NA TZHC Dar es Salaam5

j,14.7 •t IN TIlE COURT OF APPEAI OF ThNZANIA AT DAR ES SALAAN (CORAM. MUSTAFA, J.A., MAKADIE, J.A., And ONAR J.A..) • AF1EAL NO. 11 OF 1987 BETWEEN THE DIREC1OR OF PUBLIC PROSECUTIONS. • . AFP1LANT AND NTJRU MOHANED GULANRASUL, ....... • RESPONDENT (Appeal from the acquittal of Accused person by the High Court of Tanzania at Dar es Salaara) (Mapigano, J.) dated 2nd February, 1987 in Economic Crimes Case No. 1 of 1986 JUDGMENT OF THE COURT MUSTAFA, J.A.: One Nuru Mohamedi Gulamrasul and another person were charged in the High Court in Bar es SaiLaam sitting as an Economic Crimes Court in Economic Crimes Case No. 1 of 1986. They were both charged with being in unlawful possession of Govemment trophies (to wit 133 elephant tusks) contrary to section 67 of the Wild Life conservation Act as read together with paragraph 16 (b) of the First Schedule to the Economic and Organized Crime Control Act, and section 59 of the Economic and Organized Crime Control Act, No. 13 of 1 984. The other person with Nuru was acquitted after the Prosecution evidence had finished, the court holding that there was no case for him to answer. The case against Nuru Gulamrasul proceeded to its conclusion. In the result, the two lay members of the Court were of the view that Nuru Gulamrasul was not Guilty, but the presiding trial judge dissented from that opinion. . • . . -2- From that acquittal the Republic is appealing to this Court There was some trouble concerning service of the appeal on Naru Mohamedi Gulamrasul, hereafter called the respondent. He apparently could not be found in the Republic of Tanzania. On application by the Republic this Court 9 on 12.2.88 made on order for bubstituted service by publication in the newspapers on certain conditions. These conditions have now been carried out and this moming we allowed State Attorney for the Republic to open his appeal before us in the absence of the respondent as we are satisfied that substituted service has been effected in the circumstances. We believe the position is analogous to that which would obtain in a situation provided for in Rule 73 (2) and (3) of the Court of Appeal Rules. Briefly the facts as adduced in evidence at the trial were as follows. On information received a police party went to a house in Regent Estate, Dar es Salaam where a motor lorry was parked. The lorry was in the custody and control of the respondent, although the lorry was in the name of the respondents father. The respondent was present with the police party when the lorry was searched. In a well—hidden compartment built into the body of this lorry a number of elephant tusks were discovered 1 The compartment had to be broken open to get at the tusks. In the presence of a number of witnesses 9 both Police and. CiVil zv,, the respondent stated that the tusks were his as he had obtained or picked them up at Mikumi. That statement was made in the course of police investigation, before the 4. .-. 3 respondent was charged or arrested. After he was arrested the respondeht made a cautioned statement to Pw.6 9 a Police inspector. In the staternthht the respondent revealed how he come to possess the tusks At the trial 9 the respondent denied that he had ever aduitted that the tusks were in his possession. He called two witnesses, who alleged that they were part of a group of people who were arrested. after the discovery of the tusks in the lorry and who were present during the search. D.W.3 stated that the respondent said the tusks were not his while D.W.4 stated that the respondent said he did not Imow anything about the tusks. D.W.3 was respondent's fellow tribesman and D.W.4 his cousin1 On the prosecution side, P.W.1 and P.14.2, both Police officers during the search stated that when questioned i after the tusks were discovcred,the respondent told them the tusks were his. P.W.3 a civilian neighbour andP.W.4, a C.C.M. Branch Secretary of the area 9 both heard the respondent so saying. This, as pointed out earlier, was stated by the respondent before the respondent was charged or arrested. This was during an investigation searching for trophies. We have no doubt that these four prosecution witnesses were telling the truth, in fact their evidence stood clear and unshkn court. This admission by the respondent, heard by four obviously reliable witnesses, was sufficient by itse]4f to have founded a conviction of unlawful possession, unless the respondent had authority to possess. Then there is the cautioned statement. This - wen taken by a Police officer whp testified. and produced. the statement. He took all the proper pcautipns and took down the statement made by the respondent. It was iy signed by the respondent. 0 • /4 I a No objection was made to the admissibility of the cautioned statemnt, and in fact P.w.6 was not cross—examined as to the voluntariness or otherwise of the statement. After the Prosecution case was closed, the respondent in his evidence, purported to allege that the cautioned statement was taken from him by force or torture and was not read over to him. He repudiated it. We do not think a repudiation in such circumstances can carry weight. If it was alleged that p.w.6 had obtained, the statement by torture, p.w,6 should have been cross—examined on that when he was testifying, or an objection raised to the admissibility of the statement. Nothing of the sort was done 4 The respondent was legally represented. It seems to us that the so—called repudiation was an afterthought and would not deserve any serious consideration. In his judgment the presiding judge, more in sorrow than in anger, stated that the two lay members did not completely believe that the respondent made the "confession" during the search and interrogation. The two lay m!hbers thought that the evidence of DW.,3 and D.WG4 introduced an element of doubt. The two lay members were of the view that the cautioned statement was . obtained under torture. . With great respect to the lay members, in our view the evidence adduced by the Republic against the respondent in this case is overwhelming 4 The respondent's admission that he was the possessor of the tusks was satisfactorily proved; and so was the .0•a./ 5