Fred Meibuko and Another v Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 16904 OF 2024 (Originating from the judgment of the District Court of Babad at Babad in Economic Case No. 000037263 of2023) 1. FRED MEIBUKO........................................................................ APPELLANTS 2. ISSA MAFITA.......................................................................... VERSUS THE REPUBLIC................................................................................... RESPONDENT JUDGMENT 3Cfh July and ldh September 2024 MIRINDO J.: On 4 November 2023, a police officer, F. 495 Detective Sergeant Khatibu in company with two park rangers, Joseph Nyang'oso Makuru and Donald Chiunje; acting on a tip-off, intercepted a motorcycle along Babati-Galapo road within Babati District in Manyara Region. They arrested two persons suspecting them to be carrying a government trophy which was immediately identified to be one elephant tusk. Those persons were soon identified as Fred Meibuko and Issa Mafita and were jointly charged with and convicted of the offence of unlawful possession of government trophy before Babati District Court. They were 1 charged under section 86 (1) and (2) (b) of the Wildlife Conservation Act [Cap 283 RE 2022] read together with paragraph 14 of the First Schedule to the Economic and Organised Crime Control Act [Cap 200 RE 2022] and section 57 (1) of the latter Act. Upon their conviction and sentence of twenty-four years imprisonment, they have appealed to the High Court in their ten-grounds petition of appeal. At the hearing of the appeal, they were represented by Mr. Festo Jackson, learned advocate. Mr. Raphael Rwezahula, learned State Attorney appeared for the respondent, Republic. In the second, sixth, eighth, ninth and tenth grounds of appeal, which were argued together, the appellants, Fred Meibuko and Issa Mafita, faulted the findings of the trial court. Their major point of complaint is that there was insufficient evidence to ground their conviction for unlawful possession of one elephant tusk. The learned advocate also pointed out doubtful features in the prosecution case. In opposition, the learned State Attorney, contended that the prosecution proved the case beyond reasonable doubt as the ingredients of the offence were duly proved. These arguments call for re-evaluation of evidence and I will deal with the detailed arguments of both parties in the course of reviewing the evidence presented before Babati District Court. 2 The second prosecution witness, F. 495 Detective Sergeant Khatibu was tipped by an informer that certain persons in possession of a government trophy were travelling by a motorcycle from Galapo to Babati. After communicating with two park rangers, they went to a location called Majengo at Singe along Galapo road. They placed a trap. Around 12.00 noon, a motorcycle with registration number MC 244 CAF came along. It had two persons, a driver and a passenger, and was carrying a bag at the back seat. The driver introduced himself as Issa Mafita and the passenger as Fred Meibuko, both of whom are the second and first appellants in this case. The appellants insisted to be searched in the presence of an independent witness. It is the testimony of F. 495 Detective Sergeant Khatibu that two independent persons witnessed the search when he directed the appellants to open the bag. When the bag was opened an item suspected to be an elephant tusk was found inside the bag. The second prosecution witness signed and filled a certificate of seizure and organized for witnesses to sign the certificate as an indication that they witnessed the search. The process by which one independent witness was procured by the second prosecution witness has been impugned before this Court. The learned appellants' advocate, Mr. Jackson, pointed out that while the third prosecution witness, Joseph Nyang'oso Makuru stated that the independent witness was 3 called to the scene, the independent witness testified that the second prosecution witness followed him by car. Mr. Rwezahula, learned State Attorney saw no difference between calling and following the independent witness as long as the independent witness came to the crime scene. In his testimony, the second prosecution witness, stated that he called an independent witness, one Ally Salaho, the Majengo Kitongoji Chairman. In cross- examination, he replied that he called him by phone. This account was supported by the testimony of the third prosecution witness, Joseph Nyang'oso Makuru, who stated simply that the police officer called one Ally Salaho. By contrast, Ally Salaho, who was the fifth prosecution witness stated that he was followed home by the second prosecution witness by motor vehicle and was taken to the crime scene. Ally Salaho went there by his motorcycle. As this is a criminal case, the benefit of doubt is in favour of the appellants' account that Ally Salaho was followed by the second prosecution witness. This finding gives rise to the extent to which Ally Salaho can be considered to be an independent witness. An independent witness is the one who does not spring from sources that are likely to be tainted. It is unclear why the arresting officer, the second prosecution witness, thought it necessary to summon Ally Salaho to witness the search. The circumstances necessitating calling or following Ally Salaho are unclear. It is difficult to rule out that F. 495 4 Detective Sergeant Khatib may have in some way influenced Ally Salaho. For this reason, I am unable to conclude that Ally Salaho was an independent witness. The second prosecution witness testified calling another independent witness whom he referred to as Victoria Lagwen. Ally Salaho recognised this woman as Victoria Sakwe. As this woman did not testify, it is impossible to establish her independence during the search. Nor is it possible to establish whether the names Victoria Lagwen and Victoria Sakwe have reference to one and the same person. For both reasons, I hold that there was no independent witness during the search. Another point of criticism from Mr. Jackson is in connection with the opening of the sulphate bag at the crime scene. Because Ally Salaho testified that on arrival at the crime scene, the appellants were ordered to stay down and people were surrounding the bag, Mr. Jackson argued, that it was incumbent for Salaho to name the person who opened the bag. Mr. Rwezahula did not address this criticism. In answering this question, it is important to revisit the evidence of F. 495 Detective Sergeant Khatibu, Joseph Nyan'goso Makuru and Ally Salaho. F. 495 Detective Sergeant Khatibu explained he ordered the appellants to open the bag 5 in the motorcycle. According to Joseph Nyan'goso Makuru it was Fred Meibuko who was ordered to "untight" the sulphate bag. The account of Ally Salaho is in two parts. In examination in-chief, Ally Salaho commences by describing how he was followed home by F. 495 Detective Sergeant Khatibu. Ally Salaho proceeded to state the conditions he saw on arrival at the crime scene: ...He took me at the place where there was one vehicle, one motorcycle. At that time, I did go with my motorcycle and one vehicle which was with such police officer. On left side of Babati Gallapo roads, there two males peoples [5/c] who was under arrest together with one luggage. Kulikuwa na watu wawili wamekaa chini, wakiwa chini ya uiinzi na furushi iao. Those vehicles and motorcycle were kept at right side. So, at that place we were eight peoples, [s/c] one of them was women [s/c] by the name Vicotria Sakwe. That police officer, told me to witness at that time of open that luggage which suspected to be Government trophy, those two boys directed to sit down.[s/c] That luggage was in sulphate bag which tighter with rubber at its edge, [s/c] It was open and we find things like who which was in white color. It was noon time and I find stand just one meter, [s/c]. All peoples were around it just a meter. Those Park rangers identity it to be elephant tusk. In this account it is not clear who actually opened the sulphate bag but the impression is that the sulphate bag was opened when the "two boys" were 6 ordered to sit down. That this might be the correct interpretation of this evidence, is supported by the evidence of Ally Salaho in cross-examination: ...That suphatfsic] bag was open [s/C] by one of the park rangers. From these three-prosecution witnesses, there is doubt about who actually opened the sulphate bag. In Zakaria Japhet alias Jumanne and Two Others v R (Criminal Appeal No. 37 of 2003) [2006] TZCA 150 it was held that: ...It is a cardinal principle of law that in a criminal charge doubts are resolved in favour of the accused however slight they may be. ... The doubt as to the one who opened the sulphate bag must be resolved in favour of the appellants which means that it was opened by the investigating officers. A point of contention that featured prominently at the trial court and on this appeal is whether the appellants actually signed the certificate of seizure that was admitted at the trial as exhibit PE IV. The learned defence counsel at the trial, Mr. Ngeseyani, objected to the admissibility of the certificate of seizure for the reasons that the second prosecution witness was not competent to produce it in court and it was not signed by the appellants. The trial court overruled the objection having being satisfied that the second prosecution witness was the one who issued it and it had his signature. The second limb of Mr. Ngeseyani's objection was nevertheless not considered. 7 In this appeal, Mr. Jackson, learned advocate, doubted if the appellants ever signed the certificate of seizure given that Ally Salaho contradicted himself on this issue. In examination in chief, he stated that the appellants did sign the certificate of seizure but in cross-examination he stated that he did not remember if they signed. In dealing with this issue, I will first review the evidence pertaining to the signing of the certificate of seizure. The second prosecution witness, F. 495 Detective Sergeant Khatibu explained in essence that one of the appellants did sign the certificate of seizure: ...From there the certificate of seizure was filled and it was signed by me as police officer. Also, it was signed by the [sic] as the owner of such motorcycle with registration number MC 244 CAF... He denied in cross-examination that the appellants never signed the certificate of seizure: ...It is not true to say that this certificate of seizure was not signed by these two peoples... The third prosecution witness, Joseph Nyan'goso Makuru, gave a similar account. He stated that the certificate of seizure was filled and signed by the second prosecution witness, and was additionally: 8 ...signed by Fredy Meibuko and Issa Matita Issa [?] as the owner of such things. Also, those other peoples who was there did sign it as witness. ... All peoples [sic] did sign that certificate of seizure by using pen... The evidence of Ally salaho which has been directly attacked in this appeal is that: The certificate of seizure was fill and I did sign it as one of the witnesses. Also, those two boys was under arrest di[d] sign... He fumbled in cross-examination: I am not the one who write any name oat [on?] PE IV. I never mention [s/c] what was written at PE IV. I am standard VII of 1989. I do not remember if those two boys did sign.... In course of cross-examination, he reiterated that: ...At that place there was [s/c] two park rangers and two male people under arrest sleeping down, with back. [s/c]. It does appear from the contradictory evidence of Ally Salaho that either the appellants signed or were ordered to sleep down throughout the opening of the sulphate bag and the signing of the certificate of seizure. During the defence the appellants disowned signatures appearing in the certificate of seizure. The first appellant, Fred Meibuko, stated the signature appearing in the certificate of seizure is different from one appearing in his 9 National Identity card and the Voter identity card. His voter identity card that was admitted as exhibit DE I indicates his name as Fred M. Laizer and contains a signature. The second appellant disowned the name Issa Mafita and the signature appearing in the certificate of seizure. A certified copy of his National Identity card which contains a name Issa Habibu and a signature was admitted as exhibit DE2. Before this Court, Mr. Jackson, learned advocate, argued that these differences brought about by the appellants' Voter Identity card and National Identity card are consistent with the claim that they never signed the certificate of seizure. Mr. Rwezahula, learned State Attorney, supported the finding that the appellants did sign the certificate of seizure and in any case did not object to their names during the preliminary hearing. In dismissing this point, the learned trial Senior Resident Magistrate, held that the appellants did not object to their "false" names during the preliminary hearing and at any stage of the trial prior to the defence stage. They did not object to being referred by "false" names by prosecution witnesses. The learned trial magistrate observed that it was the appellants who introduced themselves to the investigating officers with those "false" names. For these reasons the learned Senior Resident Magistrate concluded that the appellants were estopped 10 from denying the names used by the prosecution and their defence was unbelievable in light of the decision in Patrick Sanga v R (Criminal Appeal 8 of 2011) [2013] TZCA 473. For the reasons to be stated later in this judgment, the preliminary hearing was problematic and the appellants purported admission of their names is of no legal consequence. That said, I tend to agree with the learned trial Senior Resident Magistrate that the facts of the appellants' names were something peculiarly within the appellants knowledge. They had the opportunity from their arraignment on 16 November 2023 and throughout the prosecution case to object to those "false" names which were used to refer them. Although the prosecution carries the burden to prove the commission of the offence beyond reasonable doubt, section 114 (1) of the Evidence Act [Cap 6 RE 2022] imposes an evidential burden on the accused person to prove facts "especially within his knowledge." The Court of Appeal in Sai Kuhenga v R, Criminal Appeal 76 of 1986 concluded the operation of this provision is confined to cases "where there is some material from which to conclude that the alleged fact exists." The subsection was applied in Nguza Vickings alias Babu Seya and Three Others v R, Criminal Appeal 56 of 2010 when the Court of Appeal, 11 in a judgment delivered by Kimaro JA, rejected the contention that the prosecution was bound to disprove the impotency of the first appellant: The first appellant claimed that he had problems with his potency and for that matter he could not have committed the offence. He said that the prosecution refused to assist him in having his potency examined by the doctor to confirm whether he was or was not capable of committing the offence of rape. In our considered opinion the prosecution had no obligation to do that. We say so because in terms of the provisions of section 114 (1) of the Law of Evidence Act, CAP 6 R.E 2002 the question of the potency of the 1st appellant was within his own knowledge and the burden of proof was on him to prove that his penis was not functioning. In the instant appeal, the prosecution discharged its burden to prove that the appellants were known as Fred Meibuko and Issa Mafita. First, as stated above, it was undoubtedly clear throughout the prosecution case that these were the names of the appellants. Secondly, and more significantly, during the defence the appellants admitted in examination in-chief being arrested at Majengo area on 4 November 2023. The inference is that they introduced themselves as Fred Meibuko and Issa Mafita. This inference is consistent with the prosecution case. On this account, I would dismiss the appellants' contention that the prosecution charged them under false names. 12 I now turn to consider the thorny question: was there actual physical signing by the appellants? I have had the opportunity to re-examine the certificate of seizure entitled in Kiswahili "Hati ya Kuchukuliwa Mali". I have come to the conclusion that the handwriting in the certificate of seizure is not without some difficulty. The certificate of seizure appears to have been filled by one person only and since there is no conclusive evidence that the appellants signed it, I hold that the appellants did not actually sign the certificate of seizure notwithstanding the signatures appended under their names. It is obvious that the first part of the Hati ya Kuchukuliwa Mali is filled by the seizing officer. It is apparent that the seizing officer, F. 495 Detective Sergeant Khatib also filled the witness details. This fact is evident from the response of Ally Salaho already reproduced at page 9 of this judgment. Ally Salaho stated that he never wrote his names in the certificate of seizure. There is no clarification how the witnesses signed, if they ever did sign, after F. 495 Detective Sergeant Khatib filled their details. The appellants criticised the prosecution's description of the elephant tusk seized at the crime scene. The learned appellant's advocate, Mr. Jackson, pointed out conflicting description of the elephant tusk by the arresting police officer, F. 495, Detective Sergeant Khatib, the second prosecution witness, and Joseph Nyang'oso Makuru, the third prosecution witness. Mr. Jackson argued 13 that the second prosecution witness described the elephant tusk being white in colour while the third prosecution witness described it to be colostrum in colour. I have reviewed the evidence and found out that both witnesses described the elephant tusk to be colostrum colour. Nevertheless, it was the fifth prosecution witness, Ally Salaho who stated the elephant tusk to be white in colour. I do not consider this discrepancy to be serious enough to discredit the identification of the elephant tusk. The word "colostrum" is defined in Collins English Dictionary, 14th edn, 2023, as: the thin milky secretion from the nipples that precedes and follows true lactation. It consists largely of serum and white blood cells. From this definition, it is clear that colostrum may appear white. The fact that Ally Salaho described the elephant tusk to be white in colour was in order and does not amount to conflicting testimony. Mr. Jackson further criticised the symbol "SM" in the elephant tusk. The learned advocate argued that there was no evidence as to the time the symbol was put on the elephant tusk. The second prosecution witness testified that he marked the elephant tusk with symbol "SM". The third prosecution witness also stated that the elephant tusk was marked with symbol "SM." None of them testified how and when the marking took place. 14 Given that that the fifth prosecution witness described that the elephant tusk had a black sign, the account given by the second and third prosecution witnesses is incomplete. Surprisingly though the existence of the black sign was mentioned in cross-examination, the prosecution opted not to re-examine the fifth witness on this point. Before this Court Mr. Rwezahula did not specifically address this point. I now turn to consider the complaint in connection with the number of sulphate bags handed over to the exhibit keeper at Babati Police Station. The first prosecution witness, F.2449 Sergeant James, the exhibit keeper, testified that on 4 November 2023 he received exhibits. He stated partly that: ...It was one motorcycle with registration number MC 244 CAF and one Elephant Tusk which was into three sulphate bag. [s/c]... Mr. Jackson, learned advocate argued that this fact was in direct contradiction to one sulphate bag handed to the valuer of the government trophy who testified as the fourth prosecution witness. In response Mr. Rwezahula, learned State Attorney, argued that the chain of custody form is clear that the first prosecution witness was given one sulphate bag containing one elephant tusk. The learned State Attorney, maintained that the existence of one sulphate bag is supported by the testimony of the third and fifth prosecution witnesses and the certificate of seizure. He asserted that the 15 reference to three sulphate bags was a typing error in the proceedings and the handwritten version might be the correct one. The learned State Attorney concluded that if I were to rule that contradiction exists, I should conclude that the contradiction arose from defects in human memory. It is a defect that could not occasion failure of justice in terms of section 388 of the Criminal Procedure Act [Cap 20 RE 2023]. In opposition, the learned advocate argued that the contradiction went to the root of the case. It is at once clear that neither the chain of custody form which is exhibit PE III nor the certificate of seizure, exhibit PE IV clarify the number of sulphate bags handed over to the first prosecution witness. Both documents list the items seized without any description about their packaging. Even though the third and fifth prosecution witnesses testified about one sulphate bag, they did not witness the handing over to the first prosecution witness. Their evidence in this regard is insufficient. Besides, the handwritten version of the proceedings does not support the learned State Attorney's belief that one sulphate bag was referred to by the first prosecution witness. Mr. Rwezahula contended that in the course of his evidence the first prosecution witness clarified that he was given one sulphate bag. I have reviewed the evidence on this point and I am unable to agree with Mr. Rwezahula. Save that the beginning of his testimony, throughout his testimony, 16 the first prosecution witness, made reference to exhibit or exhibits, or things. There is no other reference to sulphate bags. On the first ground of appeal, the learned advocate criticised the way the proceedings were recorded by the trial court. He referred to page 20 of the typed proceedings where the public prosecutor is recorded as cross-examining her own witness and then the prosecution witness continued to testify. The learned advocate noted that in the second paragraph of page 34, the trial court recorded a public prosecutor asking for an exhibit PE 1 for identification by PW1 but the trial court overlooked to state that it ordered PE 1 to be given to PW1. Mr Jackson observed that the public prosecutor asked for PE IV for identification by PW4 but it was PE III that was given. After these requests for identification of exhibits, the trial court recorded the cross-examination by the defence counsel, Mr. Ngeseyani. Nothing is recorded to indicate if the witness identified those exhibits. From these doubtful features in the record of proceedings, Mr. Jackson, learned advocate, concluded that the trial court incorrectly recorded the testimonies and everything that transpired in court. He added that this incorrect recording affected the trial court's judgment. He specifically referred to third paragraph of the third page of the trial court's judgment and argued that the trial court erred in stating that Fred Meibuko was ordered to open the bag. The 17 learned advocate argued that none of the witnesses ever testified that Fred Meibuko was ordered to open the sulphate bag. Mr. Jackson sought to adopt the arguments on this ground to the third and fifth grounds of appeal. In response, Mr. Rwezahula, learned State Attorney, maintained that court records are generally unimpeachable as stated in Flano Alphonce Masalu alias Singu v R (Criminal Appeal 366 of 2018) [2020] TZCA 197. The learned State Attorney examined the trial court's record from pages 31 to 34 and concluded that there is only a mix-up in the recording. He argued that the errors mentioned by the appellants' advocate are simple human errors which could not infringe appellants' rights. These errors, the learned State Attorney, observed were curable under section 388 of the Criminal Procedure Act. Having re-examined the proceedings, I am satisfied that there were human errors in the recording of the proceedings. I agree with the learned State Attorney that those recording errors do not affect the merits of this case. As to the fourth ground of appeal on conviction based on a defective charge and seventh ground of appeal on violation of law during the trial, Mr. Jackson, had nothing to add and left them for determination by this Court. Mr. Rwezahula, on the other hand, contended that the appellants understood the nature of the charge they faced at the trial. They were able to defend themselves at the trial. The argument of defective charge was never raised at 18 the trial. Even if there were defects in the charge which have not been shown, those defects will be curable under section 388 of the Criminal Procedure Act [Cap 20 RE 2022]. Mr. Rwezahula noted that the seventh ground of appeal is vague and in the absence of legal errors mentioned by the appellants, he prayed that this Court should consider that this ground is baseless. I am of the opinion that the fourth and seventh grounds of appeal have not merit in so far as I could not find the defects complained of. Towards the conclusion of counsel arguments, I asked learned counsel to address me on whether the preliminary hearing dated 29 November 2023 was properly conducted. Mr. Jackson, learned advocate, pointed out that the provisions of subsection (2) and (3) of section 192 of the Criminal Procedure Act were not complied with. The trial court did not explain to the parties the purpose of the preliminary hearing. The learned advocate observed that the proceedings contained only the title preliminary hearing and list of facts. The proceedings do not state who gave the facts. Mr. Jackson further contended that under section 192 (3), the memorandum of matters not in dispute was not read over to the accused persons and have them filed. He concluded that the proceedings were contrary to law. Mr. Rwezahula, learned State Attorney, readily conceded that the preliminary hearing was not conducted in compliance with the provisions of 19 section 192 (2) of the Criminal Procedure Act. He noted, however, that in light of the decision in Isidori Patrice v R (Criminal Appeal 224 of 2007) [2007] TZCA 2 the main trial does not become invalid on account of the failure to conduct a preliminary hearing. I think it is well-settled that during the preliminary hearing the trial court must enquire from the accused persons matters which they do not dispute and have their answers recorded. It is from this response that the trial court prepares the memorandum of matters not in dispute. The memorandum of matters not in dispute must be read over and explained to accused persons in a language they understand. This is the gist of section 192 (3) which states that: (3) At the conclusion of a preliminary hearing held under this section, the court shall prepare a memorandum of the matters agreed and the memorandum shall be read over and explained to the accused in a language that he understands, signed by the accused and his advocate (if any) and by the public prosecutor, and then filed. The importance of compliance with this procedure has been stressed on by the Court of Appeal in numerous decisions. The memorandum of matters not in dispute is rooted in the "agreement" reached between the prosecution and the accused person. As was held by this Court (Mushi J) in Elineema Andrea v R [1999] TLR 463 at 467: 20 The purpose of conducting preliminary hearing is to consider and ascertain such matters as are not in dispute between the parties in order to promote fair and expeditious trial. The basic principle in conducting preliminary hearing is to seek agreement between the parties on relevant and triable issues or facts in the case to enable expeditious finalization of the case. No fact or document is ever regarded or treated as undisputed in a preliminary hearing unless it is agreed upon by both the accused and the prosecution. If one of the parties, i.e. the accused or prosecution, raises an objection to a proposed fact or document, then that fact or document is disputed and it must be left out to await trial. It is against the spirit or principle of agreement between the parties envisaged in a preliminary trial for a trial magistrate to overrule a party on objection to a particular proposal as was done in this case. It is because of this principle that in MT 7479 SGT Benjamin Holela v R [1992] TLR 121 and Bahati s/o Masebu v R, Criminal Appeal 135 of 1991, the Court of Appeal held that it is the accused persons, and not their counsel, who should indicate facts they admit. In Holela's case, the Court of Appeal observed that [at page 124]: It is apparent that a statement by counsel or advocate for the accused to the effect that the matters raised are admitted is not sufficient under the law. It is the accused himself who must indicate what matters he or she admits. In cases where the matters comprise documents, the contents of the documents must be read and explained to the accused, in the event of a sketch plan or such like documents, the sketch plan must be explained and shown to the 21 accused to ensure that he or she is in a position to give an informed response. The Court of Appeal reaffirmed this view in Athumani Ndagala alias Mikingamo v. R, Criminal Appeal 63 of 2007: We wish to make it absolutely clear that the rationale behind the Court's insistence on strict compliance with all these statutory provisions is to ensure a fair trial to the accused because he or she is the one on trial and not his or her advocate. An accused, therefore, cannot be bound by the admissions of his advocate at the preliminary hearing who ... may not be the one appearing at the main trial. The general position is that a fact is not duly proved in a preliminary hearing if the memorandum of matters not in dispute was not read over and explained to the accused person. The leading cases in this regard are MT 7479 SGT Benjamin Holela v R [1992] TLR 121 and Efraim Lutambi v R [2000] TLR 265. The preliminary hearing is silent on who prepared and presented facts of the prosecution case. The memorandum of matters agreed contains some facts which are not part of the facts outlined at the commencement of the preliminary hearing. It is clear from the proceedings that the memorandum of matters agreed was not read over and explained to the appellants. For these reasons, as held in Gallus Faustina Stanslaus alias Wasiwasi and Another v R, 22 Criminal Appeal 231 of 2007, among many decisions of the Court of Appeal, the preliminary hearing was defective and its findings cannot be relied upon. In the leading case of Salehe Mashenene v R, Criminal Appeal 134 of 2005, Court of Appeal of Tanzania at Tabora (2008) (unreported) the Court of Appeal authoritatively held that a preliminary hearing is distinct from the main trial and failure to conduct a preliminary hearing or irregular preliminary hearing does not invalidate the subsequent main trial. This position of the law, reaffirmed in subsequent decisions, means that the irregular preliminary hearing in this case, as correctly alluded to by Mr. Rwezahula cannot invalidate the trial. All the same there are doubts in the prosecution case which considered as a whole demonstrate that the charge of unlawful possession of one elephant tusk was not proved beyond reasonable doubt. I am constrained to allow the appeal. I proceed to quash the conviction and sentence imposed by Babati District Court and order that the appellants be set free immediately unless they are lawfully withheld in custody. In respect of the motorcycle forfeited to the Republic by the trial court, it is ordered that any interested is at liberty to proceed before the trial court under section 23 (4) of the Economic and Organised Crime Control Act [Cap 200 RE 2022] within six months. If no application is made within six months, the motor cycle shall be kept or sold and proceeds of its sale shall be paid into and form 23 part of the Consolidated Fund in terms of subsection (8) of section 23 of the of the Economic and Organised Crime Control Act [Cap 200 RE 2022]. It is so ordered. DATED at BABATI this 13th day of September, 2024 F.M.^RINDO JUDGE COURT: Judgment delivered in chambers this 19th September, 2024 in the presence of the appellants in person and in the presence of Mr. Festo Jackson, learned counsel for the appellants and Mr. Raphael Rwezahula, State Attorney. B/C. William Makori (RMA) present. Right of appeal explained. F.M. MIRINDO JUDGE 24