John Sadick Nduye vs The Republic CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 4717 OF 2024 (Arising from the decision of the District Court of Ilala at Kinyerezi [Hon. F.E LUVINGA- SRM] dated 15th day of August,2023 in Economic Case No. 7 of 2022) JOHN SADICK NDUYE……………………………………… APPELLANT VERSUS THE REPUBLIC…………………………….........................RESPONDENT JUDGMENT Date of last order:26/08 /2024 Date of judgment: 08/11/2024 A.A. MBAGWA, J. This is an appeal against the conviction and sentence imposed by the trial District Court of Ilala in Economic Case No. 7 of 2022 dated 15/08/2023. The record has it that the appellant John Sadick Nduye was arraigned before the trial Court on a charge of Unlawful Possession of Government Trophies contrary to section 86(1), (2)(c)(ii) and (3)(b) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 of the First Schedule to, 1 and Sections 57(1) and 60(2) of the Economic and Organised Crime Control Act [Cap. 200 R.E. 2019]. The particulars of offence alleged that the appellant on the 13th day of April 2022 at Buguruni Sheli area within Ilala District in the Region of Dar es Salaam was found in unlawful possession of the government trophy to wit, one hundred fifty (150) ground of pangolin scales all valued at USD 960 the equivalent to TZS 2, 195,738.592, the property of the United Republic of Tanzania without a permit from the Director of Wildlife. After filing the consent and certificate of the Director of Public Prosecutions conferring jurisdiction on the District Court, on the 20th day of December 2022, the appellant was required to plead to the charge. The appellant pleaded not guilty hence the preliminary hearing was conducted. It is on record that on the 20th day of December 2022, during the preliminary hearing, the appellant admitted, among other things, the following facts; i) That on the 13th day of April 2022 he was arrested at Buguruni Sheli with Motorcycle No. MC 990 BZA make HAOJUE. 2 ii) That upon arrest, the appellant was searched and found with 150 ground pangolin scales valued at 2,195,738.592. Sequel to the preliminary hearing, the prosecution side marshalled a total of seven (7) witnesses to prove the accusations namely, PW1 Goldian Kalumuna, PW2 Augustino Maki Kawala, PW3 D7571 SSGT Gabriel, PW4 6807 SGT Charles, PW5 G9648 CPL Eliamini, PW6 Salum Ally and PW7 Hamis Omary. Additionally, the prosecution side tendered in evidence eight (8) exhibits both documentary and physical to wit, chain of custody document (PE1), motorcycle ignition key and helmet (PE2), 150 pangolin scales (PE3), motorcycle No. MC 990 BZA (PE4), trophy valuation certificate (PE5), OB book (PE6), cybercrime report (PE7), and seizure certificate (PE8). On the adversary, the appellant stood a solo defence witness and did not tender any exhibit. The brief prosecution account was to the effect that on the 13th day of April 2022, Mr. Salum Ally (PW6), Assistant Inspector of Police attached to the Anti-Poaching National Task Force along with other officers was on patrol. 3 In the course, they received information from their informer that there was a trophy dealer who had in possession of the government trophies. As such, they went to Buguruni Sheli area where they found and arrested the appellant while on a motorcycle carrying a black bag. Upon search, they recovered one hundred fifty ground pangolin scales. The said government trophies were subsequently seized along with other items. A seizure certificate (PE8) was filled and signed by the appellant, PW6 Salum Ally and PW7 Hamis Omary. Thereafter, the appellant together with the seized items were submitted to Buguruni Police Station. PW3 Gabriel who was at Criminal Record Office (CRO) at Buguruni Police Station received the appellant and the exhibits. He later handed the seized exhibits to SGT Charles (PW4) the exhibit keeper for safe custody. Nevertheless, PW6 did not hand over to SGT Gabriel (PW3). the two phones that he seized from the appellant Instead, he submitted them to the cybercrime unit for forensic examination. On the following day, that is, 14th April 2022, Mr. Augustino Maki Kawala 4 (PW2), the wildlife officer went to Buguruni Police Station, examined and valued the seized ground pangolin scales. In his examination, PW2 confirmed that the allegedly seized government trophies were one hundred fifty pangolin scales valued at TZS 2, 195,738.592. He thus filled a trophy valuation certificate to vindicate his findings. On the 3rd day of June 2022, after the completion of the forensic examination of the cellphones, G 9648 CPL Eliamini (PW5) took the exhibits from Charles (PW4) and submitted them to Goldian Kalumuna (PW1), the custodian of exhibits at Mpingo house for safe custody. According to PW1, CPL Eliamini (PW5) handed him one motorcycle No. MC 990 BZA, one black bag containing one hundred fifty pangolin scales, one helmet, and a motorcycle ignition key. PW1 kept the exhibits until the time when he tendered them in court. Further, it was testified by both CPL Eliamini (PW5) and Salum Ally (PW6) that the forensic examination of the two cellphones that were seized from the appellant did not have any useful information in connection to the offence. As such, the two mobile phones were returned to the appellant upon completion of the forensic investigation. 5 In contrast, the appellant denied the allegations. Although he admitted to being arrested at Buguruni Sheli on the 13th day of April 2022 with a bag containing the alleged government trophies, the appellant adamantly claimed that the said bag that contained 150 pangolin scales belonged to the person whom he had given a ride from Kariakoo to Tabata Matumbi. The appellant contended that on the fateful day, one person visited him at his workplace at Kariakoo and asked him whether he could get him about eight hundred (800) pangolin scales. The appellant replied that he was unable to get those pangolin scales. In the end, the person asked him for a ride up to Tabata Matumbi. The appellant heeded his friend’s request. However, on reaching Buguruni Sheli, they found a motor vehicle make PRADO which lightened them three times signaling to stop. To the appellant’s dismay, the person he was carrying on his motorcycle abruptly disappeared while leaving him with a bag that was later found containing pangolin scales. In cross- examination, the appellant said that he did not know the name of the alleged person whom he was carrying on his motorcycle. Having heard the evidence from both parties, the learned trial Magistrate 6 was satisfied that the charges leveled against the appellant were proved to the hilt. The appellant was thus found guilty and convicted of the offence he was charged with. In consequence thereof, he was sentenced to pay a fine of TZS 21,957,385.92 or in default to serve a prison term of twenty years. The verdict and sentence meted out by the trial Court did not amuse the appellant. As such, he brought the present appeal to protest his innocence. In his petition of appeal, the appellant raised five grounds namely; 1. That the learned trial magistrate erred in law to convict an appellant in a case which was tried by a trial court which has no jurisdiction to try economic case. 2. That the learned trial magistrate erred in law and fact to convict the appellant basing on exhibit P.E 3(150 pangolin scales) which was tendered illegally by PW1 who was not competent witness to tender the said exhibit. 3. That the learned trial magistrate erred in law and facts for not believing the appellant who asserted under oath that he had no knowledge of what was inside the bag of his passenger which was found with the said pangolin scales. 7 4. That the learned trial magistrate erred in law and facts by wrongly convicting the appellant without considering the principles which have to be taken into account in respect to chain of custody and preservation of exhibit. 5. That the learned trial magistrate erred in law to convict the appellant in a case which was not proved beyond reasonable doubt by the prosecution to justify conviction of the appellant. When the appeal was called on for a hearing on 3rd June 2024, the appellant appeared in person whilst the respondent/Republic had the representation of Mr. Clement Masua, the learned State Attorney. Upon a consensual request by both parties, this Court granted leave to dispose of the appeal by way of written submissions. I have painstakingly navigated through the trial court record and dispassionately considered the rival submissions. Having objectively scanned the grounds of appeal and the rival submissions, the appellant’s complaints raise three basic grounds namely, 8 (a) That the learned trial magistrate erred in law to convict an appellant in a case which was tried by a trial court which has no jurisdiction to try an economic case. (b) That exhibit P3 was illegally tendered in evidence by PW1. (c) That the prosecution case was not sufficiently proved against the appellant. To start with the 1st ground of appeal. The trial court record is quite clear that before the appellant was called upon to plead to the charge, on 20th December 2022, the prosecution filed in the trial Court a consent and certificate conferring jurisdiction on the court to try an economic case. This is reflected in the proceedings dated 20th December 2022. Further, the said consent and certificate conferring jurisdiction are in the trial court file. In that regard, the trial court was vested with the requiste jurisdiction to try the appellant in an economic case. Therefore, the appellant’s complaint lacks merits. Coming to the complaint against PW1’s competence to tender the pangolin scales( exhibit P3), as rightly submitted by the learned State Attorney, the 9 complaint is without merits. PW1 quite clearly told the court that he was a custodian of the said pangolin scales for quite a while. The law is settled that a custodian of the exhibit is competent to tender it in evidence. In the case of DPP vs. Mirzai Pirbakhishi @ Hadji & Three Others, Criminal Appeal No. 493 of 2016, the Court held; ‘A person who at one point in time possesses anything, a subject matter of trial as we said in Kristina's case, is not only a competent witness to testify but could also tender the same ...The test for tendering the exhibit therefore Is whether the witness has the knowledge and he possessed the thing in question at some point in time albeit shortly. So, a possessor or custodian or an actual owner or alike are legally capable of tendering the intended exhibits in question provided he has the knowledge of the thing in question.’ The similar position was subsequently restated in the case of Republic vs Charles Abel Gasirabo @ Charles Gazilabo and 3 Other, Criminal Appeal No. 358 of 2019 CAT at Dar es Salaam. In view thereof, I am of the 10 unfeigned view that PW1 was legally competent to tender the pangolin scales (exhibit P) by virtue of being a custodian. With regard to the proof of the charge, there is no dispute that the appellant was found in possession of the government trophies in dispute to wit, one hundred fifty (150) pangolin scales. This is sufficiently established from different sets of evidence. First and foremost is the appellant’s admission during the preliminary hearing. As hinted above, the appellant, during the preliminary hearing, unequivocally admitted to having been found in possession of one hundred pangolin scales. It is the settled position of law that matters admitted during the preliminary hearing are taken to have been proved and the prosecution is not under obligation to bring further evidence during trial to prove the matters already admitted. See the case Efrahim Lutambi vs the Republic, Criminal Appeal No. 36 of 1996 CAT at Mbeya. In addition to the appellant’s admission, there is evidence of Salum Ally (PW6), the arresting officer, and Hamis Omary (PW7), the independent witness along with the seizure certificate (exhibit PE8), pangolin scales 11 (exhibit PE3) and chain of custody document (exhibit PE1) which cummulatively proved that the appellant was found in possession of the pangolin scales (exhibit PE3). The appellant’s defence that the pangolin scales belonged to the person whom he had given a ride is too fanciful to displace the prosecution evidence. Further, the appellant attempted to challenge the chain of custody saying that it was not sufficiently established. The prosecution evidence paraded PW6 Salum Ally, the arresting officer, PW3 SSGT Gabriel, PW4 SGT Charles and PW1 Goldian Kalumuna. Their cumulative established that the chain of custody was not broken from the point of seizure to the tendering of the government trophies in dispute in court. PW6 is clear that upon arrest and seizure he handed the exhibits including one hundred fifty pangolin scales to PW3 SSGT Gabriel who was on duty at Buruguruni Police Station. PW3 subsequently handed the exhibits to PW4 SGT Charles, the custodian of exhibits at Buguruni Police Station. PW4 kept the said exhibits up to 3rd June 2022 when PW5 Eliamini took them and handed them to PW1 Goldian Kalumuna at Mpingo House. PW1 kept the exhibits from 3rd June 2022 to 12 when he tendered them in court. Their oral account was supported by the chain of custody document (exhibit PE1) and seizure certificate (exhibit PE8). In view of the above credible evidence, I fail to find a purchase in the appellant’s complaint against the chain of custody. Indeed, as rightly held by the trial Magistrate, the appellant’s defence was too weak to cast a reasonable doubt on the prosecution's solid evidence. All the above considered, it is my unfeigned finding that the appellant’s conviction was rightly entered. The next issue worth consideration by this Court is a sentence. As hinted above, the appellant was charged and subsequently convicted of unlawful possession of the government trophies contrary to sections 86(1), (2)(c)(ii), and (3)(b) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 of the First Schedule to, and Sections 57(1) and 60(2) of the Economic and Organised Crime Control Act [Cap. 200 R.E. 2019]. Upon conviction, he was sentenced to pay a fine of TZS 21,957, 385.92 or in default to serve twenty years in jail. 13 For the purposes of clarity, I find it apposite to reproduce the relevant provisions. Section 86 of the Wildlife Conservation Act reads; 86.-(1) Subject to the provisions of this Act, a person shall not be in possession of, or buy, sell or otherwise deal in any Government trophy. (2) A person who contravenes any of the provisions of this section commits an offence and shall be liable on conviction- (a) where the trophy which is the subject matter of the charge or any part of such trophy is part of an animal specified in Part I of the First Schedule to this Act, and the value of the trophy does not exceed one hundred thousand shillings, to imprisonment for a term of not less than five years but not exceeding fifteen years or to a fine of not less than twice the value of the trophy or to both; or (b) where the trophy which is the subject matter of the charge or any part of such trophy is part of an animal specified in Part I of the First Schedule to this Act, and the value of the trophy exceeds one hundred thousand shillings, to a fine of a sum not less than ten times the value 14 of the trophy or imprisonment for a term of not less than twenty years but not exceeding thirty years or to both; (c) in any other case- (i) where the value of the trophy which is the subject matter of the charge does not exceed one hundred thousand shillings, to a fine of not less than the amount equal to twice the value of the trophy or to imprisonment for a term of not less than three years but not exceeding ten years; (ii) where the value of the trophy which is the subject matter of the charge exceeds one hundred thousand shillings but does not exceed one million shillings, to a fine of not less than the amount equal to thrice the value of the trophy or to imprisonment for a term of not less than ten years but not exceeding twenty years or to both; or (iii) where the value of the trophy which is the subject matter of the charge exceeds one million shillings, to imprisonment for a term of not less than twenty years but not exceeding thirty years and the court may in addition thereto, impose a fine not exceeding five million shillings or ten times the value of the trophy, whichever is larger amount. (3) For the purpose of subsection (2)- 15 (a) in assessing the punishment to be awarded the court shall, where the accused person is charged in relation to two or more trophies, take into account the aggregate value of all the trophies in respect of which he is convicted, and in any such case the provisions of paragraph (a) or (b) of subsection (2) shall apply in relation to all such trophies if any one of them is part of an animal specified in Part I of the First Schedule to this Act; (b) in assessing the punishment to be awarded under this section, the court shall calculate the value of any trophy or animal in accordance with the certificate of value of trophies as prescribed by Minister in the regulations; and (c) in assessing the punishment to be awarded under this section, the court shall calculate the value of any livestock on the basis of the normal price of the livestock on a sale in the open market between a buyer and a seller independent of each other. (4) In any proceedings for an offence under this section, a certificate signed by the Director or wildlife officers from the rank of wildlife officer, stating the value of any trophy 16 involved in the proceedings shall be admissible in evidence and shall be prima facie evidence of the matters stated therein including the fact that the signature thereon is that of the person holding the office specified therein. The value of the trophy indicated both in the charge and valuation certificate (exhibit PE5) is TZS 2, 195,738.592. Unfortunately, neither in the charge, valuation certificate (exhibit PE5) nor in the oral testimony was the amount recorded in words. It is therefore not clear whether the value of the alleged trophies is Tanzania shillings two million one hundred ninety-five thousand seven hundred thirty-eight and five hundred ninety-two cents i.e. TZS 2,195,738.592 or Tanzania shillings twenty-one million nine hundred fifty- seven thousand three hundred eighty-five and ninety-two cents i.e 21,975,385.92. On this, I would therefore urge the drafters of charges to ensure that whenever they refer to the amount of money or a particular number of items, they should write in both figures and words to avoid possible confusion that may likely ensue. That is a common and desirable practice. 17 In any case, it is undisputed that the value the trophies involved in this case exceeds Tanzania shillings one million (TZS. 1,000,000/=). As such, it falls under Section 86(2) (c) (iii) above which caters to trophies with a value exceeding one million shillings. The above provision of law provides a statutory minimum sentence of twenty years imprisonment and enjoins the court the discretion to impose a fine in addition to a custodial sentence. To put it crudely, a person convicted of unlawful possession of government trophies worth Tanzania shillings one million and above is liable to a sentence of not less than twenty years imprisonment with or without a fine. The fine is not an alternative to the custodial sentence but rather may be imposed in addition to. Thus, the appellant was erroneously sentenced under 86(1), (2)(c)(ii) of the Wildlife Conservation Act. It is now the law that where a person is convicted of corruption or economic case the overriding sentence is that which is provided in Section 60(2) of the Economic and Organised Crime Control Act (EOCCA). See the cases of George Lazaro Ogur vs the Republic, Criminal Appeal No. 69 of 2020, CAT at Arusha and the Director of Public Prosecutions vs Papaa S/O 18 Olesikaladai @ Lendemu and Another, Criminal Appeal No. 28 of 2020, CAT at Arusha. This is to say even if the prosecution wrongly charged or included section 86(1), (2)(c)(ii) of the Wildlife Conservation Act, the trial Magistrate ought to sentence the appellant under section 60(2) of the EOCCA. The said Section provides; ‘ Notwithstanding provision of a different penalty under any other law and subject to subsection (7), a person convicted of corruption or economic offence shall be liable to imprisonment for a term of not less than twenty years but not exceeding thirty years, or to both such imprisonment and any other penal measure provided for under this Act; Provided that, where the law imposes penal measures greater than those provided by this Act, the Court shall impose such sentence.’ On the web of the above obervations, the learned trial Magistrate erred in law to impose a fine of TZS 21,957,385.92 in alternative to a custodial sentence of twenty years. As such, I set aside the sentence to pay a fine of 19 TZS TZS 21,957,385.92 or in default to serve twenty years in jail. In the stead, in terms of section 366 of the Criminal Procedure Act, I hereby sentence the appellant to serve twenty years in prison without an option of a fine pursuant to Section 60 (2) of the EOCCA. All said and done, this appeal is without merits and consequently dismissed. The appellant should continue to serve his prison sentence of twenty (20) years which he commenced on the date he was convicted. It is so ordered. The right of appeal is explained. A.A. Mbagwa JUDGE 08/11/2024 20