DAUDI BAHATI NDIZU 2 V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CONSOLIDATED CRIMINAL APPEALS NO. 61 AND 73 OF 2023 DAUD BAHATI @ NDIZU ………………....................... 1st APPELLANT SHIJA MSOBI KASWAHILI ………………………..……. 2nd APPELLANT REVOCATUS CHARLES MTARA …………………..…….. 3rd APPELLANT VERSUS REPUBLIC………………………………………………..…… RESPONDENT [Appeal from the Decision of District Court of Shinyanga at Shinyanga] (Hon. Y. ZAHORO SRM) dated the 11th day of April, 2023 in Economic Case No. 1 of 2022 ----------- JUDGMENT 29th April & 25th July, 2024. S.M. KULITA, J. This is an appeal from Shinyanga District Court. The appellants herein above were charged for “Unlawful Possession of Government Trophies” contrary to sections 86(1) and 2(b) of the Wildlife Conservation Act No. 5 of 2009, read 1 together with sections 57(1) and 60(2) of the Economic and Organizes Crime Control Act [Cap 200 RE 2019]. Upon the matter being heard and fully determined by the trial court, the Appellants herein, namely DAUD BAHATI @ NDIZU (1st Appellant), SHIJA MSOBI KASWAHILI (2nd Appellant) and REVOCATUS CHARLES MTARA (3rd Appellant), together with one Emmanuel Shija Basu who has not preferred the appeal, were convicted and sentenced to 20 (twenty) years imprisonment. Aggrieved with both, conviction and sentence, the appellants lodged separate grounds of appeal which can be summarized as follows for each of them. For DAUD BAHATI @ NDIZU (1st Appellant); 1. That, the trial Magistrate erred in law to sentence the Appellant the imprisonment term without an option to pay a fine as per section 86(2)(b) of the Wildlife Conservation Act No. 5 of 2009. 2. That, the original case at the District Court was not proved beyond all reasonable doubts. 3. That, the search and seizure of the disputed 9 (nine) pieces of elephant tusks were illegally conducted. 2 4. That, the contents of seizure certificates (exhibit P1) and the Chain of Custody for the said exhibit P1 were not read over before the court during trial. SHIJA MSOBI KASWAHILI (2nd Appellant); 1. That, the trial Magistrate erred in law to sentence the Appellant the imprisonment term without an option to pay a fine as per section 86(2)(b) of the Wildlife Conservation Act No. 5 of 2009. 2. That, the original case at the District Court was not proved beyond all reasonable doubts. 3. That, the trial Magistrate was wrong to rely on the Caution Statement which was illegally taken by Police. 4. That, the trial Magistrate erred in law for failing to note that search and seizure were illegally conducted. 5. That, he could have not report the matter to the security departments upon getting the information that his uncle, Emmanuel Shija Basu who was his Co. Accused at the trial court, was in possession of the Government Trophies while he was not sure of it. REVOCATUS CHARLES MTARA (3rd Appellant); 3 1. That, his defense testimony was not considered in the impugned judgment. 2. That, the case at the District Court was not proved beyond all reasonable doubts. The matter was argued through oral submissions. The Respondent (Republic) is represented by Ms. Caroline Mushi, Learned State Attorney while Mr. Audax Constantine, Learned Advocate appeared for the 1st Appellant, Bahati Daud @ Mdizu. The 2nd and 3rd Appellants, Shija Msobi Kaswahili and Revocatus Charles Mtara respectively appeared in person. They had no Advocate to represent them. The brief history of the case in a nut shell, as it can be gathered from the record is that; on 13/07/2022 at Solwa Village within Shinyanga District in Shinyanga Region, the Appellants herein and one Emmanuel Shija Basu who has not preferred the appeal, were found in unlawful possession of 9 (nine) pieces of elephant tusks valued at USD 30,000 which is equivalent to Tsh. 69,210,000/=, the property of the United Republic of Tanzania, without a written permit of the Director of Wildlife. As narrated herein before, the said Accused persons, including the Appellants herein were convicted and accordingly sentenced to 20 (twenty) years imprisonment. 4 Before engaging Mr. Audax Constantine Advocate to represent him the 1st Appellant had lodged a joint Petition of Appeal with the 2nd Appellant. Before hearing Mr. Audax Constantine abandoned some grounds of appeal which were incorporated in the petition of appeal lodged by his client before he was engaged. He also lodged the supplementary grounds of appeal. Among the submissions that had been made by the Counsel Mr. Audax Constantine, Advocate, is that the contents of Seizure Certificates (exhibit Pe1) and the Chain of Custody (exhibit Pe4) for the trophies (exhibit Pe2) were not read over before the court during trial. This was the 2nd ground of appeal in the 1st Appellant’s supplementary grounds of appeal. Submitting on this ground, the Counsel, Mr. Audax Constantine stated that the record does show that the contents of seizure certificate (exhibit P1) and the Chain of Custody (exhibit P4) were not read over before the court during trial. He said that it is contrary to the dictates of the law as per MABULA MBOJE & 2 OTHERS V. R, Criminal Appeal No. 557 of 2016, CAT at Shinyanga, at pages 13-14. He added that the impact of the said fault in appeal is the expunge of the said documentary exhibit from the record. The said Counsel thus prayed for the same action to be adopted by this court, that the said documents, exhibits P1 and P4 be expunged from the record. 5 In her reply on that ground, the Learned State Attorney, Ms. Caroline Mushi, stated that even if the Seizure Certificate is expunged from the record, it cannot affect the prosecution evidence that the Appellants herein were found in possession of the said trophies. She argued that the testimonies of PW1 to PW4 are sufficient to prove that the Appellants were found possessing the trophies in question. The Counsel further submitted that the contents of those two documents were stated during trial at the District Court by the witnesses who had tendered them to court as exhibits. She mentioned those witnesses being PW1 for the Seizure Certificate (exhibit Pe1) and PW11 for the Chain of Custody (exhibit Pe4). She further submitted that, apart from the prosecution witnesses, to wit, PW1, PW2 to PW5, as well as PW10 and PW11, the Appellants were incorporated in the matter. It is the view of the State Attorney that, even if the said Exhibits Pe1 and Pe4 are expunged from the record, still the oral testimonies that had been adduced in respect of those documents are sufficient to prove that the Appellants were found in unlawful possession of Government Trophies and that the said exhibits Pe1 and Pe4 were actually filled. 6 Rejoining this ground of appeal, Mr. Audax Constantine, Advocate reiterated his submission in chief. In analyzing this ground of appeal I went through the submissions of both parties, as well as the lower court record. The record transpires that a Police Officer one Daniel Thobias (PW1) tendered to court, among the exhibits, being a Certificate of Seizure which was admitted as exhibit Pe1 and the chain of custody which was admitted as exhibit Pe4. As rightly submitted by Mr. Audax Constantine, Advocate for the 1st Appellant, the original record transpires that the Certificate of Seizure (exhibit Pe1) for the core subject matter of the case, that is, the 9 (nine) pieces of elephant tusks, was not read over before the court after the same being tendered and admitted by the trial court as exhibit. The record is silence on that requirement of the law being adhered by the trial court. The same applied to the Chain of Custody for the movements of the said trophies (exhibit Pe4) before they were tendered to court as exhibit. While Mr. Audax is of the view that it is fatal whose impact is the expunge of those documents from the court’s record, the State Attorney argued that the documents can be expunged from the record but the validity of oral 7 testimony that the Appellants were found in unlawful possession of Government Trophy cannot be invalidated. From the above two observations, which one is proper for this court to rely? The answer is not far to fetch. As correctly suggested by Mr. Audax Constantine, Advocate, that it is a principle of law that failure of the court to order the contents of documentary exhibit being read over before the court after the same being admitted as exhibit, is fatal. And, if that happens the appellate court has to expunge the said document from the record. In ANANIA CLAVERY BETELA V. R, Criminal Appeal No. 355 of 2017, CAT at DSM, it was held; “Indeed, the record of proceedings bears out that none of the said exhibit was read out at the trial after admission. It is settled that such an omission is fatal as it violates the fair trial right of an accused person to know the content of the evidence tendered and admitted against him” 8 The doctrine that the document which has been admitted to court as exhibit should thereafter be read before the court was also held in the cases of ROBINSON MWANJISI V. R [2003] TLR 218 in which it was held; “Whenever it is intended to introduce any document in evidence, it should first be cleared for admission, and be actually admitted, before it can be read out” It was also fairly settled that in Issa Hassan Uki V. R, Criminal Appeal No. 129 of 2017, CAT at Mtwara that; “Once an exhibit has been cleared for admission and admitted in evidence, it must be read out in court” See also Rashid Amiri Jaba & Another V. R, Criminal Appeal No. 204 of 2008, CAT at DSM and MABULA MBOJE & 2 OTHERS V. R, Criminal Appeal No. 557 of 2016, CAT at Shinyanga, at pages 13. The dictates of the Court of Appeal in the latter case is that, the document which was received and admitted to the trial court, but it was then not read over before the court, should be expunged from the record. 9 The ground of appeal as formulated above that Exhibits Pe1 and Pe4 were not read out in court after they were admitted in evidence has merit, keeping in mind that the same involves key exhibits, to wit, Seizure Certificate (exhibit Pe1) for the subject matter in question (trophies) and its Chain of Custody (exhibit Pe4), attracts a nullity of the trial court’s proceedings, hence, disposal of the matter. But, what is a way forward? The fact that the proceedings of the trial court that led to conviction of the appellants herein are defective as narrated herein above, the said trial court’s proceedings, the conviction arising therefrom and the sentence imposed against the Appellants are hereby declared illegal and nullity. I thus, proceed to quash the said proceedings and conviction made by the trial Court. I also set aside the sentence of 20 (twenty) years imprisonment imposed against all 4 (four) convicts including the appellants herein. The remaining question is what should be done then at this juncture? In the case of Adam Selemani Njalamoto V. Republic, Criminal Appeal No. 196 of 2016, CAT at DSM it was held; “We are mindful that where the trial court fails to direct itself on an essential step in the course of the 10 proceedings, it does not, in our view, automatically follow that a re-trial should be ordered, even if the prosecution is not to blame for the fault. Clearly, of course, each case must depend on its particular facts and circumstances’’. In order to ascertain whether this court should thus order re-trial, the guidance of the case of Fatehali Manji Vs. R [1966] E.A. 343 was sought particularly on the following quote; "In general, a retrial may be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for purposes of enabling the prosecution to fill in gaps in its evidence at the first trial. Each case must depend on its own facts and an order for retrial should only be made where the interests of justice require it" The question is, in the case at hand, are there no gaps that the prosecution will fill when re-trial is ordered? The answer is not far to fetch. In determining 11 this aspect, I will be guided with the evidence that; the appellants are alleged to have been found in unlawful possession of Government Trophies, to wit, 9 (nine) pieces of elephant tusks valued at USD 30,000 which is equivalent to Tsh. 69,210,000/=. The said trophies were actually tendered to court and admitted as exhibits. As well, the prosecution side tendered the seizure certificate for the said trophies which was admitted by the trial court as exhibit Pe1. They also tendered the Chain of Custody for the said trophies which was received and admitted as exhibit Pe4. The only fault of which cannot be taken for granted as it leads to a grave injustice to the convicts, including the Appellants herein is that the said documents, exhibits Pe1 and Pe4 were not read over before the court which is a mandatory legal requirement as narrated herein before. Be it noted that the crime that the Appellants have been charged with, attracts a stiff penalty of not less than 20 (twenty) years imprisonment, hence all stake holders should be smart in handling the case in all aspects. For the interest of justice, let the convicts, including the Appellants herein be re-tried, and, the said re-trial should be entertained by another Magistrate with competent jurisdiction. Should it be found that they are guilty, when sentencing them, the trial officer should deduct the period of 12 time, that these three appellants and their fellow convict at the trial court, have already served in jail. In upshot, the appeal is partly allowed to that said extent, that is trial De Novo for all convicts in the Economic Case No. 1 of 2022 Shinyanga District Court, including the Appellants herein. S.M. KULITA JUDGE 25/07/2024 DATED at SHINYANGA this 25th day of July, 2024. S.M. KULITA JUDGE 25/07/2024 13