JUDGMENT DAVID MARTINE MWAHAYA final

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 27940 OF 2024 CASE REFERENCE NO. 202409302000027940 (Originating from Economic Crime Case No.14266 of 2024 in the district court of Kyela) DAVID MARTINE MWAHAYA ............................................... APPELLANT VERSUS REPUBLIC ......................................................................... RESPONDENT JUDGMENT 17th February & 24th March 2025 NONGWA, J. In Economic Crime Case No. 14266 of 2024 of the district court of Kyela at Kyela, the appellant David Martine Mwahaya was sentenced to twenty years upon the charge of the offence of unlawful possession of government trophy contrary to section 86(1)(2((c)(3) of the Wildlife Conservation Act [Cap 283 R:E 2022] read together with with paragraph 14 of the First Schedule to and sections 57 (1) and 60(2) of the Economic and Organized Crime Control Act [Cap. 200 R: E 2022]. It was alleged in the particulars of offence that on 12nd day of November 2022 at Matenki area – Kasumulu border within Kyela District in Mbeya Region, the appellant unlawfully was found in possession of 1 Government trophy to wit nine pieces of elephant tusk valued at One Hundred and Four Million Nine Hundred Thousand Eight Thousand and Fifty (TZS 104,908,050/=) the property of the Government of United Republic of Tanzania. He denied. That ensued his trial, the prosecution relied on evidence of seven witnesses Inspector Hamad Sid Hamis(PW1), David Gasper Msovela(PW2), Mazila Joffrey Mwamwaja(PW3), H.7970 CP Hamza(PW4), G4218 CPL Omari, A/Insp. Shaban Chalo(PW6) and G4167 DCPL Mafuru (PW7). Also, produced one real exhibit, nine elephant tusks (exhibit P1) and four documentary evidence certificate of seizure (exhibit P2), trophy valuation certificate (exhibit P3), exhibit register book (exhibit P4) and caution statement of the appellant (exhibit P5). The appellant was the sole witness in defence. It was common evidence of PW1, PW5 and PW6 who are police officers that on 12/11/2022 were on patrol, received a tip from the informer that at Kam Bar and Lodge there was a person who was selling trophy. They set a trap, Assistant Inspector Chalo (PW6) who was in the car made spacio posed as a buyer, they negotiated with the appellant. After concluding the business, the appellant appeared carrying luggage went to the car where the business was agreed. He was instantly put 2 under arrest, they procured presence of PW3 as the independent witness to witness the search and seizure. When the luggage was opened, they discovered it was nine elephant tusks, the same was seized and certificate of seizure filed. The tusks were admitted as exhibit P1 and certificate of seizure as exhibit P2 without objection from the appellant. The appellant was then taken to Kyela police station. The tusks were handed to PW4 exhibit store keeper who entered the particulars in the exhibit book and labelled as KYL/IR/1210/2022, tendered exhibit register book as exhibit P4. The appellant was interrogated and recorded caution statement by PW7 which was admitted as exhibit P5 following conduct of inquiry. On 14/11/2022, PW2 a wildlife officer stationed at Ipogoro - Iringa was assigned to go at Kyela to conduct valuation of the trophy. He was introduced to PW4 and when given the luggage identified to be elephant tusks which has features like interlocking X which creates diamond shape when tusk is cut, a hole between tusk does not reach edge of tusk compared to horn of other normal and that tusks are milk white in colour and weightier compared to other animal horns. He conducted valuation which stood at Tzs 104,900,850 and filled Trophy valuation certificate which was received as exhibit P3. 3 In his sworn evidence, the appellant testified that he left Dar es Salaam on 8/11/202 and arrived in Mbeya on 9/11/2022. On 11/11/2022 went to Kasumulu boarder to meet his friend Shaban Mustafa. On 12/11/2022 his friend asked him to escort to Mantenki area carrying a luggage. He was asked to take the luggage to Kam lodge and was told to put under the mango tree, shortly was surrounded by officers and asked what he carried. He told them the luggage belonged to Shaban and described him to them. Then was told to enter the car with the luggage and taken to police. At the conclusion of hearing, the trial court was impressed by the prosecution evidence, found the appellant guilty, accordingly was convicted as charged and sentenced to imprisonment of twenty years but ordered to serve eighteen years and three months after deduction of time spent in custody. Disgruntled, the appellant has filed his petition of appeal consisting of eight grounds. One, that the trial court erred in law point and fact in convicting and sentencing the appellant without taking into consideration that the charge against the appellant was not proved beyond all reasonable doubts to standard required by law. Two, that the trial court erred in law point and fact in convicting and sentencing the 4 appellant relying on the evidence of PW3 the independent witness who witnessed the seizure process without taking into consideration that his evidence contrasted with the evidence of other witness particularly the time and place of arresting the appellant as he did not testify that he saw the appellant in the car. Three, that the trial court erred in law point and fact in convicting and sentencing the appellant without taking into consideration that the intensity of the light assisted PW1, PW3, PW5 and PW6 to identify the appellant was not explained as per the evidence of PW1 that they arrested the appellant around 19:30 hours which is darkness time. Four, that the trial court erred in law point and fact in convicting and sentencing the appellant relying on the caution statement of the appellant while it was involuntarily procured as the appellant complained to be threaten and tortured before and during the recording of the said caution statement. Five, that the exhibit P5 was unfairly admitted as exhibit as the ruling was not read over before the court after conducting an inquiry. Six, that the trial court erred in law point and fact in convicting and sentencing the appellant without taking into consideration that the street leader was not involved in the said mission. Seven, that the trial court erred in law point and fact in convicting and sentencing the appellant basing on the prosecution evidence without to 5 considering the defence testimony. And eight, that the prosecution side failure to prove the charge against the appellant as the alleged communication between PW6 and the appellant was not proved. On the date of hearing the appellant appeared unrepresented. When called to address on the merit or otherwise of the appeal, he adopted the grounds in the petition of appeal and urged the court to determine the appeal in consideration thereof. The respondent Republic was represented by Messrs Dominic Mushi, Denis Lazaro and Ms. Atuganile Kaponda, all learned State Attorneys. Mr. Dominic informed the court that they were not supporting the appeal. In addressing the grounds, Mr. Dominic choose to combine ground one and eight, he referred to the case of Nyangi Waitara Joshua vs Republic, Criminal Appeal No. 161 of 2021 [2022] TZHC 10700 (22 June 2022; TanzLII) High court at Musoma in which elements of the offence of unlawful possession of government trophy was set, that is being in actual possession, whether they were really trophy, whether there was a permit. He argued that evidence of PW1 was supported by PW5, PW6 and independent witness PW3 that the appellant was found in actual possession of the tusks. He said the appellant too did not 6 dispute being found with the trophy and that had no permit to possess. Further that PW2 proved that the items were the government trophy by giving distinctive features of the elephant tusks differentiating from other animals. On contradiction of time when the offence was committed in ground two, the state attorney admitted that PW3 said it was 1700hrs, PW1 1930hrs and PW5 said it was evening but pointed that the contradiction was minor which did not distract the root of the case. He supported with the case of Issa Hassan Uki vs Republic, Criminal Appeal No. 129 of 2017 (Unreported). On place of arrest, he said prosecution witness said was at Kam lodge. In ground three that there was no enough light to support visual identification of the appellant, the state attorney argued that PW1, PW5 and PW6 testified they arrested the appellant at the crime scene after setting a trap. He referred to the decision of Ibrahim Ally Mwadau vs Republic, Criminal Appeal No. 11 of 2018 [2020] TZCA 358 (23 July 2020; TanzLII) in which the court stated that upon arrest at crime scene, the issue of identification holds no water. 7 On ground four, that exhibit P5 was involuntary procured, the state attorney submitted that trial court on 30/7/2024 ruled it to have been voluntarily made.On ground five adopted submission in ground four. In respect of ground six that no local leader that was involved in the search and seizure, it was submitted that Section 38(3) of the Criminal Procedure Act, Cap 20 only requires an independent witness and not local leaders. On complaint that defence evidence was not considered, he submitted that it was only that it was weak. During rejoinder, the appellant insisted prosecution case was not proved beyond reasonable doubt as his communication with PW6 was not tendered. That PW3 contradicted evidence of other witnesses. Further that witnesses did not state the intensity of the light that made them identify him, the witnesses were contradicting each other one says at night another says at 17hrs. On exhibit P5 the appellant submitted it was not read before him in court. He submitted the offence is so serious that it was important for the street leader to be present during arrest. Further that the court did not consider his defence. That he was not found in possession of the trophy and his host knew better about it as he (the appellant) was not residing at the said place. 8 Having considered arguments from both sides and records of appeal, I will dispose all grounds serve for ground one and seven which will be conjointly. Starting with ground two on contradiction. It is trite law that, where the testimonies by witnesses contain in consistencies and contradictions, the court has a duty to address the discrepancies and try to resolve them and where possible decide whether the inconsistencies and contradictions are minor or whether they go to the root of the matter. See Mohamed Said Matula vs Republic [1995] TLR 3. As rightly pointed by the state attorney, PW1, PW3 and PW5 mentioned different time but the same are trivial to have impact on the strong evidence that the appellant was found with elephant tusks. By any means, time was not of essence on commission of the crime rather the date and place, the reason in the particulars of offence the time is not mentioned. I thus, firmly hold that the contradictions in the testimonies, if any, were minor and did not affect prosecution evidence. Next is ground three on identification of the appellant, according to him was arrested around 19:30hours when it had become night and intensity of light was not explained. Mr. Dominic replied that the appellant was arrested at the crime scene. 9 I agree with the state attorney that issue of identification does not arise when the accused is arrested at the crime scene. In Daffa Mbwana Kedi vs Republic, Criminal Appeal No. 65 of 2017 [2019] TZCA 5 (18 February 2019 TanzLII) the court stated where an accused is arrested at the scene of crime his assertion that he was not sufficiently identified should be rejected. In the present case there is ample evidence from PW1, PW5 and PW6 who set a trap that proved the arrest of the appellant while in unlawful possession of government trophy. The appellant walked into a trap set and caught red-handed in possession of the luggage containing nine pieces of elephant tusks. He signed certificate of seizure in presence of PW3 as an undertaking that he was found with Government trophy. The Court has always considered the evidence of finding somebody red handed committing an offence to be conclusive. See Popart Emmanuel vs Republic, Criminal Appeal No. 200 of 2010 [2011] TZCA 169 (27 June 2011; TanzLII) and Thadeo John Bilunda & Another vs Republic, Criminal Appeal No. 68 of 2020 [2023] TZCA 69 (24 February 2023; TanzLII). In fact, the appellant does not deny to be found with the luggage but said it belongs to his friend Shaban. This informs me further that his complaint of 10 identification is nothing but a wild goose chase. Therefore, ground three is dismissed. Advancing to ground four that conviction was based on exhibit P5 which was involuntary procured. The state attorney submitted the point was resolved by the trial court after inquiry. Indeed, records speaks louder that the appellant exercised his right to object admissibility of caution statement on ground that he was tortured. The truth of the objection was resolved by conducting inquiry to prove what the appellant alleged. In my view, such complaint cannot be raised in appeal unless there is clear evidence of torture, which is lacking in this case. Caution statement can only be assailed on appeal on other grounds of point of law such as not being recorded with four hours as required by the law, lack of certification which are clear by looking the statement itself. Ground four is without merit. Ground five is that ruling was not read after inquiry for admission of exhibit P5. This complaint lacks merits, proceedings show inquiry was conducted on 30th July 2024, G.4167 DCPL Mafuru (PW1) was heard for the prosecution and the appellant for the defence side. Record reveals ruling was scheduled at 12:30hrs, court proceedings resumed at 12:32hrs and ruling was delivered. In the digital file, there is ruling on 11 objection to admissibility of caution statement and it was delivered on 30th July 2024. Even the argument during rejoinder that exhibit P5 was not read to him is not supported by the record of proceeding dated 30th July 2024 after delivery of ruling where it is recorded exhibit P5 read in court by PW7. With those sequence of what transpired I dismiss ground five. Ground six calls to determine whether street charman was an important witness. Under section 143 of the Evidence Act, it is not number witness but weight of evidence which count, but when a witness who is so connected and can provide good link to the alleged offence and is not called to testify, the court is entitled to draw adverse inference. In this appeal evidence of PW1, PW3, PW5 and PW6 sufficiently linked the appellant with the commission of the offence. None of the prosecution witness mentioned the said street leader including the appellant himself. On those circumstance this ground is baseless and dismiss it. Complaint in ground eight is that communication print out with PW6 was not tendered the same is baseless because, the appellant was caught red-handed in possession of the government trophy. He was 12 trapped to enter into the car and discuss with PW5 who the appellant believed was the prospective buyer. Having agreed the business was told to bring the luggage in the car, which led to his arrest and apprehension. On those circumstance, the communication printout was of no assistance. This ground is too dismissed. Last is grounds one and seven, I will discus it together as touches on evaluation of evidence. The state attorney submitted that the prosecution proved the case mainly based on evidence of PW1, PW3, PW5 and PW6 who were at the crime scene when the appellant was arrested with the items. He argued that the items were proved by PW2 to be elephant tusks. The appellant insisted the case was not proved to the hints. In this appeal, it was evidence of PW1, PW5 and PW6 that after being tipped of the man who was selling government trophy set a trap, PW5 posing as the purchaser at Kam Lodge. After agreeing the price, the appellant went to fetch the luggage and went to hand to PW5 who was in the car. Instantly the appellant was put under arrest and searched. To validate the exercise PW3 was procured and witness the search and seizure. In this appeal, the appellant has submitted was not found in possession of the trophy. 13 Evidence of PW1, PW3, PW5 and PW6 are in favour of the respondent that the appellant was caught red-handed carrying the luggage which contained the elephant tusk. The fact that the appellant signed certificate of seizure and was admitted without objection from the appellant, prove his acceptance of being found with the trophy. In Ibrahim Ally Mwadau (supra) the court stated ‘’... Further, we are of the strong view that, by signing a certificate of seizure, the appellant admitted to be found in possession of the government trophy.’ This is reinforced by the fact that in his defence, the appellant never denied to have signed the seizure certificate. In the course of his defence admitted to have carried the luggage on instruction of Shaban, which as the law stands carries forward the prosecution case that the appellant was found in possession of the government trophy. Part of his evidence reads; ‘My host asked me to take the luggage and ahead of him at Kam Lodge, I was not aware what was in that luggage. I went at Kam Lodge as Shaban told me to put it under the mango tree, as I arrived there I was surrounded by officers and they asked me what was inside the bag. I told them that I was given by Shaban and I described his appearance to them. 14 Shaban did not appear as we waited for him for a half an hour. They ordered me to enter into the car with the luggage. That is when I was arrested and sent to the police station and this charge was opened against me.’ In David Gamata & Another vs Republic, Criminal Appeal No. 216 of 2014 [2015] TZCA 362 (7 December 2015; TanzLII) the court stated; ‘We take it to be one of the settled principles of law that if an accused person in the course of his defence gives evidence which carries the prosecution case further, the court will be entitled to take into account such evidence of the accused in deciding on the question of his guilt.’ Thus, raising in this appeal that he was not found with the trophy refutes against his evidence given on oath. Whether the seized item were elephant tusks, evidence of PW2 apart from his expertise in animal science, explained in details distinctive peculiar features of elephant tusks and which are not available in any other animal species. In William Maganga @ Charles vs Republic, Criminal Appeal No. 104 of 2020 [2023] TZCA 17742 (6 October 2023; TanzLII) the court stated; 15 ‘In wildlife conservation related cases, identification of a particular specie of the animal affected or part of it in relation to an offence charged, is a matter of considerable significance. That aspect of the case, is provable by tendering a properly filled in Trophy Valuation Certificate, which is a standard form document created under the Wildlife Conservation (Valuation of Trophies) Regulations 2012, (Government Notice No. 207 of 2012). Tendering of that certificate must go hand in glove with a proper explanation of a wildlife expert detailing the distinctive features of a given animal. Such oral explanation or description may be based on animal science or the witness's experience in wildlife conservation and management.’ The above law was complied in this case when PW2 said was trained as wildlife officer at Sokoine where he obtained Bachelor of Science in Wildlife Management. That he realised that they were tusks by looking at the characteristics of the tusks which include interlocking X which creates a diamond shape when the tusk is cut. Also, he looked at the hole between the tusk which does not reach the edge of the tusk like horns of other animals and Tusks are milk-white in colour and weightier as compared to other animal horns. This was followed by tendering of Trophy valuation certificate, exhibit P4. With those evidence the items retrieved from the appellant was positively identified to be government trophy. 16 From the discussion above, the appellant was caught red-handed in possession of government trophy. His defence did not cast any doubt on the prosecution case. The mentioning of Shaban Mustafa cannot bail him out and in fact was only raised during his defence. In the premises, the appeal has no merit and is dismissed entirely. V.M. NONGWA JUDGE 24/3/2025 Dated and Delivered at Mbeya this 24th March 2025 in presence of the appellant and Mr. Augustino Magesa Learned State Attorney for the Respondent. V.M. NONGWA JUDGE 17