Jeremiah Charles Ngendabanka v Republic Economic Appeal 435 of 2024

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA ECONOMIC APPEAL NO. 000000435 OF 2024 JEREMIA CHARLES @NGENDABANKA .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT J. NKWABI, J 12/08 & 05/11/2024 The trial Court convicted and sentenced the appellant on the charge of unlawful possession of government trophies contrary to section 86(1) and (2) (c) (iii) of the Wildlife Conservation Act, Cap. 283 R.E. 2022 read together with paragraph 14 of the 1st schedule to and section 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act, Cap. 200 R.E. 2022. The allegations against the appellant leveled by the respondent in the trial Court were that on 22nd day of September 2022, at Buhingu village within Uvinza district in Kigoma region, the appellant was found in possession of one dry left palm, one dry right palm, one head and a piece of skin of chimpanzee, all value at USD 5200 equivalent to T.shs 12,056,304, being the property of the Government of Tanzania. The appellant entered a plea of not guilty to the charge. So, the respondent was tasked with the duty to prove beyond reasonable the charge he laid at the door of the appellant. According to the trial court, that was done by the prosecution by calling a number of witnesses and tendering several exhibits. The appellant is unhappy with both conviction and sentence. He appealed against the same, having five grounds of complaint. The appeal was heard by way of written submissions. Mr. Silvester Sogomba, learned counsel, drew and filed the written submission in chief for the appellant but did not file a rejoinder submission. The submission in reply for the respondent were drawn and filed by Mr. Fortunatus Maricha, learned State Attorney. I am grateful for the submissions. Since the counsel for the appellant decided to submit on the grounds of appeal jointly, I will not list them but I will deal with the appeal in the manner the counsel for the appellant has submitted. Page. 1 Hon... JOHN NKWABI It is contended by the counsel for the appellant that the charge was not proved beyond reasonable doubt because, one, there was no independent witness, as PW1, PW2 and PW3 are arresting officers, then no credible witness. Two, the government trophies were not tendered in court and questioned their destruction while the same were dry and three, there was no independent witness during the search while the search was done near residential houses, (video hall) they needed to get a person to witness, sign on the seizure certificate. The is not all in the bag, the counsel for the respondent pointed out that the phone number the appellant was communicating was not disclosed to justify communication between the appellant and the informant. Mr. Sogomba too complained against failure to call another police officer J.901 PC Abdulrahman. He also complained that the motor vehicle number was not mentioned, further the owner of the motor vehicle was not called to testify. Mr. Sogomba added that for the arresting officer turning himself to be exhibit keeper is not legally accepted, and the exhibit register was not tendered. Further he indicated that there is no document supporting the movement of exhibits from Mgambo police post to Uvinza police station. In addition, there is no any document allowing PW4 and PW5 to conduct valuation on 4/11/2022. He also stated that PW5 alleged to have been directed by the OC-CID to file inventory for exhibit to be destroyed on 04/07/2023 while on 04/07/2022, PW6 at page 40 of the proceedings testified to have issued the disposal order of the exhibits. The counsel for the appellant too claimed that there was contradiction as to the place where the appellant was arrested whether on the road or at Buhingu near the residential houses. He also pointed out to a contradiction in respect of time when there was a difference of 45 minutes. Mr. Sogomba pressed the appeal be allowed, the conviction and sentence be nullified while the appellant be set free from prison. In response, the learned state Attorney argued that the offence was proved beyond reasonable doubt because they proved possession, chain of custody, identification and disposition of trophy. He explained that possession was proved by PW1, PW2 and PW3. Chain of custody was proved by oral evidence citing Abas Kondo Gede v. Republic, Criminal Appeal No. 472 of 2007 and Joseph Leonard Manyota v. Republic, Criminal Appeal No. 485 of 2015 where in the latter case it was stated that: “… it is not every time when the chain of custody is broken, then the relevant item cannot be produced and accepted by the court as evidence, regardless of its nature. We are certain that this cannot be the cases say, where the potential evidence is not in a danger of being destroyed, or polluted and/or in any way tempered with. Where the circumstances may reasonably show the absence of such dangers, the court can safely receive such evidence despite the fact that the chain of custody may have been broken.” Page. 2 Hon... JOHN NKWABI He also submitted that the respondent proved the trophy was identified to be of chimpanzee by PW4 and it was disposed of because of its nature as it could decompose after some time under the order of a primary court magistrate as proved by PW5. Mr. Maricha too said that the fact that it took long time before deposition does not decrease the weight of exhibit P.3 or that it was tempered with. He pointed out that the appellant did not object the admission of the exhibits P. 1, P2 and P3. Neither did he cross-examine on the same which implies accepting what was testified. Mr. Maricha exemplified Nyerere Nyague v. Republic, Criminal Appeal No. 65 of 2012. Regarding the complaint about failure of respondent to have independent witness, he replied that it is not always independent witness will be available waiting for arrest to witness. He bolstered his position by the case of Togora Wambura v. The Director of Public Prosecutions, Criminal Appeal No. 212 of 2006 at page 6 where it was underscored that: “As to why there were no independent persons to witness the arrest, that, in our considered view, depend on the particular circumstances of each case. However, it should be emphasized that the absence of such people, per se, did not render the operation illegal or the prosecution case fatal.” Mr. Maricha explained that PW1 said that he communicating with the hamlet leader would lead the arrest unfruitful. It was also at around 22:00 hrs and the appellant was changing direction, it was unfavourable for the police to find independent witness. He finally submitted that arresting the appellant and sending him to the residential houses for witnessing the seizure was a misdirection and would change nothing. He prayed the appeal be dismissed for want of merit. I start my deliberation with the complaints raised by Mr. Sogomba against failure to call another police officer J.901 PC Abdulrahman and that the motor vehicle registration number was not mentioned, further the owner of the motor vehicle was not called to testify. I am of the firm view that the complaints are unfounded. The respondent is not under legal obligation to bring all witnesses it intended to bring. That is as per Shenyau v. Republic, Criminal Appeal No. 27 of 1993 (Unreported) (CAT). As to the complaint about the registration number and the owner of the motor vehicle used in the conveyance of the trophy and the appellant to the police out post, that has no basis because even the accused person himself in his defence stated that he was embarked into a motor vehicle (van). The registration number and its owner are just irrelevant. My stand point on the above lamentation answers the complaint against the decision of the trial court that the phone number the appellant was communicating was not disclosed to justify communication between the appellant and the informant. What is important here is that the appellant was arrested in possession of the government trophies. Next, I consider the lack of independent witness during the arresting and search. It is trite law that each case must be decided according to its particular circumstances as held in Nyakisia v. Republic [1971] H.C.D. No. 195, (E. A. C. A.). In the case under my determination, the appellant was arrested and the trophies seized not inside a house Page. 3 Hon... JOHN NKWABI or a dwelling building. In a similar situation the Court of Appeal in Emmanuel Lyabonga v. Republic, Criminal Appeal No. 257 of 2019 CAT (unreported) held that: “Moreover, since the appellant’s polythene bag was searched and seized in a remote bushland at Kitandililo, not at his dwelling house, in circumstances that no independent witness could be found, we are in agreement with the learned State Attorney that the operation was properly conducted.” It is also undisputed that PW2 (the Game Officer) verified Exhibit P1 and vouched that it was ivory.” After all, if the appellant were from a video hall, one would have expected the appellant to bring a witness to bear him out. It appears to me that he told lies to the trial court and the trial court was justified to reject his defence. The position of mine regarding the complaints against the failure to have independent witness during the arrest and seizure that they falsely implicated the appellant is supported by the decision in Damian Ferdnand Kiula & Another v. Republic [1992] T.L.R. 16 (CA) where it was underscored that: “For our part we do not think there were good reasons for regarding the dying declaration in Ex.P.2 as weak and unreliable. It was recorded by a police officer who had no reason to lie against the appellant. If the appellant was serious about his neighbours) he ought to have called them to bear him out. It should be remembered; this is not calling upon him to prove his defence but to bring a cogent explanation as stated in Hatibu Ghandhi & Others v. Republic [1996] T.L.R. 12 CAT where it was stated that: “On our own evaluation of the evidence, we think that the CID Headquarters is the most improbable place for suspects to be tortured either by the police or ... One would need very cogent evidence to show that such a thing can be done at such a place. There is no such evidence here.” The above stance of the Court of Appeal is supported by Sarkar on Evidence in India, Pakistan, Bangladesh, Burma & Ceylon, 14th Edition 1993 at P. 1338 where it was explained thus: “An essential distinction between the burden of proof and onus of proof is that the burden of proof never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.” There is another complaint leveled by the counsel for the appellant regarding the government trophies were not tendered in court and questioned their destruction while the same were dry. Admittedly, the trophy was destroyed on 04/07/2023. But that has nothing to flop the respondent’s case because even the appellant himself acknowledged the trophies when he said in his defence that: “When getting off the van at Mgambo police station, they handed me one bag. …They told me to open the bag. I opened it and it’s when I found those trophies (two limbs, skull and skin) inside.” Page. 4 Hon... JOHN NKWABI The admission is akin to what happened in the case of Lyabonga (supra) where the accused admitted communications. The Court of Appeal held that: “Actually, this piece of evidence was supported by the appellant’s co-accused who, in cross-examination, said that the appellant had phone communications with a person he did not know. That apart, it is also momentous that the appellant acknowledged the communications in his cautioned statement …” Regarding the contradictions about the time of arrest, and the place where the appellant was arrested that can be answered by the decision in Mychel Adriano Takahindengeng v. Republic, Criminal Appeal No. 76 of 2020, CAT where it was stated that: “In our re-evaluation of the evidence of PW5, PW6 and PW7, with the view of determining whether or not they are reliable, we are not oblivious to the fact of life that two or more people who witness an event, may not later tell it in exactly the same way.” The same sentiments were held in the case of Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 (CAT) (unreported): “The point being made here is that these three witnesses found the first appellant at the scene where he was trying to bury the deceased. Their evidence is not inconsistent with the finding. In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether they go to the root of the matter.” “On our part, we have no cogent reasons to fault the learned judge. A trial court’s finding as to credibility of witnesses is usually binding on an appeal court unless there are circumstances on an appeal court on the record which call for a re-assessment of their credibility …” “We have equally read those statements. The words are clear, unambiguous and unmistakably convey that the appellants were responsible for the murder of Loti s/o Mwalusanya. …” See also Goodluck Kyando v. Republic, [2006] T.L.R. 363, CAT, Mohamed Said Matula v. Republic [1995] T.L.R. 3 (CA), Michael Haishi v. Republic [1992] T.L.R. 92 (CA) just to mention but a few. In this case, PW.1 told the Court that they arrested the appellant and was quoted to say: “Thereafter, the accused left heading to the residential house and later returned in possession of sandarus duffle bag, ... The accused came directly to the vehicle and it’s this time, I approached the vehicle and arrested him ... Page. 5 Hon... JOHN NKWABI Buhingu isn’t his residential home. Even at Buhingu it was on the road not on a certain house.” So, the circumstances the appellant was arrested resemble those in the case of Lyabonga (supra). The complaint on contradictions is rebuffed. The complaint about the chain of custody being broken could be seen in the 3rd ground of appeal. In his submission on this criticism against the trial court Mr. Sogoma maintained that for the arresting officer turning himself to be exhibit keeper is not legally accepted, and the exhibit register was not tendered. Further he indicated that there is no document supporting the movement of exhibits from Mgambo police post to Uvinza police station. I have considered the criticism. I do not accept it. In the first place, the arresting officers were from a police outpost which are usually not staffed with many police officers like a police station. I do not further agree with the learned counsel for the appellant that the chain of custody was broken and there is nothing to suggest that the exhibit was tampered with. I am also of the stand view that the situation was adequately discussed in the case of Chacha Jeremiah Murimi & 3 Others v. The Republic, Criminal Appeal No. 551 of 2015, CAT at Mwanza (unreported) and Joseph Leonard Manyota v. Republic, Criminal Appeal No. 485 of 2015 CAT (unreported) where in the latter case it was stressed that: “… it is not every time that when the chain of custody is broken, then the relevant item cannot be produced and accepted by the court as evidence, regardless of its nature. We are certain that this cannot be the case say, where the potential evidence is not in the danger of being destroyed, or polluted, and/or in any way tampered with. Where the circumstances may reasonably show the absence of such dangers, the court can safely receive such evidence despite the fact that the chain of custody may have been broken. Of course, this will depend on the prevailing circumstances in every particular case.” Having stated as above, I find that the charge was proved beyond reasonable doubt are required by Woodmington v. DPP [1935] A.C. 462. In the premises, this appeal is lacking in merits. For avoidance of doubt, I reject all the submissions advanced by the counsel for the appellant in support of the appeal while I accede to the address made by the learned State Attorney for the respondent. The appeal stands dismissed in its entirety. The conviction and sentence handed out by the trial court are upheld. It is so ordered. Dated at KIGOMA ZONE this 5th of November 2024. Page. 6 Hon... JOHN NKWABI J. . NKWABI, J JUDGE OF THE HIGH COURT Page. 7 Hon... JOHN NKWABI