JUDGEMENT IDD PARASIDO PAUL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT DODOMA DISTRICT REGISTRY CRIMINAL APPEAL NO. 26883/2024 (Original economic Case No. 16385 of 2024 of Manyoni District Court at Manyoni) IDD PARADISO PAUL.........................................................APPELLANT VERSUS REPUBLIC.....................................................................RESPONDENT JUDGEMENT 16/ 10/2024 & 11/ 12/2024 MANYANDA, J.: The Appellant, Idd Paradiso Paul has come to this Court in an appeal against conviction of unlawful possession of government trophy, contrary to section 86(1) and (2)(b) and 11(1)(a) of the Wildlife Conservation Act, [Cap. 283 R. E. 2022] read with Paragraph 14 of the First Schedule to and Sections 57(1) and 60(2) both of the Economic and Organized Crime Control Act, [Cap. 200 R. E. 2022] The Particulars of offence alleged that on 08/06/2024, during night hours at Chisingisa Village, Sasilo Ward in Nkonko Division within Manyoni District and Singida Region was found in possession of government trophy namely, four pieces of elephant tusks, obtained from two elephants, valued at USD 20,000 equivalent to TShs. 105,314,000/= the property of the United Republic of Tanzania, without permit from the Director of Wildlife. He was not required to plead because the Manyoni Page 1 of 25 District Court, hereafter referred to as "the trial court" had no jurisdiction by then. On 09/07/2024, the trial court received consent and certificate conferring jurisdiction to it and the accused a plea of not guilty was recorded after the Appellant refuting the allegations. Then, there followed preliminary hearing which was casually conducted. Hearing of evidence commenced on 26/07/2024 whereas the prosecution led evidence from a total of five (5) witnesses and five (5) exhibits. In short, the evidence before the trial court was that on 08/06/2024 at night time while in patrol at Chisingisa Village a police officer with some conservation officers from TAWA got tipped off by his informer that the Appellant was in possession of the tusks at his house. With local leaders and a neighbour searched a house in which it was believed the Appellant slept and four pieces of items believed to be elephant tusks were recovered and seized. A seizure certificate was filled and the Appellant arrested. Upon interrogation, it was alleged that he admitted complicity. In his defence, the Appellant denied knowledge of existence of the said elephant tusks let alone having possession of the same on the Page 2 of 25 ground that he had no knowledge of existence of the tusks because he was just a stranger in that house and the owner was absent. The trial court disbelieved the story of the Appellant, found him guilty, convicted him as charged and sentenced him to serve 20 years imprisonment. He is aggrieved by both conviction and sentence, hence the present appeal. He has with him nine grounds of appeal, namely: - 1. That, the evidence adduced by PW3 and PW5 was not corroborated by the village leaders named HASSAN KAHAMBA (Village Chairperson) ELIAS MSENGI (Village Executive Officer) respectively to certify their assertion on the issue o f arresting and searching the accused person and found in unlawful possession o f four elephant tusk in the said room at Chisingisa Village; 2. That, thetrialmagistrate erred in law and in fact where by all exhibits tendered before the court by the prosecution side, four (04) elephant task (PE1), chain o f custody form (PE2), trophy valuation certificate (PE3) certificate o f seizure (PE 4) and caution statement o f accused person (PE5) respectively. The court does not (sic) respond on it (sic) by admitting them according to the law by stating that those exhibits were admitted by the court as physical and documentary exhibits without objection; Page 3 of 25 3. That, PW3 and PW5 in their evidence testified before the court, they conducted the search in the house o f accused person but they haven't (sic) a search warrant; 4. That, the trial court doesn't considered (sic) the law and evidence on record to prove the alleged allegation against the accused person; 5. That, PW3 in his evidence testified before the court that they managed to identify and see the accused person with aid o f torch and phone light they have on the particular date but, PW3 does not (sic) elaborate how the said means o f light, torch and phone had enough light to enable them to identify the accused without mistakenly (sic); 6. That, the trial magistrate erred in law and in fact by convicting and sentence (sic) the accused person while the accused person not confessed (sic) to commit the offence before the peace o fjustice; 7. That, I was the visitor to the house where by I was arrested with the police officer PW3 where by the Village Chairperson [and] Village Executive Officer certified that I was not the one who is (sic) the owner o f the said house where the government trophy was found; Page 4 of 25 8. That, the village chairperson and the village executive officer certified that the room where I slept nothing was found in leu (sic) government trophy [was] found in the other room o f the one who is the owner o f the house; and 9. That, I'm the layman (sic) that I did not known to write even to read the day I was arrested they forced to sign the document which I did not know the content written therein, also the caution statement tendered before the court I was not familiar with it because my legal rights deprived (sic) at the police station where by my relatives or an advocate were not called to witness when my caution statement [was] taken. At oral hearing of the appeal, the Appellant was unrepresented while the Respondent, Republic, was represented by Mr. Daniel Lyatuu, learned State Attorney. Basically, the Appellant had nothing to submit beyond his grounds in the petition which he requested this Court to consider the same as his submissions. That he was beaten by PW4, a police officer who recorded his cautioned statement to extent of fainting and was when he regained Page 5 of 25 consciousness, was forced to sign on three papers one with some writings which I did not know what it and the other two blank papers. In respect of ground three the Appellant stated that he objected admissibility in evidence all the documents tendered in court, but the trial magistrate did not listen to him. In ground five, he insisted that he did not know the substance alleged to be four pieces of elephant tusks because they were found in a room, he did not enter nor know their existence therein as he was a stranger in that house. In grounds six and seven, the Appellant rejoined that being a layman and stranger in that house, he just went there for shelter during his visit to his aunt who stayed in that village as a brick layer labourer. He was not owner of the house and did not know whether there were elephant tusks in the house. In ground eight and nine, he rejoined that he could not call the VEO nor the Chairman but he told the trial magistrate to call them. The State Attorney opposed the appeal and supported both conviction and sentence imposed on the Appellant. He argued all nine grounds of appeal seriatim, ending with ground four due to its generality nature. Page 6 of 25 I will determine the grounds on the same sequency. In respect of ground one where the complaint is absence of corroborative evidence to PW3 and PW5 by failure to summon either the Village Executive Officer (VEO) or the Village Chairman, the State Attorney submitted that the evidence of both PW3 and PW5 is well corroborated by evidence of a seizure certificate Exhibit PE4, which witnesses that the elephant tusks were found in the house where the Appellant was found, he signed on it to acknowledge his knowledge of existence of trophy. There was no need of calling the VEO or the Village Chairman. I agree with the State Attorney, in this case, the evidence starts with PW3, A/Insp. Hamis Mwinyange, that at the night time of 08/06/2024 while in patrol at Chisingisa Village with some conservation officers from TAWA after a tipped off by his informer that the Appellant was in possession of the tusks at his house. PW3 found local leaders and a neighbour with whom, he searched the house which they identified to him that it belonged to the Appellant. The neighbour namely, Philip Leonard, also a resident of Chisingisa Village and neighbour to the Appellant testified in court as PW5. He witnessed the search in Appellant's house and tusks were recovered and a seizure certificate, Exhibit PE4, was signed by PW3, PW5 and the Appellant. Page 7 of 25 In my view, PW5 and Exhibt PE4, provides corroborative evidence by enhancing the testimony of PW3 that the house in which the Appellant was found sleeping, was searched and four pieces of items which came to be identified as elephant tusks by PW2 were found. In law, corroborating evidence is independent evidence that strengthens or confirms already existing evidence. It is used to support the testimony of a witness. The Court of Appeal of Tanzania stated in the case of Mbushuu alias Dominic Mnyaroje and Another vs. Republic, [1995] TLR 97 (CA) when elaborating the purpose of corroborative evidence as follows: "Courts look for corroboration when, in the light o f all the evidence, a witness is worthy o f belief. The purpose o f corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm or support that which as evidence is sufficient and satisfactory and credible." A question in this case is whether the evidence PW3 is "sufficient and satisfactory and credible " Going through the record, it is clear that this witness gave self sufficient evidence. He was in company with other conservation officers from TAWA and found the local leaders being a Village Chairman and Page 8 of 25 VEO and a neighbour. The Appellant agrees with this fact that on the fateful day at night, several persons went to the house he was in, searched and arrested him. He purports to recognize presence of the Village Chairman and VEO, but pretends not to recognize presence of PW5 for no reasons; he did not even cross examine him in court. PW3 said, the tusks were found upon search, the Appellant admits this fact. He said that a seizure certificate was filled, a fact which the Appellant admits. The contention by the Appellant in rejoinder that that PW5 was not present at the crime scene during search and that he is a fake person brought in court to victimize him, is an afterthought. Equally the contention that PW5 did no reply the Appellant in cross examination is not true because the record shows that PW5 replied all 20 questions he was asked one being that he knew the Appellant before the incident living at that house and vividly saw him with his naked eyes during the search. Therefore, the evidence of PW3 is worth of belief as there are no reasons advanced for creating a doubt on his evidence. I appreciate the pronunciation of our most superior court in this land, the Court of Appeal of Tanzania, in the case of Goodluck Kyando vs. Republic, Page 9 of 25 [2006] TLR 363 that every witness is entitled to credence unless there are cogent reasons for not believing the witness. Moreover, PW3's evidence is dully corroborated by PW5 that the searched house belonged to the Appellant, that the items found therein were seized per Exhibit PE4, a seizure certificate and PW2 proved the same to be elephant tusks, of which possession, the Appellant had no permit. I agree with the State Attorney that there was no need of parading witnesses to speak the same fact. It is a position of the law that under section 143 of the Evidence Act, [Cap. 6 R. E. 2022] that there is no requirement of a specific number of witnesses to prove a given fact, even one witness can suffice. Ground one has no merit. The complaint in ground two is that the trial court did not afford the Appellant opportunity to object to admissibility of documentary exhibits. The State Attorney argued that the Appellant was given opportunities to object to admission of all the exhibits. I have navigated through the record and found that four of the five exhibits were admitted unobjected by the Appellant. In respect of Exhibit PE1, when PW1 prayed to tender it, the trial court recorded what transpired in court as follows: - Page 10 of 25 "PW1: I pray to tender four (04) elephant tusks and sulphate bag having deep and light green colour as exhibit if there is no objection from the defence side." The response by the Appellant was as follows: - "I have no objection." The same question was made by PW1, when tendering Exhibit PE2, chain of custody document and the Appellant gave a similar answer. So was for PW2 in respect of Exhibit PE3, trophy valuation certificate. It was repeated in respect of Exhibit PE4 by PW3. Therefore, it is clear as correctly submitted by the State Attorney that opportunity to objection was given to the Appellant but did not utilize it, he readily conceded to the prayer. In other words, he did not wish to object, hence Exhibits PE1, PE2 and PE3 were admitted unobjected. I think the complaint does not cover Exhibit PE4, a cautioned statement, because he objected its admissibility on ground of involuntariness resulting into an inquiry to be held that overruled the objection. This ground has no merit. The Appellant's complaint in ground three that the search was unlawful as it was conducted without a search warrant, I agree with Mr. Lyatuu who opposed it arguing that the circumstances in this case show Page 11 of 25 that the search was in emergence situation which is allowable in law. The evidence of PW3 is that he just got tipped while in patrol at mid night, that the Appellant had elephant tusks, any delay meant likelihood of shifting or tempering of with the exhibits. There was no near police station or court from where a search warrant or search order would be obtained without delay. In such circumstances, I agree with the State Attorney that the first thing to be done was to secure the items, if found. Hence, the situation urged a search to be conducted. Moreover, as rightly argued by the State Attorney, under section 81(b) of the Wildlife Conservation Act, [Cap. 283 R. E. 2022], empowers game officers, who include police officers, to enter into any place suspected to have government trophy kept, search and seize the same in the course of investigation. This ground is unmeritorious. In ground five where the Appellant questions intensity of light during the search to enable the searching persons see and find the elephant tusks as it was during night time. The State Attorney submitted that there was enough light from the torches they used. I have gone through the testimonies of PW3 and PW5 who eye witnessed the search. I subscribe the State Attorney submissions that there was enough light. It was their evidence that they used a large Page 12 of 25 torch, mobile telephones lights and car head-lights which beamed inside the house. This piece of evidence is substantiable by the fact that their patrol was conducted at night whereas by any means they must had had gadgets capable of emitting enough light to enable them see. In his examination in chief, PW3 said that they used torch and phone lights when searching the house. When PW3 was being cross examined by the Appellant, stated that he saw colours of a sulphate bag in which the tusks were kept that it had strips of light green and deep green. The Appellant did not ask the tensity of light which enabled PW3 to differentiate the colours. In my understanding, an inference can be drawn that the Appellant knew the tensity of light, that it was enough, hence he did not bother to ask about it. Moreover, PW5 corroborated PW3, as far as light tensity is concerned, by stating in examination in chief as follows: - ”I managed to see [the] accused person on that particular date because the police officers had big torch having strong light, also there was presence o f headlamp light o f the motor vehicle and some o f the people in that group had phone lights." In cross examination PW5 said as follows: - ”Imanaged to see you because there was light." Page 13 of 25 The trial court discussed the issue of tensity of light and found that it was enough to enable the searching team see the objects. I have demonstrated at length on the subject of tensity of light as decerned from the record of the trial court in order to make it conspicuous how the issue of light was addressed. Basically, I am correct to say that light tensity was enough to enable PW3 and PW5 see and search the house. This ground also lacks merit. Regarding ground six where it is contended that the decision of the trial court is flaw because it based on a cautioned statement in which it is alleged that he confessed, but without being sent to a justice of peace. I also agree with the State Attorney that there is no law which put a mandatory requirement for sending a suspect to a justice of peace after confessing before a police officer and his confessional statement is recorded. This ground has no merit. On top of the written confession there was oral confession by the Appellant at the search as stated by PW5 that: - "Accused was asked what was inside that sulphate bag by Assistant Inspector o f Police and he replied that inside that sulphate bag there was elephant tusks. Accused person was asked again by the Village Page 14 of 25 Chairman and he replied again that the said sulphate bag contained elephant tusks." In cross examination by the prosecutor, the Appellant stated that he was alone in his house and that he was the one who opened the house for the searching team to enter. This means he had exclusive control of the searched house. It follows therefore that liability findings by the trial court based on the cautioned statement and oral confession is justifiable. Ground six lacks merit. Ground seven criticizes the trial magistrate on reason of failure to adequately evaluate the evidence and find that the Appellant was just a stranger in the house where the elephant tusks were recovered and that the VEO would have resolved this controversy but was wrongly not called. The State Attorney opposed this ground based on what he had submitted in ground one. I have taken pain to go through the record and I am of settled view that this complaint is basically about none consideration of his defence evidence. I say so because the story of the Appellant being a stranger in the house where the trophy was recovered and existence of another person in that house was brought by the Appellant during defence case. It did not feature anywhere even in cross examination during prosecution case. Page 15 of 25 However, my perusal of the impugned judgement reveals that the trial magistrate dully considered the defence evidence. First it considered the issue of repudiation of the cautioned statement and found that even after his defence, the prosecution was not shaken. I have also followed up and found that the issues of the Appellant being a stranger in the house where the trophy was recovered and existence of another person in that house were brought as afterthought. I say so because, the Appellant's cross examination on PW3 and PW5 did not raise anything about existence of other persons in that house, the testimonies of PW3 and PW5 as far as none existence of other persons in the house they searched remain unshaken. During cross examination by the Appellant, PW3 replied to the Appellant's questions that they found the trophies in the house he was sleeping and that they were assured by PW5 and the local leaders that it was his house. Moreover, as pointed somewhere above, PW5 said during those cross examinations that he knew the Appellant before the incident, and that he was living in that house. The trial court found that though the trophies were found in another room but in the very house the Appellant was living and that, according to PW5, when he was asked about the Page 16 of 25 contents of the sulphate bag, the Appellant readily replied that it was elephant tusks, therefore he knew their existence in the house. It can be as well said that the Appellant was in constructive possession of the elephant tusks in issue. The fact that the Appellant was found in the house, in which the elephant tusks were also found, even though in a room he was not sleeping, but having knowledge of their existence therein, do not exculpate him from liability. I may add that, the evidence also showed that he was in exclusive control of the room in which he the trophy was found. The reason is that he was found by PW3 and PW5 alone in that house, it was closed and the Appellant opened the door for them. This fact is not disputed by the Appellant. The Appellant came up with a story of being in that house for accommodation as a stranger after going to Chisingisa Village to his aunt for purposes of looking for a place to establish a business of welding. However, in his rejoinder submissions before this Court, he told a different story that he was at Chisingisa Village as a stranger for purposes of working as labourer of brick making. These contradicting stories from the same Appellant tells it all that his defence is an afterthought. The trial court properly considered the Appellant's defence evidence. This ground is barren of fruits. Page 17 of 25 In respect of ground eight, the State Attorney opposed the complaint that PW5 told false that the elephant tusks were found in the room he was staying because the VEO and Village Chairman said that they were found in a different room from where he slept after breaking that room. He argued that it is a new fact being raised on appeal and the Appellant neither cross examined PW3 and PW5 on this fact nor call the VEO and Village Chairman to support him. I have thoroughly navigated through the record of the trial court and found that the same does not show anywhere whether the Village Chairman and VEO did ever testify in court. If the Appellant did overhear them somewhere say if the elephant tusks were not found in his possession, then that is extraneous fact not in the record of this case. Else, it was his best opportunity to summon them as witnesses on his side. His allegations that he asked the trial magistrate to summon them is not borne by the records. Therefore, the State Attorney was right in his submissions that none calling of the Village Chairman and VEO could only attract adverse inference if those witnesses who appear to have important evidence for the prosecution but not called for no apparent reason and are readily available. In this matter as explained above, PW5 played their role. I find ground eight having no merit. Page 18 of 25 Ground nine questions admissibility and reliability of the cautioned statement on grounds that the Appellant did not know how to write and read, he signed a document which he did not know what was written in it and was not given opportunity to call his relative friend nor lawyer. Mr. Lyatuu replied that the cautioned statement was correctly admitted in that the Appellant's objection to its admissibility was overruled following an inquiry in a form of a trial within a trial. I agree with him, after reading the trial court's record, it is clear that PW4 who recorded the statement testified that he gave the Appellant all the rights provided by the law including his right to call a relative, friend or lawyer of his choice to be present when the statement was been recorded, but chose to proceed without calling any. In the inquiry PW4 testified as PW1 and the Appellant as DW1. As far as circumstances under which the statement was obtained is concerned, each of them gave his story. Then, the trial court evaluated and weighed the evidence presented in the inquiry and found that the statement was obtained voluntarily. It overruled the objection and admitted the statement in evidence. Moreover, in this matter, the objection based on lack of voluntariness and failure to explain rights of a suspect before recording Page 19 of 25 a statement as require by section 57 of the CPA. Then, following directives of the Court of Appeal in the recent case of Majaliwa Ernest vs. Republic, Criminal Appeal No. 465 of 2022, decided in 2024, that even if a cautioned statement is admitted unobjected, still the appellate court is not excluded from examining the same if it complies with the law. I have inspected the impugned statement and found that the same meets all the conditions provided for under section 57 of the CPA. The Appellant signed in certification so did PW4. His objection at this moment is an afterthought. Ground nine also lacks merits. Regarding the last ground four in which the complaint is general that the case was not proved, the State Attorney submitted in reply that the trial court followed all the procedures for criminal cases trial, it adequately evaluated the evidence adduced by both sides and came to its findings that the Appellant was guilty of the offence he was charged with. I agree with him because my perusal of the record. As explained above, I have left no stone unturned. The trial court correctly based its findings on the strength of the prosecution's evidence to convict the Appellant because all three elements of the offence of unlawful possession of government trophy were proved, namely, possession of Page 20 of 25 the items; proof that said items are government trophies; and lack of permit of the Wildlife Director to possess the same. As explained above, there is evidence of PW1, Conservation Officer who tendered Exhibits PE1, substance believed to be elephant tusks and PE2, chain of custody form when combined with the testimony of PW2, the Wildlife Officer who examined the substance and established per Exhibits PE3, a certificate of valuation, that the substance is actually elephant tusks which is a government trophy. Second, the evidence of PW3, the arresting and searching police officer who found the tusks in a house which, according to PW5, a neighbour to the house the Appellant resided, who eye witnessed the search as an independent witness and Exhibit PE4, a seizure certificate dully signed by the Appellant and PW4 and PW5 when combined with Exhibit PE5, a cautioned statement and the Appellant's oral admission before PW3 and PW5, suffices as proof of the Appellant complicity. There is also incriminating pieces of evidence by the Appellant's testimony that he was found sleeping in the house in which the tusks were found. The tusks were found in a room of that house. He is the one who opened that house for PW4 and PW5 to enter and search. That, he signed Exhibit PE4, a seizure certificate suffices to prove that he was in control of that house hence, in possession of the tusks. Page 21 of 25 His exculpatory statement that he was a stranger in the house which belonged to a person called Raspis who had a visitor, both of whom were out of the house, that he did not have knowledge of existence of the trophy in that room of which door was broken in order to enter does not raise reasonable doubt to the prosecution's evidence. I say so because, one, it could not be an easy coincidence for both Raspis and the unnamed visitor to move out of their house and leave him alone in their house on that particular night time of the fateful day. Second, the Appellant did not tell where did these people go on the fateful night of that day only, at least he could have said so in the presence of PW4 and PW5. Third, PW5 testimony that the Appellant was living there was unshaken. Four, the Appellant's changing stories before the trial court that he went to Chisingisa Village for looking for a place to open a wielding business, to a story that he went there as a brick- layering labourer in his rejoinder submissions before this Court renders his defence unreliable. This ground is meritless. By way of orbiter, as I have said at page two of this judgement hereinabove, preliminary hearing was casually conducted because my inspection of the preliminary hearing proceedings showed that there is no endorsement that the memorandum of undisputed matters was read Page 22 of 25 over to the Appellant and signed by the parties to the case and then by the trial magistrate. This is a mandatory requirement of the law under section 192(3) of the Criminal Procedure Act. This provision of the law was interpreted by the Court of Appeal of Tanzania in the case of MT. 7479 Sgt. Benjamin Holela vs. Republic, [1992] TLR 121 where it held in holding number (i) that Section 192(3) of the Criminal Procedure Act, 1985 imposes a mandatory duty that the contents of the memorandum of undisputed facts must be read and explained to the accused. This position has been reiterated in cases without a number by the courts of record in our jurisdiction. See the cases of Efraim Lutambi vs. Republic, [2000] TLR 265, Nathaniel Alphonce Mapunda and Benjamini Alphonce Mapunda vs. Republic, [2006] TLR 395 and Devid Msigala and Amani Sanga vs. Republic [2013] TLR. 95, to mention a few. In the latter case the Court of Appeal stated as follows: - "A preliminary hearing is a necessary prerequisite in a criminal trial. It is not discretionary. The procedures stipulated under Section 192 are mandatory. And needless to say, Section 192 was enacted in order to minimize delays and costs in the trial o f criminal cases" Page 23 of 25 Moreover, for assistance to those who can hardly see the law, as happened in the trial court, on 13/10/2017, the Chief Justice published in the Government Notice Number 429 appropriate forms to be used in criminal trials procedure. Criminal Form No. 14 caters for a standard form for undisputed facts and its contents as there is a part for endorsement that it was read and explained to the accused and parties must sign on it. Courts conducting trials of criminal cases are required to abide with Criminal Form No. 14 to the letter. Mere endorsement that section 192(3) is complied with, is not enough. I have visited the sentence and found the same is the minimum one under section 86(1) and (2)(b) of the Wildlife Conservation Act, read with section 60(2) of the Economic and Organized Crime Control Act, which is 20 years imprisonment. In the upshot, I find the appeal as barren of fruits. Consequently, I do hereby dismiss it in its entirety. Order accordingly. Dated at Dodoma this 11th day of December, 2024. Page 24 of 25 F.K. MANYANDA JUDGE Delivered at Dodoma this 11th day of December, 2024 in the presence of the Appellant and Ms. Mwilongo Tenge, learned State Attorney for Republic. Appeal dismissed in its entirety. Right of appeal dully explained. F.K. MANYANDA JUDGE Page 25 of 25