juma khalifa sadick ustadh juma juma sadick ustadh 2 others vs the republic 2023 tzhc 23454 14 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CRIMINAL APPEAL NO. 52 OF 2023 (Originating from the District Court of Arusha at Arusha in Economic Case No. 2 of 2022) JUMA KHALIFA @ SADICK @ USTADHI JUMA @ JUMA SADICK USTADHI............................................. jst APPELLANT DANIEL MASIKIO LAIZER...................................... ...2nd APPELLANT ARON NICKOLAUS LAIZER............................................. 3rd APPELLANT VERSUS THE REPUBLIC................................................................. RESPONDENT JUDGMENT 04th October & 14th December, 2023 KAMUZORA, J. The Appellants herein were charged before the trial court for leading organised crime and for unlawful possession of government trophy contrary to paragraph 4 (1) of the First Schedule to and sections 57 (1) and 60 (2) of the Economic and Organised Crimes Control Act and section 86 (1) (2) (b) of the Wildlife Conservation Act, No 5 of 2009. They were convicted for the second count of unlawful possession of government trophies and sentenced to 20 years imprisonment. Aggrieved by both Page 1 of 15 conviction and sentence, the Appellant preferred this appeal on three grounds but the first ground was dropped during submission. The following are therefore argued grounds of appeal: - 1. That, the trial court erred in law and fact in con viedng the Appellants herein while the republic did not prove its case beyond reasonable doubt 2. That, the Honourable magistrate erred in law and in fact by convicting and sentencing the Appellants without properly evaluating the evidence adduced during hearing thus, reaching to erroneous decision. When the appeal was called for hearing, Mr. Silvester Kahunduka, learned Advocate appeared representing the Appellant and Ms. Alice Mtenga appeared for the Respondent, Republic. I have considered the trial court records, grounds of appeal and submissions by counsel for the parties. The Appellants are challenging conviction for unlawful possession of government trophies. What was allegedly found in possession of the Appellants are 11 pieces of elephant liver. The issue is whether the prosecution evidence proved beyond reasonable doubt that the Appellants were found in unlawful possession of government trophies. The Appellants' counsel argued jointly the two grounds and pointed out contradictions and inconsistencies which he considers to have left number of doubts in prosecution evidence. Mr. Kahunduka submitted that Page 2 of 15 there was contradiction in the evidence of PW2 and PW3 who were eye witnesses as to who among the Appellants was carrying the trophies. He pointed out that while PW2 who was the arresting officer PW2 claimed that the trophies were carried by the 2nd Appellant herein one Daniel who handled the same to the 3rd Appellant who also handled the same to the police officer, PW3 who was the independent witness claimed that the person who was carrying the trophies was the 3rd Appellant who handled the same to 2nd Appellant who also handled the same to PW2. To him, since PW2 and PW3 are witnesses who claimed to be at the scene and witnessed the whole incident, the contraction in their evidence goes to the root of the case. That, since the Appellants denied being arrested at the scene, there is no evidence proving that they were arrested at the scene and were found in possession of 11 pieces elephant liver. On the Respondent's side, Ms. Alice submitted that the 2nd Appellant was the one who was carrying the exhibit which he handled to the 3rd Appellant who also handled the same to the police officer. She admitted that there was contradiction on the evidence of PW3 that the trophies were handled to the 2nd Appellant by the 3rd Appellant but she insisted the said contradiction is minor and does not go the root of the case. For her, it does not matter as to who among the accused persons handled the trophies to another. That, the fact that they were both at the scene for Page 3 of 15 the intention of selling trophies, proves that they both had common intention to commit the offence as they all knew that they had trophies without permit. This contraction was also addressed by the trial court which however considered it as minor. I had a second look into the alleged contradiction. I understand that consistence in evidence is crucial in assessing if the raised doubt goes to the root of the case. I agree with the Appellants' counsel argument that since P2 and PW3 were eye witnesses, their story was expected to reflect what transpired at the scene since they both saw the same thing. Thus, if someone claim to see a different scenario, the consistence of the prosecution evidence become questionable. However, that in itself is not a conclusion that the case was not proved. This court looked into other contradictions addressed by the counsel for the Appellant. Mr. Kahunduka submitted that there is another contradiction as to where the pieces of elephant liver were found. The same witnesses differ as to how the alleged elephant liver was recovered. While PW2 one Inspector Daniel claimed that the accused gave to him 11 pieces of elephant liver while in the car, PW3 who was the independent witness claimed that the handover of the pieces of liver was done outside the car. Page 4 of 15 Responding to this contradiction, Ms. Mtenga submitted that there is no contradiction as to the place the where pieces of liver were found because PW2 did not mention the place to where the handover took place. She was of the view that even if we assume that there were such contradictions, the same does not go to the root of the case. For her, it does not matter as to whether the handover was inside or outside the car, the issue is that, the Appellants were found with government trophies. Going through the evidence of PW2, I do not agree with the conclusion by the learned state attorney that PW2 did not mention the place to where the handover took place. At page 15 last paragraph to page 16, of the trial court proceedings PW2 categorically mentioned that when the accused went at the meeting point, they entered their car where one Juma assured them that they had trophies intended for sale. The evidence does not show if they went out for handover but it indicates that PW2 instructed the accused persons to handover what they had and they complied. Since no where it is mentioned that they came out of the car, it becomes obvious that the handover took place into the car. In that regard the evidence by PW2 differs in material with that of PW3 regarding the place and modality of handing over of the allegedly seized trophies. However, in the same spirit, this contradiction in itself cannot be considered conclusively to discard the prosecution evidence. Page 5 of 15 Mr. Kahunduka raised another contradiction on the colour of the bag to which the seized pieces of liver were kept. He explained that while PW2 claimed that the trophies were kept in the red bag, PW3 claimed that the trophies handled to the police officer was in the blue bag. That, PW4 who sent the trophy to the government chemists claimed that the exhibit was kept in the red and blue bags but, PW5 who is the government chemists claimed that he received 11 pieces of elephant liver which were kept in green and red bags together with envelop. But, PW6 who was the valuer of trophies claimed that the pieces of liver were kept in blue and maroon bag. To him, the contradiction between these witnesses brings doubt as to whether the Appellants were found in possession of those pieces of elephant liver. That, it is also doubtable if what was sent to the government chemists is exactly what was seized at the scene. He insisted that the doubt ought to be resolved in favour of the Appellants. In response Ms. Mtenga submitted that the evidence by PW2 reveals that 11 pieces of liver were kept into two bags, the inside bag was red and the outer bag was blue and they were all kept in the envelop. That, such evidence was supported by PW3 and PW4 for they mentioned blue and red bags to which the pieces of liver were kept. She admitted that PW6 mentioned blue bag and marron but admitted to be a colour-blind person. In her view, the contradiction does not go to the root of the case. Page 6 of 15 In my perusal to the prosecution evidence, I discovered that at page 14 of the proceedings PW2 mentioned that the exhibit was kept in a red bag and they decided to add an envelope to cover the red bag which was unpleasant. On being cross examined at page 15, he mentioned that the exhibit was kept in red and blue bags. At 32 of the proceedings, PW3 mentioned blue and red. These two witnesses are those claimed to witness the seizure at the scene. Similarly, PW4 who is the police officer who sent the exhibit to the government chemists at page 35 he mentioned that the trophies were kept in blue and red and an envelope. However, PW5 who is the government chemists at page 40 claimed to receive samples that were kept in the envelop but at page 42 claimed that the exhibit was kept in a green and red bag which were sealed with an envelope. PW6 was the valuer and he claimed at page 47 that he valuated the trophy that was packed in an envelope. When he was cross examined at page 49, he mentioned that the trophy was kept in blue and maroon colour. I understand that in its simple look one may consider the contraction as minor, but I find the same material as it refers the consistency of chain of custody. While assessing if there was proper chain of custody, one will have to assess if the same item seized was the same item examined and verified as government trophy. If there is change of colour in the package, Page 7 of 15 the question will arise as to whether what was seized is the same thing that was valuated and examined by the government chemists as government trophy. In the matter at hand, change in colour of the package brings doubt to the whole process of seizure and handover of exhibit. It was expected for both witnesses who came into contact with the exhibit to be precise and consistent with what they saw and not to have more than one answer suggesting that they were not sure if what they saw. I therefore agree that constant change of colours of bags to which the exhibit was kept was material in the circumstance of this case bearing in mind that the exhibit itself was not tendered in court to verify the inconstancy raised by prosecution witnesses. The counsel for the applicant also claimed that there was contradiction in the evidence of PW5 who is the government chemists who claimed that he worked on the samples sent to him on 11th May, 2021 while PW4 claimed to have received the sample on 16th May 2021 and sent the sample to the chemists on 18th May 2021. He was of the view that what was examined by the government chemist cannot be the same sample allegedly seized from the Appellants. I had ample time to go through the original record and indeed, 11th May 2021 was a typing error as the record shows 19th May 2021. I Page 8 of 15 therefore agree with the learned state attorney that this argument cannot stand as it was just a typing error. Apart from contradictions in evidence Mr. Kahunduka also submitted that there is doubt as to whether the independent witness identified the accused at the scene. That, PW3 testified that he did not identify the Appellant's clothes as it was dark meaning that it was not possible for him to identify the people whom he did not know before. To him, the identification by PW3 was full of doubts and the doubt be resolved in favour of the Appellants. In response, Ms. Mtenga submitted that the fact that the witness was unable to identify the accused' clothes is not a determination that he did not identify the accused at the scene. She explained that PW3 mentioned that he was able to identify the accused persons who were in the car through the light inside the car. That, when he was cross- examined, he even stated the position to where the 3rd Appellant seated proving that he saw them clearly. Going through the testimony by PW3 it reveals that PW3 was asked by the police officer to go with him so that he could play independent witness role. She was standing three steps away from the car and saw three men in the car. That the third accused gave the luggage to the 2nd accused who also gave the same to the police officer. It is clear that PW3 Page 9 of 15 did not identify accused's clothes but to me that is minor. What I see questionable is that PW3, did not give description of those he referred as men he saw in the car on the date of arrest visa vis those who were charged in court. If the witnesses real identified the culprit at the scene, it was expected for him to give a clear description of their appearance in court for the court to be satisfied that the people he saw at the scene are exactly the people who were aligned before the court. I therefore find merit in the Appellants' argument that there is doubt regarding identification of the culprit at the scene by the independent witness. Mr. Kahunduka also claimed that the prosecution case was not proved as the seized exhibit was not presented before the court or the inventory as so required by the law. That, the law requires physical exhibit to be tendered or the inventory in substitute after the order for disposal is made as per section 101(1) of the Wildlife Conservation Act. Reference was made to the CAT decision in Criminal Appeal No 168 of 2019, Ngasa Tambu Vs. Republic (unreported) page 19. He contended that in this case, neither the trophy nor the inventory was tendered in court and for that, the charge against the Appellants was not proved. He added that the government chemists claimed to have disposed the exhibit under Regulation 51 and 58 of Human DNA Regulations Act No 8 of 2009 read together with section 16 (3) of the Government Page 10 of 15 Chemists Laboratory Act No 8 of 2006 but those provisions give him power to dispose samples and not exhibits. That, since the witnesses claimed to have taken sample from each piece, what remained was expected to be tendered as exhibits as the same were dry and could not decay. He added that, while the witness claimed that there was a report signed by his superior officer regarding the disposal, the said report was not presented to court to prove so. That, the evidence shows that the exhibits were seized on 1st May 2021 and were retained at the police station until 16th May 2021 when they were handled to PW4 to take the same to the government chemist. That, PW4 stayed with the same at his house until 18th May, 2012 when he sent the same to the government chemists. That, the government chemist stayed with the exhibits until 20th July, 2021 when he claimed to have disposed the same. The Appellants' counsel believes that the exhibit could not decay thus, the prosecution side intentionally did not tender them in court. He was of the view that, the case against the Appellants was not proved beyond reasonable doubts and all doubts found in prosecution evidence should be resolved in favour of the Appellants. Ms. Mtenga admitted that neither physical exhibit nor the inventory was tendered in court. She however claimed that it was not tendered because physical exhibit was sent to the government chemists for Page 11 of 15 examination and there is no evidence showing if the same was returned to the police station after examination, for disposal. She insisted that apart from inventory, there is other evidence proving that the Appellants were found in possession of trophies as there is certificate of seizure signed by both Appellants and independent witness and the valuation report for the trophy found with the Appellants. She also referred the report from the government chemists showing that the exhibit found with the Appellant was elephant liver. That, the government chemists disposed the exhibit and gave reason for disposal and law giving him mandate to dispose the exhibit. Ms. Mtenga is convinced that the prosecution evidence was water tight proving the offence against the Appellants. She therefore prayed for the appeal to be dismissed and the Appellants continue serving the sentence imposed by the trial court. As well submitted by the counsel for the Appellants, the law requires the exhibit which is not perishable to be tendered in court or an order for disposal be issued for perishable exhibits and inventory can stand as evidence instead of the trophy. It is unfortunate that the valuation officer who valuated the trophy did not describe the size of the allegedly elephant liver which he valuated. His report does not show the size or weight of the valuated pieces of liver. The claim by the Respondent's counsel that the exhibit was disposed by the government chemists is unfounded. Apart Page 12 of 15 from the fact that the size or weight of the 11 pieces of liver was not described, the government chemists did not mention if he used part of the sample from each piece or if he used all pieces in examination. I understand that the law mentioned by the government chemists allows disposal of the sample used in examination but it does not give him mandate to dispose the remained part of exhibit after taking sample for examination. Since at page 42 of the proceedings the government chemists claims that he received 11 pieces and took sample from each piece, the remained parts of those 11 pieces needed a disposal order or the same could be tendered as physical exhibits. I therefore agree with Mr. Kahunduka that the claim that the government chemists disposed the exhibit is baseless as there is no report to that effect. The prosecution side were bound to prove existence of the exhibit allegedly examined by the government chemists and they could only do so by tendering the remained part of exhibit or an inventory in lieu of the exhibit. In summing up, I agree with the Appellants' argument that the contradictions and inconsistencies pointed out if considered in totality cannot make any court conclude that the prosecution evidence could be safely relied upon in conviction. I say so because, the prosecution evidence does not build a complete and clear story which any reasonable person would safely believe without raising any other adverse story to the Page 13 of 15 contrary. For instance, if someone claim that the Appellants were arrested at the scene, the question will come, why the eye witnesses differ in their evidence on what transpired at the scene. Likewise, if the prosecution side claim that the Appellants were found in possession of 11 pieces of elephant liver, why the same was not tendered or the inventory evidencing their disposal. The certificate of seizure and prosecution witnesses mentioned that together with 11 pieces of liver, flour/dust like particles were also seized. There is no explanation as to the whereabouts of those particles and as per the government chemist evidence, the same were sent for examination to the government chemists. No witness who explained as to where the said flour was kept and how it was excluded from exhibit sent for examination to the government chemists. This suggest that the seized exhibit was either tempered with or what was sent to the government chemist is different from what was seized at the scene. The doubt found in handling the exhibit is material, and in my view, it goes to the root of the case. I therefore find merit in this appeal and proceed to allow the same by quashing the trial court judgment and setting aside the conviction and sentence passed by the trial court. I order the immediate release of the Appellants unless held for any other lawful cause. Page 14 of 15 DATED at ARUSHA this 14tLday of December, 2023. UZORA JUDGE Page 15 of 15