Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 17396 OF 2024 {Originating from the District Court of Kiiwa at Kiiwa Masoko, in Criminal Case No. 9/2022} AHMAD ABDUL HASSAN............................................. 1st APPELLANT HEMED SAID KINDEMBA............................................ 2nd APPELLANT VERSUS THE REPUBLIC............................................................... RESPONDENT JUDGMENT 12th August, & 19h September, 2024 MPAZE, J.: Ahmad Abdul Hassan and Hemed Said Kindemba were jointly arraigned before the District Court of Kiiwa at Kiiwa Masoko, facing one count of unlawful possession of Government Trophy, contrary to section 86(1) & (2)(c)(iii) of the Wildlife Conservation Act No. 5 of 2009, as amended by the Written Laws (Miscellaneous Amendments) Act No. 2 of 2016, 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, Cap 200 [R.E 2022]. 1 As is customary, after the accused is brought before the court, the charge must be read to them. In this case, the particulars of the offence in the charge, which were read and explained to the appellants, stated as follows; That on 19th December, 2022 at Naipanga Village within Kilwa District in Lindi Region, Ahmad Abdul Hassan and Hemed Said Kindemba were found in possession of government trophies, to wit, eight (08) pieces of elephant tusks, equivalent to four (4) elephants, valued at Tanzanian Shillings 140,014,896/=, being the property of the Government of Tanzania, without a permit from the Director of Wildlife. After the particulars of the offence were read to them, the appellants pleaded not guilty, leading to a full trial where both appellants were found guilty, convicted, and sentenced to serve 20 years of imprisonment each. The appellants were dissatisfied with this decision and have thus appealed to this court on nine grounds, as follows; 1. That the trial court erred both in law and fact by convicting and sentencing the accused persons without considering that there was blockage of chain of custody in handling of the purported government trophies (elephant tusks) by the prosecution side. 2 2. That the trial magistrate erred both in law and fact by convicting the appellants without considering that the prosecution failed to call material witnesses to come and adduce evidence before the couer during hearing of the case. 3. That the trial magistrate erred both in law and fact by convicting the appellants without considering that, they were unlawful detained and cautioned by police under coercion and without giving them right to access their iawyer(s) and /relatives. 4. That the trial magistrate erred both in law and fact for failure to evaluate properly the evidence as was brought by the prosecution side as they failed to prove their case to the standard required by law which is beyond reasonable doubt. 5. That the trial magistrate erred both in law by convicting the appellants upon retying the weakness of their defence instead of considering that the prosecution side failed to prove their case beyond reasonable doubt. Hence the trial magistrate shifted the burden ofproof to the Appellant contrary to the law. 6. That the trial magistrate erred both in law and fact to convict the 2nd appellant relying on his confession statement which was not only retracted by him but also he denied the same to have been taken as he was forced to sign something while unaware that it is the 3 confession statement and the same was done under coercion before the police custody. 7. That the trial magistrate erred both in law and fact by convicting the appellants upon relying the contents of the documentary evidences which were not read out by the witnesses to the appellants during the hearing of the case. 8. That the trial magistrate erred both in law and fact for admitting and rely on a seizure certificate which was issued without receipt contrary to the law. 9. That the trial magistrate erred both in law and fact to decide that the elephant tusks had a value of USD 60,000 without proof from proper authority which is responsible for weighing and value them. During the hearing of this appeal, the appellants were represented by Mr. Dickson Matata a learned advocate, while the respondent/Republic was represented by Ms. Florence Mbamba, a learned State Attorney. Before I delve into the grounds of appeal as submitted by the parties, I find it imperative to briefly outline the facts of the case as recorded in the trial court, which led to the conviction of the appellants and their subsequent sentencing to 20 years of imprisonment. 4 To establish the case against the appellants, the prosecution paraded five witnesses and tendered several exhibits. It was stated by prosecution witnesses that on 19th December, 2022 police officers on patrol received information from their informer that in the village of Naipuli, at the house of the head teacher of Naipuli Primary School, there are people engaged in the illegal trade of elephant tusks and were planning to transport them to Dar es Salaam. The evidence shows that after receiving this information, A/INSP Filbert (PW2), along with his fellow officers, went to the village and met with the Village Executive Officer (VEO), who led them to the house of the head teacher. PW2 stated that upon arriving at the house, they found the appellants in the sitting room, sitting with a sulphate bag. PW2 stated that they introduced themselves to the appellants and expressed their intention to conduct a search, to which the appellants agreed. Upon opening the sulphate bag, PW2 discovered eight elephant tusks, a fact also witnessed by Fadhili Said Mwinyiwiwa (PW3). PW2 asked the appellants if they had a permit for possession, they responded that they did not. He then filled out a certificate of seizure, which was signed by himself, the appellants, and the independent witness. 5 PW2 further stated that after this, he took the appellants together with the elephant tusks found with the appellants to Kilwa Police Station, where he opened Police Case No. KLM IR 632 of 2022 for unlawful possession of Government Trophy. He then handed over the Exhibit to the exhibit keeper through PF 16. He also said that he labeled the elephant tusks as NP 1 to 8 and the sulphate bag as NP 9. These Exhibits were admitted into evidence without objection as Exhibit PEI and PE2, respectively. The certificate of seizure was admitted as PE4 after the trial magistrate overruled the objection raised by the counsel for the 1st appellant. G 2935 CPL Alto (PW1) explained how he received the eight elephant tusks from PW2. As the exhibit keeper, he registered the tusks and assigned Exhibit No. 79 and documented them in PF16, which is the exhibit register. He tendered the exhibit register, which was admitted as Exhibit PEI. The weight and value of these elephant tusks were assessed by Goodluck Melkizedecki Ndossi (PW4), a Wildlife Conservation Officer, who stated that the tusks weighed 14 kilograms and were valued at USD 60,000, equivalent to TZS 140,014,896/=. This value corresponds to four elephants that were killed, with the value of one elephant being USD 6 15,000, and the exchange rate at that time being one shilling equivalent to USD 2,333.58. PW4 tendered the Valuation Report, which was admitted as Exhibit PE5 without any objection. F 4346 D/SGT Filbert (PW5), a police officer, took the confession statement of the 2nd appellant. When he sought to have the statement admitted, an objection was raised. The trial court conducted an inquiry and, after its ruling, admitted the statement as Exhibit PE6. After the closure of the prosecution case, both appellants were found to have a prima facie case. They defended themselves without calling any witnesses. The 1st appellant, in his extensive defence, asserted that this case was fabricated due to an ongoing love relationship between his wife and one of the police officers in Kilwa. He claimed that after discovering this relationship through his wife's phone, the officer threatened to show him who was in charge. He stated that one week after these interactions, he was subsequently arrested. The 2nd appellant, on the other hand, stated that on the day of his arrest, he was on the road when he saw a vehicle stop and someone called him over. It was the 1st appellant, who informed him that he had been arrested and asked him to inform his father. As he was leaving, he 7 was also called by one of the police officers, arrested, and placed in the vehicle, later being charged with this offence, which he claimed he had never committed. In summary, this is what transpired in the evidence. Other matters will be discussed as I address the grounds of appeal. During the hearing of the appeal, Mr. Matata, counsel for both appellants, dropped grounds 7 and 8. He then proceeded to argue the remaining grounds sequentially, though not consecutively. Similarly, in addressing this appeal, I will adopt the same approach, considering each ground in the order it was presented by the parties. To begin with the first ground of appeal, Mr. Matata, the advocate, challenges the trial court's decision to find the appellant guilty of the offence, arguing that there was a break in the chain of custody. The broken chain of custody that Mr. Matata referred to, and which he wants this court to consider, involves PW1, the exhibit keeper, who received the exhibit from PW2 and allegedly demonstrated a break in the chain of custody. Mr. Matata contended that in his testimony, PW1, while referring to page 20, stated that he handed the said Exhibit to Sergeant Vincent because he was going on leave. He argues that after PW1 handed the 8 Exhibit to SGT Vincent, the evidence is silent on how the elephant tusks reached PW4, who performed the valuation. He asserts that while PW4 claimed to have received the said Exhibit from PW1, there is no evidence showing when SGT Vincent handed it back to PW1 for him to then hand it over to PW4. In his view, this indicates a break in the chain of custody. Mr. Matata further argued that neither oral accounts nor documentary evidence were provided to establish this chain. He continued, stating that there is also no evidence showing how the said exhibit reached the National Prosecution Service office and later was tendered in court as an Exhibit. To support his argument, Mr. Matata referred to the case of Maqanyi Sentau Maqanyi v. R, (Criminal Appeal No. 254 of 2020) 2024 TZCA 401 (6 June 2024), where the court, on page 12, insisted that there should be documentation from one party to another to ensure that the Exhibits are not tampered with. He emphasized that in this case, it was insisted that where there is a failure to establish the chain of custody, such evidence cannot be relied upon to find an accused guilty. Based on this submission, Mr. Matata urged this court to find that there was a break in the chain of custody, which was fatal, and therefore, 9 the trial magistrate erred in convicting the appellant when there was a break in the chain of custody. In response to this argument, Ms. Florence, the State Attorney, strongly denied the existence of a break in the chain of custody. She argued that it is a legal principle that the maintenance of the chain of custody can be established either through an oral account or by a paper trail. Elaborating on how the oral account established that the chain of custody was not broken, Ms. Florence highlighted the testimony of PW2, the arresting and seizing officer of the said elephant tusks, who handed them over to PW1. PW1 also testified that he received the said elephant tusks from PW2 and stated that he was the one who handed them over to PW4 for valuation. PW4 also confirmed receiving the tusks from PW1. Ms. Florence pointed out that PW1 was not cross-examined concerning the issue of the chain of custody. Therefore, she argued that the failure to cross-examine PW1 and PW4 on this issue and then raising it on appeal is an afterthought. She supported her argument by referring to the case of Nyerere Nyaque v. R, (Criminal Appeal No. 67 of 2010) [2012] TZCA 103 (21 May 2012). io Continuing her response, Ms. Florence stated that in addition to the oral account, the paper trail, specifically Exhibit PEI, clearly shows that PW1 received and secured the said Exhibits. She referred to the case of Issa Hassan Uki v. R, (Criminal Appeal No. 129 of 2017) [2018], TZCA 361 (10 May 2018), where it was emphasized that since elephant tusks are not easily tampered with, when assessing the chain of custody, we must differentiate them from exhibits that are easily tampered with. Distinguishing the case referred to by Mr. Matata, Manqanyi Sentau, she argued that the circumstances of that case do not match those of the present case, as in the Manqanyi Sentau case, both oral and paper trail accounts were not established. Regarding the argument that the evidence is silent on how the elephant tusks were brought to court and tendered as exhibits, Ms. Florence emphasized that elephant tusks do not easily change hands, so it cannot be said that there was a break in the chain of custody. Based on the strength of the oral account, Ms. Florence urged this court to find that the chain of custody was never broken and that this ground of appeal is without merit. In his rejoinder, Mr. Matata reiterated his earlier submissions and insisted that the chain of custody was indeed broken. He emphasized that what was stated in the Manqanyi Sentau case is exactly what transpired n in the present case. He further argued that if the chain of custody was not crucial for elephant tusks, as submitted by Ms. Florence, based on the notion that they are not easily tampered with, then the case would have explicitly stated so. He added that even the Maganyi's case, which involved elephant tusks, insisted on the importance of maintaining the chain of custody. With these stance, Mr. Matata maintained that the chain of custody was broken. After evaluating this ground of appeal and the arguments put forth by both parties, I have decided to pause and fully cite the relevant excerpts from the two cases cited by the trained minds. This will allow for a comparative analysis with the current case and a thorough assessment of the principles established in those precedents. Starting with the case of Maqanyi Sentau Maqanyi, referred to by counsel for the appellant, the Court of Appeal had this to say; 'Indeed, the prosecution evidence is silent as regards the chain of custody of the elephant tusks. There is no documentary on oral evidence establishing how the tusks were handled from the time of their seizure to the date on which the same were tendered in court. As stated in the famous case of Paulo Maduka and 4 Others v. Republic, Criminal Appeal No. 110 of2007 (unreported); 12 ' The chain of custody requires that from the moment the evidence is collected, its every transfer from one person to another must be documented and that it be provable that nobody else could have accessed it. The Court went further that; ' The purpose of recording the chain of custody is to establish that the collected evidence, in this case the real evidence tendered in the trial court (the elephant tusks), are the same items which were alleged to have been seized from the appellant's compound. When there is a failure to establish the chain of custody, such evidence cannot be acted upon to found an accused person's conviction.' Returning to the case referred to by the State Attorney, Issa Hassan Uki, the Court of Appeal stated; 'Z/7 the instant case, the items under scrutiny are elephant tusks. 14/e are of the considered view that elephant tusks cannot change hands easily and therefore not easy to tamper with. In cases relating to chain of custody, it is important to distinguish items which change hands easily in which the principle stated in Paulo Maduka and followed in Makoye Samwei @ Kashinje and Kashindye Bundala would apply. In cases relating to items which cannot change hands easily and therefore not easy to tamper with, the principle laid down in the above case can be relaxed. We were confronted with an akin situation in Joseph Leonard Manyota v. Republic, Criminal Appeal No. 485 of 2015 13 (unreported). In that case, tike in the instant one, the appellant challenged the chain of custody of a motor cycle. In differentiating the chain of custody in respect of goods which can change hands easily and those which cannot, we stated at pp. 18-19 of the typed judgment. '... it is not every time that when the chain of custody is broken, then the relevant item cannot be produced and accepted by the court as evidence] regardless of its nature. are certain that this cannot be the case say, where the potential evidence is not in the danger of being destroyed, or polluted, and/or in any way tampered with. Where the circumstances may reasonably show the absence of such dangers, the court can safely receive such evidence despite the fact that the chain of custody may have been broken. Of course, this will depend on the prevailing circumstances in every particular case.' We fully subscribe to the position we took in Joseph Leonard Manyota (supra). The elephant tusks in the case at hand were such that they could not change hands easily and therefore could not easily be tampered with. Neither was there a danger to have them tampered with. They were therefore appositely received in evidence. The fourth ground of appeal, despite concession by the learned State Attorney, fails.' I have carefully and calmly read the two cases. Generally, both cases emphasize the importance of the chain of custody. The Maqanyi Sentau case clearly states that when the chain of custody fails to be 14 established, such evidence cannot be acted upon to convict the accused. Upon reviewing that case, I observed that neither the oral account nor the documentation was not given at all to prove the chain of custody. The court on page 11 stated; ' There is no documentary or oral evidence establishing how the tusks were handled from the time of their seizure to the date on which the same were tendered in court' This is why the Court of Appeal concluded that the chain of custody had not been established However, in the case of Issa Hassani Uki, the Court of Appeal, while discussing the issue of the chain of custody, stated; ' Mr. Songea and Mr. Msetti, are at one that the chain of custody of the relevant exhibit in the present case left a lot to be desired as no documents were brought in evidence to show how it was seized, kept and changed hands.' Despite this allegation, the Court of Appeal in that case stated that the circumstances of a case must be considered. If there is no evidence indicating the danger of tampering with the exhibit, the court can safely rely on that exhibit, even if the chain of custody may have been broken. The Court highlighted that due to the nature of the elephant tusks, which 15 are not easily tampered with, the principles relied upon in cases such as Paulo Maduka can be relaxed. In addition to the cases cited by the trained minds, I have also examined the case of Chacha Jeremia Murimi & 3 Others v, R, (Criminal Appeal No. 515 of 2015) [2019] TZCA 52, which also discussed the issue of the chain of custody and stated; V/7 establishing a chain of custody, we are convinced that the most accurate method is on documentation as stated in Paulo Maduka and Others vs. R., Criminal Appeal No. 110 of 2007 and followed in Makoye Samwel @ Kashinje and Kashindye Bundala, Criminal Appeal No. 32 of 2014 cases (both unreported). However, documentation will not be the only requirement in dealing with exhibits. An exhibit will not fail the test merely because there was no documentation. Other factors have to be looked at depending on the prevailing circumstances in every particular case.' Applying the principle established in the cited cases to the current case, it is necessary to revisit the testimony provided at the trial, which indicates that PW2 testified to seizing eight elephant tusks and subsequently handing them over to PWl's exhibit keeper for storage. PW1 states that after receiving the Exhibit, which is the 8 elephant tusks, he assigned it number 79. PW4 states that he received the 8 elephant tusks from PW1 for the purpose of examination and valuation. 16 Mr. Matata has argued that it is unclear how PW1 transferred the exhibit to PW4, since PWl's testimony indicates that the exhibit was handed to office SGT Vicent. Mr. Matata questions when SGT Vicent returned the exhibit to PW1, allowing PW1 to then transfer it to PW4. The lack of detailed information on this matter led Mr. Matata to assert that there was a break in the chain of custody. I examined the page cited by Mr. Matata, specifically page 20, but did not find the content he referred to. Instead, I found the pertinent details on page 22, in the first paragraph, where PW1 testified that; 'After entering the exhibit in the exhibit register, we put the exhibit in store. I handled the office exhibit store to SGT Vicent.' Upon examining this part of PWl's testimony, as well as any other relevant portions, there is no evidence that PW1 indicated having handed over the office to SGT Vicent during his leave. Although PW1 testified that he handed over the office to SGT Vicent, the specific details of this handover, including the reason for the handover due to his leave and the duration of the leave, are not provided in the evidence. Furthermore, PW1 was not cross examined by the defence to ascertain how the elephant tusk was subsequently transferred to PW4 if the office had been assigned to another person. 17 Since PWl's testimony was not challenged regarding the handing of the elephant tusks to PW4 for weighing and valuation, I cannot assert that there was a break in the chain of custody. Mr. Matata identified another part where he believes the chain of custody was compromised, arguing that it is unclear how the elephant tusks arrived at the court. I concur that there is no evidence in the oral testimony indicating this; however, examining Exhibit PE 1, which was admitted without objection, shows that Exhibit No. 79 was removed from the Exhibit Room by PW1 on 22nd August, 2023 the same date PW1 appeared in court to testify. Although the exhibit is recorded as having been removed from the store and brought to court, the records indicate that it was not tendered as Exhibit on that date until on 29th November, 2023. One might question where the elephant tusks were stored after leaving the store on 22nd August, 2023 as there is no evidence addressing this. Another concern is whether the tusks, while in storage at a location that was not specified after leaving the store, could have been tampered with To establish that an item has been tampered with, it must be shown that the item has been altered, interfered with, or damaged in some way. In this case, PW2, who seized and identified the eight elephant tusks, 18 tendered them to the court. This implies that if the tusks were not the ones PW2 had seized, he would not have been able to pray for their admission as Exhibit. Moreover, since the appellants did not contest the admission of these tusks when they were tendered, it becomes difficult to claim that the tusks tendered were not the same ones seized on 19th December, 2022 by PW2. Mr. Matata also contended that the evidence does not show how the said elephant tusks were moved to the National Prosecution Office. I have reviewed the records and found no part where a witness testified the transfer of the elephant tusks to the NPS office. Worse still, Mr. Matata failed to specify which witness's testimony stated that this exhibit was moved to the NPS office. Therefore, I find this complaint to be without merit. In light of this evidence, I am not convinced that the chain of custody was compromised to a degree that would undermine the integrity of the evidence in this case. Accordingly, I find this ground to be without merit. Addressing the fourth ground of appeal, which faults the trial magistrate for failing to properly evaluate the evidence presented by the prosecution, alleging that it did not prove the case beyond a reasonable 19 doubt, Mr. Matata submitted that the prosecution's evidence was contradictory and that none of the witnesses corroborated each other's testimony. In analyzing the evidence while pointing out contradictions, Mr. Matata highlighted the testimony of PW1, who described the appearance of the elephant tusks he received. Although this witness stated that there were eight tusks, when he proceeded to describe them, he mentioned only that two were large, two were small, and two were medium, thus describing only six. Mr. Matata further noted that despite PWl's mention of large, medium, and small tusks, PW2 only described the presence of large and small ones, without specifying how many were small, how many were large, and how many were medium. He added that this inconsistency continued with PW3, who did not mention the number of elephant tusks seized, nor did he specify how many were large, medium, or small. Mr. Matata further argued that the inconsistencies did not stop there, as even PW4 failed to specify how many tusks were large, how many were small, and how many were medium. Another discrepancy highlighted by Mr. Matata was found in the testimony of PW3, who stated that they discovered two sulfate bags one 20 containing maize and the other containing elephant tusks an assertion not corroborated by any other witnesses. Additionally, Mr. Matata pointed out that PW3 did not explain how he knew the residence of Mwl. Fadhila, arguing that being a Village Executive Officer (VEO) does not necessarily mean he would be familiar with everyone's residence. Furthermore, he noted that there was no evidence given to show that PW3 received the police officers and led them to Mwl. Fadhila's home, believing there should have been proof, such as the officers signing the visitors' book, since they encountered PW3 at his office. Another shortcoming raised by Mr. Matata was that the evidence is silent on whether the officers conducted a self-search or searched the vehicle they used before conducting the search to ensure nothing could have been planted against the appellants prior to their search. In light of the issues he pointed out, Mr. Matata contended that these shortcomings create doubt in the prosecution's case, particularly due to the witnesses' failure to corroborate each other's testimony on the subject matter and the absence of clear evidence showing that the officers arrived at the appellants' home and arrested the appellants with the elephant tusks. 21 In her response to this ground, Ms. Florence vehemently denied the existence of any contradictions. She asserted that all the witnesses were able to testify regarding the number of elephant tusks seized, which, in her view, was the critical evidence. She argued that the witnesses' failure to describe how many tusks were large, medium, or small does not constitute a contradiction that goes to the root of the case. Regarding PW2's description of only six tusks while omitting two, she suggested that PW2 might have forgotten, but this does not imply a contradiction. With respect to the claim that it was only PW3 who testified about finding two sulphate bags while the other witnesses did not mention this, Ms. Florence submitted that PW2's testimony, which indicated finding a sulphate bag in the sitting room without specifying the number of bags, does not negate the fact that the appellants were found with elephant tusks, nor does it create any contradiction. Concerning the complaint that PW3 failed to explain how he knew Mwl. Fadhila's house, Ms. Florence argued that this claim is an afterthought, as the appellants had the opportunity to cross-examine the witness on this issue but failed to do so, citing the case of Nyerere Nyaque {supra). 22 As for the grievance concerning the failure to demonstrate whether PW3 received the police officers by providing an exhibit such as a visitors' book, Ms. Florence rejected this argument as unfounded, asserting that there was sufficient oral testimony to establish this fact. Addressing the allegation that there was no evidence showing whether the police officers searched themselves or the vehicle before commencing the search, Ms. Florence submitted that while there was no direct evidence of such a procedure, the record shows that after the search, a certificate of seizure was filled out, which the appellants signed. This serves as proof that the appellants were found in possession of the elephant tusks. Ms. Florence further noted that when the certificate of seizure was tendered as Exhibit, the objection raised by the appellants concerned the failure to issue a receipt, not whether they signed the certificate. Ms. Florence opined that the failure to contest the contents of the certificate of seizure serves as sufficient proof that the property seized was indeed found in the appellant's possession. She reinforced this argument by citing the case of Papaa Olesi Kaladai @ Lendem & Another v. R, Criminal Appeal No. 47 of 2020, Tanzlii, pages 12, 13, and 14, where the court emphasized that the appellant's act of signing the 23 certificate of seizure indicated that the items seized were indeed found with him. Furthermore, Ms. Florence argued that the prosecution in this case had the responsibility to establish possession. According to her, this duty was discharged without leaving any doubt, as she cited the case of Moses Charles Deo v. R, [1987] TLR 134, where the Court stated that for a person to be found in possession, whether actual or constructive, it must be established that the person was aware of the item's presence and exercised control over it. The State Attorney contended that, based on the evidence provided, the prosecution successfully established actual possession against the appellant, thereby asserting that the prosecution side managed to prove the case beyond reasonable doubt. In his rejoinder, the appellant's advocate reiterated his submission, adding that despite the certificate of seizure mentioning eight elephant tusks, there was still a need for the witnesses to provide a detailed description of them. Regarding the issue that PW1 described six tusks but failed to describe two, and the explanation that this might have been due to forgetfulness, Mr. Matata argued that the prosecution's failure to conduct 24 a re-examination on this matter leaves PWl's account as it stands, suggesting that it reflects his true intention. Considering the issue of the police officers not conducting a self­ search or searching their vehicle, and the absence of any relatives or other individuals called to witness the search, Mr. Matata argued that this raises doubts as to whether there were any elephant tusks in the police vehicle. Regarding the failure to object to the admissibility of the certificate of seizure, the counsel argued that they did not challenge its admissibility at the time because it met the criteria for being admitted into evidence. However, at this stage, they are contesting the weight of the certificate, which states that all the tusks seized were intact, contrary to the testimonies of other witnesses. About the argument that the prosecution managed to prove actual possession, Mr. Matata was of the view that, given the circumstances where no independent witness participated and the police officers were not searched along with their vehicle, it raises significant doubts about whether what was recorded in the seizure certificate actually came from the appellants. After carefully considering this ground, starting with the issue of contradiction, it is a settled legal principle that a contradiction which does not go to the root of the case cannot vitiate the case. In this complaint, 25 counsel has pointed out the contradiction concerning the witnesses' failure to describe the elephant tusks in terms of their sizes, whether they were large, medium, or small. While acknowledging the discrepancy in the descriptions provided by PW3 and PW4, who did not describe the tusks at all; PW2, who referred to them as large and small; and PW1, who mentioned large, small, and medium sizes, the crucial question is whether this failure to describe the elephant tusks in terms of their sizes impacts the fundamental issues of the case. When discussing the root of the case, it refers to the fundamental or central issue or facts that form the basis of the charge. It is essentially the core element of the case that determines its outcome. The central issue in the present case, which will lead to a determination of whether there is a contradiction or not, is whether the appellants were found in possession of eight elephant tusks. The number of elephant tusks and the fact that they were in the possession of the appellants are crucial in proving this charge. However, the failure to describe the tusks in detail is a minor issue; hence, the lack of description does not undermine the prosecution's case because it does not affect the fundamental issue of whether the appellants were in possession of the tusks. Therefore, Mr. Matata's 26 contention that the failure of the prosecution witnesses to describe the elephant tusks is fatal to the prosecution's case is without merit. I have noted that there is consistent testimony from PW1, PW2, PW3, and PW4, all of whom mentioned the number of eight elephant tusks. PWl's description of six tusks and omission of the other two cannot be deemed a contradiction, as he initially stated in his testimony that he received eight elephant tusks, and the exhibit PEI he tendered also confirms that he received eight elephant tusks. Mr. Matata argued that PW3 did not mention the number of tusks at all. Upon examining the testimony of this witness on page 40, it is evident that he stated; ' I witnessed search. They filled certificate of seizure, I signed, they signed and accused person signed. They marked the elephant tusks NP 1 to NP 8...' PW3 testimony that he witnessed the marking of the elephant tusks when seized as NP 1 to NP 8 confirms the presence of the eight tusks. PW2 testified that he marked the tusks by labeling them NP1 to NP8. Therefore, as previously stated and reaffirmed, I have not identified any contradiction in this regard. Another contradiction pointed out by Mr. Matata is that PW3 mentioned discovering two sulphate bags one containing maize and 27 another containing elephant tusks, alleging that this testimony was not corroborated by any other witness. This allegation also lacks merit, as the only witness who provided testimony alongside PW3 on the day of the arrest was PW2. Although PW2 did not mention the sulphate bag containing maize, he did confirm the discovery of a sulphate bag containing elephant tusks, which is the central subject of this case. Regarding the complaint that there is no evidence of the police officers arriving at PW3's office or PW3 explaining how he knew the location of Mwl. Fadhila's house, where the appellants were found with the elephant tusks, I find these allegations to be irrelevant to the case at hand as they do not pertain to the root of the case. The final issue raised in this ground concerns the failure to prove the case beyond a reasonable doubt. I will address this matter in more detail at a later stage. Submitting on the fifth ground of appeal, which alleges that the trial court erred in law and fact by convicting the 1st appellant based on a purportedly weak defence and by improperly shifting the burden of proof, Mr. Matata contends that this was contrary to Section 110 of the Tanzania Evidence Act [Cap 6 R.E 2022] (the TEA). Mr. Matata asserts that the defence adduced by the 1st appellant was sufficient to create doubt in the prosecution's case. He argues that 28 the 1st appellant demonstrated that the case was fabricated due to a conflict with a police officer from Kilwa Masoko who was involving with love relationship with the 1st appellant's wife, who subsequently demanded a divorce while the appellant was in custody. The second appellant, according to Mr. Matata, was arrested after being called by the first appellant to inform his family of his arrest. Mr. Matata emphasizes that the burden of proof lies with the prosecution and should not be shifted to the appellants. To support this argument, he cites the case of R v. Maxmillian Leonidas, Criminal Session No. 1 of 2018, where the court held that the outcome of a case is not determined by the weakness of the defence. Even if the accused is found to have lied, the burden of proof remains with the prosecution. Mr. Matata argues that in the judgment, the trial magistrate improperly reasoned that the appellant's defence was weak, which effectively shifted the burden of proof to the appellant. This, he contends, constitutes an incorrect conclusion. In response, Ms. Florence asserts that there is no part of the judgment where the trial magistrate is seen to have shifted the burden of proof to the appellant. She maintains that the magistrate's judgment involved a thorough examination of the evidence from both parties, ultimately finding that the prosecution had proved the case beyond a 29 reasonable doubt. Ms. Florence argues that the trial magistrate arrived at this conclusion after considering the appellant's defence and finding that it did not create doubt about the prosecution's case. Ms. Florence further notes that although the appellant's advocate claims the magistrate shifted the burden, he has failed to reference specific pages in the judgment that illustrate this shift. She argues that this complaint lacks merit and contends that the case of Maximilian Leonidas is distinguishable from the current case. In responding to these complaints, Mr. Matata contended that the trial magistrate shifted the burden of proof onto the appellant on pages 21 and 22 of the judgment. Following the parties' submissions on this issue, I began by examining the judgment to understand the complaints raised. From pages 21 and 22,1 found that the trial magistrate stated; That the police officer failed to provide his name, and the 1st accused has failed to bring electronic evidence to show that there such communication via mobile phones between him and that police officer. Even his advocate failed to do so...' The language used, specifically, 'the 1st accused has failed to bring electronic evidence...' suggests that the trial court placed the obligation on the 1st appellant to provide evidence, which is inappropriate in a criminal trial. 30 Generally, the burden of proof in a criminal case rests with the prosecution, which must prove the accused's guilt beyond a reasonable doubt. The defence is not required to prove the accused's innocence or disprove the prosecution's case. While it is evident that the trial court improperly shifted the burden to the 1st appellant, I do not agree that the conviction and sentence of the appellants were solely based on their weak defence. In analyzing the issues, the trial magistrate also considered the prosecution's evidence, before she concluded that the prosecution case was proved. There is a pending discussion on whether the prosecution proved the case beyond a reasonable doubt, which I deferred earlier when addressing the fifth ground of appeal. Therefore, I will leave this part pending as well and will revisit it when I return to discuss the earlier pending issue concerning the proof of the case beyond reasonable doubt. Submitting on ground six, Mr. Matata asserted that the trial court erred in law and fact by convicting the 2nd appellant based on his confession, which was recorded contrary to the law. According to Mr. Matata, the breach involved section 51 of the Magistrates' Courts Act, Cap 11 R.E 2019 (the MCA), which according to him mandates that when accused confesses, they must be brought before a Justice of the Peace. 31 To emphasize this point, Mr. Matata cited the case of Hatibu Gandhi & Others v. R [1996] TLR 12. Mr. Matata argued that the failure to comply with this procedure while the 2nd appellant was in police custody raises doubts about whether the confession was given voluntarily. He further argued that if a PF3 (medical report) were required to prove torture, it would have been difficult for the 2nd appellant, who was under police custody, to obtain such a report. This complaint aligns with ground three, where the counsel for the appellant submitted that the appellants were unlawfully detained by the police without being given the right to access their relatives or a lawyer. In opposition to this ground, Ms. Florence argued that all procedures for taking the confession statement of the 2nd appellant were properly observed. Since the statement was recorded by a police officer of the rank of Sergeant, there was no requirement to take him before a Justice of the Peace. Ms. Florence further stated that when the appellant objected to the admissibility of his confession statement, the trial court conducted an inquiry and ruled out that the statement was made voluntarily. Therefore, Ms. Florence viewed these complaints as an afterthought, referring to the 32 case of Nyerere Nvague for support. She also referred Sections 2 and 169 of the Criminal Procedure Act (the CPA) to bolster her argument. In rejoining this ground, Mr. Matata reiterated his previous submission and stated that Section 2 of the CPA is inapplicable in this context. To address this complaint, I started by examining section 51 of the MCA as referred to by Mr. Matata. Here is what the section states; '51. Appointment (1) Every specified officer of a district, town, municipal or city council shall be a justice of the peace for the district in which such council has jurisdiction. (2) The Minister may appoint any fit and proper person to be a justice of the peace for the district in which such person is ordinarily resident. (3) Notwithstanding the provisions of subsection (1) or (2) of this section, the Minister may, by notice published in the Gazette, in any case in which he considers such an appointment to be desirable, appoint a specified officer or person appointed a justice ofthe peace under subsection (2) to be a justice of the peace for more than one district. 33 (4) In this section, "specified officer" means the secretary to the district, town, municipal or city council and includes the secretary to a divisional committee thereof.' A close examination of the section in comparison to Mr. Matata's submission, I found that they do not align. Consequently, I revisited the case of Hatibu Gandhi & Others v. R. Unfortunately, the advocate did not specify the exact page in the case, but I read the entire case and did not find any part that matched the advocate's submission. What I observed was that in that case, after confessing to the police, the appellants were also taken to a Justice of the Peace. However, this does not mean that it was mandated for a confessing accused to be taken to a Justice of the Peace. Upon failing to find any alignment between the appellant's counsel's submission and the content of section 51 of the MCA or the case he relied upon, I conclude that this complaint is misplaced. Additionally, the complaint that the statement was recorded by a police officer who was not authorized to do so lacks merit. Section TJ of the TEA addresses the admissibility of confessions to police officers, stating that a confession voluntarily made to a police officer by a person accused of an offence may be admitted against that person. 34 According to Section 3 of the TEA, a police officer is defined as a member of the Police Force of or above the rank of constable. In this case, there is no dispute that the officer who recorded the 2nd appellant's statement was a police officer with a rank above constable. Hence this claim also is baseless. Mr. Matata argues that the failure to take the 2nd appellant to a Justice of the Peace may cast doubt on whether the confession was made voluntarily while the appellant was in police custody. However, this complaint should not detain me much, as the 2nd appellant had the opportunity to object to the admissibility of the statement. Pertaining to the objection regarding the admissibility of the confession statement, the trial court conducted an inquiry. After the inquiry concluded, a ruling was delivered, overruling the objection and determining that the statement was voluntarily made. Based on the above reasoning, I find that the complaints in ground two and six are without merit, as the trial magistrate did not base the appellant's conviction solely on the confession statement but also considered the prosecution's evidence. In ground two of the appeal, the appellant challenges the trial court's decision to find them guilty and convict them, arguing that key witnesses were not called to testify. The appellant's argument is 35 presented in three parts; failure to call material witnesses, failure to tender material documents, and failure to provide material information. In relation to the failure to call material witnesses, Mr. Matata contended that, according to the Whistleblowers Act, the informer should have reported to the officer in charge of the local police station, which in this case would have been either the OCD or the OCCID of Kilwa. He argued that these officers would have been responsible for protecting the informer, and their absence to be called as witness stand amounts to a failure to call material witnesses. Mr. Matata also criticized the failure to call neighbours or any other persons apart from PW3, especially given that the alleged crime scene was school premises, an area presumably populated with people. He suggested that the absence of testimony from a neighbour or any person raises doubts about whether the arrest and seizure truly occurred at Naipuili School area. Another material witness, according to Mr. Matata, was Sergeant Nicholas, who was said took the confession statement of the 1st appellant. As for material documents, Mr. Matata lamented the absence of the complainant's statement, the confession statement of the 1st appellant, and the movement order of PW2, who testified that he traveled from Dar es Salaam to Kilwa for this task. 36 Regarding the missing material information, Mr. Matata argued that there was no evidence showing how the informer knew about the conspiracy between the appellants concerning the elephant tusks or their intention to sell them in Dar es Salaam. Additionally, there was no evidence to show how the informer knew about the house of Mwl. Fadhila, who was the wife of the 1st appellant. To buttress this point regarding the failure to call material witnesses, the counsel referred to the case of Charles Kasim v. R, Criminal Appeal No. 546 of 2021, at pages 16 and 17. In addressing this complaint, Ms. Florence argued that section 143 of the TEA does not impose a specific number of witnesses for the prosecution to prove its case. She contended that the witnesses who testified were sufficient to establish the charge against the appellants. She further stated that the absence of evidence showing how the informer obtained the information or how he knew the first appellant's residence does not undermine the prosecution's case. Even when PW2 testified, he was not cross-examined on how the informer acquired this information or knew the location of the first appellant's house; thus, she considered this claim to be an afterthought. Regarding the failure to tender the confession statement of the 1st appellant, Ms. Florence emphasized that the prosecution is not obligated 37 to use a particular type of evidence, nor is there a requirement for a specific number of witnesses to prove the offence. She, therefore, insisted that this complaint is without merit. I agree with Mr. Matata on the legal principle that failure to call a material witness to prove a certain fact may lead the court to draw an adverse inference against the party who failed to call that witness. However, after examining the people mentioned by Mr. Matata as material witnesses, I do not concur that they were essential to this case. I see no basis for considering the OCD or OCCID as material witnesses in this matter, nor do I find Sergeant Nicholas or the neighbours, who were not even mentioned in the evidence, to be relevant as material witnesses during the appellant's arrest. The failure to produce the confession statement of the 1st appellant, the statement of the complainant, and the movement order of PW2 also does not appear to be crucial in proving this offence. The procedure for obtaining the complainant's statement is well known, and if Mr. Matata deemed it important, he should have prayed it from the trial court to be tendered as exhibit on the defence side. Failing to do so and later raising this issue in this appeal seems, as the State Attorney repeatedly pointed out, to be an afterthought. 38 Similarly, the lack of information about how the informer knew about the details or the location of Mwl. Fadhila's house, the wife of the 1st appellant, is not material. The material evidence lies in the testimony provided after the information was obtained and what actions were taken leading to the appellant's arrest. In conclusion, I find that none of the persons or documents mentioned in this complaint were material witnesses or evidence that the prosecution was required to call or tender during the hearing, and thus, there is no basis for drawing an adverse inference. This complaint also lacks merit. Submitting on the last ground of appeal, which is ground 9, challenging the trial court's decision to convict and sentence the appellant, Mr. Matata contended that the valuation of the elephant tusks at USD 60,000 is questionable because it was conducted by a person who was not qualified to perform that task. Expounding on this ground, the counsel for the appellant stated that PW4 testified that he was responsible for weighing and valuing the elephant tusks. However, the counsel contended that during cross­ examination, this witness conceded that he was not authorized to weigh the tusks and that the proper authority to do so was located in Lindi. 39 Further challenging the testimony of this witness, Mr. Matata argued that the witness's testimony was based solely on his experience, as he merely stated that, based on his experience and the number of elephant tusks, four elephants must have been killed, each valued at USD 15,000, leading to a total valuation of USD 60,000. The counsel highlighted that the witness failed to specify how many tusks were large, small, or medium. In Mr. Matata's view, PW4's failure to provide a detailed description of the tusks in his oral evidence casts doubt on the credibility of Exhibit P5 (the valuation report). He suggested that the tusks might have been in pieces, which would significantly affect the determination of how many elephants were killed and, consequently, the value of the tusks. He argued that the issue of valuation also impacts the sentence imposed and, therefore, must be carefully examined. Based on all that Mr. Matata submitted, he concluded that the prosecution failed to prove its case beyond a reasonable doubt and asked this court to quash and set aside the conviction and sentence imposed on both appellants and order their release from custody. Whether due to oversight or another reason, the State Attorney did not address this ground, and therefore, there was no rejoinder, as the 40 counsel had nothing to respond to, given that the State Attorney made no remarks on this issue. In addressing this complaint, I had to reconsider the testimony of PW4 and review the provisions of the Wildlife Conservation Act, [Cap 283 R.E 2022] (the WCA). Mr. Matata argues that PW4 was not the appropriate person to value the elephant tusks, citing that during cross­ examination, PW4 admitted that those responsible for valuation are located in Lindi. Upon rereading the cross-examination, I found a part where PW4 responded; 'Z did valuation and Identification only. Weight and Measurement agency deals with weighing. They are centered at Lindi region centre. Yes, they are authorized to weigh. I am not surd Examining this part of PW4's testimony, I am not convinced that his responses imply that PW4 was not the appropriate person to conduct the valuation. Rather, it appears that he was simply explaining the presence of the Agency in Lindi. Thus, the fact that the Agency is based in Lindi while PW4 is stationed in Kiiwa does not necessarily mean that he was unqualified to perform the valuation. I say this because after reviewing section 86(4) of the WCA, which is similar to section 114(3) of the same Act, it shows that a certificate signed by the Director or Wildlife officer shall be admissible in evidence. 41 The term ' Wildlife officer'\s defined under section 3 of the same Act, as follows; ' Wildlife officer' means a wildlife officer, wildlife warden, and wildlife ranger engaged for the purposes of enforcing this Act, While sections 86(4) and 114 state; 86(4) (4) In any proceedings for an offence under this section, a certificate signed by the Director or wildlife officers from the rank of wildlife officer, stating the value of any trophy involved in the proceedings shall be admissible in evidence and shall be prima facie evidence of the matters stated therein including the fact that the signature thereon is that of the person holding the office specified therein. Whereas section 114(3) and (4) says; (3) In proceedings for an offence under this section, a certificate signed by the Director or wildlife officers of the rank of wildlife officer, shall be admissible in evidence and shall be prima facie evidence of the matters stated therein including the fact that the signature thereon is that of the person holding the office specified therein. (4) The certificate under subsection (3) shall state the value of a trophy involved in the proceedings. Reading the cited section carefully, there's nowhere it have been stated that the valuation must be conducted at the office of the Weigh 42 and Valuation Agency. If the law intended such a requirement, it would have explicitly stated so. In explaining the purpose of section 86(4) of the WCA, which mirrors section 114(3), the Court of Appeal in the case of Anania Clavery Betela v. R, (Criminal Appeal No. 46 of 2020) [2021] TZCA 333 (28 July 2021), stated: ' We think the above provision tells it all. It expressly empowers any wildlife officer, aside from the Director of Wildlife, to examine a trophy and issue a certificate stating the value thereof and other relevant facts. Such certificate would, then, constitute, on its face, proof of the facts stated therein.' See also, Yassin Salum Kaqurukila v. R, (Criminal Appeal No. 106 of 2019) [2022] TZCA 677 (7 November 2022) and Emmanuel Lyabonqa v. R, Criminal Appeal No. 257 of 2019 [2021] TZCA 152 (29 April 2021). In the case at hand, on page 42 of the typed proceedings, PW4 introduced himself as a Wildlife Conservation Officer, explained his experience, and detailed how he identified that the tusks he weighed and valued were indeed elephant tusks, not from any other animal. He also mentioned that the eight tusks indicated the killing of four elephants. 43 PW4 also stated that after weighing the said elephant tusks, he conducted a valuation and then filled out the Trophy Valuation Certificate. I have reviewed this Certificate, which is Exhibit P5, and it states in part; TROPHY VALUATION CERTIFICATE I, Goodluck M. Ndossi, Wildlife Officer of Kilwa Ruins... Designation: Wildlife Officer As reflected in his testimony and the Valuation Certificate, there is no evidence contradicting the fact that PW4 was a Wildlife Officer with the legal authority to inspect and weigh the said elephant tusks, and then sign the Trophy Valuation Certificate. Given this, I find that this grievance lacks merit and is therefore dismissed. Having discussed all the grounds of appeal above, I had left some issues unresolved, intending to address them later. Now, the time has come. The unresolved issue relates to the argument that the prosecution failed to prove the charge beyond a reasonable doubt, a claim that featured in the fourth and fifth grounds of appeal. After discussing all the grounds of appeal, I do not see how I can conclude that the prosecution failed to prove the charge against the appellants. I say this because, in this case, the prosecution had a duty to prove possession of the elephant tusks and the chain of custody. 44 Regarding possession of the elephant tusks, the evidence can be obtained from PW2 and PW3. PW2 testified that on the material day, after receiving information that the appellants were involved in the trade of elephant tusks and being directed to their location, he, along with his fellow officers and PW3, proceeded to the residence of Fad hi la. There, they found the two appellants in the sitting room. Upon searching the premises, they discovered the elephant tusks stored in a sulphate bag. This evidence was corroborated by PW3. The certificate of seizure was filled out and signed by PW2, PW3, the 1st appellant, and the 2nd appellant. When it was tendered as an Exhibit, the appellants did not object. However, in this appeal, Mr. Matata argues that they did not object because it met the criteria for admission, but they now challenge its weight, specifically the part indicating that all the elephant tusks were intact, contrary to the witnesses' testimony. I have considered this argument and find that it lacks merit and does not diminish the weight of the certificate of seizure. I say this because, when examining the witnesses' testimony, none of them mentioned that the tusks were not intact, which would suggest there was a discrepancy. Looking at Exhibit Pl during its tendering in court, there is no evidence showing that it differed from what was recorded in the certificate 45 of seizure. In his testimony, PW1 indicated that he received eight intact elephant tusks, consistent with the details in the certificate. Other witnesses also testified to having observed eight tusks, confirming that they were intact. If the tusks had not been intact, the witnesses would have mentioned it. Therefore, the fact that the appellants signed the certificate of seizure, without disputing their signatures, is sufficient evidence that the elephant tusks were found in their possession and not with anyone else. I have also considered the appellants' defense, but it has not persuaded me to believe that the charge was fabricated. The 1st appellant claims he was arrested on the road while returning from his farm and placed in a police vehicle without being informed of his offense. He further attributes his arrest to a conflict with a police officer, who allegedly had an affair with his wife and had vowed to teach him a lesson. I have considered this defense and find no connection to the claim that the case was fabricated. Firstly, PW2, the officer who apprehended the accused, is not stationed in Kilwa, so there is no basis to suggest he harbored a personal grudge against the appellant. Additionally, PW3 is an independent witness with no apparent animosity toward the appellant, making it unlikely that he would falsely accuse him. 46 Furthermore, when reviewing the cross-examination of these witnesses, no questions were raised that suggested any personal conflict. Even when PW2 was asked where he found the appellants, he replied, 'we found the accused persons in the sitting room/ contradicting the appellants' claim that they were arrested on the road. With respect to the second appellant, although he claimed in his defense that he was arrested on the road after being called by the first appellant—who had already been arrested—to inform his family of the arrest, it is notable that he did not pose any questions when given the opportunity to cross-examine PW3. PW3 had testified to witnessing the arrest of the second appellant alongside the first, and the failure to challenge this testimony suggests that the second appellant accepted the witness's account. After examining the evidence presented by both parties during the trial, I am inclined to conclude that the prosecution successfully proved the appellants were found in possession of elephant tusks. Their denial is unsurprising, as they likely felt compelled to defend themselves and, in their perspective, believed this was the only defence that could potentially absolve them. Nonetheless, despite their efforts, this defence fell short and ultimately failed to shake the prosecution's case. 47 For these reasons, I find that the nine grounds of appeal lack merit and are consequently dismissed. In conclusion, I find the appeal to be wholly without merit and hereby dismiss it in its entirety. It is so ordered. Dated qt<Mtwara this 19th September 2024. /§/ / I ~; y; M.B Mpaze ' ' i \ /*/ Judge v . J Court: Judgment delivered today in the presence of Ms. Florence Mbamba State Attorney and the appellants. M.B Mpaze Judge 19/9/2024 48