Gurtu Sirro v Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 31332 OF 2024 (Originating from Economic Case No. 08 of 2023 District Court of Babati at Babati) GURTU SIRRO…………………….………………………………………. APPELLANT VERSUS REPUBLIC …………………….………………………………………..…RESPONDENT JUDGMENT 13th Dec, 2024 & 28th Feb, 2025 MWIHAMBI, J.: This is an appeal against decision of the District Court of Babati at Babati (trial court) in Economic Case No. 08 of 2023 in which the appellant, Gurtu Sirro, was charged with and convicted of the offence of unlawful possession of Government trophy contrary to section 86 (1) and (2) (c) of the Wildlife Conservation Act [Cap. 283 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 and Organized Crime Control Act [Cap. 200 R.E. 2002] (Cap. 200). He was convicted and sentenced to a jail term of twenty (20) years. He is now appealing against the conviction and sentence. 1 The particulars of the offence as per the charge sheet were that, on 17th day of January, 2023 (the material date) at Matufa Village in Sau Hamlet within Babati District in Manyara Region, the appellant was found in possession of three (3) elephant tusks weighing 35.70 kilograms valued at United State Dollars (USD) 19,635 equivalent to Tanzanian Shillings Forty-Five Million One Hundred Fourteen Thousand Three Hundred Fifty- Seven and Seventy-Five Cents only (TZS. 45,114,357.75/=) the property of the United Republic of Tanzania without a permit from the Director of Wildlife. At the trial, the prosecution paraded six witnesses to prove its case. H5871 PC Godfrey (PW1) is a person in charge of the store which keeps exhibits. He testified that he was handed three elephant tusks in two sulphate bags by PW3. He tendered the three elephant tusks into two sulphate bags which were marked PEI collectively. He also tendered a chain of custody record which was marked PEII and had information on handing over of the elephant tusks between him and PW6 who took the elephant tusks to Government Weight Agency and between him and PW2 who conducted identification and valuation of the tusks. PW2; Francis Lazaro, is a wildlife officer who prepared the Trophy Valuation report, he tendered the same in the trial court and it was 2 marked PEIII. Assistant Inspector Estadius (PW3) joined the Ngorongoro Conservation Area officers in arresting and searching. He finally prepared a certificate of seizure and tendered the same in the trial court which marked it PEIV. Amani Simon, Chairman of Sau Hamlet (PW4) was called as an independent witness, he witnessed when appellant opened the sulphate bags with him revealing the items suspected to be elephant tusks. PW4 also signed in PEIV. What actually happened is found in the testimony of Johnson Shayo (PW5), a Wildlife Officer who at about 1700hrs of the material date received a tip from an informer to the effect that there were people who had elephant tusks looking for a buyer. He and his colleagues, with two police officers form Magugu Police Station headed to the meeting point; Magugu – Babati highway in Sau Hamlet, in a Toyota Landcruiser Hardtop. On the way the Sau Hamlet Chairman PW4 was called and asked to join the team to witness the forthcoming search. The informer had provided to PW5 location and physical description of the “tusks seller” and when the team approached the agreed meeting area, at around 2100hrs, the team saw a man fitting the description standing along the road. The vehicle parked, with lights on, about five meters from where the appellant was standing. After the normal greetings the appellant was asked where 3 was the luggage and he showed the team a sulphate bag which was down beside him. PW5 told him to open the bag and as he bent down to do that he was apprehended and put under arrest. Minutes later PW4 arrived and found the appellant sitting down holding the sulphate bag. The appellant opened the sulphate bag and things suspected to be elephant tusks were seen. When he was asked, the appellant responded that he had no permit to possess the same. The certificate of seizure was prepared by PW3 and signed by the appellant, who introduced himself as Gurtu Sirro, PW5, PW4 and one Juma Mwita. The seized things were marked and together with the appellant were taken to Babati Police Station and later arraigned in court. G.539 D/CPL Tumaini (PW6) investigated the matter after arrest of the appellant. He tendered the accused caution statement (recorded by one Sgt Donald) and it was marked PEV. He also took the appellant to justice of peace for an extra judicial statement, he tendered the statement and it was marked PEVI. PW6 also, accompanied by the appellant, took the elephant tusks to Government Weight Agency. He tendered the weight report and it was marked PEVII. He also drew sketch map of the scene area, tendered the same and it was marked PEVIII. 4 Satisfied that the appellants had a case to answer, the trial court called upon the appellant to mount his defence. In his defence, the appellant who testified as DW1, initially, denied to have been arrested in the manner stated by the prosecution, let alone being arrested in possession of the elephant tusks. He testified that on the material date he was heading home from a farm and when he reached Matufa area about 70 meters from Babati - Arusha highway, there was a Kamatakamata alarm, certain people were being chased by other people, near a 20 meters distance parked vehicle which had its lights on. He was arrested in such Kamatakamata and the arresting officers ordered him to open the sulphate bag and took a photo, all along the arresting officers did not want any discussion rather they were insisting him to hurry up so as to finish the tasks before PW4 arrives. That what he said and was recorded in exhibits PEV and PEVI stems out of the instructions he received from the police. However, in cross examination he admitted being found with things suspected to be elephant tusks. After a full trial, the appellant was found guilty as charged, hence convicted and sentenced in the manner alluded to above. Dissatisfied, the appellant has filed this appeal still fighting for his liberty. He lodged a petition of appeal comprising of five grounds of appeal, verbatimly; That, 5 the learned trial Magistrate erred in law and fact by convicting the appellant on procedural defective following the fact that the consent of prosecuting the appellant was given by the prosecution attorney in-charge of Manyara Region instead of the director of public prosecution DPP himself hence miscarriage of justice. That, the learned trial Magistrate erred in law and fact by convicting and sentencing the appellant following the fact that the jurisdiction was wrongly conferred to the trial court on the sense that there is prove that the attorney in charge Manyara region was the one duly authorised by the Director of Public Prosecution to confer jurisdiction to the trial court. That, the alleged offence purported to have been committed on 2100hrs which means during this time it was night with total darkness hence there is no clear explanation by the prosecution on how they identified the appellant. That, there was bias on the whole process of filling the certificate of seizure due to the fact that there was no single independent witness stood for the appellant on the process, all the people signed purported to certificate of seizure are for the interests of the republic. That, the learned trial Magistrate erred in fact by convicting the accused person basing on the defence weakness. At the hearing of the appeal, the appellant appeared in person, unrepresented. Ms. Mwanaidi Chuma, learned State Attorney represented 6 the respondent, Republic. When the appellant was required to address the Court on his appeal, he adopted his grounds of appeal and reserved his right to rejoin, if necessary. Ms. Mwanaidi Chuma started by opposing the appeal arguing that all grounds have no merit and should be dismissed. Responding the first and second grounds, she argued that, in this case the consent was issued under section 26 (2) of the Economic and Organised Crime Control Act [Cap. 200 R.E. 2022] which says the DPP can confer authority to subordinate officers as opposed to section 26 (1) which applies in circumstances where the consent is by the DPP personally. The learned State Attorney thus argued that there is no merit in these two grounds prayed that they be dismissed. In relation to the third ground, the learned State Attorney, relying on Waziri Amani v. Republic, Criminal Appeal No 55 of 1979 [1980] TZCA 29, argued that though the arrest took place at night, the appellant was properly identified by PW3 and PW5 with the help of the vehicle’s light which was strong. She then submitted that there is no merit in this ground as well and prayed that it should be dismissed. Responding on the fourth ground, Ms. Chuma submitted that the whole process from searching to signing of PEIV took place in the presence of 7 PW4; an independent witness. That PW4 also signed in PEIV in that capacity. The learned State Attorney went further into citing the case of Waziri Shabani Mizigi v Republic, Criminal Appeal No. 476 of 2019 [2023] TZCA 17344 to cement her argument that as long as the appellant also signed PEIV then he admitted being found with the elephant tusks. Responding to the fifth ground, Ms Chuma referring to the case of Makolobela Kulwa Makolobela and Erick Juma @ Jamhuri v. Republic 2002 mentioned in Jalebo Charles v Republic, Criminal Appeal 2978 of 2023 [2024] TZHC 2167, argued that the appellant was not convicted on the weakness of his defence but on the strength of the prosecution’s evidence as the prosecution proved the case beyond reasonable doubt. She further argued that the appellant in his defence admitted being arrested with the elephant tusks and admitted also that he signed the Certificate of Seizure (PEIV) as it is shown at page 30 of the trial court typed proceedings. That there is no merit in all five grounds submitted by the appellant and the appeal should be dismissed with the confirmation of the trial court’s conviction and sentence, she argued. In a brief rejoinder, the appellant argued that the so-called independent witness came after the arrest, therefore he does not know whether the tusks were found with the appellant or the arresting team came with 8 them. That the witness who said the appellant was looking for customers correctly admitted to have seen the appellant for the first time in the trial court and does not have his phone number. The appellant further argued that there was no search warrant; he just met the arresting officers in the road, they kicked him “tia ngwara” and ordered him to carry the sulphate bag “mzigo” That when all these were happening no village leader or any other independent person was there as a witness since by the time the Hamlet Chairman (PW4) arrived the appellant was already arrested and made to carry the “mzigo”. I have dispassionately examined the evidence on record and also given a deserving weight to the arguments by the learned counsel for the parties to this appeal. Being the first appellate Court, this Court is aware of the salutary principle of law that a first appeal is in the form of re-hearing. Therefore, the first appellate court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted arrive at its own conclusions of fact. I am fortified in that regard in the cases of Simon s/o Shauri Awaki@ Dawi v. Republic, Criminal Appeal No. 62 of 2020 (CAT) Arusha, D.R. Pandya vs. Republic (1957) EA 336, Martha Wejja vs. AG and others [1982] 9 TLR 35, and Vuyo Jack vs. Republic, Criminal Appeal No. 334 of 2016 (unreported). In the first and second grounds of appeal, the appellant faults the trial court for procedural defects, that the consent of prosecuting the appellant and the confer of jurisdiction to the trial court were given by the Prosecutions Attorney In- charge of Manyara Region instead of the DPP himself. It is undisputed that the offence with which the appellant was charged is an economic offence, prescribed under the provisions of the EOCCA. This offence is triable by the High Court, Corruption and Economic Crimes Division except where the Director of Public Prosecution (DPP) or any of his authorized officers issue a certificate that confers jurisdiction on a subordinate court to preside over such case. For ease of reference, the relevant provision in the EOCCA provides that: “26. -(1) Subject to the provisions of this section no trial in respect of an economic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions. (2) The Director of Public Prosecutions shall establish and maintain a system whereby the process of seeking and obtaining of his consent for prosecutions may be expedited and may, for that purpose, by notice published in the Gazette, specify economic offences the prosecutions of which shall require the consent of the Director of Public Prosecutions in 10 person and those the power of consenting to the prosecution of which may be exercised by such officer or officers subordinate to him as he may specify acting in accordance with his general or special instructions.” In this case page 1 of the trial court typed proceedings show that the Charge Sheet was filed together with a Certificate Conferring Jurisdiction on a Subordinate Court to try an Economic Offence given under section 12 (3) the EOCCA and Consent of the Prosecutions Attorney In-charge under section 26(2) of the EOCCA. It says: “P.P. Mahundi: This is new case. Our charge sheet which is Economic is filed together with the consent from the prosecution State Attorney in- charge and certificate conferring jurisdiction on a subordinate court to try an economic offence. We pray to read over the charge to the accused person.” As correctly observed by the appellant, both the Certificate Conferring Jurisdiction on a Subordinate Court to try an Economic Offence and Consent of the Prosecutions Attorney In-charge are under the hand of Prosecutions Attorney In- charge. This is in line with the holding in Nassib Abubakar Mwazyega @ Ras v. Republic, Criminal Appeal No. 146 of 2021 (CAT) Mbeya that for an economic offence, its trial is subject to consent by the DPP or an officer acting on his behalf, that such consent is issued under section 26 (1) in the case of the DPP, or sub-section (2) 11 in the case of the DPP's authorized officer. Inevitably, the first and second grounds of appeal fail. In the third appeal ground the appellant challenges the prosecution for failure to provide an explanation on how the appellant was identified while the alleged offence was committed at night. According to the trial court proceedings such explanation was provided in the testimonies of PW3 and PW5. PW3 stated that they left Minjingu to Matufa at around 2100hrs (a 37 minutes’ drive) on reaching the scene area the Landcruiser hardtop was parked about 5 meters from where the appellant was standing and the vehicle’s lights stayed on all the time. PW5 alluded that they reached the scene area at about 2100hrs, PW5 already had a physical description and location of the appellant from the informer (that the man is tall and he was along the Magugu – Babati highway with the tusks for sale), when the team approached the scene area a man fitting the description could be seen along the road. The vehicle parked about 5 meters from the appellant with its lights on. PW5 got off the vehicle and went to the appellant, greeted each other, by shaking hands. The appellant was then asked where was the luggage and he pointed at the sulphate bag which was down beside him. He was asked to open it and when he bent to do so he was apprehended. 12 All these explanations and description reasonably fits with the conditions propounded in the case cited by the learned State Attorney Ms Chuma, that is, of Waziri Amani (supra) and further elaborated in other cases such as the case of Chacha Jeremiah Murimi & Others v. Republic, Criminal Appeal No. 551 of 2015 (CAT) Mwanza. The Court in Waziri Amani (supra) posed questions that need to be answered in identifying an accused person in offences that are committed at night, that is, “…the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night-time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before or not. If at the end of his examination the judge is satisfied that the quality of identification is good, for example, when the identification was made by a witness after a long period of observation … he could, in those circumstances, safely convict on the evidence of identification.” (emphasis is mine) I will come back to the bolded words later. As mentioned before, the questions were also echoed and elaborated in Chacha Jeremiah Murimi & Others (supra). This Court takes leaf from Waziri Amani and Chacha Jeremiah Murimi & Others (supra), to analyse the questions vis a vis circumstances in this 13 case. On the time the witness had the accused under observation; this is from the hand shaking greetings and introductions and initial inquiries about the mzigo, the arrest, seizure and the preparing and signing of the Certificate of Seizure. On the distance at which the witness observed the accused; first the vehicle was parked about 5 meters from the appellant and subsequently when they reached him all the above listed actions transpired when the appellant and the arresting officers were standing, reasonably, closely together. On whether there was good or poor lighting at the scene, according to PW3 and PW5 the vehicle’s lights were kept on throughout the encounter. In addition to the vehicle’s light as explained by PW3 and PW5, a torch was also used and this was confirmed by the appellant himself in the PEVI that: “… nikawa najaribu kufungua Kamba za manila na wale watu wakawa wananimulika kwa tochi…” In these circumstances it is, reasonably, not possible for all the witnesses, who were present in the scene area, to fail in identifying the appellant even though they did not know and had not seen the him before. This Court is satisfied that the testimonies of PW3 and PW5, and even the appellant himself, sufficiently explained how the appellant was identified 14 while the alleged offence was committed at night. Therefore, this ground fails. In the fourth appeal ground the appellant seeks to fault the process of filling the certificate of seizure in the absence of an independent witness. This should not detain me for long. It is not disputed and it has been said in a great number of cases, such as the case of Jibril Okash Ahmed v. Republic, Criminal Appeal No. 331 of 2017 (CAT) Arusha, that an independent witness is important because he is able to provide independent evidence. In the case at hand, among the prosecution witnesses PW4; Amani Simon- Sau Hamlet Chairman, was an independent witness, his testimony is seen at page 15 – 16 of the trial court typed proceedings. He testified that he was present when the appellant was asked what was in the sulphate bag and answered that it was firewood, when the same was opened to reveal the 3 pieces of white objects suspected to be elephant tusks, and when the appellant informed the arresting team that he does not have permit. PW4, who also signed exhibit PEIV, said: “… such things was (sic) recorded into pieces of paper he put it into writing. Then it was read out to us loudly in the presence of accused. All of us we did sing (sic) it. Accused did sign twice, both in writing and his thumb print. The same apply (sic) to me. From there accused was taken at (sic) police station.” 15 The testimony of PW4 was also supported by PW3 who explained in lengthy the step by step communications between himself and PW4 from before reaching the scene area to the filling and signing in exhibit PEIV. This Court is satisfied that the appellant’s argument that in the whole process of filling the certificate of seizure there was no independent witness is unfounded and have no merit. In the fifth appeal ground the appellant challenges the trial court for convicting him basing on the defence weakness instead of prosecution strength. According to the evidence adduced in the trial court, the appellant did not dispute being arrested in the material date, at the place and time mentioned by PW3, PW4 and even PW5, nor did he deny being found possessing two sulphate bags with whitish objects suspected to be elephant tusks. This shows that the appellant admitted being caught red- handed with the sulphate bags containing the elephant tusks with no permit. In addition, the contents of the bag that the appellant was found with, exhibit PEI collectively, were proved to be elephant tusks. All the adduced evidence proved the prosecution case; PW5 narrated the communication that took place between himself, the informer and the appellant that led to the arranged meeting “to buy” the tusks. That, as soon as they met in Matufa Village, in the exact place that the informer 16 mentioned, the appellant was there along the road, waiting. After greetings when PW5 asked the appellant “where are the luggage” (sic) he showed them the sulphate bag that was down beside him. From this conduct it is obvious that he had prior communications with someone and was expecting PW5 for the purpose of selling the tusks. The certificate of seizure (PEIV), which the appellant also signed, alongside with the independent witness, is an additional proof that the trophies were seized from him. It is also undisputed that PW6 tendered PEVII on the weight of the tusks and PW2 (the Wildlife Officer) through PE III verified that PEI (collectively) was elephant tusks and assessed its value. Furthermore, the appellant confessed in his extra judicial statement (PEVI) which is so detailed to the extent that it leaves no doubt that the appellant was caught with the elephant tusks. In PEVI the appellant explained step by step from receiving a request/offer to find elephant tusks, the efforts he employed to get the same up to the incident of meeting the arresting officer and what followed. That: “… hakuna mtu ambaye utampata mwenye meno ya tembo?... nikawauliza wale jamaa zangu wakaniambia kuwa ngoja tukutafutie … tarehe 15.01.2023 wakawa wameyapata meno ya tembo na wakanipigia simu asubuhi … tukaenda kutafuta sehemu ya mashambani huko pembezoni mwa mashamba ya mpunga … wakaja na gari. Walikuja watu watano na dereva alikuwa wa sita. 17 Wakaniambia fungua mzigo. Nikawa najaribu kufungua kamba za manila na wale watu wakawa wananimulika kwa tochi. Wakanizunguka na mmoja wao akanikamata suruali kwa nyuma na kuniambia kuwa nipo chini ya ulinzi … Nikakamatwa…” When this statement was tendered in Court the appellant did not object, rather he stated: “I do not have any objection. It is true and correct that I was taken at certain office and I did give my statement to her. At that room we were only two.” In fact, everything that the appellant narrated in PEVI fits well and corroborate the evidence adduced in the trial court by PW2, PW3, PW4 and PW5. It is also significant to note that the learned trial magistrate duly considered but rejected the appellant's defence; the appellant was given an opportunity to rebut either that the items he was found with are not government trophies or that his possession of them is not unlawful. Obviously, the appellant made no attempt to rebut the prosecution case. It is stated at page 8 of the trial court’s judgment that: “… At his defence he come (sic) up with his story that on material day and time he was on the way back home from his farm. There were peoples who chased (sic) by those peoples, then he was arrested. This is afterthought story because from beginning he never states (sic) such thing anywhere” 18 In addition, in his defence, the appellant admitted being arrested at the place which was also mentioned by PW3, PW4 and PW5 therefore, relying on the case of Mohamed Haruna @ Mtupeni v. Republic, Criminal Appeal No. 259 of 2007, it can be concluded that the appellant's defence carried further the prosecution’s case. Contrary to the appellant’s argument that the trial court convicted him basing on defence weakness instead of prosecution strength, the trial Magistrate had made it very clear that that was not the case: “… in criminal case, no one could be convicted for the weakness of defence case. The evidence which warrants conviction must come out from prosecution and the same must be there before conviction. In this case the prosecution side did prove their case beyond any reasonable doubt …” For these reasons this Court is satisfied that the conviction and subsequent sentence were based on proof of the prosecution case beyond reasonable doubt and not defence weakness. The upshot of the matter is that I uphold the appellant's conviction and corresponding sentence. The appeal stands dismissed. DATED at BABATI this 28th day of February, 2025. N. J. MWIHAMBI 19 JUDGE COURT: Judgment delivered today in presence of the Appellant and Mr. Leons Bizimana and Ms. Mwanaidi Chuma, State Attorneys for the Respondent. B/C: Ms. Fatina Haymale (RMA) is present. Right of appeal explained. N. J. MWIHAMBI JUDGE 20