19880623 TZHC Arusha

IN THE COURT OF AP11AL OF TANZANIA AT DAB ES SALAA?I (coi, MAKNE J.A..; And OMAR J.A.) APPEAL NOi ii OF 1987 BETWEEN THE DIRECTOR OP PUBLIC PROSECUTIONS. . . APPELLANT AND •0 • N1JRU NOHAMED GULAMRASUL, . . . . . . RESPONDENT (Appeal from the acquittal of Accused person by the High Court of Tanzania at Bar es Salaam) (Mapigano, j.,) dated 2nd February, 1987 in Economic Crimes Case No. 1 of 1986 JUDGMENT OF THE COURT MOSTAFA, J.A. One Nuru Mohamedi Gulamrasul and another person were charged in the High Court in Bar es SaLaam sitting as an Economic Crimes Court in Economic Crimes Case No. 1 of 1986. They were both charged. with being in unlawful possession of Government trophies (to wit 133 elephant tusks) contrary to section 67 of the \Jild Life Conservation Act as read together with paragraph 16 (b) of the First Schedule to the Economic and Organized Crime Control Act, and section 59 of the Economic and Organized Crime Control • Act, - No. 13 of 1984. The other person with Nuru was acquitted. after the Prosecution evidence had finished, the court holding that there was no case for him to answer s The case against Nuru Gulamrasul proceeded to its conclusion. In the result, the two lay members of the Court were of the view that Nuru Gulamrasul was not Guilty,. but the presiding trial judge dissented from that opinion. . .. . . . . . .72 -2- Prom that acquittal the Republic is appealing to this Couzt There was some trouble concerning service of the appeal on Nuru Nohamedi Gulamrasul, hereafter called the respondent. He apparently could not be found in the Republic of Tanzania. On application by the Republic this Court, on 12.2.88 made on order for substituted service by publication in the newspapers on certain conditions. These conditions have now been carried out and this morning we allowed State Attorney for the Republic to open his appeal before us in the absence of the respondent as we are satisfied that substituted service has been effected in the circumstances.. We believe the position is analogous to that which would obtain in a situation provided for in Rule 73 (2) and (3) of the Court of Appeal Rules. Briefly the facts as adduced in evidence at the trial were as follows. On information received, a police party went to a house in Regent Estate, Dar es Saloam where a motor lorry was parked. The lorry was in the custody and control of the respondent, although the lorry was in the name of the respondent's father. The respondent was present with the police party when the lorry was searched. In a well—hidden compartment built into the body of this lorry a number of elephant tusks were discovered. The compartment had to be broken open to get at the tusks. In the presence of a number of witnesses, both Police and eivile, the respondent stated that the tusks were his as he had obtained or picked them up at Mikumi. That statement was made in the course of police investigation, before the * I, -3- respondent ws charged. or arrested. After he was arrested the respondent made a cautioned statement to Pw6, a Police inspector. Th the statement the respondeni revealed how he came to possess the tusks. At the trial 9 the respondent denied that he had ever admitted that the tusks were in his possession. He called two viitnesses who alleged that they were part of a group of people who were arrested. after the disovexy of the tusks in the lorry and who were present during the search. D.W.3 stated that the respondent said the tusks were not his while D,W.4 stated that the respondent said he did not Iow anything about the tusks, D.W.3 was respond.ent 1 8 fellow tribesman and D.W.4 his cousin. On the prosecution side, P.W.l and P.W.2, both Police officers during the search stated that when questioned 9 after the tusks were discovered, the respondent told them the tusks were his. P.W.3 a civilian neighbour andP.W.4, a C.C.M. Branch Secretory of the area, both heard the respondent so saying. This, as pointed out earlier, was stated by the respondent before the respondent was charged or arrested. This was during an investigation searching for trophies. We have no doubt that these four prosecution witnesses were telling the truth 1 in fact their evidence stood clear and unshann court. This admission by the respondent, heard by four obviously reliable witnesses, was sufficient by itself to have founded a conviction of unlawful possession, unless the respondent had, authority to possess. Then there is the cautioned statement. Thiaws taken by pw06, a police officer who testified. and. produced the statemGnt. He took all the proper Pret1P1$. and took down the statement mode by the respondent. It was iy signed by the respondent. U. -4- No objection was made to the admissibility of the cautioned • statement, and in fact p.w.6 was not cross—examined as to the voluntariness or otherwise of the statement. After the Prosecution case was closed, the respondent in his evidence, purported to allege that the cautioned statement was taken from him by force or torture and. was not read over to him. He repudiated it. We do not think a repudiation in such circumstances can carry weight. If it was alleged that p..1-1.6 had obtained, the statement by torture, p.w6 should have been cross—examined on that when he was testifying, or an objection raised to the admissibility of the statement. Nothing of the sort was done. The respondent was legally represented. It seems to us that the so—called repudiation was an afterthought and would not deserve any serious consideration. In his judgment the presiding judge, more in sorrow than in anger, stated that the two lay members did not completely believe that the respondent made the "confessions' during the search and interrogation. The two lay members thought that the evidence of D.W.3 and D.W04 introduced an element of doubt. The two 1ay members were of the view that the cautioned statement was obtained under torture. , With great respect to thq lay members, in our view the evidence adduced by the Republic against the respondent in this case is overwhelming. The respondent's admission that he was the possessor of the tusks was satisfactorily proved.; and. so was the . 0 0 0 0 /5 A - 5- incriminatory cautioned statement. The respondent's defence that it must have been his driver who had hidden the tusks in the lorry without his knowledge, in the circumstances,waspure fantasy.. Both D.W..3 and D.W.4 were biased in his favour, being' . eiTwtribesm2nn a : relative. Indeed we are of opinion that the finding of the two ly members that the respondent was not guilty of the offence charged was a perverse finding in the circumstances. No reasonable tribunal on a proper and. objective view of the evidence could have arrived, at such a conclusion. We allow the appeal, set aside the judgment and order of acquittal of the High Court sitting as an Economic crimes Court,. and. substitute therefor a finding of giiltyas charged against the respondent. We sentence the respondent to 10 years imprisonment. We order the forfeiture of the tusks (if not alreadr forfeited.) and of the lorry to the Republic. DAab DAR ES SALAiM this 23rd day of June, 1988. A • MUSTAFA •. JUSTICE OF AFPEAL / - L • M. MAKANE. JUSTICE OF APPEAL A. M. A. OMAR JUSTICE OP APPEAL I certify that this is a true copy of the original. (J. H. NscPFE) SINI OR DEPUTY iWISThAR.