Daud Silvester

A I THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) ATMOROGORO CRIMINAL APPEAL NO. 4712 OF 2024 (Originated from the Decision of Morogoro Resident Magistrate Court in Economic Criminai Case No. 54/2020) DAUD SILVESTER KIHWILI APPELLANT VERSUS THE REPUBLIC RESPONDENT Date of Last Order; 18/11/2024 Date of Judgment: 06/12/2024 JUDGEMENT MAGOIGA,J. The appeiiant, DAUD SILVESTER KIHWILI was arraigned before the Resident Magistrate Court of Morogoro (the thai court) for one count of uniawful possession of Government trophies contrary to Section 86(1),(2)(b) and (3) of the Wildlife Conservation Act, No. 5 of 2009 [Cap. 283 R.E. 2019] as amended by Written Law (Miscellaneous Amendment) Act No. 4 of 2016 read together with paragraph 14 of the First Schedule to and Section 57(1) and Section 60(2) of the Economic and Organized Control Act,[Cap. 200 R.E 2002] as amended by Written Laws (Miscellaneous Amendments) Act No. 3 of 2016. Page 1 of 34 In the information filed before the trial court, it was alleged that on 15^^ day of January 2018 at Mguluwandege area at Mkundi within the Municipality and District of Morogoro in Morogoro Region, the appellant was found in possession of Government trophies to wit: five (5) Elephant Tusks worth at USD 45,000 equivalent to Tanzania shillings One Hundred and One Million, Forty-Seven Thousand Five Hundred Only(TShs.101,047,500/=)the property of Republic of Tanzania without permit or license frorn the Director of Wildlife. The appellant denied the charge. In pursuit to prove the charge, the prosecution called seven witnesses and tendered five exhibits. The appellant fended himself and cries to be innocent and tendered no exhibit nor called any witness in his support. Having heard the case on merits, the trial Principal Resident Magistrate found the appellant guilty as charged, convicted and sentenced him in absentia to serve custodial sentence of 20 years or pay a fine of Tshs.20,000,000/=. The trial court record is silent as to when the appellant was arrested but on 31^^ January, 2024 was brought before the trial court where the judgement was read over to him convicted and sentenced to serve 20 years or pay a fine of Tshs.20,000,000/=. Page 2 of 34 Aggrieved with conviction and sentence, the appellant preferred this appeal to this Court faulting the trial Principal Resident Magistrate on the following 15 grounds of appeal namely: - 1. That, the proceedings ofthe trial court do not indicate what were the result of ruling after objections raised by the appellant on exhibit PI (certificate ofseizure), P2(five elephant tusks) and P4 (paper with writings) contrary to the procedure of the iaw thus those exhibits need be expunged from the record/proceedings. 2. That, withoutprejudice the above ground ofappeal the Honorable trial magistrate in relying on exhibits PI, P2, and P4 to convict the Magistrate erred in iavy appellant while the records don't show if were received in court. 3. That, the learned trial magistrate erred in iaw and fact in relying on evidence of PWl to convict the appellant while the record doesn't show his titie/rank he was not an officer jn charge of a police station nor did he have any written authority to execute the search which is against the Criminal Procedure Act (cap 20 R.E 2022)read together with paragraph 1(a),(b)and(c)and 2(a)and (b)ofthe Police General Order(PGO)No. 226. Page 3 of 34 4. That the learned trial Magistrate erred In law and fact to convict and sentence the appellant without considering that the credibility ofthe search was affected as; I. There was neither full name nor Signature of the appellant on the alleged certificate ofseizure (PI). II. Certificate ofseizure Indicate that all things were seized from house ofthe appellant. III. There was no certificate ofseizure prepared to show that P2(tusks) were seized from the alleged Motor Vehicle. IV. ItIs notknown as who seizedlegally the car(^6)between PWIandPW4. 5. That, the learned trial Magistrate erred In law and upon fact to rely on exhibitP5(Ignition key)as a factor to prove that Motor Vehicle No. T150ACY (P6) was owned by the appellant without any documentary evidence from TRA or any authority for registration ofMotor Vehicle as per procedure ofthe law. 6. That, the records of the trial court didnt Indicate during Inquiry case Ifcertificate ofselzgre was received In courtasIDl thus need be expunged from the records. Page 4 of 34 Z That, the learned trial Magistrate failed to realize that certificate of seizure Indicates that the car with registration number T150ACY was seized on 15/01/2018 again the same was seized on 20/01/2018 by PW4 this created doubt which should have been resolved on favor ofthe appellant 8. That, the learned trial Magistrate erredIn relying on the search that was carried out In violation of express provision ofsection 40 of the CPA requiring search to be conducted only between the hours of sunrise and sunset unless the requisite leave of the court Is obtained. 9. That, the learned trial Magistrate erred In law believing thatsearch was conducted asperprocedure ofthe law while It violated Section 38(3) of the Criminal Procedure Act, Cap. 20 R.E 2022 which provides that after seizure a receipt Must be Issued to appellant, a fact which was not done. 10. That, the learned trial Magistrate erred In law and upon fact to rely on evidence ofPWl that there were two dogs from Dar es Salaarn which were used during search In appellant's house without any documentor reportfrom Police Dog department which would prove that trained dogs were among search team. Page 5 of 34 11. That the learned trial Magistrate erredIn law and fact to convictand sentence the appellant based on exhibit P2 the 5 elephant tusks which were retrieved from Illegal searching without ensuring that the requirementofsection 169(1)and(2)ofthe CriminalProcedure Acf (CAP. 20 R.E2022) were compiled with. 12. That the learned trial Magistrate failed to realize that there was variance on the name Indicated In the charge sheet and that was recorded on the certificate ofseizure (Pl)Ifrepresented the same person contrary to the procedure ofthe law. 13. That the learned trial Magistrate erred In law In shifting the burden ofproofon to the appellant. 14. That the learned trial Magistrate erred In law and fact In falling to drew adverse Inference against the prosecution on Its failure to prove the case to the required standard. 15. That the learned trial Magistrate erred In law to rely on the consent of the DPP which did not specify the offence charged against the appellant. Page 6 of 34 On the strength of the above grounds of appeal, the appellant prayed that this Court be pleased to allow his appeal, to set aside the judgement, conviction and sentence of the trial court and set the appellant free. When this appeal was called on for hearing, the appellant appeared In person and unrepresented; while the Republic was represented by Ms. Monica Matwe learned State Attorney. Arguing jointly the and 6^^ grounds of appeal th^ appellant submitted and invited this court to revisit the proceeding of the trial court on pages 23, 31, 33, and 45 in order to see whether the aileged certificate of seizure (Exhibit PI), five Elephant's tusks (Exhibit P2) and P4 (piece of papers were properly admitted according to the procedure of the law. He argued that the record of the trial court on page 23 is silent on whether exhibit PI "certificate of seizure" was admitted during inquiry hearing or not after prayer from prosecution. Similariy, the rulings of the inquiring cases for exhibits PI, P2, and P4 as can be seen on pages number 31, 38 and 45 respectively are silent on whether or not the said exhibits were accepted and he prayed exhibits PI, P2 and P4 be expunged from the record and these grounds be ailowed. Arguing the 15^*^ ground of appeal, the appellant argued that, it is apparent from the triai court record that the consent issued by the regional Page 7 of 34 prosecution officer on behaif of the DPP did not specify the offence charged against the appeliant as per mandatory procedure of the iaw. The appeiiant pointed out that that failure to specify the offence charged in the consent constituted a fatal error and has resulted into lacks of legs to stand for the trial court proceedings and he prayed the trial court proceedings be nullified and ground number fifteen be allowed. Arguing ground of appeal number twelve, the appeiiant prayed this court to revisit the charge sheet and the certificate of seizure (Exh.Pl) in order to see if the name indicated in the charge sheet is the same name to that which was reflected on the certificate of seizure. According to the appeiiant, the trial Court had failed to realize that those names portray two different people. The charge sheet is very self-explanatory as particulars of the person charged indicated the name Is DAUD SILVESTER KIHWILI while the certificate of seizure read only DAUD. The appellant pointed out that, much as it was not resolved whether the tvyo different names which appears on record are the names of one person and the same,the appellant strongly argued that he objected its admission as cpn be seen on page 20 of the trial court record. The appeiiant cited the case of FILBERT ALPHONCE MACHALO vs. REPUBLIC, Criminal Appeal No.528 of 2016 (Unreported) on page 13 it was held Page 8 of 34 "There was nothing in the record to show that professor Sendui Nguyaine was one and the same personai as Oie Nguyaine. It is my understanding as cieariy refiected in the record that the two names portray two different peopie and ought to have been treated so" Arguing jointly the 3'"'', 4^^, 8^*^, 9^^ and grounds of the appeal the appellant stated that, those grounds related to the search and seizure of the alleged elephant tusks and what took place after the alleged search and seizure. The appellant argued that upon a careful study of the trial court proceedings on page 16 up to page number 29 OMARY SALEHE LUNYOMBE (PWl) testified as a police officer who did the search and seizure of the alleged five elephant tusks and was the leader of the search team but his title or rank In the Police force was unknown and It Is clear from the record of his evidence that the search vyas not an emergency one but surprisingly he did not comply with the law before search and after seizure of the alleged five elephant tusks. The appellant further argued that the whole process of search and seizure was contrary to section 38(1) and (3) and 40 of the Criminal Procedure Act, Cap. 20, R.E 2002 which requires that a search be conducted by or under the written authority of an officer In charge of a police station but here In this appeal the search at the scene was conducted by PWl who was not an officer In charge of a police station nor did he have any Page 9 of 34 written authority to execute the search. Furthermore, the appeiiant argued that he was not issued with any receipt to acknowiedge the seizure as per section 38(3) of the Criminai Procedure Act, Cap. 20 R.E 2002. The appellant further submitted that the credibility of the search itself was affected as there was specific number of people who were at the scene of crime conducting the said search as well as the appeiiant complained he was handcuffed during search and he did not append his signature and that on the seizure certificate was forged signature in the circumstances and considering that it was at night there was possibility that the seized items had been fraudulent planted. The appeiiant cited a case of AYUBU MFAUME KIBOKO AND PILI MEAUME KIBOKO vs. REPUBLIC, Crimmal Appeal No.694 of 2020, where the Court of Appeal of Tanzania at Dar es Salaam (unreported) stated that; "search and seizure shoujd be conducted according to the procedure of the law" but here search not being an emergency was conducted at night and without permission of the court is illegal. The appeiiant submitted that the tnai court acted on such ijlegaliy obtained evidence to convict the appeiiant without ensuring that the requirements of section 169(1) and (2) of the Criminai Procedure Act, Cap. 20, R.E 2002 were complied with. Therefore, he prayed exhibits PI, P2, P3, Page 10 of 34 P4, P5, and P6 be excluded by this court from the trial records because the provision of section 169 of the Criminal Procedure Act, Cap. 20 R.E 2002 provide for exclusion of evidence illegally obtained and grounds 3'^^, 4^*^, 8^^ and 11^^ be allowed. Arguing the 5^*^ ground of appeal, the appellant argued that the learned trial Magistrate misdirected himself in finding that the ignition key of the motor vehicle Toyota Mark II with Registration No. T150ACY vyas allegedly handed over by the appellant's wife to Police officer established ownership of that vehicle to be of the appellant. The appellant argued that there was no any document like registration card or any other document which was tendered to the trial court to prove ownership of the said vehicle. Further, the appellant stated that the analysis made by the trial court judgment against PWl evidence at page j.3 pf the judgment,the ignition key has proved ownership of the vehicle is not satisfactorily evidence to prove the same, and since the alleged five elephant tusks were claimed found inside the said vehicle there was need for strong evidence to prove if that vehicle was owned by the appellant before convicting him due to the fact that in his house nothing was found. Arguing the 7^^ ground of appeal, the appellant argued that upon a careful study of the trial court record at page 49 of the proceedings, PWl Page 11 of 34 had testified as a poiice officer who seized a motor Vehicie (Exhibit P6) and he tendered the same, but at page 90 of the same proceedings PW4 had testified as the one who coliected the said car from the appeiiant five days after the aiieged seized date by PWl and he stated that in a number of cases that the chain of custody of the exhibits, which is coilection, transfer, storage, controi, analysis and deposition of the exhibits need to be documented and properly handed as exhibits move one stage to anpther or from one person to another but in the instant case, the handling of the aiieged motor vehicie found with elephant tusks was such a? might raise doubts because it is not well proved if the vehicie seized on 15^^ January 2018 with elephant tusks as can be reflected on seizure certificate is the same that was collected by PW4 on 20^^ January 2018 because no any evidence to prove that exhibit P6 (Motor Vehicle) was left at the scene of crime and who handed over to PW4 and why it was reflected on the certificate of seizure that the same was seized on 15^^ January 2018. The appellant stated that those had left questions without answer and raises doubt as whether the vehicie purported to be found with elephant tusks on IS^'^ January 2018 is actually the one cpHected on appeiiant compound on 20^"^ January 2018. Page 12 of 34 Arguing the 10*^^ ground of appeal, the appellant submitted that there was nothing on record to prove that there two dogs from Dar es Salaam which were used during search due to failure by the prosecution side to tender any document which would have recorded that the Police Dogs were part of search team. The appellant argued that, the situation has raised doubts due to the fact that there was no cogent proof If the two Police dogs were Involved In search for the tusks. The appellant argued nothing In respect of grounds number thirteen and fourteen but same I guess were blended In Introduced In his open statement that will argue the appeal generally. The appellant ended up his submissions by praying this court to allow his appeal by setting aside conviction and quashing the sentence meted out against him, and set him free. In response, the Republic, through Ms. Monica Matwe learned State In strong terms opposes this appeal, and for the and 2"^ ground, she replied that the appellant had misdirected himself as exhibits PI, P2, and P4 were admitted and marked In their respective rulings after objection. The learned Attorney pointed out with exhibit PI at page 7 of the ruling delivered Page 13 of 34 on 10^^ &. 31^^ May 2021 by JZ Chacha RM was legaly admitted, exhibit PE2 was also admitted at page 5 of the ruling delivered on 09^^ & 23 August 2021 by J.Z. Chacha SRM. As to exhibit P4 was marked at page 3 of the ruling delivered on 05^*^ and 02"^ November, 2021, by Hon. JZ Chacha SRM. With that note, the learned Attorney prayed this honourable court to dismiss the and 2"^ grounds of appeal for want of merits. Arguing the third ground of appeal, Ms. Matwe argued that complaining about the rank of the police officer executing the search is baseless since the rank of a police officer is found at page 1 of exhibit Rl. The learned Attorney expounded that the search order was given by in charge of the police station. According to Ms. Matwe, the complaint about the search not indicating full name, is also baseless because exhibit PI shows full name, while on the signature place it was written one name. The learned Attorney added that on exhibit PI, it indicates that the place of seizure was at Mkundi inside the motor vehicle, as well as explained by PWl and PW6. Responding to ground of appeal number five, Ms.Matwe argued and added that exhibit P5 ignition key prove ownership of the motor vehicle. She said that the evidence adduced by PWl and PW6 proves that the appellant was responsible for the possession of elephant tusks, and on top of that, she Page 14 of 34 said the prosecution Is bound to prove possession of the government trophy and not ownership of a motor vehicle. On response of 6^*^ ground, Ms. Matwe argued that Is untrue as the exhibit was not marked as ID at page 1 of the exhibit. The learned Attorney submitted that looking at page 23 of the proceedings shows that exhibit PI was admitted and received as exhibit PI and prayed that this ground ground of appeal be dismissed as well. Responding to ground 7th ground of appeal, Ms. Matwe learned Attorney briefly contended that since evidence by PWl and PW6 proved that the seizure was conducted on 15/01/2018 and on 20/01/2018, while PW4 testified that he went to collect the motor vehicle at the accused's home^ and the said evidence Is collaborated by exhibit PI. The learned Attorney, thus, urged this court to dismiss this ground as well. In response to the 8^^^ and 11^^ grounds of appeal, the learned Statq Attorney contended that the evidence under exhibit PI shows that at page 2, It was given at 18:30 due to the arresting process as explained by PWl and PW6, It led to delay of arrest. The learned Attorney disputed that the search of exhibit P2 was Illegal since the search order was Issued and effected In accordance with the law as provided by the evidence available. Page 15 of 34 In response to the 9^^ ground of appeal, regarded to failure to issue receipt per section 38(3) of Criminal Procedure Act, Ms. Matwe relied to the case of NUSURA SULTAN MTINGE @ NUSURA SULTAN MTINDE vs. REPUBLIC. CRIMINAL APPEAL NO.61 OF 2021,CAT MOSHI in which it was held that: - "there is no dispute PWl did not issue a receipt foiiowing seizure, but the fact that the appeiiant counter signed a certificate ofseizure containing iist ofitems seized from him, such seizure certificate was sufficient under circumstance considering there is oraievidence from the arresting witness and the independent witness.... The learned Attorney expounded further via Nyerere Nyague vs. Republic, Criminal Appeal No. 67/2010, in which it was held that not every apparent contravention of the CPA would result in automatic exclusion of evidence in question. The learned State Attorney contended that this case deviates from the issue of receipt when the accused person signed the certificate of seizure; hence, his signature can be collaborated by the oral account of the arresting officer and an independent witness who yvas present at the crime scene. Responding to 10^*^ ground of appeal, the learned Attorney on the complaint about the absence of a document or report from the dog Page 16 of 34 department. Ms. Matwe argued that was not a legal requirement. However, dog findings would only be documented and verified if it was not backed by independent or collaborated evidence. According to the learned Attorney, in this appeal, PWl and PW4 testified in court and backed up exhibits PI and P2. To buttress her contention, she cited the case of JUMA MUGAYA @ MUGAYA JUMANNE MASEMELE & 08 OTHERS vs. REPUBLIC, CRIMINAL APPEAL NO. 656/2024, CAT Mwanza Page 32. In response to the 12^^ ground of appeal, the learned State Attorney contended that the variance of names in the seizure certificate at Page 1 of exhibit PI appears as DAUD SYLIVESTER KIWILI, and at the second page of the same document where the signature of the appellant was apprehended, it was written one name, DAUD something, which is cured by the evidence of PWl and PW2, who were present at the crime scene. In response to the 13^*^ ground of appeal, the learned State Attorney argued that there was no situation where the burden was shifted in the endre proceedings. The learned Attorney pointed out that at page 13 ofjudgement^ the trial court explained that the prosecution side managed to prove the case beyond reasonable doubt. The learned Attorney pointed out that, in her view, reading the trial Court judgement, no burden was shifted to the Page 17 of 34 •I accused. The learned Attorney maintained to the requirement of the law that the prosecution prove the case beyond reasonable doubt. In response to the 14^^ ground of appeal, the learned State Attorney contended that the prosecution has proved the case beyond reasonable doubt through witnesses and exhibits. She cited the case of ANTONY KINANILA AND ANOTHER vs. REPUBLIC, CRIMINAL APPEAL NO. 83/2021, CAT KIGOMA page 14 where the court held that: - "The prosecution bears the burden to prove beyond reasonable doubt not only the offence was committed but also committed by the accused person''. According to the learnqd Attorney, in the instant appeal, the prpsecution managed to prove that it was the appellant who was found in possession of exhibit P2. Responding to the 15^*^ ground of appeal, Ms. Matwe, argued that it is untrue that the consent was defective as it did not state the offence charged and pointed out that the consent in this appeal specifed that the accused is contravening the provisions of Section 86(l)(2)(b) and (3) of the Wildlife Conservation Act No. 1 of 2009 (Cap. 283) as amended. Ms. Matwe, on the issue of chain of custody, buttressed her argument by citing the case of WATSON DANIEL MWAKASEGE vs. REPUBLIC Page 18 of 34 CRIMINAL APPEAL NO.666 OF 2020 CAT MBEYA page 13. She agrees with the learned Judge that chain of custody may be proved otherwise than by documentation. She cited another case of Kadiria Kimaro vs. Republic, Criminal Appeal No. 301 of 2017 (unreported), where it stated that: - 'The evidence ofPWl,PW2,PW3and PW6sufficiently draws a dear route describing how the aiieged drugs moved from PW3 who searched and seized; then to F^W6 the storekeeper^ foiiowed by handing over to PW2 who submitted them to PWl ofthe CGCoffice". We hasten to add thataithough the coiumn indicating the number of items shouid have been compieted on exhibit P2, that omission per se does not render the testimonies ofthe four witnesses referred to above worthiess for, every witness is entitied to credence uniess there is reason to hoid otherwise and was no reasons have been cited to persuade them to disbeiieve PWl,PW2,PW3and PW6". On the totality of the above reasons, the learned State Attorney, urged this court, thus, to dismiss the entirely appeal for lack of merits and uphold the trial court's decision. No rejoinder was filed but the appellant cried and implored this court to do justice by considering his grounds of appeal and proceed to allow his appeal and set him free. Page 19 of 34 The noble task of this court now is to determine the merits or demerits of this appeal in the iight of grounds of appeai argued and the evidence on record. Having examined the grounds of appeal, record of appeal and the rivaling arguments by the appellant and the learned State Attorney, I will deal with each ground of appeai in the manner argued and eventuaiiy come to the conciusion as to whether the appeai has merits or not. The appeilant's main compiaint in the 2"^ and 6^^(which iater I found are connected) grounds of appeai was that exhibits PI, P2 and P4 were not properiy admitted, in particular,,exhibits Pl(certificate of seizure), P2 (fiye eiephant tusks and P4 (paper with writings) after an objection was raised and argued. On that note, the appeiiant urged this court to find merits in these three grounds of appeai and have; them expunged from the court record. In response, the learned State Attorney argued in rebuttal that the said exhibits were correctly admitted in their respective rulings after objection was raised on the following dates::3P^ May, 2021 for.exhibit 23'!!^ day of August 2021 for exhibit P2 and 2'^^|. day of Npyember, 2021 for exhibit P4, Page 20 of 34 Having revisited the trial court record carefully, I noted that, the trial court record conspicuously bears out that the three exhibits in dispute, were as correctly argued by the learned Attorney, admitted in their respective rulings dated 31/05/2021- for exhibit PI, 23/08/2021 for exhibit P2 and 02/11/2021 for exhibit P4. With that note, without much ado, I hereby find no merits in the , 2"^ and 6^^ grounds of appeal and same are jointly dismissed for want of merits. Next is ground number five whose main contention was that the learned trial Magistrate relied on exhibit P5 (car key).as factor to proye t^h^t motor vehicle T150 ACY was .pvyned; by the appellant .vyithout any documentary evidence from TRA. According to the appellant, at page 13 of the judgement, the trial court believed PWl that the car key- exhibit P5 was giyen by the wife of the appellant and concluded that it belonged to the appellant. : On the other hand, the learned State Attorney briefly argued that;tpp prosecutions were bound to prove the possession of the government trophy and not who owns the motor vehicle and urged this court to dismiss this ground for want of merits. Page 21 of 34 Having carefully considered this rivaling arguments on this ground of appeal, the mind-blowing question Is, what Is the role of the motor vehicle and car key In this dispute at the trial and at this appeal. There Is no dispute that the alleged elephant tusks were not found In the person of the appellant nor Inside the house of the appellant. The same, according to PWl, were found In motor vehicle with Registration T150 ACY parked out the house of the appellant three meters away. And to connect the appellant with the motor vehicle. It was testified that the car key was handed over to PWl by the wife of the deceased. In my respective opinion, the proving of the relationship between the appellant and the motor vehicle vyas Imperative than not. I will explain: One, no dispute It Is In the motor vehicle where the alleged elephant tusks were found In. Was It enough to say the car key were given by the wife as, such the car and the motor vehicle belpnged to ithe appellant? With due respect to the Republic, No! The proof here was meant to connect the appellant and the alleged exhibit PI and to me that what Is meant to prove the case beyond reasonable doubt. Two, why the wife was not called to testify, the trial court was not told, and to my own respective opinion, the wife was material witness In this case. Page 22 of 34 With the above reasons, I find that the prosecution underrated the circumstances surrounding of how the elephant tusks were found in the motor vehicle, and were duty bound to connect fully the appellant with the elephant tusks, therefore, these loose-ends are to benefit the appellant. That said and done, I find merits in this ground that the prosecution did not conclusively establish the connection where the elephant tusks were found the denial of the appellant. This takes me to the third, fourth, eighth, nineth and eleventh grounds of appeal, whose main complaint relates tp search and seizure of the alleged elephant tusks and what took place after the alleged search and seizure. In these grounds the main complains were that the title or rank of PWl who testified from pages 16-29 of the typed proceedings was not shown,sections 38(1) and (3) and 40 of the Criminal Procedure Act,[Cap 20 R.E 2022](to be referred herein as CPA) was abrogated. The appellant pointed out that search was done without written authority from the police in charge of the station and PWl was not one as provided under section 38(1), the appellant was not issued with the receipt to acknowledge seizure as pers section 38(3) of the CPA. No specific number of people involved in search, the appellant was at all material time handcuffed, did not append his signature of the certificate of seizure and one appended is forged one and that considering it Page 23 of 34 - \'/"5 • was night did not remove the possibility of fraudulent planted elephant trucks. To cement his point, the appellant sought the reliance in the case of Ayubu Mfaume Kiboko and Pili Mfaume Kiboko Vs. Republic, Criminal Appeal No.694 of 2020 at Tanzlii, in which it was held that search and seizure should be conducted to the procedure of the law but where search was not being emergency and was conducted at night without permission of the court is illegal. On that note, the appellant urged this court to find and hold that exhibit PI, P2, P3 and P4 were found in contravention of section 169(1) of the CPA and be expunged and excluded from the record. The learned Attorney was not moved by submissions by the appellant on these grounds jointly argued and opted to argued them separately. On the 3'"'^ ground of appeal it was the reply of the learned Attorney that rank of PWl was at page 1 of exhibit; PI and that PWl had authority to search; on the 4^^ ground of appeal, the learned Attorney replied that exhibit PI shows full names of the appellant, place,of search in the motor vehicle as well explained by PWl and PW6; on 8 and 11 grounds of appeal, the iearped Attorney replied that search was done late because of delay in arresting the appellant and much as had authority, then, was later conducted in Page 24 of 34 accordance to law and last on non-issuance of receipt, the learned Attorney replied that In the case of Nusura Sultan Mtinge @ Nusura Sultan Mtinde Vs. Republic, Criminal Appeal No.61 of 2021 CAT at Moshi, In Tanzlll In which It was held that no dispute that PWl did not Issue a receipt following seizure, but the fact that the appellant counter signed a certificate of seizure containing list of Items seized from him, such certificate was sufficient under the circumstances considering the oral evidence from the witnesses and Independent witnesses... As we held In the case of Nyerere Nyague Vs. Republic, Criminal Appeei No. 67 of 2010 that not eveiy apparent contravention of CPA would result In automatic exclusion of evidence In question. On that guidance, the learned.Attorney submitted that once an accused person signs a certificate of seizure Is enough and his signature can be corroborated by oral testimonies of searching officer and, Independent witness. The learned Attorney, hence, urged this court to find no merits.In these four grounds argued jolntly.and replied separately and consequently proceed to dismiss them all. I have carefully followed the rivaling arguments of the appellant and the learned Attorney and have keenly revisited the trial court record and the ^Page 25 of 34'' • - 2 i law in particular sections 38 and 40 of the CPA which guides as to how search is to be done. I wiii start with the iaw and see what is required and what happened. For easy of reference the referred sections provide as follows: - ''Section 38(1) Where a police officer in charge of police station is satisfied that there is reasonable ground for suspecting that there is in any building, vessel,carriage, box, receptacle or place- (a) Anything with respect to which an offence has been ■ committed; ' ' ■ ■ v'-- (b) Anything in respect of which there are reasonable grounds to believe that it will afford evidence as to the commission of the offence; (c) Anything in respect of which there are reasonable grounds to believe that it is intended to be used for the purpose of committing the offence. And the officer is satisfied that any delay would result in the removal or destruction of that thing, or would endanger life or property, he may search or issue a written authority to any police officer under him to search the building, vessel, carriage, box, receptacle, or place as the case may be, Page 26 of 34 (2) where an authority referred to subsection (1) is issued, the police officer concerned shall, as soon as practicable, report the issue of the authority,the grounds on which it was issued and the result of any search made under it to a magistrate. (3) where anything is seized in pursuance of the powers conferred by subsection (1) the officer seizing the thing shall issue a receipt acknowledging the seizure of that thing, being thie signature of the owner or occupier of the premises or his near relative or other person for the time being in possession, or control of the premises,and the signature of the witnesses to the search, if any." '^Section 40 A search warrant may be issued and executedion any day, including Sunday/ and may be executed between the hours of sunrise and sunset but the court may,upon application by a police officer or any other person to whom it is addressed/ permit him to execute it at any hour." 4^ Page 27 of 34 The literal reading of the two provisions of law which pose no ambiguity, in my respective opinion, require that: one, the police officer in charge where he has reasonable grounds for suspecting that there is anything in the building, vessel, carriage, box, receptacle or place subject to conditions in para (a) to (c) of subsection 1 of section 38 may himself search or issue authority to any other police officer under him to search any of the piaces mentioned in subsection (1); two, subsection (2) of • 1 • • section 38 mandatorily requires the poiice officer to report the issue of authority, the grounds of which it was issued and resuit of any search made under it to a magistrate. Three, under subsection (3) of section 38 issue a receipt duiiy signed by both parties' present including the independent witnesses. Four, that any search or search warrant issue by police officer in charge of police station can only be executed during sunrise and sunset save with the leave of the court where same can be executed any time of the hour. Back to the instant appeai, and with guidance of the aboye law and thq cases cited by both rivaiing sides, I have,,without much ado, noted that the search in dispute was executed outside the allowable hours without leave of the court. My above finding is supported,by two reasons: one, in exhibit PI result of any search must be reported to the magistrate who is to be given Page 28 of 34 sentence meted out against the appellant by the trial court. The appellant Is to be released from prison unless held for another lawful cause. It Is so ordered. Dated at Morogoro this 06"^ day of December, 2024. o —Xt- o /■ 2^ r-i X > . M. MAGOIGA JUDGE 06/12/2024 COURT: Judgement delivered today In the presence of the appellant and Ms. Margreth PQ ed State Attorney for the Republic at Morogoro. O '4 r—- 7■ =F^, -Z- MS- irA oiiti S. M. MAGOIGA JUDGE ^ 06/12/2024 COURT: Right of appeal fully exj^ined COU/? /rs yj\S. M. MAGOIGA Xr 8 r-i JUDGE > 2^' 06/12/2024 V. ,Page 33 of 34 .