Japhet Saliboko 3 Others vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT SUMBAWANGA CRIMINAL APPEAL NO. 10174 OF 2024 (Originating from Mlele District Court in Economic Case No. 08/2023) JAPHET SALIBOKO @ JAMES…….………….………..……..1ST APPELLANT MELENSI KALUALA @ ZENOBI.......................................2ND APPELLANT MICHEAL JOSEPH @ KENDA…..…….….…...……..…….... 3RD APPELLANT DAMASI KAMINA @ LAURENT ...................................... 4TH APPELLANT VERSUS THE REPUBLIC …………………………….…….……….. RESPONDENT JUDGMENT MWENEMPAZI, J. At the trial court (Mlele District Court) the appellants were arraigned for the offence unlawful possession of government trophies contrary to Section 86 (1) and (2) (b) of the Wildlife Conservation Act [Cap 283 R. E. 2022] read together with paragraph 14 of the First Schedule to and Sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap. 200 R. E. 2022]. It was the prosecution’s case that on the 18th day of February 2023 at Mamba village within Mlele District in Katavi Region, the appellants were found in possession of eighteen (18) pieces of elephant tusks valued at Sixty thousand United States Dollars (USD 60,000) which is equivalent to 1 one hundred and sixty-nine million and eighty thousand Tanzania Shillings (139.080,000/=) the property of the Government of Tanzania without the permit from the Director of the Wildlife. On the 16th day of June 2023, the charge sheet was read and explained to the appellants who were asked to plead thereto whereas in turns, each appellant denied to have committed the offence. However, at the end of a full trial, all the appellants were found guilty and consequently convicted for the offence they were charged with. They were then sentenced to serve a term of 18 years in prison as the trial Magistrate had considered that they had already stayed in custody for two years. Aggrieved by that decision, the appellants herein deployed the legal services of Ms. Sekela Amulike, learned Advocate, and through her legal expertise, they filed a petition of appeal which consisted of seven (7) grounds which are as reconstructed herein; 1. That, the trial court erred in law and fact by convicting and sentencing the appellants depending on weak, inconsistent, doubtful evidence which went to the root of the case. 2. That, the trial court erred in law and fact to convict the appellants basing on exhibits which were obtained from an illegal search and seizure hence the exhibits lost their evidential value. 2 3. That, the trial court erred in law and fact to decide the case in favour of the respondent while there was an open-non account of paper trail/oral account of chain of custody of exhibits which was fatal. 4. That, the trial court erred in law by shifting the burden of proof to the appellants and also using the evidence of DW1 (1st appellant) and DW2 (2nd appellant) on behalf of others which was illegal. 5. That, the trial court erred at law to admit the caution statement made by the 3rd appellant and the Extra-judicial statements which were procured contrary to the law. 6. That, the trial court erred at law and fact by failing to take into consideration appellants’ defenses. 7. That, the trial court erred at law to convict the appellants with the offence which was not proved beyond reasonable doubt. From the grounds above, the appellants’ prayers to this court were that this appeal be allowed and that this court be pleased to quash the conviction and the sentence meted to them by the trial court and that they be set free. On the 10th of December 2024, this matter was scheduled for hearing in which the appellants retained the legal services of Ms. Sekela Amulike 3 learned Advocate while the respondent, Republic was represented by Calistus Kapinga learned Senior State Attorney. Each side agreed to battle out this appeal by way of written submissions, the mode which this court blessed and scheduled the filing dates for the respective submissions in which both sides adhered to. The learned Advocate for the appellants filed her submissions first as scheduled, in which she had stated that for the purpose of this appeal only 5 grounds will be discussed thus ground 1,2,4,6 and 7. The appellants droped out and abandoned grounds 3 and 5. She therefore submitted for the first ground that, for a person to be found guilty, the evidence adduced needs to be consistent though minor contradictions and inconsistences on trivial matters which do not affect the case of the prosecution should not be made grounds on which the evidence can be rejected in its entirety. Also, the law is clear that if there is any inconsistence the trial court shall try to resolve them where possible, else the court has to decide whether the inconsistences and contradictions are minor or whether they go to the root of the matter. She urged this court to see the case of Mohamed Said Matula vs Republic [1995] TLR 32. Again, in the case of Jackson John Marase @ Men & Another vs Republic (Criminal Appeal No. 152 of 2021) [2024] TZCA 240 (20 March 2024) where 4 the court in adjudicating the issues of inconsistence of evidence at page 29 it states that; “…we hasten to state at this point that, there are several principles that govern testimony of witnesses which contain inconsistences and contradictions. One, the court has a duty to address the inconsistences and try to resolve them where possible, else the court has to decide whether the inconsistences and contradictions are minor or whether they go to the root of the matter. See, for example Mohamed Said Matula vs R [1995] T.L.R. 3. Two, it is not every discrepancy in the prosecution case that will cause the prosecution case to flop. It is only where the gist of the evidence is contradictory then the prosecution case will be dismantled. See, for example Said Ally Ismail v. Republic, Criminal Appeal No. 249 of 2008 (unreported). Three, in all trials, normal discrepancies are bound to occur in the testimonies of witnesses, due to normal errors of observations such as errors in memory due to lapse of time or due to mental disposition such as shock and horror at the time of the occurrence. Minor contradictions and inconsistences on trivial matters which do not affect the case of 5 the prosecution should not be made grounds on which the evidence can be rejected in its entirety......” She insisted further that, in the case of Nurudin Abasi Nampala & Another vs Republic (Criminal Appeal No. 318 of 2021) [2024] TZCA 390 (30 May 2024), at page 16 it stated that: - “...the trial court did not discharge its duty to address such contradictions and inconsistencies. Having examined and considered the said contradictions and inconsistencies, we are of the settled view that they are fundamental as they raise doubts to the extent that we are unable to eliminate the possibilities of mistaken identity. Since the said contradictions go to the root of the prosecution's case, we resolve them in favour of the second appellant…” She clarified that it is important for evidence to be consistent for one to be convicted. That, in this case at hand there is inconsistence of prosecution case which goes to the root of the case, as they left the prosecution case without sufficient proof on how the incident occurred, and how the appellants were found in possession of the government trophy. She added that, the inconsistence and doubtfulness of evidence can be seen in the extra judicial statements of the appellants tendered which was 6 not consistent with one another and worse enough it does not support prosecution story keeping in account particularly the evidence of PW1, PW2, PW3, PW6 and PW8 as well as the Caution statement (Exhibit P10). Ms. Amulike insisted further that there was inconsistency on how the appellants were arrested and how they were found in possession, and that there is also inconsistency on how the said trophy were found. That, there is also inconsistency on how many accused persons were arrested and how many accused or people were there. Your Lordship For instance on regard to where said trophy was found, in extra judicial statements, Exhibit P5 as well as Exhibit P3, they stated that the trophy was found at King’anda while PW1, PW2, PW3, PW6 and PW8 as well as the charge sheet claim that the trophy was found at Mamba, and because the charge is the foundation of the trial upon which the prosecution case hinges, that is why the appellants’ side insists that the contradictions go to the root of the case. Therefore, the learned counsel stated that, it is incumbent on the prosecution to adduce sufficient evidence to prove the allegations contained in the charge or else the allegations remain not proved beyond reasonable doubt. In Exhibit P5 it was claimed by the 4th Appellant (Damas Kamina) that; - 7 “… Ndipo tulisalimiana na kutambulishana na waliongea na kueleza kuwa huo mzigo wa meno ya tembo haukua hapo bali ulikua eneo la King’anda na ndipo tulipanda gari kuufuata mzigo huo..” The learned counsel then referred the case of Tipai Kilusu Lendendi & Another vs Republic (Criminal Appeal No. 397 of 2020) [2024] TZCA 207 (20 March 2024) where the court of appeal faced a similar situation on which there were two location of crime scene which was claimed by evidence, at page 8, the Court stated that; “...there is also a discrepancy as to the location of the scene of the crime. The information at page 48 of the record asserts that it was Chemka village. Conversely, neither of two witnesses gave evidence to that effect. PW1 claims at page 58 of the record that it was Ngulu Juu 4 village whereas PW2 suggests that it was Tindigani village. There was no evidential clarification of the discrepancy. That aside, no attempt was made by the trial magistrate to address and resolve the same. Yet, she believed the evidence to be credible. With respect, she was not correct. Before jumping to such a conclusion, she was obliged to address the existing contradictions and satisfy herself 8 if they did not affect the substantial credibility of the prosecution case….” She went further by stating that, PW1 and PW2 as well as PW8 in their evidence stated that they searched and arrested the Appellants together in a grocery store at Mamba village after getting information from their informer that the business will be conducted at the said store while the Extrajudicial and caution statement states otherwise regarding to where they were found with the elephant Tusk. That, the 1st Appellant in the extra judicial statement stated that the elephant tusk was at the village called King’ada, in which it also proves inconsistency. She added that there were also inconsistency and contradiction on the number of the accused persons, from Exhibit P10, as there was contradiction and inconsistency with the prosecution evidence and the trial court did not address such contradiction and inconsistency as they raised a doubt in the charge sheet relating to the possession and it is not possible for this court to eliminate the same as there is a doubt on how the appellants were found in possession of the trophy. She then prayed for this court to resolve the said doubt in favour of the Appellants and set them free, as it was done in the case of Nurdin as well as the case of 9 Jackson supra as well as stated in the case Tipai Kilusu Lendendi (supra). Coming to the second ground of appeal, Ms. Amulike submitted that, in this country a police officer is authorised by the law to enter and search any premise, vessel, vehicle, or land and seize anything which is connected with an offence. It is trite law that the exercise of this function should only proceed upon obtaining a warrant of search save on emergencies in which case the search may proceed without a warrant as per Section 42 of the Criminal Procedure Act, Cap.20 R.E 2022. The rationale behind this requirement is Well stated by the Court of Appeal in the case of Director of Public Prosecutions vs Doreen John Mlemba (Criminal Appeal 359 of 2019) [2021] TZCA 482 (14 September 2021) thus; in her view, the meticulous controls provided for under the CPA and a clear prohibition of search without warrant in the PGO is to provide safeguards against unchecked abuse by investigatory agencies, seeking to protect individual citizens' fights to privacy and dignity enshrined in Article 16 of the Constitution of the United Republic of Tanzania. That, it is also an attempt to ensure that unscrupulous officers vested with the mandate to investigate crimes do not plant items relating to criminal acts in people's private premises in fulfilling their undisclosed ill motives. 10 In the present case, Ms. Amulike stated that the search leading to the impounding of government trophies (exhibit P7 and P8) was conducted without a search warrant, nor order hence renders the whole search if it was real conducted to be null and void and unlawful. The Prosecution tendered only what they call certificate of seizure as Exhibit P6 which was made under Section 42 of CPA, the section which deal with search conducted in emergence situation. She alerted this court that, the question to be answered, therefore, is whether there was an emergency, justifying the conduct of the search without a warrant under section 42 of CPA. According to evidence on record, Prosecution witnesses PW1, PW2 and PW8 stated that they had a prior notice of the business which was suppose to be conducted, and they were informed by their informer, and when they firstly received the information, it was claimed that the business will be conduct at Namanyere and they travel to Namanyere later they went to Usevya and last at Mamba village where they were able to search and arrest tha Appellants in a grocery. The learned counsel urged this court to see the case of Samwel Kibundali Mgaya vs Republic (Criminal Appeal 180 of 2020) [2022] TZCA 342 (14 June 2022) at page 7 where the Court of Appeal stated that; 11 “…We understand that, under certain circumstances, an emergency search under section 42 of the CPA dispenses with the requirement for search warrant or search order. But we hold the firm view that the circumstances in this case do not fall into that exception. We say so because PW1 and other police officers received information of the incident earlier, they made follow up and later went to search the house. Considering that the whole process started at the police station, we think PW1 had ample time to seek and obtain a search warrant or search order and thus the issue of an emergency search does not arise at all……” In this case, she further added that the record is silent on why the warrant or order was not sought/obtained while the arresting officers had a notice and information prior to the search and arrest. That it was necessary for the prosecution to disclose openly the reason why the warrant was not sought, from the record, it is clear that PW1, PW2 and PW8 received information on the alleged government trophies and had ample time to obtain a search warrant. She exclaimed that, the question is why didn’t they obtain a search warrant? In the absence of such clarity and full disclosure, it raises a doubt to the prosecution case, and it is as stated in 12 the case of Samwel Kibundali Mgaya (Supra), and she therefore prays for this Court to find it unsafe to assume facts and conclude that the search was illegal, and therefore expunge Exhibit P7 and P8, and because prosecution case can not stand without exhibit P7 and P8, the proceedings and decision thereto should be quashed. Submitting for the 4th and the 6th grounds of appeal together, Ms. Amulike stated that, the law is settled that, failure to consider the defence evidence is a fatal irregularity which vitiates the conviction. This has been the position of the Court of appeal in various decisions including, Hussein Idd and Another vs Republic [1986] T.L.R 166, Jonas Bulai vs Republic (Criminal Appeal 49 of 2016) [2010] TZCA 70 (16 December 2010), and Fred John vs Republic (Criminal Appeal 17 of 2018) [2020] TZCA 364 (28 July 2020). That, in the case of Hussein Idd and Another (supra), the Court held at page 10 that; - "It was a serious misdirection on the part of the trial judge to deal with the prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering the defence evidence" Likewise, in Jonas Bulai (supra), at page 10 the Court observed that; - 13 "It is settled law that failure to consider the evidence of the defence is fatal to the trial or proceedings: see for example, James Butow & Others v. Republic [1981] T.L.R 283. It is an imperative duty o f a trial judge to evaluate the entire evidence as a whole before reaching at a verdict of guilty or not guilty. In this particular case the learned trial judge, unfortunately did not do so". Again, she quoted the case of Fred John (supra) at page 9, where the court observed that; “We find it apt to add that failure to consider the defence evidence before arriving at the decision amounts to a breach of the rules of natural justice of the right to be heard before a verdict is given. The said right is enshrined under Article of 13 (6) (a) of the Constitution of the United Republic of Tanzania 1977.” The learned counsel then clarified to this court that, in this case at hand, the trial magistrate did not take into consideration the defence evidence of the Appellants but rather shifted the burden to Appellants to proof their innocence, also he used the evidence of DW1 and DW2 to criminalise all appellants contrary to the law which wants the conviction of co-accused 14 in matter of practice require corroboration and must be taken by caution as seen in the case of Director of Public Prosecutions vs ACP Abdallah Zombe & Others (Criminal Appeal No. 358 of 2013) [2016] TZCA 877 (16 September 2016) at page 38 where it was stated that; “…We fully subscribed and find as correct the observation made by the High Court that the evidence of a co-accused given on oath and on the defence implicating other accused should be treated as evidence of an accomplice. Such evidence, owing to its inherent danger, requires corroboration as a matter of a well- established practice but not in law …..” Relating the above cited cases with this case at hand, Ms. Amulike submitted that. In this case at hand, the trial Court did not caution itself and only used evidence of DW1 and DW2 to convict Accused. Hence, she prays for this court to vitiate with the conviction and sentence hence set the Appellants free. Submitting on the 7th ground of appeal, the learned counsel stated that as usual this case being a criminal case, the Prosecution was required to prove it beyond reasonable doubt as provided by the law and as observed in many court judgements such as in the case of Charles Ambrosi vs 15 Republic (criminal Appeal No.338 of 2019) [2023] TZCA 17416 (17 July 2023) at page 15 where it was stated that; - “It is instructive that, the duty of the prosecution to prove the case beyond reasonable doubt is universal. In Woodmington vs DPP (1935) AC 462, it was held inter alia that, it is the duty of prosecution to prove the case and the standard of proof is beyond reasonable doubt. This is a universal standard in criminal trials and the duty never shift to the accused…” That, the Court further stated that; - “…The term beyond reasonable doubt is not statutorily defined but case laws have defined it, in the case of Magendo Paul & Another vs Republic [1993] T.L.R. 219, the Court defined it to mean the case whose evidence is strong against the accused as to leave a remote possibility in his favour which can easily be ignored…” She insisted that, on the other hand the defence duty was merely to raise a reasonable defence as provided in Marando Marando vs S.M.Z [1998] TLR 37 that; “The accused, who need not prove his defence, had discharged his duty in this case by merely raising a reasonable 16 defence. It remained for the Prosecution to disprove that defence beyond reasonable doubt”. The learned counsel then stated that, neither can accused be convicted based on the weakness of his defence or inability to defend himself or because of his lies, as it was in the case of Selemani Makumba vs Republic 2006 TLR 379 at page 384, where the Court stated that; - “…It is, of course, for the prosecution to prove the guilt of an accused person beyond a reasonable doubt and an accused person does not assume any burden to prove his innocence. It means, therefore, that failure by an accused person to say anything at the trial in his own defence does not imply admission of guilt.” She then penned off by submitting that, the Prosecution in this case was required to Establish that the Appellants were found in possession of the government trophies the cause of this case. But as afore observed the Prosecution failed miserably to Establish the same as stated above. With the above submission, she submitted that the Appellants pray for judgment in their favour and order for his release from jail and set them free. 17 In response, Mr. Kapinga submitted that, an offence is to be proved in line with the ingredients of the particular offence. That, in this case two elements must be proved as follows: - 1. Possession (i) Actual possession; or (ii) Constrictive possession 2. Without a permit or license. He then clarified to this court that, the Prosecution witnesses to wit; A/Insp. Amani Msole (PW8), Emmanuel Tandu (PW1) and Edwin Akechi (PW2) testified how they received information, traced and finally arrested the accused persons (Appellants herein). That, the search and seizure was witnessed by different people including Petro Paskali Kafoto (PW3) and Nkuba Doto (PW6). He added that, PW3 and PW6 informed the court how they saw the accused persons at the crime scene where later the certificate of seizure was issued and signed by them including the accused persons. The Senior State Attorney did not end there, he submitted further that, PW8 who is an arresting officer informed the court that after the seizure of the said elephant tusks, he prepared the seizure certificate which was signed by the accused and other witnesses including PW3 and PW6. He 18 added that, the said seizure certificate was admitted in court as exhibit P6 and that, PW3 and PW6 in their testimonies confirmed what was stated by PW8 regarding the seizure certificate and they were able to identify their signatures on the said seizure certificate. Mr. Kapinga proceeded further that, the evidence stipulating what transpired at the crime scene especially about the arrest and seizure of the trophies bares the ingredients of the offence of Unlawful Possession of the trophies. That, the witnesses had stated how the trophies were found and who was found with them. Consistence is clearly seen when looking at the testimonies of the aforementioned witnesses (PW1, PW2, PW3, PW6 and PW8) who were at the crime scene. The typed trial court proceedings are clear on that. However, the Appellants’ submission speak about contradiction but no reference has been made on the typed proceedings regarding contradiction in respect of the testimonies of the prosecution witnesses. If there was any contradiction, the counsel for the appellants would have referred and pinpoint to the typed trial court’s proceedings. He then insisted that, it is trite principle of the law that every witness is entitled to credence unless there are cogent reasons for not believing him. That, this principle was put forth in the case of Goodluck Kyando vs 19 Republic [2003] TLR 363 at page 367 where the court propounded that; - “Every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness.” He then submitted that, it is also trite law that, a party who fails to cross examine a witness on a certain matter is deemed to have accepted and will be estopped from asking the court to disbelieve what the witness said, as the silence is tantamount to accepting its truth. failure to cross examine a witness on a certain material fact is tantamount to accepting such fact. That, this position was put forth in different case laws including the case of Tumain Yared Mtoro vs Republic (Criminal Appeal No. 218 of 2022) Court of Appeal of Tanzania at Dodoma [2024 TZCA 23 (9 February 2024) TANZLII. Mr. Kapinga added that, it was fair enough that the appellants during trial were represented by the learned counsel who is trained in law to detect the important areas to cross examine. That, had the learned counsel interviewed her clients, she would be able to know important areas to test the veracity of the prosecution witnesses. Thus, failure to cross examine the witnesses on material points imply that she and her clients knew and 20 accepted that the version of the prosecution witnesses was nothing than the truth. That, having so submitted he invites this honourable court to succumb the view that; one, there was no weakness in the evidence showing that the appellants committed the offence. Two, that no inconsistence in respect of the testimonies of the prosecution witnesses and; thirdly, no doubts can be found as the oral testimonies of the witnesses who were at the crime scene are overt and direct even after cross examination. The learned Senior State Attorney then stated that, the other piece of evidence which the appellants’ submission has touched is confessions of the appellants (Cautioned Statements and Extra Judicial Statements). That, his side’s view is that, this piece of evidence should be differentiated by oral testimony when analysed. That, Section 3 of the Evidence Act [Cap 6 R.E 2022] defines confession as the statement, conduct or a combination of the two from the suspect. It is trite principle of the law that, retracted of repudiated confession requires corroboration for the trial court to convict basing the particular confession. If there is no corroborative evidence, such evidence in itself should not be used to enter conviction. On the other hand, if such evidence is to some facts incompatible with the other pieces of evidence, such type of evidence is 21 termed as admission. The court should treat such evidence with caution and cannot be said to raise doubt unless supported by other pieces of evidence. If such evidence is partly compatible with the charges, then the court may opt to use it together with other pieces of evidence to convict. He then referred this court to the case of Sangwa Ngedelele vs Republic (1968) HCD no. 298, where Judge Seaton said: - “…A confession is a direct acknowledgement of guilt on the part of the accused… an admission… is a statement by the accused, direct or implied, of facts pertinent to the issue and tending, in connection with proof of other facts, to prove his guilt, but of itself is insufficient to authorize a conviction.” Therefore, the trial court acted rightly by using all pieces of evidence including the cautioned statement and extra judicial statement which were admitted in evidence and in their entirety were used against the appellants. He added that, in this case a hand, the trial court’s decision is not based on the confessions of the appellants alone, but rather, the trial court based its decision on the oral testimonies of the prosecution witnesses. Thus, his side is of the view that, the trial court exercised its duties properly by looking the strength of the prosecution evidence. Therefore, he invites 22 this court to dismiss the first ground of appeal as it does not dent the prosecution case. Coming to the 2nd ground of appeal, the learned Senior State Attorney submitted that the circumstances leading to the gist of this case are shown by PW1, PW2 and PW8 who stated that when they were in normal patrol, they received information about the possible commission of the offence by unknown persons. That, they reacted to such information where they went to different areas as their informer tipped them. That, they finally reached Mamba Village where they apprehended the appellants. They also searched the appellants and found them with the elephant tusks. That, the counsel for the appellants in her submission cited the case of Samwel Kibundali Mgaya vs Republic (Criminal Appeal No. 180 of 2020) [2022] TZCA 342 (14 June 2022), in this case the information about the commission of the offence was received by the police while at the police station. This means they had all the means to make proper preparations before the search and seizure. That, the case at hand especially the testimonies of PW1, PW2 and PW8 show that they were on patrol when they received information. For that sense, they had no time to revert back to the police station for further preparation lest the culprits and/or contraband would have disappeared. 23 Such kind of reaction is recognized by the law. For that sake section 42 of the Criminal Procedure Act Cap. 20 R.E 2022 suffices such kind of circumstances. In elaborating akin situations and the applicability of the law thereto Mr. Kapinga invited this court to abide to what the Court of Appeal of Tanzania put forth in the cases of; Wallenstein Alvares Santillan vs Republic (Criminal Appeal No. 68 of 2019) [2022] 516 (22 August 2022) TANZLII and Khalifa Hassan Malingula vs Republic (Criminal Appeal No. 70 of 2018) [2022] 583 (29 September 2022) TANZLII. He proceeded by stating that, the proper case-laws which were to be referred by the appellants’ counsel would have been the case of Wallenstein Alvares Santillan and Khalifa Hassan Malingula. Thus, the case of Samwel Kibundali Mgaya is quite distinguishable in respect of the circumstances of this case at hand. For that sake, the search and seizure were proper and legal in line with section 42 of the Criminal Procedure Act [Cap. 20 R.E 2022]. He then insisted that the 2nd ground of appeal lacks merit and urged this Honourable Court to dismiss it. Submitting against the 4th and 6th grounds of appeal, the learned Senior State Attorney submitted that it is the basis of the law that Prosecution must prove the case on the standards required as stated in sections 24 3(2)(a) and 110(1) and (2) and 111 of the Evidence Act [Cap. 6 R.E 2022]. Thus, the accused person has not to proved his innocence but rather raise doubts that dents prosecution case. In the case at hand, the trial court’s judgment is the compilation of all the evidence adduced in court and analysis of the same. Such judgment shows that the trial magistrate was not convinced with the version of the defence evidence which raised no doubt. That, the trial magistrate did not rely on the defence evidence to convict rather, the prosecution evidence was used. He clarified that in analysing the case evidence in its entirety, the learned trial magistrate considered evidence adduced by both parties. Honourable Judge, It is trite principle of the law that, if the defence evidence does not raise doubts, it may further prosecution case. The testimonies of prosecution witnesses were the onlyevidence which was determinant in ascertaining the guiltiness of the accused persons. On the other hand the defence evidence was considered but the trial magistrate was not convinced that there was any doubt raised. The trial court was right in considering the evidence of both sides. Thus, the evidence of the appellants during defense case was also considered in reaching to the decision of the case. If the defence evidence does not raise doubt, it may further prosecution case depending on the nature of the particular 25 evidence. This was stated in the case of David Gamata and Another v. Republic (Criminal Appeal No. 216 of 2014) [2015] TZCA 362 (7th December 2015, TANZLII)7 , the Court of Appeal stated: "We take it to be one o f the settled principles of law that if an accused person in the course of his defence gives evidence which carries the prosecution case further, the court will be entitled to take into account such evidence of the accused in deciding on the question of his guilty". Honourable Judge, The contention that the trial magistrate used the defence evidence to convict is baseless as the testimonies of PW8, PW6, PW3, PW2 and PW1 stand to explain in detail where the crime scene was, who was apprehended and who was found in possession of the government trophies. None among of the appellants was arrested on the other area different from other appellants. If the evidence suggested that way, then the evidence of co-accused could be used. The evidence available against the appellants is direct one. Thus, the prosecution witness testimonies by themselves suffice to prove the elements of the offence with which the appellants were charged with. Therefore, we beseech this honourable court to discard this ground of appeal for want of legs to stand. As stated earlier that it is the basis of the law that Prosecution must prove the case on the standards required as stated in sections 3(2)(a) and 26 110(1) and (2) and 111 of the Evidence Act [Cap. 6 R.E 2022]. Thus, the accused person has not to prove his innocence but rather raise doubts. Such doubts must be reasonable to dent the prosecution case as it was held in the case of David Gamata & Another vs Republic (Criminal Appeal No. 216 of 2014) [2015] TZCA 362 (7 December 2015) Page 8 of 9 that, the appellants’ submission has put forth generally that the prosecution case was not proved to the required standards. However, the submission has not depicted the doubts which might be referred to. The gist of the case in most cases lean to the testimonies of PW8, PW6, PW3, PW2 and PW1. Clarity, Coherence to each other and Correspondence of such testimonies to the elements of the offence ensures nothing than the truth of the story. In that sense, no doubt can be experienced. It is also seen by looking to the appellants’ submission which does not show which is the doubt and where is it found all over the trial court’s proceedings and judgment. He added that, the prosecution evidence to that effect was clear and specific to the crime scene, the apprehended suspects and what was found and seized. The testimonies of the prosecution witnesses are incapable of double interpretation hence the trial court was duty bound to believe the testimonies of those witnesses as it was stated in the case 27 of Goodluck Kyando where the court held that Every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness. Thus, since there was no contradictions on the prosecution witnesses on the case issues, the trial court was bound to accept the prosecution testimonies and use the same to base the conviction against the respondents for the offence of Unlawful Possession of Government Trophies. Therefore, we invite this honourable court to dismiss this ground of appeal for the reasons stated. In winding up, the Senior State Attorney submitted that it is his side’s humble submission that by its very nature and truth that the trophies were found with the appellants and they had no any lawful excuse and that the evidence by the prosecution witnesses, has not pointed out to anyone else towards such offence than the appellants herein. The whole story bears the evidence against the appellants herein (accused persons) pointing to their guiltiness. The appellants’ denial is only a stance by the human nature to evade the problems they face. Such denial only raises remote possibilities in their favour which won’t let the court lean to their side. The court of Appeal of Tanzania in the case of MAGENDO PAUL AND ANOTHER Vs. REPUBLIC 1993 TLR 219 [CAT] stated that; - 28 "...If the evidence is so strong against an accused person as to leave only a remote possibility in his favour which can easily be dismissed, the case is proved beyond reasonable doubts…" Rejoining her submission in chief, Ms. Sekela submitted that her side continues to state that the first ground of appeal has merits as the trial court erred in law and fact by convicting and sentencing the Appellants depending on weak, inconsistent, doubtful evidence which went to the root of the case, hence conviction was not suppose to be reach based on the said evidence of prosecution, and that she prays for this court not to consider the submission made by the learned counsel for the Respondent. Ms. Sekela then submitted that, as stated in her submission in chief supported by precedents, it is the law that for accused persons to be found guilty evidence adduce must be consistent, strong and undoubtful. She referred this court to the case of Jackson John Marase @ Men & Another vs Republic (Criminal Appeal No. 152 of 2021) [2024] TZCA 240 (20 March 2024). She then insisted that, it is clearly that PW1, PW2 and PW8 were informed about the said incident while they were at Nkasi in Rukwa region and they arrested the appellants in Mamba village within Mlele district which is in Katavi region, from Rukwa to Katavi region they are supposed to travel 29 and they managed to travel from Rukwa Region to Majimoto, particularly in Mamba village to apprehend the appellants. Ms. Amulike insisted her point by submitting that, the position in the case of Samwel Kibundali Mgaya vs Republic (Criminal Appeal 180 of 2020) [2022] TZCA 342 (14 June 2022) cannot be distinguished from the position in the instant case because with regard to the place where PW1, PW2 and PW8 received the said information and the place where the appellants were arrested, there are multiple police stations where they could have obtained the same and seek for reinforcements in order to simplify the process of apprehending the appellants, but the arresting officers didn’t bother to conduct the same and abide by the law, hence the respondent’s view of distinguishing the above mentioned case with the instant matter is misconceived. She argued further that, the case of Wallenstein Alvares Santillan vs Republic (Criminal Appeal 68 of 2019) [2022] TZCA 516 (22 August 2022) as stated by the learned Senior State Attorney can be distinguished from this circumstance in the sense that the search which was conducted in the above stated case, the arresting officer had no time to return back to the station to obtain search warrant, but in this case the arresting officers i.e PW1, PW2 and PW8 had time to obtain that search warrant because they travelled from Usevya to Namanyera, back to Usevya, 30 Majimoto, they had ample time to obtain search warrant as well as arrest warrant. In further clarification, Ms. Amulike stated that, PW1, PW2 and PW8 when testifying they categorically stated that they were informed about the business of selling elephant tusks, hence they had prior knowledge of what was going on, hence such search cannot be termed as emergency search. Therefore, failure to obtain search warrant invalidates what was transpired in this matter because it was nullity which led to the miscarriage of justice over the appellants. Hence, it is her clients’ prayers before this court to allow this appeal. With regard to the 4th and 6th grounds of appeal Ms. Amulike insisted that, it is the appellants’ contention that they managed to give a reasonable defence which disassociates themselves from the crime and they also stated that they were arrested early in the morning when heading to look for jobs in the farms (mbuga), but the trial court disregarded the said testimony, and failure to consider such defence is a fatal irregularity as stated in the case of Hussein Idd and Another vs Republic [1986] T.L.R 166. In addition to that, she added, worse enough the trial court used the evidence of DW1 and DW2 to convict all other appellants something which 31 contravenes the law; hence it is her side’s prayer that this appeal be allowed. Regarding the 7th ground the learned counsel stated that, the Prosecution evidence was full of inconsistencies which goes to the root of the matter, which can easily be seen and such differences which appeared between oral testimonies and the documentary evidences are inconsistent and they bring gaps to the prosecution case to the sense that the case has not been proved to the required standard, and so this appeal should be allowed. After reading the submissions from both sides, without leaving any stone unturned to the records of appeal before me and weighing them up with the seven grounds of appeal, one would agree with this court that, the seven grounds of appeal entirely suggest that, the appellants were convicted of a charge which was not proved to the required standard of the law, and from that fact, I am convinced that the only determinant issue in this matter is whether the case against the appellants was proved to the required standards of the law in criminal cases. In Siza Patrice vs Republic (Criminal Appeal No. 19 of 2010) [2012] TZCA 355 (28 May 2012), the Court reiterated what it has hold in various cases that the first appellate court has a duty to re-evaluate the entire 32 evidence in an objective manner and arrive at its own findings of fact, if necessary. It is in the records that PW1, PW2 and PW8 were the witnesses who testified before the trial court on how they were tipped about the appellants purportedly illegally possessing the government trophies to wit two elephants’ tusks and sixteen pieces of the same as per the charge sheet. The witnesses clarified on how they trapped the appellants and managed to apprehend them at a grocery at Mamba Village in Mlele District. Upon their arrest, they were indeed found with the said two elephant tusks and sixteen pieces of the same, and a seizure certificate was issued and all the appellants signed it. The said seizure certificate was firstly objected by the counsel for the appellants but the objection was overruled and the same was admitted in evidence as Exhibit P6. Moreover, the said elephants’ tusks were also tendered in evidence and they were admitted and marked as Exhibits P7 and P8, whereas P7 was the 16 pieces of the tusks and P8 was for the two complete tusks. Again, after the appellants were arrested, they had their cautioned statements recorded however, for the 1st, 2nd and 4th appellants, their cautioned statements were recorded out of statutory time and thus were 33 not admitted into evidence by the trial court. As for the 3rd appellant his cautioned statement was admitted in evidence and it was marked as Exhibit P10. Nevertheless, all the appellants were taken before the justice of peace (PW7) and their extra judicial statements were recorded in which they all narrate the entire scene until they were arrested. Being in luck, the learned counsel for the appellants also represented them during the trial, and so she was well equipped with the dealings that took place at the trial. She submitted before this court for the seven grounds of appeal in which I found to be an afterthought. This is why. She claimed that the prosecution case was inconsistent and doubtful, but she had the chance of shaking the same by examining her clients during defence in which it would have helped the trial learned Magistrate to have reached a different decision. However, looking at the inconsistency as claimed, I am fortified it does not at all suffice to be labelled as contradiction or inconsistency, as I have gone through the entire documents, it is clear as a broad day light. For example, the charge states that the appellants were apprehended at Mamba village within Mlele District being in possession of the elephant tusks. When one goes through the extra judicial statements of the appellants, as I earlier stated that they narrate the entire scenario vividly 34 that the tusks were at a village known as King’anda in which the appellants went to retrieve them and there after went back to Mamba village where they were arrested. I never found any inconsistency in the entire evidence as the entire records are black and white that the appellants were trapped and apprehended possessing the elephant tusks. In addition to that, it is in the records that the witnesses who were the arresting officers testified to be on patrol that fateful date. They stated that, patrolling inside and outside the game reserve area is one of their duties. That, they were tipped about the appellants being in possession of the elephant tusks while on their patrolling duty and the outcome was apprehending the appellants indeed being in possession of the elephants’ tusks without a permit from the Director of Wildlife in which it is against laws of Tanzania. As rightly submitted by the learned Senior State Attorney that PW1, PW2 and PW8 were on patrol when they received information about the appellants being in possession of the elephant tusks. For that sense, they had no time to revert back to the police station for further preparation lest the suspects would have disappeared, and under Section 42 of the Criminal Procedure Act Cap. 20 R.E 2022 which suffices such kind of 35 circumstances, therefore, the search was not illegal, I too join hands in holding that the search was not illegal. Considering the 4th, 5th, 6th and 7th grounds of appeal, to me these were all afterthoughts’ grounds as they hold no water as the records before me are completely the opposite of what the learned counsel has submitted before this court. At this juncture, I am convinced that the prosecution side did prove the charges against the appellants as it is in criminal cases that the burden of proof rests upon the shoulders of the prosecution side and that the burden never shifts as held various cases such as Julius Mbwilo vs Republic (Criminal Appeal No. 351 of 2009) [2011] TZCA 285 (27 June 2011). For the foregoing reasons, I hold that the appellants’ conviction was proper. I accordingly dismiss this appeal in its entirety, the conviction and sentence of the appellants is hereby upheld. It is so ordered. Dated and delivered at SUMBAWANGA this 08th day of April, 2025. T. M. MWENEMPAZI JUDGE 36 Judgment delivered in judge’s chamber in the presence of the all appellants and the counsel for the Respondent was present virtually at Mpanda. T. M. MWENEMPAZI JUDGE 08/04/2025 Right of appeal explained. 37