12/2012 they got a Civilian vehicle Land Cruiser H/TOP and PW.2 took the briefcase pretending to have carried the money. They started a journey with an informer to Mchinga where Njile (1st accused) said was. That at Mchinga Njile was not present, when phoned he said he was at Mturnbikile where the trophies were. When they went at Mtumbikile they didn’t find him, when phoned he said he was at Kitomanga. They went at Kitomanga. On the way he told them that he was at Mkwajuni near Kitomanga. They met him with the 2nd accused (1st appellant). That Njile, having seen PW.1 as he already knew, boarded the vehicle with his fellow and said the trophies are at Namkongo. At Namkongo, Njile with his friend (1 appellant) dropped from the vehicle and went somewhere, when they returned they were with the 4th accused (3rd appellant) Bakari Songea. .% - That when PW.2 asked about the luggage 4th accused (3rd appellant) responded that it was at Mtumbikile. They started a journey to Mtumbikile, when they were near to Mtumbikile, the 3rd appellant said the luggage was at Kineng’ene, he even instructed the good' road to Kineng’ene and it was almost 21.00 hours. When they reached at Kineng’ene, Njile (1st Accused), Ahamad (2nd accused) and the"4th accused told the driver to stop. They went to the bush, by then thelcommunication was between Njile and the informer who was told to,^advance near Kineng’ene village. They went almost two kilometers.. When they met Bakari (3rd appellant) and Ahmad (1st appellant) waiting for them, they stopped the vehicle and instructed to f* ■W go to the left side heading the road to Lindi, at a few meters they met Njile with the 3rd accused (2nd appellant) at an abandoned house. X ^ P W .2 further testified that, the appellant with D/C Joel and Kazinza went to take the trophies while he (OC-CID) and the driver remained in the vehicle. PW.2 said, he remained in the vehicle as he had a briefcase which he pretended to have money. That when the luggage was brought he told them that he will pay them at Lindi, the appellants agreed, they loaded the 5 trophies and the appellants boarded the vehicle to Lindi. Then the driver was instructed to go to the police station, where they arrested them and kept them under custody. PW.3 F.4828 D/C Joel similarly told the trial court that, he was also .-s. among the police who set a trap for the arrest of the a p p e lla n t^* He testified that on 2/12/2009, at about 01.00 p.m. they started a journey to Mchinga. That the informer having communicated with the 1st accused he said the trophies were at Mtumbikile, where the 1st 'accused was. That while at Mtumbikile, the 1st accused told them, that he was at Kitomanga, Mkwajuni. There, they met the 1st and 2nd accused, the vehicle stopped and the 1 accused having seen Sgt.^Ramadhani, they boarded the vehicle. While in the vehicle the 1st accused told the informer that the luggage was at Namkongo. They then started a safari to Namkongo. At \ Namkongo villace they packed the vehicle at the Dispensary, then Ahmad (1st appellant) and Njile dropped saying they were going to take the luggage but they returned,with 3rd appellant one Bakari Songea. The 3rd appellant said the luggage was transferred to Mtumbikile. While on the way to Mtumbikile^village, Njile said the luggage was at Kineng’ene. Then a.: •-a * Jf they started a safari to Kineng’ene, the 1st accused, 1st appellant and 3rd appellant-dropped and left them for a long time. When they phoned them they were instructed to advance with the road. After two kilometers they %» met Ahmad, and Bakari who told them to wait there. Then PW.3 and D/C Kazinza went with them. At the bush they started digging and took out three sulphate bags. That when they came back to the vehicle they were with the 2nd appellant (3rd accused). They carried the trophies to the vehicle and started a journey to Lindi for payment. The driver went direct to the Police Station and the appellants were arrested. PW.4 G.389 D/C Kazinza upon oath testified that being a policeman on 2/12/2009 at noon he was called by ASP Taisamo (PW.1) and told Jo prepare himself to go to arrest the persons in possession of elephants tusks. PW.4 went on testifying that, he together with D/C Joel, Sgt. Ramadhani ASP Taisamo and two informers started a journey to Mchinga. That at Mchinga they didn’t find the accused (appellants). They were however told that they were at Kitomanga. At Kitomanga they met the 1st and 2nd accused who told them that the luggage was at Namkongo. That at Namkongo the 1st and 2nd accused (1st appellant) went to the village houses and came with the 4th accused (3rd appellant) who later said the luggage was at Kineng’ene. That they went to Kineng’ene where they found the 3rd accused (2nd appellant) one Mohamed Mtanga, and it was where the luggage was taken 'and later the accused (appellants) were arrested. v PW.5 one# Masoud Rashid upon oath, told the trial court that, he was a driver employed by Lindi District Council, that on 2/12/2009 while at the office he was told by DED to report to the OC-CID Lindi. That he reported to the QC- CID who told him that at 02.00 p.m. they had to go to Mtumbikile village. At 02.00 p.m. he fueled the vehicle and reported to the police station where he took four policemen and went to Magereza club where they took other two persons, and started their journey. That while at Mtumbikile one lady among those two persons who were taken at Santonni area said the person they are tracing was at Mkwajuni area at Kitomanga. 7 That at Mkwajuni they met two persons. They stopped and the two persons boarded the vehicle, and said they had to trace another person at Namkongo. At Namkongo, the two persons called the 4th accused who came and said they had to go to Kineng’enge. They started the journey to Kineng’ene and reached the interior of the village and stopped the vehicle. The accused (appellants) dropped and disappeared to the village.^ PW.5 said they waited for them for almost two hours one of them went back and instructed them i.e those who remained in vehicle to advance further to the village almost two kilometers they found a grass thatched’house deserted. Then he was told to open the door of the vehicle. The persons came with the luggage, they loaded the same, in the vehicle and started a journey to Lindi. He was instructed to go to the police-station where the accused were arrested and the luggage was the elephant tusks. On their part the appellants gave their defence as DW.2, DW.3 and % DW.4 respectively. In their defence they all denied involvement in the offence charged. They tried to establish that their meeting in the alleged vehicle was accidentally and was not planed. Each tried to show that that they boarded the vehicle after they asked for lift to Lindi. Their defence 1fr"“ was supported by the testimony of Ally s/0 Kayuchi, who testified as DW.5 and his testimony was to the effect that on 2/12/2009 he met a vehicle at i & ■■'ft Namkongo, that the vehicle belonged to the District Council. It stopped at the ^dispensary. DW.5 further said that, he is a health attendant of the said Dispensary, that he went there but the driver, said they have not gone for medical purpose. Then the 4th accused (3rd appellant) arrived there saying he wanted to go to Lindi, he went to the vehicle and got the chance, then the vehicle left. The trial magistrate had an opportunity to evaluate the above testimony. However in his analysis of the testimony he was satisfied that, the prosecution testimony was very strong and proved the offence charged beyond reasonable doubt. He further found, the defence testimony as a mere kicks of a dying horse or a cry in the wilderness. He proceeded to convict them as charged and sentenced them accordingly. As found earlier, the appellants herein were aggrieved, hence this appeal. The appellants filed separate memorandum of appeal each containing ninth (9) grounds which however can conveniently be summarized into one major ground to the effect that:- The offence against the appellants was not proved beyond reasonable doubts. During the hearing of this appeal, the appellants were unrepresented and they had nothing to add or elaborate in support of the appeal. On the other hand Ms. Mangu, learqed State Attorney who represented the Respondent Republic, at the'outset supported the appeal. She argued that the prosecution testimony was not strong to prove the charge against the appellants to the required standard. She went on submitting that there were contradictions and inconsistencies in the prosecution testimony which were not addressed by the trial Magistrate. She pointed some of the contradictions, including that of PW.1 which contradicted with the testimony of RW.2. That while PW.1 claimed to have met the 3rd accused (2nd ■f ^ appellant) at Namkongo having been brought by the 1st accused one Njile and the 1st appellant, PW.2 testified that at Namkongo they met the 4th accused (3rd appellant) who was brought by other accused. Also PW.4 contradicted with PW.1 when he (PW.4) said that at Namkongo was where they found the 3rd appellant and not the 2nd appellant as stated by PW.1. Similarly PW.1 contradicted with the testimony of PW.3, in that, while PW.1 claimed that at Kineng’ene was where they found the 2nd appellant, PW.3 claimed that it was 3rd appellant who was found at Kineng’ene. She was of the further view that the above contradictions of the prosecution witness who claimed to have been at the scene of crime and witnessed the same thing raises doubt to the prosecution case and that the trial Magistrate ought to have addressed those irregularities as was held in the case of Mohamed Salum Matula v.R [1995] f.L.R 3. That since the contradictions were not resolved by the trial t|v. magistrate there, remained questions without answers which casts doubt to "the prosecution case. She * ■ #~ added that since the contradictions went to the root of the case, they should be resolved in favour of the appellants. On sentence she viewed, the same could have been proper if the appellants could have been legally found guilty. I have duly considered the trial court’s record, the grounds of appeal, together with the submissions by the learned State Attorney, Ms. Mangu. The issue^to be determined is whether the charge against the appellants was proved beyond reasonable doubt. In her submission Ms. Mangu has highlighted some contradictions and inconsistencies in the prosecution testimony and requested this court to resolve the contradictions and inconsistencies in the prosecution testimony in favour of the appellants. It is now a settled principle that, minor discrepancies and contradiction in the prosecution witnesses may not cause the prosecution case to be dismantled. It is only where there are material contradictions, then the prosecution case may be dismantled. See the case of Said Ally Ismail Vs. The Republic, Criminal Appeal No.214 of 2008, CAT at Mtwara [unreported] at page 4, the court stated “.... It is not every discrepancy in the prosecution’s witnesses that will cause the prosecution case to flop. It is only where the gist of the evidence is contradictory then the prosecution’s case- will be dismantled.” Therefore it is the duty of the courts "to address any apparent discrepancy and contradictions in the prosecution witnesses, and see to it whether the contradictions are only minor or fundamental one as was rightly held in the case of Mohamed Said Mtula Vs. Republic [1995] T.L.R 3 [CAT]. In our case, the portion of PW.1 testimony which is alleged to contradict with the,testimony of PW.2 can safely be quoted as hereunder see page 20 of the trial court’s proceedings, and it reads:- “...T’A t Namkongo the 1st and 2nd accused said they are going to take the trophies. We stayed waiting but they % came with the 3rd accused who introduced to be V Mohamed who said the trophies are at Moka village. * We started safari to Moka village on the way he said the trophies are at Kineng’ene. On his part, PW.2 testified differently when he stated at page 28 of the trial court’s proceedings that:- .................................. “......At Namkongo we stopped the vehicle and Ahmad dropped and went in the village, after sometimes they came with Bakari Songea. When we asked where is the luggage Bakari Songea [4th accused] said.... The luggage is at Kineng’ene.....” [emphasis supplied]. As quoted above while PW.1 claimed to have met the 3ra accused at Namkongo, and that it was the 3rd accused Mohamed Mtange who directed them, where the trophies were hidden. PW.2 came with a different testimony, to him, at Namkongo they met the 4th accused Bakari Songea and that it was the 4th accused who directed them the place where the trophies were hidden. This c o n tra d ictio n ^ my view was very fundamental as it touched the gist of the prosecution testimony. There is other contradiction,C in ttfe prosecution testimony. See for instance the testimony of PW 3 who claimed at page 33 of the trial court’s proceedings that:- “.... On the^way to Kineng’ene close to the village... the three accused [1st, 2nd and 4th ] dropped and left us.... When they came back they were with the 3rd accused.:...” I The above testimony contradicted with the testimony of PW.1 at page 23 of .the trial court’s proceedings when PW.1 said:- “At Kineng’ene the accused left us saying they are going to bring trophies. They left for 30 minutes. When communicated to them they instructed us to follow the road of Lindi we followed the road almost two kilometers it is when we met the accused with the 4th accused who introduced to be Songea.” In the above quoted testimony the contradiction between PW.1 and PW.3 is apparent. While PW.1 claimed that the 4th accused (3rd appellant) was found at Kineng’ene village, PW.3 testified it is the 3rd accused (2nd appellant) whom he came with from taking the elephant tusks, meaning that the 4th accused (3rd appellant), was already with them when they arrived at Kineng’ene village. There is also a contradiction with regard to % '%■ %£ the testimony of PW.4 and PW.1. PW.4 claimed that at Namkongo village was where they met the 4th accused (3rd appellant) and not the 3rd accused (2nd appellant) as PW.1 claimed. ~ 4^ In his decision, the trial magistrate was of the view that, the prosecution evidence was very straight, consistent and very direct. If the trial magistrate could have directed its mind, and objectively analysed that testimony, he could have found that there were apparent contradictions, inconsistencies and discrepancies in the prosecution testimony which destroyed the ciedibility and the reliability of the prosecution witnesses. Therefore, as rightly ^ submitted by Ms. Mangu, learned State Attorney, ■C/ those shortcomings in the prosecution testimony must be resolved in favour of the appellants^ T therefore find merits in this appeal. The trial court’s conviction•■vs* is hereby quashed and set aside the sentence imposed on the appellants. It is hereby ordered that the appellants be set at liberty forthwith unless otherwise they are lawfully held. Appeal allowed. 26/6/2012 Order; Judgment delivered in chambers today 26th June, 2013 in the presence of the appellants each in person as well as in the presence of Ms. Mangu, learned State Attorney for the Respondent Republic. Right of Appeal fully explained. X' \ R.M. Kibetla', Judge > 26/6/2012