issa salum makale v the republic 2023 tzhc 20627 29 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SONGEA SUB - REGISTRY ATSONGEA DC. CRIMINAL APPEAL NO. 25 OF 2023 (Originating from Tunduru District Court in Economic Case No. 10 of2022) ISSA SALUM MAKALE ................. APPELLANT VERSUS THE REPUBLIC ......... RESPONDENT JUDGMENT Date of Last Order: 03/08/2023 Date of Judgment: 29/08/2023 U. E. Madeha, J. It is important to note that, the above named Appellant together with two other persons who are not party in this appeal, were arraigned before the District Court of Tunduru (the trial Court) for the offence of unlawful possession of a Government Trophy contrary to sections 86 (1), (2) (c) (iii) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 of the First Schedule thereto and sections 57 (1) and 60 (2) of the Economic and Organised Crimes Control Act (Cap. 200, R. E. 2019). i It was alleged by the prosecution side that on the 27th day of May, 2022, at Mbesa Village within Tunduru District and Ruvuma Region, the Appellant and his fellow accused persons were found to be in possession of Government Trophy, to wit thirteen pieces of elephant tusks weighing 35.25 kilograms valued at USD 45,000, which was equal to TZS, 104,041,350, the property of the government of the United Republic of Tanzania. It was alleged further that they were found to be in possession of those Government Trophies without a permit from the Director of Wildlife. When the charge was read, they denied committing the offence. After full trial, while the other accused persons were acquitted, the Appellant was found guilty, convicted and sentenced to serve thirty years imprisonment. Dissatisfied with both conviction and sentence, the Appellant filed this appeal on the following grounds of appeal: 1. That, the trial Court erred in law and facts when convicted the Appellant while the prosecution failed to prove their case beyond reasonable doubt. 2. That, the trial Court erred in law and facts by failing to evaluate the evidence adduced before it by the prosecution. 2 3. That, the trial Court erred in law and facts when it convicted the Appellant herein while there is variation between the charge and the evidence before it. 4. That, the prosecution side erred in law and in facts when convicted the Appellant herein based on the weakness of the defence case and not the strength of the prosecution. 5. That, the trial Court erred in law and in facts by passing its judgement and sentence contrary to the law. In an albeit brief, the evidence which led to the conviction of the Appellant are as follows: PW1 (Simon Mario Choga) the Conservation Officer at Nyerere National Park told the trial Court that on 27th day of May, 2022 he was informed by his informer that at Mbesa Village in Tunduru District there were people selling elephant tusks. As a concerned officer, he communicated with his colleagues and a task force team was prepared. They set a trap in order to arrest those people and they succeeded to arrest the Appellant and his fellows with thirteen pieces of elephant tusks. They seized those elephant tusks and filled the seizure certificate and the watchman of Airtel tower at Mbesa Village was an independent witness. The thirteen pieces of elephant tusks were covered with a white plastic sulphate which was put inside the big black bag made Omega. 3 Also, they managed to seize the motorcycle with Registration Number MC 896 CFE make Hatijoe, which was used by the Appellant and his fellow to carry the seized Government Trophy, After the arrest and seizure, the Appellant, his fellow and the thirteen elephant tusks were taken to Tunduru Police Station. The elephant tusks were handled to the exhibit keeper and during trial they were admitted as exhibit Pl. The motorcycle was also tendered and admitted as exhibit P2. The certificate of seizing those exhibits which was signed by the Appellant and his co-accused persons were tendered and admitted as exhibit P3. PW1 identified the accused person who was standing at the Court dock. PWl's testimony was collaborated by the testimonies given by PW2 (Harnisi Nyambi Hamisi) who acted as an independent witness. PW2 told the trial Court that he witnessed the seizure of the Government Trophies and he signed in the certificate of seizure. PW3 (Dunia Shauri Almasi) who is a Wildlife Officer at Tunduru told the trial Court that on 29th May, 2022, he was given the responsibility of identifying and valuing the Government Trophies. He was given thirteen pieces of elephant tusks that were stored in a big black bag and they were wrapped with white sulphate. He testified further that he discovered the 4 thirteen elephant tusks were from three elephants and they were weighed at 35.25 kilograms, He valued them and found to has the value of 45000 USD,, which was equal to TZS. 104,041,350 on that date. The valuation report was tendered and admitted as exhibit P4. PW4 one G. 5164 Corporal Said told the trial Court that he is the exhibit keeper at Tunduru Police Station. On 28th May, 2022 while on duty at Tunduru Police Station he received thirteen pieces of elephant tusks and one motorcycle with registration number MC. 896 CFE. He was given those exhibits by WP 8938 CPL Linda (PW6). He received them and registered in the exhibit register and signed the chain of custody which was admitted as exhibit P5. PW4 identified the chain of custody of thirteen pieces of elephant tusks. PW4 testified further that on 29th day of May, 2022, he handled the thirteen pieces of elephant tusks to PW6 who send them to the Wildlife Officer for the purpose of valuation. On 29th May, 2022 they were returned in the exhibit room and the chain of custody was signed. The chain of custody was tendered and received as exhibit P5. 5 Police Officer G. 3589 Detective Corporal Mohamed (PW5) of Tunduru Police Station testified that he was the investigator of the case and he was the one who recorded the cautioned statements of the accused persons including the Appellant. He added that the three accused persons, including the Appellant admitted to have caught to be in unlawful possession of thirteen pieces of elephant tusks. The Appellant's cautioned statement was tendered and admitted as exhibit P6. WP 8938 Detective Corporal Linda (PW6), who a Police Officer at Tunduru Police Station, in her testimony told the trial Court that, on 27th day of May, 2022, she was on duty at Tunduru Police Station. While on duty at around 11:45. PM, PW1 together with other National Game Reserve Officers came with three accused persons. Also, she received two exhibits which were thirteen pieces of elephant tusks which were enfolded in a white sulphate plastic and put in a black bag made omega and a motorcycle with registration number MC. 896 CFE. He registered the case and prepared the chain of custody and handled the exhibits to the exhibit keeper (PW4). PW6 identified all accused person which Were at the dock of the trial Court's. 6 On the same note, PW7 one Victor Kitauka, a Resident Magistrate at Mlingoti Primary Court toid the trial Court that he was the one who recorded the Extra-Judicial Statements made by the Appellant. He told the trial Court that after informing the Appellant his rights, he recorded the Extra-Judicial Statements and in the recorded statement the Appellant admitted to have found in unlawful possession of Government Trophy which were thirteen pieces of elephant tusks. The Appellants Extra-Judicial Statement was tendered ad admitted as exhibit P7. Actually, when the Appellant and his co-accused persons were ordered to put their defence, the Appellant denied to be found in unlawful possession of the Government Trophy. The Appellant told the trial Court that on the material date he was arrested at Mbesa Village while he was on the way to Nalasi Village. He was using the motorcycle and when he reached at Mbesa area he heard a gun shoot and he stopped. Then two men came in front of him, they pushed him down and he was beaten too. After that he was put in a car in which he found a luggage and didn't know what was inside the luggage. Before been taken to Tunduru Police Station he was ordered to sign in the paper in which he never knew what was written on it. At Tunduru Police Station he was interrogated and latter on 7 he was sent at Miingoti Primary Court where he was also interrogated by the Justice of Peace and he was asked to sign a form and he was sent back to the police station and arraigned before the trial Court. DW2 (Mohamed Rashid Said) who was the second accused person denied to have found in unlawful possession of Government Trophy. He exonerated the Appellant to be the one who was dealing with the business of selling elephant tusks. He added that the seized thirteen pieces of elephant tusks were possessed by the Appellant and he was just assisting the Appellant to get customers and he reported the matter to the Village Militia Police. DW3 (Aliy Mohamed Majalali) who was the third accused person told the trial Court that, on the material date he was working as a bodaboda rider at Nalasi and he was hired by the Appellant to take him to Mbesa. They went to Mbesa where they slept and on 27th day of May they were on the way back to Naiasi. He was ordered to follow another motorcycle which was leading him. After a long ride they met a car which stopped them and they were arrested. They also heard a bullet shoot and they realized that they were arrested by the Police Officers, they were sent at Tunduru Police 8 Station where they were interrogated and he denied to have found in unlawful possession of thirteen pieces of elephant tusks. Having carefully evaluated the evidence, the trial Court found the prosecution side to have proved beyond reasonable doubt that the Appellant was the one who was found to be in unlawful possession of the thirteen pieces of elephant tusks. The Appellant was convicted and sentenced as stated above. Distressed by the decision of the trial Court the Appellant has knocked the doors of this Court for appeal. His complaints in this appeal are angled on the grounds of appeal enumerated earlier herein above. When this appeal was called on for hearing, the Appellant had the legal service of Mr. Kaizilege Prosper, the learned advocate while the Respondent enjoyed the services of Ms. Tumpale Lawrence, the learned State Attorney. Arguing in support of the appeal, Mr. Kaizilege Prosper preferred to submit the first and second grounds of] appeal jointly. He submitted that the prosecution side failed to prove the case against the Appellant beyond reasonable doubt since the prosecution evidence is full of contradictions. .9 He averred that PW1 told the trial Court that they seized thirteen pieces of elephant tusks were stored in a big black bag Omega brand and the motorcycle make Haujoe with the black colour while PW2 who was an independent witness testified that the seized elephant’s tusks were found inside a black bag, enfolded by a white plastic sulphate and the motorcycle made Sanlg which was reddish in colour. Expounding his arguments, he cited the case of Matera Simango @ Masam v. Republic, Criminal Appeal No. 517 of 2019, in which the Court of Appeal of Tanzania quashed the conviction due to the inconsistences and contradictions which were found in the prosecution witnesses. He argued the contradictions found on the prosecution evidence in this appeal goes to the root of the case and prayed for this Court to re-evaluate the evidence given before the trial Court. On the third ground of appeal, he argued that, while the charge which was read to the Appellant states that the offence was committed at Mbesa, PW2 who was an independent witness testified that the offence was committed at Chikomo village. He contended that there was variance between the prosecution evidence and the charge. He contended that the variance between the charge and the prosecution evidence is fatal. To 10 buttress his stance, he cited the case of Kabiti Bakari v. Republic, Criminal Appeal No. 73 of 2019, in which the Court of Appeal of Tanzania stated that where there is variance between the charge and the evidence the charge remains unproven and the accused will be entitled to an acquittal. On the fourth ground of appeal, he argued that in this appeal the trial Court convicted the Appellant basing on the weakness of the defence evidence. He contended that the Appellant was to be convicted on the strength of the prosecution evidence and what was done was contrary to law. He added that in economic cases the burden of proof lies to the accused person and the Appellant proved that he was not found to be in possession of the Government Trophy. On the last ground of appeal, he stated that the sentence imposed to the Appellant was not in accordance with the law. Lastly, he prayed for this appeal to be dismissed. On the contrary, Ms. Tumpale Lawrence, the leaned State Attorney for the Republic, submitting on the first and second grounds of appeal, she argued that looking at the testimonies given by PW1, PW2 and PW3 there 11 is no doubt that the Appellant was arrested with thirteen pieces of elephant tusks. Submitting on the third ground of appeal, she stated that there is no variance between charge and evidence as the Appellant was arrested at Mbesa Village near Airtel Tower, and PW2 was the independent witness who witnessed the seizure of the thirteen pieces of elephant tusks. On the fourth ground of appeal that the Appellant was convicted basing on weakness of the defence evidence, she contended that the Appellant was convicted basing on the evidence of the prosecution side which proved the offence to the required standard. In his rejoinder submission, Mr. Kaizilege Prosper submitted that there are contradictions and consistence concerning the motorcycle, on whether it was black in colour or reddish. He added that the Appellants conviction was centered on the defence evidence. Finally, he prayed for the Appellant's conviction and sentence to be set aside. As far as I am concerned, having gone through the petition of appeal, which encompasses five grounds, I find that they boil down to four issues: One is whether there was variance between the charge and 12 evidence. Two, is whether the conviction of the Appellant was based on the weakness of the defence evidence. Three, is whether the prosecution side proved its case beyond reasonable doubt. Four, whether the sentence imposed by the trial Court was proper. Starting with the issue of variation between charge sheet and evidence, the Appellant's learned advocate submitting in support of the appeal argued that there are variances between the charge and the evidence. Before dealing with this issue, I have asked myself on whether there are any variances between the charge and the evidence? If any, does it go to the root of the case or does it prejudice the Appellant? I agree with the Appellant's advocate that the offence was committed at Mbesa Village as stated in the the particulars of the offence. But it is not correct that PW2, the independent witness testified that the offence was committed at Chikomo Village. PW2 told the trial Court that on the material date he was working as a watchman of Airtel Tower at Mbesa Village and he was at his working place. PW2 added that he witnessed the seizure and he signed on the certificate of seizure. Furthermore, having considered the testimony given by all prosecution witnesses I find they testified that the Appellant 13 was arrested at Mbesa Village, which is the same village stated in the charge. In my view I find there was no variance occasioned between the charge and the testimony given by the PW2 or any other prosecution witness. All testimonies given by the prosecution supports the charge that the offence was committed at Mbesa Village. As far as I am concerned, I have perused the original records and seen that there is sufficient evidence to prove the charge of being arrested with the Government Trophies, that is to state, that the prosecution presents enough evidence to support each element of the crime charged, which is being in possession of the Government Trophies to include thirteen (13) elephant tusks. On the issue of whether the Court convicted the Appellant basing on the weaknesses of the defence evidence and not on the strength of the prosecution case. It is the duty of this Court to examine the evidence and find whether the offence was proved or not. This being the first appellate Court, I have weighed the Appellant’s evidence along with the prosecution 14 evidence. I have reckoned the evidence given, PWl, PW2, PW3, PW4, PW5, PW6 and PW7 are all truthful. It is obviously true that the accused in his defence evidence does not deny the facts that on 27th May, 2022 he was arrested at Mbesa Village when he was heading to Nalasi Village from Chikomo Village and after the arrest they were sent to the Police Station. Actually, the Appellant's evidence does not deny the fact that he was arrested at Mbesa Village but he denied to be found in possession of thirteen pieces of elephant tusks. The Appellant's defence does not raise any doubt to the prosecution evidence that the Appellant was arrested and found to be in unlawful possession of Government Trophy which were thirteen pieces of elephant tusks. Moreover, on the issue of whether the prosecution side proved its case beyond reasonable doubt, as stated above, there is no doubt that the Appellant was found to be in possession of thirteen piece of elephant tusks. Section 100 (3) (a) of the Wildlife Conservation Act (supra), requires the person charged with an offence under section 86 of the Act, to prove that the possession of the Government Trophy is lawful. 15 Since the prosecution side discharged its burden of proving that the Appellant was found to be in possession of the Government Trophy, the Appellant was duty bound to prove that his possession was lawful. The duty of the prosecution was only to prove that the Appellant was found to be in possession of the Government Trophy and the prosecution evidence clearly proves that the Appellant was arrested with the Government trophies. On the issue of whether the sentence imposed by the trial Court was proper, I have gone through the provision of the law under which the Appellant was charged, section 86 (2) (c) (iii) of the Wildlife Conservation Act (supra), is the provision which provides for the sentence. The sentence for the offence which the Appellant was charged is imprisonment for a term of not less than twenty and not exceeding thirty years. The law also allows the Court to impose fine in additional to the sentence of imprisonment, In my part, having considered the circumstances of the case, I am settled in my mind that the Appellant being first offender deserves a statutory minimum sentence of imprisonment for twenty years and not the maximum sentence of thirty years imprisonment. Therefore, the sentence of imprisonment for thirty years was excessive. Consequently, in terms of 16 section 86 (1) and (2) (c) (iii) of the Wildlife Conservation Act (supra), I reduce the said sentence from thirty years to twenty years imprisonment. In the event, I find this appeal is devoid of merit except for the sentence of which I have allowed to the extent I have explained above. It is so ordered. DATED and DELIVERED at SONGEA this 29th day of August, 2023. COURT: Judgment is read over in the presence of the Appellant and Ms. Ester Mfanyakazi, the learned State Attorney representing the Respondent. Right of appeal is explained. U. E. MADEHA JUDGE 29/08/2023 17