20160222 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF ARUSHA AT ARUSHA. HC ECONOMIC APPEAL NO.72 OF 2015 i ALLY S/O DATHO ............................................,............ APPELLANT

VERSUS I THE REPUBLIC ...... ■■ •••• ■■■■■ ■■■■ ••••••••••• II ■■■■■■ ••••••• ••j•• ••••••••• RES PON DENT

JUDGEMENT DR. OPIYO, J. I This is an appeal originating from Economic case np. 2/2014 where by the appellant was charged with an offence of unlawful possession of government trophy contrary to paragraph 14 (d) of the First Schedule to and section 57 (1) and 60 (2) of the Economic; and Organised Crimes Control Act, (Cap. 200 RE 2002) read to together' with section 86 (1) (2) ' (b) of the Wild Life Conservation Act, No. 5 of 2009. He was convicted as charged and sentenced to 10 years imprisonment. He was dissatisfied and 1 I preferred appeal to this court on the following grounds:- 1. That, the learned Resident Magistrate has iseriously erred in law by I holding that the evidence available on re.cord positively points to the Appellant's guilty ignoring the fact tha~ no certificate of seizure was signed at the time of seizing the said government trophy as required by the law and even the certifiq:1te of search was signed after conducting the said search. 1 2. That, the learned Resident Magistrate had ~eriously erred in law and facts by holding that the accused person admits the offence I without being sent to the Justice of peace asI required by the law. I 3. That, the learned resident' Magistrate had 1seriously erred in law I and facts by holding that the prosecution evidence was watertight ' sufficient • to warrant a safe, conviction while I infact, no independent 1 witness who testified that he witness tHe said search and/or I seizure of the said trophy in question. i 4. That, from the totality of the evidence on record and the I conviction of the appellant was bad in law ~s the same was based on suspicious circumstances which fall sho;rt of proof, requisite to· warrant a safe conviction in a criminal case:

I I I s. That, the prosecution had totally failed to prove its case beyond all ' reasonable doubt as per the required legal :standards The gist of the matter is that on 21 st day of Jan~ary 2013 at Hidet area I within Hanang' Distinct, in Manyara Region, the :appellant was found in I unlawful possession of 33 pieces of elephant teeth~valued at 72,000,000/= J the property of Tanzania Government. The appellant was not represented in this appe~I, while the respondent I was represented by the Sekule, learned State Attorney. In support of his of 2 appeal, he argued grounds no 1,3,4 .and 5 together. ,His submission is that I the magistrate was not serious on determining law. He did not give regard I to the fact that search warrant was not signed i~ time by those who allegedly found him with elephant teeth; he also ign,ored the fact that the I evidence during trial was not proving that he was found with the said teeth ' at his home. To that effect, he argued that, in essence the evidence by the i prosecution was so weak and not to the standard of proof required by Law 1 I inn criminal cases, as they failed to prove their case ~gainst him before the trial court. On ground No.2, his submission is that the magistrate erred in law in not I regarding that he was not given his rights by beinQ sent before justice of Peace as the law requires. He therefore prayed that his appeal be allowed ' the decision of the trial court be quashed and set aside.

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I I I On the other side the learned State Attorney ; objecting the appeal i rd th th submitted on ground 1st, 3 , 4 and 5 together i~ response. She started by saying that they support both conviction and sentence meted on the I appellant since the prosecution managed to prove their case against the appellant beyond reasonable doubt. That, all the witnesses, PW1, PW3 and I PW4 who went for apprehension of the appellant e~plained clearly how the arrest was conducted. The clear evidence was t,hat the police received information from their informer on appellant's participation or dealing with government trophies. They then set a trap and o:n 21/1/2013 by making I PW3 as a prospective purchaser of the elephant teeth. PW3 went to the 3 • I appellant's home as a business man from Arusha who wanted to purchase . I the teeth. They agreed that he will sell them to him for 150,000/= per kg. I As they were continuing with that business, the other police officers arrived and managed to apprehend him at his living roo~, after which, Ward , I Executive officer was called to witnE,i!SS search that was conducted at the appellants home. The search resulted in finding 3:1 elephant teeth. At I I different places of appellants house. At the living ;room they found 15 ' teeth, eighteen (18) pieces were found in the room i:n the sulfate bag and I I 2 others were found at the rubbish Ait as page 14, 2q-25 of proceedings.

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I I I She further submitted that the seizure certificate wa~ prepared showing all ' I the items that was found at the appellants place ~home) in presence of ' ' ' WEO and appellant himself and all of them properly signed the same. So, I i She argued that, since all the evidence were direc4, no reasonable doubt j was left by the prosecution's evidence on the accused persons guiltiness. ' I The thus finds the above four grounds as lacking merits. I ;1 I I On the 2nd ground she submitted that the appell~nt's claim that he was I not taken to justice of peace, she argues it also 1lack merits as it is not ' mandatory that whoever admits should be taken to the justice of peace. I I After all it was proved during trial ,'that the caution :statement was properly I I taken andhe finally signed to bless what was in re,tord. It is therefore her , I prayer that the whole appeal be dismissed for lack of merits.

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I I I 4 Appellant in rejoinder submitted that the search was not conducted in I accordance since PW4 who claimed to have been a ;leader of the group ' that apprehended him happened to have said that the search warrant was I I prepared after search at page 25 line six of the typed <t:opy of proceedings. I I He also submitted that even the taking of the caution statement was I contrary to law as he was apprehended on 21/1/2013; and statement taken I 22/1/2013 after 4 hours required by the Law. He as well submitted that although presence of WEO is pledged, but he I was not there and was not called to testify. Being such a key witness, it I was not right to leave him out and lilO report was given that he was out of I country or dead, thus failed to come to testify. His further concern was that ' ' I it was wrong for PW2 to use his experience only without certificate from I government chemists proving that those were really elephant teeth, if at I I all. , After giving due consideration to the submission pf both parties to this I appeal, in disposing the same I wiU not follow the grouping of grounds as ' ' I both did, in which case each ground will be argued separately. As for ground number one that the trial, Magistrate erred,' in law by holding that the evidence available on record positively points to the Appellant's guilty ignoring the fact that no certificate of seizure was signed at the time of I seizing the said government trophy as required by the law and even the certificate of search was signed after conductin,g the said search, the I record shows that there was a search order datea 21/1/2013, exhibit P3, ' I 5

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I I I l : !l : : I , Which was signed by four people onl~ including PW1, / PW2, PW 4 and the 'I appellant himself. No signature of the WEO as plea~ed all along by the i: r ·I I prosecution that, there was an indep~ndent witness a~ required by the law. ·' i J I . Apart from the allegation that WEO was i called to witness ! the search as per I / l the letters of the law, no any na'me or signatur~ of such person is i1 / appearing anywhere in the certificat~ of seizure or search warrant, as the case may be. Appellant complains th~t ,, he was raided/ by the police without , i I knowledge of any of his local lead~rs while the prpsecution claims that ' i i WEO was called. 1 I ; i i j : I I I . The absence of any indication that \f'/EO really witne$sed the search leaves ' i 1 a number of doubts in the courts m_;ind as to whether he was there or not. 1 I I . The benefit of such kind goes to the appellant, sinde, if he was there the , I~ I I I I ' records ought to have shown so. I~ is not for the qourt to speculate how the truth would have been. In the brcumstances tHe court concludes that 1 ' i ' there was no independent witness that witnessed :'the search. This turns 1 l 1 the whole search irregular and the ;search certificat~ is therefore expunged ' ' !1 ,I ' I from the records as it was improp~rly received as ~vidence. In the case of ; : I f Malick Hassan Suleiman V. SMZ, (2005) TLR

;236 Msoffe, JA as he : i j l ' I . , then was held that; I "In executing a search warrant I I ... The faJ/lowing conditions . are · < I I mandatory: the search rfJust be witnes$ed by two or more 1 I I respectable inhabitants of the locality and a /ist of all things seized in· ' I . the search must be prepated j and signed by I the witnesses; in the' I I ' ! I fr 'i I instant case the search was irregular for being witnessed, and the list being signed, by only one inhabitant. " Based on the above authority presence of independent witness in a planned search, like the one at a hand is necessary and mandatory. Such requirement is only waived in a search in emergencies which does not cover this particular case. In the circumstances, ground no 1 and 3 are found to have merits and are therefore allowed. The conviction and sentence by the trial court are hereby quashed and sentence aside. I order immediate release of the appellant from prison unless otherwise lawful held. Sine~ disposal of these two grounds suffice to dispose the entire appeal, I need not dwell on the other grounds. ~( DR. M. OPIYO,

JUDGE 22/2/2016 7