EMMANUEL BURA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 18454 OF 2024 (Originating from the Economic Case No. 17 of2021 Resident Magistrate of Manyara at Babati) EMMANUEL BURA DUQAMGW.................................................. 1st APPELLANT IDD MUSSA @NGODA.................................................................. 2nd APPELLANT JONAS JOHARI................................................................................ 3rd APPELLANT VERSUS REPUBLIC..........................................................................................RESPONDENT JUDGMENT 05th November & 13thDecember 2024 Mwihambi, J. At the Resident Magistrates Court of Manyara at Babati (the trial court), the appellants were charged jointly and together with unlawful possession of Government Trophy contrary to section 86 (1) and (2) (b) of the Wildlife Conservation Act, [Cap 283 R.E. 2002, now R.E. 2022] (the WCA) read together with paragraph 14 of the First Schedule to and sections 57 (1) and 60 (2) of the Economic Organized Crime Control Act, [Cap. 200. R.E. 2019] (the EOCCA); Economic Case No. 17 of 2021. The particulars of the offence as per the charge sheet were that, on 14th February, 2021 (the i material day) at Haysai Village within Mbulu District in Manyara Region, the appellants were found in unlawful possession of government trophies to wit two elephant tusks worth TZS. 34,785,000.00 the property of Tanzania Government without a permit from the Director of Wildlife. Upon trial, the trial court found that the prosecution had proved beyond reasonable doubt that the appellants committed the offence they were charged with. They were accordingly convicted and sentenced to serve twenty (20) years imprisonment. Aggrieved, they have lodged this appeal with the following five grounds in their verbatim words: One, the trial magistrate erred in law and fact by convicting the appellant on the case which was not proved beyond the required standard of proof in criminal case. Two, the trial magistrate erred in law and fact by relaying on cooked evidence adduced by PW5 and PW2 and convicted the 1st, 2nd and 3rd appellants. Three, apart from PW1, PW2, PW3, PW4 and PW5 who are Police Officer, Conservation Ranger and Wildlife Officer there nor other independent witness who came before the court to testify the evidence in support of Prosecution case. Four, the 1st, 2nd and 3rd appellants are innocent person who at the material date and time they were doing other business other than the offence charged with. Five, the learned trial 2 Magistrate grossly erred in law and fact by misdirected himself in finding that appellant was found in possession of Government trophy. The substance of evidence which justified the conviction and sentence of the appellants can be narrated as follows; Godfrey Sobert Kashaija (PW2) at the material time working with the Manyara National Park as a Conservation Ranger, received instructions from his leader that in Mbulu District there are five people who are in possession of government trophies and they are looking for customers. In company of his fellow game officer Lemanya Casbert (from Ngorongoro Conservation area) and inspector Aloyce Malima from Babati Police Station (PW5) they headed to Mbulu District with Lemanya tele-communicating with the informer every step of the way. They parked at the outskirts of Bashai Village and two men (1st and 2nd accused persons and who are not part of this appeal) appeared from the bush with a sulphate bag containing something. Lemanya introduced himself as the business man and they handled the bag to him. On seeing the tusks Lemanya wanted to weigh them but the 1st accused person told him there is another "merchandise" in Hayshai Village and 3 men are waiting for them, so they should go and take the "merchandise" and weigh them together. They, then entered into the vehicle and drove to 3 Hayshai Village and parked at the outskirt as well, and 3 men (3rd 4th and 5th accused persons; the appellants) appeared from the bush whereby two of them were carrying a sulphate bag containing the "merchandise" They were all put under arrest, the bag was inspected and they were asked whether they have a permit to which they said no. PW5 filed certificate of seizure (P5) and all accused persons signed, with PW2 signing as a witness, they were then taken to Babati Police Station. As it was mentioned herein before, the trial court convicted and sentenced the 3 appellants only. When the matter came for hearing on 7th November, 2024, the appellants were represented by Mr. Simon Shirima, Advocate. The respondent (Republic) had the service of Mr. Benedict Kapera, State Attorney. Mr. Shirima kickstarted by submitting that the first appeal ground emanates from the provisions of section 3 (2) (a) of Evidence Act [Cap. 6 R.E. 2022] which provides that in criminal matters a fact is said to be proved when the court is satisfied by the prosecution beyond reasonable doubt that the fact exists, as expounded in Jonas Mkizye v. Republic (1992) TLR 213. In addition, the learned advocate invited this Court to refer the case of Longinus Komba v. Republic (1973) TLR 39, in which the Court 4 of Appeal held that in criminal cases an accused person ought to be convicted on strength of the prosecution and not on the weakness of the defence. The learned advocate argued that proceedings of the trial court reveal key doubts which show that the prosecution has failed to prove the offence that the accused persons were charged with. One, all witnesses that came to testify; from PW1 to PW5 are not independent witnesses; they are all public servants. That the accused persons were arrested in villages, but not even a single leader or a villager was called to testify. That there was one witness called Lemanya Casbert who participated in arresting and was a crucial witness but was not called to testify in court. He argued that if this witness could have been called to testify he could have given a different version of evidence from that which was given by the prosecution side. The learned advocate relied on Mohamed Said v. Mohamed Mbilu (1986) TLR 15 where it was held that: "Where for a disclosure reasons a party fails to call a material witness on his side, the court is entitled to draw inference that if the witness were called they would have given evidence contrary to the party interest." Two, the content of the caution statement and statements of PW5 and PW2 contradict each other on the place where accused persons were s arrested; PW5 saying that 2 accused persons were arrested in Bashai village while the 3 accused persons were arrested in Haisal village. The caution statement which enabled the 1st accused person called Paschal Nada and John Petro to be acquitted and which was also admitted during hearing of the case explained that 3 accused persons were arrested in Bashai village. That this difference shows that there are still major doubts on what was said by PW5 and PW2. Three, in certificate of seizure of the Government trophy which were submitted in court, there is no independent witness from the time the accused persons were arrested until they were made to sign the certificate of seizure. In relation to the second appeal ground, Mr. Shirima argued that the evidence of PW2 and PW5 do not show how accused persons number 3,4 and 5 committed the offence, even in the statement of PW2 he says that he recognised the accused persons after arriving to Haisal station, so even when they were arrested they were not known to him. PW5's evidence focused on saying that the accused persons, by mentioning their names in page 3, those who were arrested in Haisal village were Emmanuel Bura, Jonas Johari and Idd Ngoda but his colleague (PW2) and in the caution statement says the arrest happened in Bashai village. He further argued 6 that the arresting happened at early night hours but the arresting officers did not comply with arresting procedures, such as involving that village leaders, a nearby police station or Mbulu Police Station. On third appeal ground the learned advocate admitted that under section 143 Evidence Act [Cap. 6 R.E.2022] there is no particular number of witness required to prove any fact but argued that it was not proper for all prosecution witnesses to be police officers, conservation and wildlife officers with no independent witnesses. That PW1 PW2 PW3 PW4 and PW5 could not have rendered a different evidence than what they had planned. On fourth appeal ground the learned advocate insisted that the 1st 2nd and 3rd appellants on that material day were doing other businesses other than the offence they were charged with. He referred this Court to Page 11 of the Judgment where the appellants explained what they were doing, insisting that the case is a cooked one (walibambikiziwa kesi) as there was no enough evidence to prove that they committed the offence charged with. On the fifth and last appeal ground, Mr Shirima argued that there is no evidence at all that was brought to court to prove that these accused 7 persons are the ones who were found in possession of the Government trophy, and there was no chemist or wildlife expert who was called to confirm that those things are really elephant tusks. The learned advocate summed up with an argument that the appellants were wrongly convicted as the case was not proved beyond reasonable doubt. The learned advocate therefore prayed for this Court to allow the appeal, set aside the trial court judgment, quash and set aside the sentence and release the 1st 2nd and 3rd appellant from custody and any to grant other relief that this Court may deem fit. Mr. Benedict Kapera for the respondent, decided to reserve response on proof beyond reasonable doubt to the last. On the argument that during arrest there was no independent witness, he submitted that involving other people depends on circumstances of a case and location where the arrest takes place. In addition, the learned State Attorney argued that there is no provision of law that prevents police and wildlife officers to arrest without involving independent witnesses, the law allows arrest and seizure without involving independent witness referring to section 106 of Wildlife Conservation Act [Cap. 283 R. E. 2022] and section 86 (1) (b) allows a wildlife officer to arrest without search warrant or involving independent 8 witness in case the relevant search and arrest takes place in a non- residential area. He argued that this provision gets strength from the case of Mathayo Noa Saning'o v. Republic, Criminal Appeal No. 427 of 2020 where the Court of Appeal stated that on circumstances where there is no dwelling house they can arrest and conduct search without involving independent witnesses. He linked this case with the case at hand that in this case, first, there was a trap (mtego) thus caution was to be observed to prevent leaking of the trap "mtego kufyatukd' that is why village leaders and independent witnesses were not involved, and second, the arresting took place out of the village. The learned State Attorney referred this Court to page 61 of Proceedings while the 4th accused cross examined PW5 and raised issue of non-involvement of village leaders and independent witness and PW5 replied that the arresting took place in a non-residential area at around 2100hrs to 2200hrs. Emphasising on importance of the secrecy situation, the learned State Attorney added that the trap that was set in Bashai village where 2 accused persons were arrested led to the arrest of the appellants in a different village of Haisal and this could not be possible if scope of involvement was widened. 9 On the argument that there was a material witness called Lemanya who was not called by the prosecution, the learned state attorney supported what was said by Mr Shirima that there is no specific number of witnesses that the prosecution is required to present in order to prove an offence. That the appellant side may think that Lemanya was a material witness but the prosecution did not see it that way and that is why he was not taken as a witness. He further argued that the prosecution saw it sufficient to bring two witnesses who also participated in the arrest; PW2 and PW5. On the argument that there is contradiction between PW2 and PW5 and the caution statement which was one of the exhibits in the trial court on the area which the arrest took place whereby two villages are mentioned that is Bashai and Haisal, the learned state attorney argued that there is no contradiction, as PW2 mentioned that the village that accused persons were arrested is Haisal and PW5 also says that the accused persons were arrested in Haisal village and that even the caution statement mentioned Haisal village as the place where the 1st 2nd and 3rd appellants were arrested therefore there is no contradiction as alleged by the appellants' advocate. io On the argument that the appellants on the material date and time were doing their normal business, the learned state attorney argued that there was no proof to that so as to shed doubt to the prosecution's evidence. On the argument that there was no expert or a chemist who verified that the Government trophy is really elephant's tusks, the learned state attorney referred to the trial court proceedings in page 45 to 50 where PW4 (Christopher Peter Laizer) who is a valuer, analyst and the one who identified the exhibit said that the thing found in possession of the appellants was elephant tusks. That, PW4 testified that he analysed, identified and prepared a trophy valuation certificate which was tendered as exhibit P4 to verify that what was found in possession of the appellants are elephant tusks. The learned state attorney summed up with the argument that prosecution has proved the case against appellants beyond reasonable doubt as follows; One, the appellants were found red handed; in actual possession of two elephant's tusks and this has been proved in the testimony of PW2 and PW5. Two, just after they were found with the said Government trophy there was prepared a certificate of seizure (P5) which was signed with the arresting officers who did the seizing and all appellants, and when 11 exhibit P5 was tendered in court, page 56 of the proceedings, appellants did not object that they signed it, the only thing they raised was that no village leader was involved. By signing certificate of seizure, it means, impliedly and by law, that they admit what they were found with. On this the learned state attorney relied on the Court of Appeal case of Nabibaksh Pibakshi Bibade and Another v. Republic, Criminal Appeal no. 663 of 2020 (2003) TZCA Tanzlii 17296. Three, the elephant tusks who the appellants were found in possession of, was verified and identified by an expert that is PW4 and his testimony is in page 45 to 50 of the trial court Proceedings. Four, the chain of custody exhibit (P2) which was tendered by PW1, whose testimony is found in page 19 to 25 of the trial court proceedings, explained how the chain was proper and not disrupted from the arrest to the day it was brought to court and tendered as an exhibit. The learned state attorney therefore submitted that the prosecution has proved its case against appellants beyond reasonable doubt and pray that since the appeal has no merit this Court should dismiss it and subsequently uphold the conviction and sentence in the trial court judgment. 12 In a rejoinder, the learned advocate Mr. Shirima once again relied on the case of Longinus (supra) and argued that the accused person ought to be convicted on strength of prosecution evidence and not weakness of defence, because onus of prove is beyond reasonable doubt, that this burden has not shifted from prosecution to the accused. On the issue of witnesses Mr Shirima reiterated that section 143 of Evidence Act [Cap. 6 R.E.2022] does not specify the number of witnesses required, however, Lemanya was a crucial witness therefore he was supposed to be called to testify in court. In addition, the village that accused persons were arrested have leaders, therefore they were supposed to be involved to verify that the offence was actually committed by the appellants and to witness that the appellants were found in possession of the Government trophy. That their non-involvement raises the appellants' doubts that this is a made-up case and that is why those public leaders were not involved. On the argument that the arrest took place in the outskirts of the village, the learned advocate argued that the place is not out of the village, it is close to the extent that even if someone screams from there the voice can reach people who are in the village centre (kijiweni), but these officers did 13 not do that and instead they decided to arrest the accused persons, made them sign certificate of seizure and took them from Mbulu District to Babati District. On contradiction between Bashai and Haisal village the learned advocate insisted that there are contradictions and prayed for this Court to go through the trial court judgment to see how PW5 tried to explain that the accused persons who were arrested in Haisal village were the appellants, but in the caution statement, at page 8 and 9, the 1st accused person who was acquitted said that these accused persons were arrested at Bashai village. So PW5 and the caution statement differ thus raising doubts and lead to the conclusion that the prosecution evidence delivered in the trial court is a made up and cooked evidence. On the argument that the law allows arresting without involving village leaders, Mr Shirima admitted but argued that the circumstances where these accused persons were arrested called for involvement of relevant village leaders and police station, who are in fact responsible for the village peace and security of the village. 14 The learned advocate summed up by insisting that an expert of elephant tusks or a chemist was supposed to be called to analyse and verify that what was seized and what was brought to court are in fact elephant tusks, but the prosecution side did not do that. Thus, these major doubts, the doubts which according to the caselaw cited should be of benefit to the accused persons as said in Longinus Komba (supra). He concluded by a prayer that the appeal be allowed and the appellants set free. Having heard the submissions from both parties, the main issue for determination is whether the prosecution proved their case beyond reasonable doubt. I will do this by analysing key factors that are involved in the case. Section 86 (1) and 2(b) of the WCA provides that: "86.- (1) Subject to the provisions of this Act, a person shall not be in possession of, or buy, sell or otherwise deal in any government trophy. (2) A person who contravenes any of the provisions of this section commits an offence and shall be liable on conviction: - (b) where the trophy which is the subject matter of the charge or any part of such trophy is pan of an animal specified in Part I of the First Schedule to this Act, and the value of the trophy exceeds one hundred thousand shillings, to a fine of a sum not less than ten times the value 15 of the trophy or imprisonment for a term of not less than twenty years but not exceeding thirty - years or to both, "(emphasis is mine) In relation to the issue of seizure, the evidence of PW2 (page 28 of the proceedings) which was corroborated with PW5 at page 53 and as put by the learned State Attorney, the appellants were caught "read handed" in possession of the government trophy. They emerged from the bush, two of them carrying a sulphate bag with something inside, and before they reached the vehicle, PW5 and his crew ambushed them and put them under arrest. PW5 inspected the sulphate bag, saw the tusks and enquire whether they have permit and they said no. PW5 filled certificate of seizure, the appellants read it and signed and thumb printed the certificate of seizure. The certificate of seizure was tendered for admission in court as P5 and all appellants objected; 1st on reason that village chairman was not involved as a witness, 2nd and 3rd agreed with the 1st appellant and added that since they were arrested in a guest house then the guest owner was supposed to sign as a witness (page 56). In these circumstances I rely on Papaa Olesikaladai @ Lendemu and Batian Malee @ Peshuti v. Republic, Criminal Appeal No. 47 of 2020 in the Court of Appeal of Tanzania at Arusha (unreported) to conclude that since the certificate of 16 seizure was issued and signed by the appellants then the same constitutes evidence on what it contains. On the argument that all prosecution witnesses; PW1 PW2 PW3 PW4 PW5 were police officers, conservation ranger and wildlife officer with no independent witness, I concur with both learned counsels that in terms of section 143 of the Evidence Act, Cap. 6 no particular number of witnesses is required to prove a certain fact, what matters is the credence of the witness or witnesses who testify in support of that fact, says Papaa Olesikaladai @ Lendemu (supra). This also supports what was held in Mwita Kigumbe Mwita and Another v. Republic, Criminal Appeal No. 63 of 2015 (unreported) that what is important is the quality, not the quantity, of the evidence placed before the court. The appellants on the issue of seizure raised an objection that village chairman did not sign, this Court is satisfied on the reasons advanced by PW2 in page 32 of the proceedings as well as the learned State Attorney that in circumstances of a trap involvement of other parties could not be feasible. In addition, the Court of Appeal has already made a stand on this whereby in Papaa Olesikaladai @ Lendemu (supra) it stated: 17 "this is understandable, for PW2 testified that they waylaid the appellants at a place where no other people lived. In terms of section 106 (1) of the WCA, the presence of an independent witness depends on the circumstances of each case. Where, like here, an offence is committed in a remote area, bush or forest where an independence witness cannot be procured, his presence can be dispensed with in terms of section 106 (1) of the WCA." Section 106 of the WCA provides that: "106.- (1) Without prejudice to any other law, where any authorised officer has reasonable grounds to believe that any person has committed or is about to commit an offence under this Act, he may- (b) enter and search without warrant any land, building, tent, vehicle, aircraft or vessel in the occupation or use of such person, open and search any baggage or other thing in his possession." In this case the reasonable ground included the "tip" that PW2 and PW5 had on the "merchandise and sellers looking for customers". There was also a concern on the absence of Lemanya from prosecution witnesses, I have referred relevant provision in the Evidence Act on witnesses. I addition in the initial pages of this Judgment I briefly narrated the involvement of various parties in this case and I mentioned game officer Lemanya Casbert (from Ngorongoro Conservation area), therefore 18 since the argument against PW 1 PW2 PW3 PW4 PW5 is based on them being public employees even the inclusion of Lemanya would bring the same argument as he is also a public employee and not "independent" in the context of appellants' arguments. On the other hand, the trial court proceedings on testimonies of PW2 and PW5 show the similar participation of these 3 officers. In relation to the alleged contradictions between PW2 PW5 and caution statement of the 1st accused on which village were the accused arrested, this Court went back to the trial court proceedings; PW2 at page 28 submitted that those arrested in Haisal village are Emmanuel Bura, Jonas Johari and Iddi Musa Ngoda. Emmanuel Bura is the 1st appellant, Jonas Johari is the 3rd appellant and Iddi Musa Ngoda is the 2nd appellant. PW5 in page 53 also submitted that those arrested in Haisal village are Emmanuel Bura, Jonas Johari and Iddi Ngoda. This does not differ with the caution statement of the 1st accused, who, in the last page of the statement said: "... basi na wao walikuwa hawajui ni kitu gani kinaendeiea walikuwa wanajua Tajiri anayenunua mzigo huo pamoja na Iddi Mussa amefika, basi sisi tukiwa ndani ya gari hiyo ambayo sijui ni aina gani Emmanuel Bura aiiingiza mzigo wa meno ya tembo 2 ndani ya gari hiyo yakiwa yamehifadhiwa kwenye mfuko wa sulphate, baa da ya 19 kuweka mfuko huo Emmanuel Bura akiwa ndani ya gari walifuatia Iddi Mussa na Jonas Johari, tukiwa ndani ya gari Emmanuel Bura na Iddi Mussa ambaye tuiijua na yeye ni tajiri waiikamatwa. Mimi pamoja na John Petro tuiikamatwa Kijiji cha Bashai, hawa wengine waiikamatwa Kijijicha Haysai..." Therefore, this Court is satisfied that there were no contradictions on the question as to who was arrested in Bashai and who was arrested in Haisal. Mr Shirima also argued that on the material day the appellants were in their normal business routine this was also submitted by the appellants in their defence during the trial court session. The 1st appellant; Emmanuel Bura (DW3) submitted that he was on the road going to fetch food for his family, and that he saw the vehicle and waved it to stop thinking it was a public transport, it stopped he got in and was arrested on the way. The 2nd and 3rd appellants (DW4 and DW5 respectively) argued that they had arrived from Dodoma by Shabby bus and had checked in a guest house in Mbulu waiting for their beans business next day. On this the learned State Attorney's argued that no proof has been tendered to substantiate this and Mr Shirima insists that "the accused should not be convicted on their weak defence". This Court is satisfied that the evidence adduced by appellants 20 have not cast doubts on the prosecution case in relation to the whereabout of appellants on the material day and time. The final appeal ground seeks to challenge the trial magistrate for misdirecting himself in finding that appellant was found in possession of Government trophy. This Court has gone through records of the trial court to satisfying itself if proper procedures were employed to verify whether the seized trophies are elephant tusks. Among the exhibits that were tendered and admitted in the trial court was exhibit P4 to wit the Trophy Valuation Certificate prepared and tendered by PW4 (Christopher Laizer, a wildlife officer). In his testimony PW4 submitted that he conducted examination in verifying whether the trophy that was seized is elephant tusk. Among other things PW4 said: "... normally we do employ two types of identification, to wit laboratory identification but also physical identification so I did use physical identification of the trophies. So, by physical identification I did differentiate it from other tusks, because elephant tusks from a fully-grown elephant are normally a bit long and the difference from other animals is that the tusks do protrude from the elephant's cavity outside..." 21 PW4 went on in page 46 to mention the features in elephant tusks in contrast to other animals' tusks and concluded that: did finish the identification ...I also filled the value of two elephant that were killed after I did identify them to be of two elephants. The value of each elephant is USD 15,000/- so the value of both elephants was USD 30,000. So, after visit the BOT website ...the value of the two elephants was Tsh. 69,570,000/-..." The examination and conclusion are in line with Section 86 (4) of the WCA which states that: "86. - (4) In any proceedings for an offence under this section, a certificate signed by the Director or wildlife officers from the rank of wildlife officer, stating the value of any trophy involved in the proceedings shall be admissible in evidence and shall be prima facie evidence of the matters Stated therein including..." In a similar case to the present one; Issa Mustapha Gora and Another v. Republic, Criminal Appeal No. 330 of 2019 CAT Arusha (unreported), one of the appeal grounds challenged the Trophy Valuation Certificate that confirmed the seized items were elephant tusks and value thereof, in dismissing the ground the CAT ruled that: 22 "in our examination, we are satisfied that it was prepared by... a Wildlife Officer who, in our recent decision in Jamali Msombe and Another vs Republic, Criminal Appeal No. 28 of 2020 (unreported), we held that in terms of section 86(4) of the Wildlife Conservation Act, 2009 a person mandated to issue a Trophy Valuation Report is the Director or a Wildlife Officer from the rank of Wildlife Officer." I am therefore satisfied that the trial magistrate did not misdirect himself in finding that appellant was found in possession of Government trophy. From the foregoing, I am satisfied that prosecution case was proved beyond reasonable doubt. In the event, I find the appeal devoid of merit. Consequently, it is hereby dismissed. It is so ordered. Right of appeal is explained. N.J. MWIHAMBI JUDGE 13.12.2024 23 Court: Judgment delivered today 13th December, 2024 in the presence of the appellants, Mr. Joseph Masanja Advocate holding brief of Mr. Simon Shirima and Ms. Mwanaidi Chuma State Attorney for the Respondent, B/C: Ms. Fatina Haymale, RMA. / * N.J. MWIHAMBI JUDGE 13.12.2024 24