JUDGEMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL 16947/2024 CASE REF NO 202406202000016947 (Originating from the Resident Magistrate’s Court of Dar es Salaam at Kisutu (Hon. U.S. SWALLO-PRM) in Economic case No. 68 of 2022) ALOMA ELONGO KARUME.................................................................APPELLANT VERSUS DIRECTOR OF PUBLIC PROSECUTION..........................................RESPONDENT JUDGEMENT: 7th Oct & 18th Nov 2024. KIREKIANO J: Before the Court of Resident Magistrate of Dar es Salaam at Kisutu, the appellant herein together with one Tchikangala Anthoinethe Kitoko @ Irene-Ashadi Hassan were charged with two counts of unlawful possession of government trophies contrary to sections 86 (1) and (2) (b) of the Wildlife Conservation Act No 5 of 2009, read together with paragraph 14 of the 1st schedule and sections 57(1) and 60(2) of the Economic and Organised Crime Control Act Cap 200 R. E 2022. It was alleged in the 1st count that, on 19th day of October 2022 at Kivule-Majohe area within Ilala District and Dar es Salaam region, the 1 appellant and the said Tchikangala were found in possession of government trophies, that is; ten sculptures made of elephant tusks valued at USD 1,308 equivalent to TZS 3,004,242.9 the property of the United Republic of Tanzania without a permit from the director of the wildlife. In the 2nd count, it was alleged that on the same date, the two were found in possession of the sculptures made of hippopotamus teeth valued at USD 1500, equivalent to TZS 3,445,232.7. The prosecution side paraded eight witnesses to prove the case. The trial court convicted the appellant in the two counts. In the first count, the appellant was sentenced to serve 20 years or pay a fine of TZS. 30,042,429/=, and in the second count, he was sentenced to 20 years term of imprisonment or to pay a fine of TZS. 5,000,000/=. It is noted here that the other accused, Tchikangala, was found not guilty in all counts. The substance of the prosecution’s case was that, PW3 Ast Insp Safina and PW5 Inspector Onesmo Mahenge are immigration officers; in October 2022, they made a follow-up on information involving illegal immigrants; it was in that process, these officers searched Tchikangala Anthoinethe Kitoko@ Irene-Ashadi Hassan who is the appellant wife, the search was done at the appellant home while the appellant was in Zanzibar. Following the, 2 the search, several items including, 15 pieces of sculptures, made by elephant tusks and hippopotamus teeth were seized (Exhibit P2). This search was conducted in presence of the said Tchikangala witnessed by a local leader Marietha Lucas (PW7). The said sculptures were identified by Gerald Mlay PW2 as trophies and PW4 a wild life officer conducted the valuation of the said Trophy. According to his report in (Exhibit P4) the five pieces were polished hippopotamus teeth, valued at TZS 3,445.232.7 and the pieces of elephant tusks were valued at TZS 3,086,928.49. Chain of custody of these exhibits was kept by PW1 Goldin Ndalaba kept in paper trail (Exhibit P1). Upon investigation by police, PW8 D 6387 D/SGT Luther the police relied on the certificate of seizure and statement of witnesses and was convinced that the appellant was in possession of the said trophies. On his part, the appellant testified as DW1 Aloma Elongo. He stated that he is a citizen of Congo. He returned to Congo, and in 1986, he bought the sculptures so that he could sell them and get school fees. Due to the war in his country, he went to Rwanda, Kenya, and Tanzania. He got married to Tchikangala, and he could not sell the sculptures because the United Nations 3 had banned the sale of elephant trophies. So, he kept the sculptures in his house as decoration. Based on the above evidence, the trial court found that the charge was proved against the appellant in the required standard. With regards to the appellant conviction, the learned Principal Resident Magistrate reasoned at page 6 of her judgement that; The certificate of seizure (Exhibit P2) signed by the 2nd accused, PW7, and immigration officers shows that 15 sculptures were among the items seized from the accused house. It is undisputed that, the house of the accused was searched and 15 sculptures were found. The sculptures and a certificate of seizure (Exhibit P4) were admitted without objection from the accused persons. In their defence both accused persons admitted that the sculptures were found in their house. There is therefore no doubt that the sculptures were found in the house of the accused persons. The trial court went on to convict the appellant, and sentence him as indicated above. It also acquitted the second accused, Tchikangala, the reason for acquittal of the said Tchikangala, is not subject of this appeal. Aggrieved with this decision the appellant preferred this appeal on the following nine grounds; thus; 4 1. ’That, the learned trial Magistrate erred in law in hearing this case while it was not vested with such power and Jurisdiction to do so Contrary to the procedure of law the omission which renders the entire proceedings and judgment a nullity. 2. That, the learned trial Magistrate erred in law and fact in convicting the appellant based on the weakness of the defence evidence contrary to cardinal principles of law in criminal cases. 3. That, the learned trial Magistrate erred in law and fact in convicting the appellant based on the prosecution evidence which did not prove beyond reasonable doubt that the alleged sculpture was made of the trophies of the government of the United Republic of Tanzania as the appellant stands charged, the omission which cast doubt in the prosecution case. 4. That, the learned trial Magistrate erred in law and fact in failing to show the points for determination the omission which contravened the provisions of section 312 (1) (2) of the Criminal procedure Act, (Cap. 20 R.E2022) 5. That, the learned trial Magistrate erred in law and fact in convicting the appellant without making a Critical evaluation, analysis, determination and consideration on the defence evidence by assigning a good and Cogent reasons for not believing the 1st accused person’s testimony and believing 5 the testimony of the 2nd accused person the omission which implies double standard. 6. That, the learned trial Magistrate erred in law and fact in Convicting the appellant as charged when neither mens rea nor Actus Reus was proved beyond all reasonable doubt by the prosecution against the appellant as required in Criminal matters. 7. That, the learned trial Magistrate erred in law and fact in failing to Comply with the provisions of sections 351 and 353 of the Criminal Procedure Act, (Cap. 20 R.E 2022) Contrary to the Procedure of law. 8. That, the learned trial Magistrate erred in law and fact in Convicting the appellant as charged when the prosecution has failed to prove beyond reasonable doubt that the appellant was criminally responsible. 9. That, the learned trial Magistrate erred in law and fact in failing to comply with the provisions of section 192 (1) of the Criminal procedure Act, (Cap. 20 R.E 2022) the omission which subjected the appellant to an unfair hearing /trial resulted to a miscarriage of justice and constituted a mistrial. The appeal coming for hearing the appellant was unrepresented, at his option the appeal was heard by way of written submissions, the respondent had service of Miss Jackline Werema learned state attorney. 6 In support of his appeal with regards to the 2nd, 3rd, 5th, 6th and 8th grounds of appeal the same deals with proof of the charge. In his submission the appellant faulted the trial court finding on the following areas; he cited the decision in Republic Vs. Kerstin Cameron [2003] T.L.R 84 at page 105 to the effect that the accused can only be convicted of the strength of the prosecution case and not on the basis of the weakness of the defence case. He also faulted his conviction on the following area; firstly, the ownership of the said house was not proved to be of the appellant. Secondly, the appellant was not present when the house was searched and the Certificate of seizure filled. Hence the appellant did not sign the same in the presence of an independent witness, PW7. Thirdly, the prosecution did not prove and or establish the age of the particular Government trophies whether or not the said sculptures were made in Tanzania and that they were for sale. Fourthly the prosecution did not establish the existence of mensrea and actus reus against the appellant citing Christian Mbunda V.R, [1983] T.L.R 340, that it is elementary rule of law that in order to convict an 7 appellant in criminal proceedings, prosecution must prove the existence of mensrea and actus reus as the basis of Criminal practice. On the seventh ground, he argued that the record of the trial court was lacking on where about the said sculptures made by Government trophies. This felt short of section 351 and 353 of the Criminal Procedure Act, [Cap. 20 RE 2022] On the nineth ground he argued that failure of the court to conduct preliminary hearing after substitution of the charge rendered the entire proceedings a nullity; according to him the memorandum of disputed and undisputed facts was not shown and/or read over in court for the appellant to prepare and marshal a proper and well-informed cross examination and defence evidence against the prosecution case. On the other hand, he submitted that the Judgment of the trial Court was lacking necessary order as there is nothing to show the directions and/or the whereabouts of the said sculptures made by Government trophies as asserted as per the provisions of sections 351 and 353 of the Criminal Procedure Act, (Cap. 20 R.E 2022). 8 In her reply to the grounds Miss Werema for the respondent, argued that there was evidence form, PW3 and PW5 who are the arresting officers’ who stated that they arrested the appellant on 19th October, 2022 with sculpture made of Government Trophies whereby after they conducted search on the appellant’s house witnessed by PW7 a local leader. She argued that the prosecution proved that the appellant had, no permit and said sculpture made of government trophies and were found in his possession. The fact that was not denied in his defence. The learned state attorney supports the trial court's analysis of the appellant's defence arguing that the appellant did not have documentary evidence to prove that they were from Congo and were in lawful possession. She highlighted that the appellant's defence that he was not aware that the sculptures were made of elephant tusks is not credible. He himself stated that he moved from Congo to Kenya and Rwanda. He was unable to sell the sculptures due to the UN's prohibition on the trade of elephant tusks, On the seventh ground, on lack of order forfeiture of the said sculptures, she argued this court to step into the shoes of the trial court, and order the forfeiture of the said sculptures. 9 On the nineth ground she said preliminary hearing was conducted in accordance with section 192 of the Criminal Procedure Act. However, any shortcoming did not prejudice the appellant as he had an ample time to prepare for the defence. She cited Isidori Patrice Vs Republic (Criminal Appeal No. 224 Of 2007) to support her position. On issue of consent Miss Werema was of the stance that the trial court's acknowledgement of the consent and certificate in the proceeding suffice that the consent and certificate issued. In his rejoinder the appellant argued that the record of the proceedings does not locate any page on which “the certificate” conferring jurisdiction was received to form part of the trial court record, thus on that silence as to whether the certificate was also received by the trial court, the trial court lacked jurisdiction to try the appellant. This court being the first appellate court, is enjoined to scrutinize and reassess the whole evidence of record and re-evaluate the evidence and test whether the decision should stand or may arrive at its own conclusion. Despite that principle, this curt will not interfere with the finding of fact unless the said finding is reached on wrong principle. See Materu Leison& J Foya vs R. Sospeter [1988] TLR 102, but also Jafari Mohamed v. 10 Republic, Criminal Appeal No. 112 of 2006 (unreported), in which the Court of Appeal stated the following: "An appellate court, like this one, will only interfere with such concurrent findings of fact only if it is satisfied that "they are on the face of it unreasonable or perverse" leading to a miscarriage of justice, or there has been misapprehension of evidence or a violation of some principle of law: (Emphasis supplied) Before addressing the issues of evidence, I wish to start with the appellant complaint on issue of consent conferring jurisdiction to the trial court. The appellant's contest is whether, going by the record, there was any consent and certificate filed in the trial court. Miss Werema was of the stance that the trial court's acknowledgement of the consent and certificate suffice that the consent and certificate issued. I have considered the decisions in Emmanuel Mark Nyambo vs Republic (Criminal Appeal No. 559 of 2021) [2024] TZCA 602 (19 July 2024), Nassib Abubakar Mwazyega @ Ras v. Republic, Criminal Appeal No 146 of 2021[2024] TZCA 576 (18 July 2024) and Silvanus Maneno Mkasanga @Kelvin and Another vs The Republic (Criminal Appeal No. 347 of 2023) [2024] TZCA 870 (5 September 11 2024). From what can be gathered from these decisions, one no trial requiring the consent of the DPP can be conducted in the absence of the said consent since it is the consent of the DPP that bestows jurisdiction to the court. Two, there must be evidence that the trial court correctly admitted or endorsed such consent. In Shamim Omari Mwasha and Another vs Republic (Consolidated Criminal Appeals No. 173 and 182 of 2021) [2024] TZCA 1105 (14 November 2024), the court of appeal held that, The complaint that the consent is not endorsed usually entails the consent was illegally presented. When such allegations are made it is upon the appellants to show how and possibly when did the prosecution illegally sneak the consent in the court record, in order to rebut the presumption that the document was filed normally and its existence on record is proper. In this appeal, I have gone through the trial court proceedings. What is clear is that on page 11, dated 29.8.2023, the prosecutor is recorded to have prayed to court to tender “consent and certificate”, from prosecution attorney in charge, conferring jurisdiction to the court. The trial court went on to record that the consent from the prosecution attorney in charge was received. All consent and certificate are on record of the trial court. It is on this circumstance, I find that in absence of record refusing the said certificate 12 omission to mention “certificate” was a slip of a pen, I have no doubt that it was intended to admit the two. I thus find that the first ground lacks merit the same is dismissed. Now, on the 2nd, 3rd, 5th, 6th and 8th grounds, the decisive question is whether the charge against the appellant was proved in the required standard. The main complaint in this appeal is that the trial court shifted the burden to the defence in finding conviction against the appellant. What is clear is that it was incumbent upon the prosecution to establish on their part that the appellant was found in possession of the alleged items before looking at the defence case. See Jonas Nkize V Republic 1992 TLR 213 (HC) but also Hezron Ndone vs Republic (Criminal Appeal No. 263 of 2021) [2024] TZCA 15 (6 February 2024) in the later case the CAT at page 12 held; “It is momentous to state that, in our criminal justice system like elsewhere, the burden of proving a charge against an accused person is on the prosecution. This is a universal standard in all criminal trials and the burden never shifts to the accused. As such, it is incumbent on the trial court to direct its mind to the evidence produced by the prosecution in order to establish if the case is made out against an accused person. This principle equally applies to an appellate court which sits 13 to determine a criminal appeal in that regard. (Emphasis supplied) In this appeal, the evidence relied by the prosecution was the seizure certificate (exhibit P2) and the oral account of PW3 and W5 the officers who conducted the search, the other evidence was the alleged sculptures. I have re visited this evidence. According to search and seizure certificate exhibit P-2, the same shows “Irene Asha Hassan” was searched and found in possession of several items including the said the item15 pieces of sculptures, made of by elephant tusks and hippopotamus teeth were seized (Exhibit P4). There is no where in this certificate where it mentions the appellant. Going by the oral account of the officers who conducted the search, the appellant was in Zanzibar when the search was conducted. According to them, they relied on what the said Tchikangala, told them. PW5 Onesmo Mahenge said having searched the said Irene Asha Hassan @ Tchikangala, on 19.10.2022 she was not taken to custody the very day due to health issues. Until 20.10.2022, later on the appellant reported and was interrogated. Looking at the said interrogation the same does not feature in the prosecution case. According to officer who investigated this case, that 14 is PW7 D6387D/ Sgnt Luther he was recorded at page, 47 of the proceedings; and he said; I ordered Sgnt Gaitan to interrogate and record the statement of Aloma Elongo and D/C Fredrick to record the statement of Chikangala. On my part, I have scanned the prosecution case, there was no such evidence of caution statement, that the appellant admitted to have been found in possession of the said trophies, as such, there was no even oral account on what the appellant said during interrogation by the said Sgnt Gaitan, or what the said, Tchikangala said with regard to exhibit P2. and P4. I thus see no basis how the investigator rushed to conclude that the appellant was found in possession of the trophies. It is noted that the said Gaitan did not testify. The learned trial magistrate at page 6 of her judgement held; It is undisputed that, the house of the accused was searched and 15 sculptures were found. The sculptures and a certificate of seizure (Exhibit P4) were admitted without objection from the accused persons. In their defence both accused persons admitted that the sculptures were found in their house. There 15 is therefore no doubt that the sculptures were found in the house of the accused persons. With respect, I am unable to agree with this finding because, one the record of search does not show that the appellant herein was searched and found in possession of the said trophies, conversely the same does not say that the appellant house was searched. It specifically mentioned, Irene-Ashadi Hassan. Two, the admissibility of the exhibit does not necessarily infer admission to the commission of the offence. Having admitted the certificate of seizure (Exhibit P4) without appellant objection the question that would follow was what weight did it carry in finding the appellant guilty. As indicated the same does not mention the appellant at all it does not mention his house. I am aware that knowledge of the control of the trophy can be inferred as possession. In the case of Simon Ndikulyaka v. Republic, Criminal Appeal No. 231 of 2014 (unreported), the court cited the case of Moses Charles Deo v. Republic [1987] TLR 134 that: “. For a person to be found to have possession, actual or constructive of goods, it must be proved either that he was aware of their presence and that he exercised control over them; or that the goods came, albeit in his absence, at his 16 invitation and arrangement but it is also true that mere possession denotes knowledge and control." The problem with the prosecution case in this appeal is that, in the absence of the defence, there is no tangible evidence that the appellant herein knew about the trophies. It can not be overemphasised that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges his burden and that the burden of proof is not diluted because of the weakness of the opposite party's case. I have revisited Miss Werema's argument that it was not disputed that the trophies were found in the possession of the appellant. It is clear that the appellant made incriminating evidence during his defence, in absence of evidence from prosecution side, this evidence did not suffice to a conviction, In JONAS NKIZE v REPUBLIC 1992 TLR 213 (HC) at page 213 this court held that; The general rule in criminal prosecution that the onus of proving the charge against the accused beyond reasonable doubt lies on the prosecution, is part of our law, and forgetting or ignoring it is unforgivable and is a peril not worth taking. 17 Based on the above, I am persuaded by the appellant's argument that the conviction meted against him was reached on the weakness of the defence case and that the charge was not proved in the required standard. The 2nd, 3rd, 5th, 6th and 8th grounds are merited, it is this court finding that the prosecution burden was not well discharged to find a conviction against the appellant. These grounds suffice to dispose this appeal in favour of the appellant. The last aspect I wish to deliberate, albeit in passing, is on the disposal of Exhibits. Upon determination of the case, the trial court ought to make an order of disposal of exhibit by order of confiscation. This is in line with Sections 88 of the Wildlife Conservation Act Cap. 283 For guidance, it is argued that all fellow judicial officers dealing with exhibit should also find assistance or be guided by the Exhibit Management Guidelines issued by the Hon. Chief Justice on September, 2020, the same is available at https://tanzlii.org. In absence of such order, I thus order the said Exhibit P4 be confiscated and be handed to the director of wildlife. In the end, this appeal is allowed, the conviction against the appellant is quashed and sentence meted out to the appellant is set aside. In the circumstances, I 18 make order of immediate release of the appellant from custody unless otherwise held for other lawful cause. A J. KIREKIANO JUDGE 18. 11.2024 COURT: Judgment delivered in the presence of the appellant and in presence of Mr Cuthbert Mbilingi learned state attorney for the Republic. Right to appeal explained. A J. KIREKIANO JUDGE 18. 11.2024 19