Isihaka Amani Suka

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO CRIMINAL APPEAL NO 24310 OF 2024 {Arising from Economic case No 40617of2023 Before Kiiombero District Court at Ifakara) ISiHAKA AMANI SUKA.... APPELLANT VERSUS THE REPUBLIC RESPONDENT Date of Last Order: 14.03.2025 Dateof Judgment: 17.03.2025 JUDGEMENT MAGOIGA,J The appellant, ISIHAKA AMANI SUKA and IDRISA BAKARI MFAUME (the latter not in this appeal) in the district court of Kiiombero at Ifakara (the trial court) were charged with two counts: one,for unlawful possession of Government trophies contrary to section 86(1),(2)(iii) and (3) of the Wildlife Conversation Act (Cap 283 RE 2022, and two, for unlawful dealing in Government trophies contrary to Section 80 (1) and 84(1) of the Wildlife Conservation Act. It is alleged In the particulars of the charge sheet on the first count that on 03/12/2023 at Kapolo area, KIbaonI Ward within Kllombero district In Morogoro region the two were found with eight pieces of elephant tusks valued at USD.40,000 equivalent to Tshs. One Hundred Million Four Hundred Thousand Only, the property of the Government of the United Republic of Tanzania without permit from the Director of Wildlife or authorization. And on the second count that on diver dates between 1^^ December and 3"^^ December, 2023 within Kllornbero and In Ulanga the two acquired and transported the trophies namely eight pieces of elephant tusks valued at USD.40,000 equivalent to Tshs. One Hundred Million Four Hundred Thousand Only, the property of the Government of the United Republic of Tanzania without permjt from the Director of Wildlife or authorization. The,accused person denied 4;he charges facing Iherp and It behpyed the prosecution to marshal evidence against them. At the trial court, the prosecution paraded a total of six witnesses, PW l-Dlventlnl Nyahoro (arresting offlcef), PW2" Saldlna Omary, PW3- G 8528 CPL Mklsl, PW4-Goodluck Joseph Mallya, PW5-G6896 D/ CPL Abdallah, and PW6 G 1426 CPL Aldan who tendered four exhibits. 'i. . -T" L. : Certificate of seizure (PEl), 8 pieces of elephant tusks (PE2), Trophy Valuation Report(PE3) and Caution Statement of the Appellant (PE4). After full, the trial court found the second'accused person not guilty and proceeded to acquit him on both counts. As to the first accused person, was found guilty and consequently convicted the first accused (the appellant herein) and sentenced him to serve (20) twenty years imprisonment. Being aggrieved with both conviction and sentence, the appellant appealed to this court with the fqllpwing grounds of appeal as couched as follows: - , •; , ; - : 1. That, your Honourable Judge this case was ■ characterised with number of procedural■ Ifregularttles 'that vitiates the' Whole proceedingsand makesIt nullity. The caution statement wasIllegally ofsection 50,51,57and SBpfthe CriminalProcedure Act Cap 20 RE 2022. Your Honourable Judge, PW5 wrote his own statements and forced me to sign while beating. I did not confess to the charged offences. The trial Magistrate erred in Law to admit and rely upon objected caution statement to con vict appellant, may It please your ■U Cv - :■ . Honour refer to page 34 ofthe Proceedings. Ipray for this court to expunge such documentPE4 from the records. 2. That Your Honourable Judge it was not clearly Identified before the trial magistrate that the appellant Is the only person arrested by PWl and other prosecution witnesses taking into account that, the arrest was done atnightand no identification parade was conducted and no photograph was tendered during the trial to collaborate the testimony ofPWl, PW2,PW3and PW5. The conviction against the appellant Is characterised with biasness as the appellant was In weak position during the trial and whatever prosecution witness testified was admitted affected the FAIR HEARING PRINCIPLE and consequently affected the trial process. 3. That the trial magistrate erred In law and upon fact for convicting innocent appellant who was wrongly and mlstakenlY arrested by PWl, PW2 as TANAPA officers left away the owners ofthe luggage who ran In the presence ofthose witnesses and arrested the pq^ser by(appellant)just walking along the road. Your Honourable Judge, the said Exhibit was taken from the vehicle and brought to me but was notIn my possession. 4. That, the trial Magistrate did not comply with the provision of section 231 ofthe Criminal Procedure Act, Cap 20 RE 2022 as she did not explain to the appellant about my rights and did not accord chance for me to call any witnesses for defence. This Is to say I have been condemned unheard. 5. Thatit took 18 daysfor the appellant to be brought before the court after being arrested on 3rd day December2023andput underpolice custody before taken to court on 21st December 2023. Your Honourable Judge, It was Intentional act to put appellants for the whole period so that fabrication of the case wus done accordingly. The said actadd doubtsIn the existence ofthe case so appeled and the trial malstrate erred In her reasoning. 6. That, the prosecution failed to prove the case beyond reasonable doubts againstappellant creating a nuniber ofquestions and doubts In convicting the appellant. Based on the aforementioned grounds of appeal, the appellant prayed this court to consider his grounds pf appeal and allow the appeal the conviction and set aside the.sentence imposed upon him. When this appeal was called on for hearing, the appellant appeared in person and unrepresented; while the fespohdent, - Republic'Was represented by Ms. Monica Matwe, learned State Attorney. When the appellant was invited to argue his appeal, preferred the to start and then will reply thereafter. Conversely, Ms. Matwe told the court thatrshe opposes this appeal. In the first ground of appeal, the learned State Attorney argued that the appellant asserts some irregularities which occurred during the taking of the cautioned statement as non-compliance with Sections 50, 51, 57, and 58 of the Criminai Procedure Act(CPA) torture and denied admitting to commit the offence charged. In response,:the learned State Attorney contends that the interrogation adhered to the requirements set forth in Section 50, specificaily regarding the tirning of the interrogation. Additionally, the investigative authorities corriplied with Section 51.,The appellant was arrested on 3rd December 2023 at 21:00 hours, and the interrogation took place at 22:00 hours on the same night arid ended up at 23;17 hours well within the prescribed time for interrogating suspects. Furthermore, Exhibit PE4 was prepared in accordance with Section 57 of the CPA in question-and-answer format. The objection concerning Section 58, according to the State Attorney, is irrelevant. Therefore, according to the learned State Attorney, all raised on the first ground of appeal is without merit and should be dismissed. On the second ground of appeal, the learned State Attorney pointed out that the appellant claims that the trial was unfair and the arrest improper. In response, the learned State Attorney argued that the accused was apprehended in flagrante delicto with a sulphate bag containing elephant tusks, making an identification parade unnecessary. The learned Attorney referred this court to the case of Daffa Mbwana V. Republic, Criminal Appeal NOp 65 of 2017(pages 11 and 16), which establishes that when an accused is arrested at the crime scene, no further identification is required. The record confirms that the accused was taken into custody at the scene, with no indication of triai unfairness. Consequentiy, this ground lacks merit and should be dismissed, insisted the iearned State Attorney. On the third ground Of appeal, the learned State Attorney poihfed out that appellant contends that the arrest was wrongful due to mistaken identity, alleging that someone'other than the actual possessor of the tusks was apprehended. Ms. Matwe dismisses this claim as'entirely baseless, because accused was apprehended alone, thereby eliminating the possibility of mistaken identity. Regarding the fourth ground of appeal; the learned State Attorney pointed out that appellant alleges non-compliance with Section 231 of the , , CPA. Ms. Matwe submits that this claim is unfounded, pointing to the trial court proceedings of 5 June 2024, during which the appellant -unequivocally informed the court that he had no witnesses and would defend himself. As such, this ground appears to be an afterthought and lacks merit and urged this court to dismiss it in its face value. On the fifth ground of appeal, the learned State Attorney pointed out that it is true the accused was not promptly brought before the court, citing an unexplained delay of nearly 14 days.^ Although the accused was presented to the court oh 21 December 2023, after an 18-day delay/ however, the learned State Attorney-afgues'that this delay did not undermine the compelling evidence presented by the prosecution. The learned Attorney referred this cpurt to the case of Hamad Mzamilo Malapya v. Republic, Criminal Appeal No. 603 of 2021 (CAT, Dodoma), which holds that investigative delays, even when unexpiained, do not necessarily compromise the prosecution's eyidence, Accordingly, the learned Attorney urged this court to find this ground of appeal yvithout merits and should be dismissed as well. On the sixth ground of appeal, the learned Stdte Attorney pointed out that the appellant claims that thejcase was not proven beyond ^a reasonable doubt. The learned State Attorney countered that the strong evidence and arguments presented in the first to fifth grounds of appeai sufficiently disprove this assertion, leaving this ground without merit and warranting dismissal. _ , In the totality the learned State Attorney urged this court to dismiss this appeal in its entirety. Upon being given an opportunity to respond to the submissions of the learned State Attorney, the appellant simply prays that the court consider his grounds of appeal and administer justice, which according to him, urged the court to allow his appeal and set him free. This marked the end of this hearing of this appeal. The noble task of this court now is to determine the merits or otherwise of this appeal. I have thoroughly considered the submissions of the learned State Attorney, along with the record of appeal and the grounds of appeai. The duty of this court now is to address the issues raised for determination, though not necessarily in the order presented in the appellant's submissions. - Without further delay, I wjij; begin by addressing^^t fourth ground of appeai, which concerns non-cornpliancq vyith/Sectionj 231 oft Criminal Procedure Actt(CRA).;iJ^his ground ;doesjnptr^af^anf[exten deliberation. Upon reviewing the record of the trial court and considering the submissions of the iearned State Attorney, it is evident that the trial magistrate properly compiled with Section 231.1 am satisfied that the trial court adhered to the legal requirements of that provision. Moreover, even if, for the sake of argument, it were assumed that the trial court did not fully comply with the provision, no injustice was caused to the appeliant. A mere iapse of few matters cannot be cqmprorriised against the interest of justice. Therefore, this ground of appealjn my respective opiriiqn is yyithout merits and is hereby dismissed. Turning to the fifth ground of appeal, concerning the delay in bringing the appellant before the court, theTecord indicates tlicit the appellant was brought before the trial court 18'days after> his %frest on 3rd Decerhber. The timeliness of presenting an accused to court depends on the circumstances of each case. In cases vyhere an ,accused is not, brought before the court within,a reasonable period, the prosecution must provide an explanation for the delay. In the absence of such an explanation, an adverse inference may be drawn against the prosecution, pptentiaily weakening the strength of their case. 10 In this appeal, while there was a deiay as rightly admitted by the iearned State Attorney, the necessary witnesses and exhibits were available, and no valid reason for the delay was offered. While such delays- create room for speculation, the court cannot operate under such assumptions see the case of Jafari Salum @Kikoti vs The Republic, Criminal Appeal No. 370 of 2017 the same was cemented in the case of Shabani Salimu vs The Republic, Criminal Appeal l^o. 519 pf 2021. That said, despite the delay, I find no evidence of a miscarriage of justice. Therefore, I do not see any basis for faulting the prosecution on this ground because the appellant together with his co- accused were brought in court after the second accused person's arrest just five days which is reasonable In the circumstances. That said, the fifth ground of appeal is hereby found wanting ofmerits and consequently dismissed. ; , ^crr ; On the second and third grounds of appeal which are cente^ on issue of identification, claiming That he was not properly identified, r Wili be guided by the case iaw on this issue against the evidence on this appeal. It is a weli-established'principle in case law, such as Waziri Amani v. Republic [1980] 25Q and Kamuli Mashamba y. Republic, Criminal Appeal No. 325 of 2013(unreported), that visual 11 identification is the weakest form of evidence and should only be relied upon when all possibilities of mistaken identity are eliminated, and the -evidence is clear and unequivocal.,Nevertheless,,as rightly submitted.by Ms. Matwe, where the accused was arrested at the scene of crime, as in this appeal, there was no need for an identification parade. The purpose of an identification parade is to allow a witness to identify someone previously unknown to them. Since the appellant was apprehended at the crime scene, the issue of mistaken identity does not arise, and the identification in this case was sufficient. Thus, these two grounds of appeal must fail, urged Ms. Matwe. Addressing the first ground of; appeal/ the appellant contends thafcthe caution statement was obtained; In yiolation of Sections 50, 51, 57, and 58 of the CPA. While PW5 testified that the.appellant was cautioned before the statement was recorded, the statement presented; in evidence indicates that the appellant was properly,inforrned of the offence he was alleged to have violated.The law requires that a caution statement include an explanation of the offence and must be certified at the end. Prpper caution ensures that the accused fully understands the charges and the consequences of confession. In this appeai, in my respective opinion, the appeliant was inadequately cautioned and no personal certification was 12 '' put at the end of the cautioned statement. For the above reasons, thus the cautioned statement cannot be deemed a valid confession. See the cases Kisonga Ahmad Issa and Another v. Republic, Consolidated Criminal Appeal No. 171 of 2016 and Criminal Appeal No. 362 of 2016, and Tauta Kikoris v. Republic, Criminal Appeal No. 94 of 2009, it is clear that non-compliance with mandatory provisions affects the trial. As such, the caution statement must be expunged from the record, and I find this ground meritorious. Finally, on the sixth ground of:appeal, the appellant argues.that^ court erred in convicting him a& the prosecutiprr faljed to proye-the^case beyond a reasonable doubt. However, the learned State Attorney, had different view that the case for prosecution .was proved beyond reasonable doubt by oral evidence on record and exhibits tendered.:: After reviewing the triaf 'court's records, particularly the oral testimonies of the witnesses of bpth.sidesrand;exhibitsjtp due respect to the appellant, I found out that the prosecution proved their case beyond reasonable doubt.:! vyiII explain. One,despite expungement of the cautioned statement of the appelipnt, there is ample eyidence by PW2 an independent witness for,the prosecution and exhibit PEl which proved that the accused was the one found with the allegpd elephant 13 tusks. Two, the admission of exhibit PEl was not contested during admission and no question was seriously put on PWl and PW2 who -testified on its making. Three, the deniai by the appeiiant, with due respect and in my respective opinion is an afterthought on his part and is hereby rejected. For the reasons outlined above, this appeal is partially allowed to the extent explain above and partially disallowed to the extent aboye ,and same is hereby dismissed. On that note, this court finds that the'appeiiant was correctly charged, prosecuted, found guilty, convicted and consequently sentenced by the trial court. Just on minor rectification, the sentence has to run concurrently. The appeal, thus, ^and disrnissed. r; It is so ordered. Dated at Morogoro this day of March, 2024. COURf g; 0. :x: T S.M. MAGOIC^ r-j Vvi > vifS-.l'y'A IX JUDGE 17.03.2025 14 COURT: Judgement delivered in chambers at Morogoro in the presence of the appellant and Ms. Paulina Masawe, learned state Attorney for the respondents today on 17^^ Day of March, 2025 n --0 S.M. MAGOIGA Uj X VV- JUDGE 17.03^2025 COURT: Right of appeal fully explain ■A O ■Z. M S.M. AGOIGA > \. JUDGE 17.03.2025 15