JUMA HUSSEIN IBULA VERSUS THE REPUBLIC JUDGMENT

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC CRIMINAL APPEAL NO. 17484 OF 2024 (Arising from Judgment of the District Court of Kondoa in Economic Case No 38638 of 2023) JUMA HUSSEIN IBULA ….……………………….. APPELLANT VERSUS THE REPUBLIC …..………………….…………..RESPONDENT JUDGMENT Date of the last Order: 18/09/2024 Date of the Judgment: 06/11/2024 LONGOPA, J.: The appellant stood charged, convicted and sentenced to serve a twenty (20) years imprisonment for offence of being found in unlawful possession of Government trophies, namely two pieces of the elephant tusks C/S 86(1) and (2)(b) of the Wildlife Conservation Act, Cap 283 R.E. 2022 read together with Paragraph 14 of the First Schedule to and sections 1|Page 57(1) and 60(2) of the Economic and Organised Crimes Control Act, Cap 200 R.E. 2022. It was alleged that on 3rd November 2023 at Iboni Street within Kondoa District in Dodoma region the appellant was found in unlawful possession of Government trophy to wit two pieces of tusks valued at 34,935,000/= the property of the Government of the United Republic Tanzania without the permit from the Director of Wildlife. The appellant did maintain that he was innocent and never participated in the commission of the alleged offence. This compelled the prosecution to call a total of seven (7) witnesses and six (6) exhibits while the defence called only a single witness. The trial court at the end of the trial found the appellant guilty and sentenced to twenty (20) years imprisonment. The appellant being aggrieved by the decision of the District Court of Kondoa at Kondoa given on 29th day of May, 2024 preferred an appeal on 25th June 2024 against the whole of the conviction and sentence on the following grounds, namely: - 2|Page 1. That the honorable trial Magistrate misdirected himself in law and facts to hold that the prosecution side proved their case beyond all reasonable against the appellants. 2. That the trial court erred in law and in facts on relying on the evidence of seizure certificate which resulted from the search which was conducted in violation of the law as it was against the requirement of Section 38(3) of the Criminal Procedure Act, Cap 20 R.E.2022. 3. That the Learned trial Magistrate erred in and law and in fact when convicted the appellant in absent of proof if it was real the appellant was a customer of the alleged guest house since there was no evidence of registration assured that on the material time the appellant was a customer. 4. That the trial Magistrate Court grossly erred in law and fact by convicting the appellant on relying of the evidence of search and seizure which were irregular because the appellant was not issued with a receipt acknowledging the seizure. 3|Page 5. That PW1 A/Insp. Dawson PW1 who searched the premises (Guest House) was not in charge of the any Police Station but he was alleged ordered by his officer commanding station (OCS) to team up with other officer in the anti-poaching unit in order to follow up and arrest the appellant should have a written authority warrant to conduct the search accordingly in the absence of written warrant of search thereof the purported search was illegal in term of Section 38(1) of CPA Cap 20 R.E. 2002. 6. That the trial court erred in law and in fact as the magistrate ought not have relied on seizure certificate that did not indicate that the search was made at the said guest house. 7. That the trial court erred in law and in fact when convicted the appellant basing on the caution statement which was un procedurally recorded. 8. That the trial court erred in law and in fact when convicted the appellant without considering that the evidence of 4|Page prosecution case did not establish the chain of custody of the alleged exhibits from its arrest until it brought before the court as an exhibits. 9. That the trial Court erred in law and in fact when convicted the appellant without considering that since the seizure and certificate of the appellant at the alleged scene of crime (Guest House) was conducted under Section 38 of the Criminal Procedure Act [Cap 20] all the injunction thereof have to be complied with accordingly for legality of search and seizure thereof. On 18th September 2024, the parties were heard through viva voce hearing. The appellant was represented by Mr. Ezekiel Amon, advocate holding brief for Mr. Erick Christopher, Advocate while the respondent enjoyed the legal services of Ms. Victoria Njau and Mr. Francis Mwakifuna, learned State Attorneys. Mr. Ezekiel Amon took up the matter and reiterated that the appeal was preferred in a total of nine (9) grounds of appeal. However, upon 5|Page perusal of the grounds and proceedings, the counsel for the appellant prayed to argue the 1st and 2nd second grounds collectively. The appellant argued on the issues relating to illegality that are revealed in the proceedings. According to the appellant, PW 1 at pages 7 to 13 of the proceedings there were documentary evidences tendered as Exhibit P.1. for the elephant tusks; Exhibit P. 2 which was a motorcycle; and Exhibit P.3 that is Certificate of Seizure for two pieces of elephant tusks. It is argued by the appellant that the tendering of Exhibit P.3 Certificate of Seizure is demonstrated in page 12 of the proceedings has issues. The application to tender the same was not objected by the appellant. The only legal infraction is that the same was not read in court. There is nothing indicating that the same was read before the court of law. Failure to read the contents of Exhibit P.3 is prejudicial to the appellant by denying him to know the contents of such piece of evidence. 6|Page It undermines the fairness of the trial against the appellant. In Robinson Mwanjisi and Others versus Republic [2003] TLR 218 the Court provided a guideline for the admission of documentary evidence to include clearance of the document, admission of the document and the document must be read before the Court. It was appellant’s argument that failure to comply with this procedure vitiates the integrity of the evidence. Thus, appellant prayed that Exhibit P.3 be expunged from records as it does not comply with legal provisions. The second aspect is on identification of Exhibit P.1 that is elephant tusks which were not correctly done. It was not properly described by the prosecution’s witnesses. PW 5 was one Jackson Robert Munuo who at pages 18-19 provided a description of the said tusks but did it incorrectly. The issue relates to failure in providing description but the same was only provided as comparison. Description of tusks should be guided by scientific basis for the same to be regarded as Government trophy not otherwise. These would include description on the structure- cross sectional structure, 7|Page molecule analysis and specific texture and not comparison instead of scientific or anatomic details. In Leonard Felesiano versus Republic, Criminal Appeal No 238 of 2020 at page 12 stated that necessary expert with scientific analysis or criteria is required to inform the court about the Government trophy. Failure of PW 5 to state about the scientific criteria he applied to conclude that the same was elephant tusks, there was no identification exhibit as elephant tusks. As such, the basis of the case was Exhibit P.1 that was not properly described as the evidence of all other witnesses fall short of truth to establish the offence against the appellant. It was argued that the appellant was convicted for offence of being found in possession of elephant tusks that were not identified thus the conviction was baseless. The conviction and sentence were not proper in the circumstances. With regard to the seizure certificate, it was argued by appellant that the same violated section 38(3) of the Criminal Procedure Act, Cap 20 R.E. 8|Page 2022, Section 35(3) of the Police Force and Auxiliary Services Act, PGO 226(2)(d) and section 29(2) of the Economic and Organised Crimes Act, there was no receipt indicating that the accused was issued with to acknowledge the same were found at his place. In the case of Andrea Augustino@Msigala and Another versus Republic, Criminal Appeal No 265 of 2018, the Court of Appeal reiterated the issuance of receipt to acknowledge that accused person was found in possession of the exhibits. In the instant appeal, the receipt was not issued, there was no evidence that the same was found in possession of the appellant. The other allegation of infraction was that at page 6 of the proceedings, the Preliminary Hearing issue is questionable as PH is not part of the proceedings. It was argued that given that Preliminary Hearing record is in a separate document, it raises doubts as to when the same prepared and signed by the appellant. The second observation arresting and arraigning in court for the appellant took a long time of incarceration without justifiable grounds. The 9|Page appellant was arrested on 03/11/2023 but arraigned to court on 30/11/ 2023 almost a lapse of 26 days – this period was too long without the reasons while section 29 of the Economic and Organised Crimes Act states that the accused should not be held without arraigning him to court for more than 48 hours. In Shija Ngasa versus Republic, CAT Criminal Appeal No 173 of 2022 stated that failure to arraign the accused to court timely vitiate the prosecution’s evidence. It was stated that on strengths of these grounds, this Court should be pleased to allow the appeal and set aside the conviction and sentence thus set free the appellant. On the other hand, Mr. Francis Mwakifuna, learned State Attorney reiterated that the respondent is objecting the appeal as all the grounds have no merits. Thus, it was stated that the respondent supports the conviction and sentence of the trial court on the following reasons: On failure to prove the case beyond reasonable doubts, it was submitted that there were proof of ingredients of being found in possession of the Government trophy. There were witnesses and exhibits tendered. 10 | P a g e PW 1, a police officer at pages 7-8 stated that the arrest of the appellant was done in presence of the Hamlet/ Mtaa leadership, other police officers and independent witnesses. It was argued that the Guest House attendant and other police officers witnessed the recovery/ retrieval of the Government trophy and the signing of seizure certificate. It was admitted explicitly that Exhibit P. 3 was not read in court after being admitted in Court thus such omission was fatal to the extent that remedy is expunging it from the record although such expunging does not vitiate the proceedings. The respondent cited the principle in the case Zeng Zhi Chao versus the Director of Public Prosecutions, Criminal Appeal No 506 of 2019, where the Court of Appeal dealt with omission of this nature and reiterated that expunging of the certificate of seizure or valuation report does not vitiate the whole of the evidence as the oral evidence can establish the case against the accused person. It was the respondent’s submission that all other witnesses supported the evidence of PW 1. PW 2 did support the evidence of PW 1 that he 11 | P a g e escorted PW 1 in accompany of other independent witnesses who escorted PW 1 and PW 2. It is on record that PW 3 at page 15 stated to have witnessed the seizure of the Government trophy and PW 6 was the Guest Attendant corroborated the retrieval/ finding of the Government trophy from the appellant. It was further argued by the respondent that in cross examination the appellant did not shake the evidence of the prosecution. The reasons for so stating is that the appellant never cross examined on crucial issues. The principle in the case of Jaspin Daniel @ Sikwazwe versus Director of Public Prosecutions, Criminal Appeal No. 519 of 2019 was cited to illustrate that failure to cross examine on important matters implies admission of the truth on those aspects. Moreover, the alleged PW 5’s failure to describe the elephant tusks scientifically is stated to be incorrect assessment of the same. The respondent referred the court to pages 18-20 of the proceedings that it reveals categorically that the witness described the manner of identification and valuation of the Government trophy. According to the respondent, PW 12 | P a g e 5 did provide a lucid identification by indicating scientific aspects that are differentiating the elephant tusks with other types of tusks. Among others was the absence of fibres, description on the structure and weight of the tusks as among the criteria of differentiating the elephant tusks with any other tusks. As such, it was argued that the cited cases were distinguishable as in the instant appeal, identification and valuation expert was present. On issuance of the receipt as an acknowledgment of action of finding some items on search and seizure process, it is argued that independent witnesses and seizure certificate can take care of that aspect. In the case of Gitabeka Giyayaya vs Republic, Criminal Appeal No. 98 of 2017 the Court of Appeal stated that non-issuance of the receipt under Section 38 of the Criminal Procedure Act is curable under section 388 of the Criminal Procedure Act, Cap 20 R.E. 2022. It was argued further that indeed, the presence of the independent witnesses was curing the absence of receipt to acknowledge the seizure/ taking of the items found at the searched place. 13 | P a g e On late arraignment of the appellant to court, the respondent reiterated that such lateness was attributed to the compliance issues under section and law under which the offence was charged. According to the respondent, under Section 86 of the Wildlife Conservation Act investigation would normally require time to ensure that all processes are fully complied with. It was respondent argument that the witnesses elaborated thoroughly on the procedures that have taken place after the arrest of the appellant. It is submitted that cited cases under this aspect were distinguishable as the circumstances differ. It was respondent further submission that there was nothing on defence that would have dented the prosecution evidence to raise any reasonable doubts. There were other exhibits that were establishing the offence apart from the certificate of seizure thus making the whole appeal lack merits. The respondent reiterated that the procedure for conducting the Preliminary Hearing was fully adhered to thus there was nothing wrong at 14 | P a g e all. It was at this juncture that respondent invited this court to find out that the appeal has no merits thus it deserved to be dismissed on its entirety. In rejoinder, the counsel for appellant reiterated his submission in chief. He further added that conviction should be based on the strengths of the prosecution case. It was the prosecution that had onus to prove the case beyond reasonable doubt. It was stated that late arraignment of the appellant was not seriously challenged as there is nothing on the records given that all the exhibits by 04/11/2023 there were at the Police Station. It was argued that the law governing the matter is the Economic and Organised Crimes Act requires immediate arraignment. Section 38(1) of the Criminal Procedure Act, Cap 20 R.E. 2022 provides for receipt to be provided to acknowledge the taking. Accordingly, the presence of independent witnesses do not take away the requirement of the provisions of the law. Moreover, it was submitted that the expert failed to describe the exhibit adequately as it was expected. As such, the appellant was of the view that there is nothing described scientifically by the witnesses. 15 | P a g e In respect of cross-examination on important matter, the appellant submitted that appellant asked relevant question. The Sikazwe case is distinguishable as the appellant therein did cross examine on all important issues. It was concluded that given that evidence of Exhibit P.1 was not described to the required standard thus all other evidence collapses. I have dispassionately considered the rival submissions of both parties in respect of the grounds of appeal. It is pertinent for this court to determine the validity or otherwise of the grounds of appeal in light of the available evidence on record. The first aspect of the appeal is non-compliance with the procedure of tendering documentary evidence, namely Seizure Certificate, Exhibit P. 3. It is on record that at page 12 of 27 of the proceedings, a Certificate of Seizure of two pieces of tusks and motorcycle with Registration Number MC 689 EAD as Exhibit P. 3. The same was not read out in Court. I entirely concur with the counsel for the appellant that failure to read the contents of Exhibit P. 3 vitiated the same. This was the position of the Court in the case of the case of Geophrey Jonathan @ Kitomari 16 | P a g e vs Republic (Criminal Appeal 237 of 2017) [2021] TZCA 17 (16 February 2021), at pages 12-14, the Court of Appeal emphasized that: It is trite principle that when a document is sought to be introduced in evidence three important functions must be performed by the court, clearing the document for admission, actual admission and finally, to ensure that the same is read out in court. The effect of the omission… is to expunge the documents from the record. The position is the same where the document is admitted without being cleared for admission as it happened in this case. In the circumstances, we agree with the learned Senior State Attorney that exhibits P1 - P3 which were wrongly admitted in evidence deserve to be expunged from the record and thus we accordingly hereby do so. It is lucid from this decision that the effect of non-compliance with the reading out of the exhibits in court and the way forward has been to 17 | P a g e expunge it from the record. Such expunging of the exhibit relates to that specific exhibit only. Indeed, expunging of exhibit does not affect the oral testimony on record regarding the evidence of that particular witness tendering the exhibit that end up being expunged. It is on record that there were several witnesses who testified in favour of the prosecution. It is on record that PW 1 stated in his testimony that on 3rd day of November 2023 he went to Fred Lodge together with PW 2 and another person at the scene of crime. Also, the Street Executive Officer of Iboni Street was present. PW 1 stated that he witnessed the appellant entering the scene of crime Fred Guest House with a motorcycle make Kinglion with registration Number MC 689 EAD, he searched the appellant and the room, found the two pieces of tusks, seized both tusks and the motorcycle and took the appellant to Police Station. PW 2 stated that he was at Kondoa on the 3rd day of November 2023 with PW 1 at the scene of crime. PW 2 participated in the process of search and seizure and that the appellant had no permits. The appellant admitted to have arrived with motorcycle with registration number MC 689 EAD. 18 | P a g e This evidence was also corroborated by PW 3 who is Street Executive Officer. He stated to have been at the scene of crime at Fred Lodge which is in his Street of Iboni where he is a leader. PW 3 stated that she was present when appellant’s room was searched and a bag retrieved two pieces of tusks as well as motorcycle with registration number MC 689 EAD. The appellant was arrested and sent to Kondoa Police Station. Further, PW 6 who was the Guest attendant appeared in Court to testify for the prosecution. According to PW 6 she gave a room to a guest introduced as Juma Hussein prior to Police entering the room, search and seizure leading to discovery of two pieces of elephant tusks. Generally, all these witnesses point out to same direction that the appellant was arrested, searched and seizure of the two pieces of tusks and motorcycle was done in their presence. The principle of the law that there is survival of the oral testimonies where exhibits are expunged from the record has been well established in this jurisdiction. In the case of Zheng Zhi Chao vs Director of Public 19 | P a g e Prosecutions (Criminal Appeal No. 506 of 2019) [2021] TZCA 240 (8 June 2021) (TANZLII), at pages 20-21, the Court of Appeal stated that: It is settled position that failure to read out the contents of an exhibit after its admission in evidence is a fatal irregularity as it violates the accused's right to a fair trial - see the cases of Robinson Mwanjisi and 3 Others v. Republic [2003] T.L.R 218 and Anania Clavery Betela v. Republic, Criminal Appeal No. 355 of 2017. In the latter case the Court emphasized that failure to read over the contents of exhibit after being cleared for admission and actually admitted in evidence is wrong and prejudicial. Being guided by the above authorities, the said exhibits deserve to be expunged from the record as we accordingly, hereby do. Nevertheless, we agree with Ms. Gwaltu that even if the said exhibits are expunged from the record, the oral evidence of the respective witnesses who tendered them in court can 20 | P a g e sufficiently prove facts contained in the expunged documents. See the cases of Saganda Saganda Kasanzu v. Republic, Criminal Appeal No. 53 of 2019 (unreported), Huang Qin & Another (supra) and Emmanuel Mwaluko Kanyusi and 4 Others (supra). Specifically, in all these cases after expunging the certificate of seizure and trophy valuation certificate which were not read out, the Court relied on the oral evidence of those prosecution witnesses who proved the contents of both expunged exhibits. It is certain that evidence of the prosecution was watertight and it was not challenged. The principle in the case of Issa Hassani Uki vs Republic (Criminal Appeal No. 129 of 2017) [2018] TZCA 361 (10 May 2018), at pages 16-17, the Court of Appeal stated that: It is settled in this jurisdiction that failure to cross- examine a witness on a relevant matter ordinarily connotes 21 | P a g e acceptance of the veracity of the testimony. As a matter of principle, a party who fails to cross examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said. The second aspect relates to identification of elephant tusks. The role of identification of exhibits in offences relating to unlawful dealing with the Government trophies needs not to be overemphasized. Such identification plays a double role. First, the identification helps to state a type of animal that is involved. Second, the proper assessment of the value of the animal thus appropriate sentence to be imposed to the accused person in a particular offence. In the case of Daniel Mohere Chacha vs Republic (Criminal Appeal No. 382 of 2020) [2024] TZCA 531 (9 July 2024) (TANZLII), at pages 17-19, the Court of Appeal stated that: A description of remarkable and peculiar features or criteria of wild beast meat was not availed to the courts 22 | P a g e below for them to form own and independent judgment. The requirement to establish the type of an animal's meat or part thereof found in possession of a suspect or accused need no overemphasis. Section 86(1) and (2)(a), (b), (c) of the WCA, respectively, create the offence of unlawful dealing with any government trophy including possession of it and stipulates the manner of assessing sentence upon conviction. Generally, the schedule in which the trophy is located and the value of it form the criteria of assessing proper sentence. (See Emanuel Ambrous vs Republic, Criminal Appeal No. 555 of 2017 (unreported). In view of this, identification of trophy meat or part thereof helps to locate the schedule in which the type of animal is located while the value thereof helps in the determination or assessment of the sentence. It is, therefore, not only difficult but impossible for the court to assess as best as it can what it considers to be an adequate sentence if the type of trophy (animal) is not properly identified and the 23 | P a g e value thereof properly determined. A detailed evidence on the manner of identification and valuation of a trophy is indispensable for an accused's blameworthy to be established and be justly sentenced. In the instant appeal, PW 5 testified that he is a wildlife officer working with Tanzania Wildlife Authority (TAWA) and stationed at Mkungunero Game Reserve. PW 5 testified that he has a Master of Arts in Natural Resources Assessment and Management and Bachelor of Science in Wildlife Management and on 4th day of November 2023 he was assigned to get at Kondoa for identification and valuation of a government trophy. According to PW 5, when arrived at Police Station met one Inspector Stewart who handed over a small black bag and found a sulphate make Nice One. There were two pieces of tusks which he recognised to be elephant tusks. The criteria for identification were as follows: First, the tusks had no hole inside and it was heavy compared to hippopotamus horn which is very lighter. Second, the tusk had no fibres compared to the cattle 24 | P a g e horn. According to PW 5, these were the main criteria for conclusively stating that the tusks were those of elephant. The difference is weight between one type of tusks to another, absence of the hole in the tusk and lack of fibres were scientific characteristics that provide a distinction between one animal and the other. In cross examination, PW 5 stated that the distinction by comparison was because each of the animals has tusks which appear differently. In course of testimony of PW 5, a Trophy Valuation Form was tendered, admitted, marked as Exhibit P 4 and its contents read out in the court. According to PW 5, the valuation was made to be TZS 34,954,000/= equivalent to 15,000 US Dollars, signed the Trophy Evaluation Form police. It can be discerned from the evidence of PW 5 that the structure and physical appearance of the tusks including presence of a hole, heaviness of the tusk and presence or absence of fibres are sufficient criteria for identification of the alleged tusks. All these aspects appear to be scientific based as they relate to appearance, internal structure, weight of the tusks and presence or absence of fibres. They are adequate enough in this court 25 | P a g e settled and humble view in the circumstances of the matter at hand. Those aspects are scientific characteristics distinguishing one type of tusks from the other. The description of the Government Trophy was reiterated in Marwa Chacha Gekondo vs Republic (Criminal Appeal No. 463 of 2020) [2024] TZCA 539 (10 July 2024) (TANZLII), at pages 11-13, the Court stated that: Quite obviously, this is not what is expected of an expert. Expert findings are based on analysis of data or facts and the findings are well reasoned. An expert has, therefore, to provide the criteria and material for adjudging situations. This should be reflected on the reasons they give to support their findings so as to assist the court to make own judgment by observing or comparing the criteria given and the real thing for which the opinion is given (See The DPP vs Shida Manyama @ Seleman Mabuba, Criminal Appeal No. 285 of 2012 (unreported). A final finding is, however, made by the court as his are mere opinions not 26 | P a g e binding the courts. We would add here that where criteria are given and are well explained, such evidence (opinion) should not be easily ignored by the court but reasons should be given (See Saidi Mwamwindi vs R [1972] HCD n. 212 at page 249). In discussing the position expert opinion has in the administration of justice, a statement by Lord President Cooper in the case of Davie v. Edinburgh Magistrates, 1953 S. C. 34 at page 40 was accepted by the Court in the case of The DPP vs Shida Manyama @ Seleman Mabuba, (supra) as providing a proper elaboration of the duty of an expert that: - "To furnish the court with the necessary scientific criteria for testing the accuracy of their conclusion so as to enable the court to form its own independent judgment by the application of these criteria to the facts proven in evidence." Based on the above requirement, an expert is not expected to rush and give a finding without elaborating the 27 | P a g e basis of his conclusion. Reasons for his findings are paramount in making his findings worthy it. I shall therefore proceed to find out that PW 5 managed to demonstrate that he had competency to testify in identification of the Government Trophy. He met all the requirements of the regulations guiding valuation of Government Trophy. Indeed, valuation of the Government trophy is statutorily governed by the Wildlife Conservation (Valuation of Trophies) Regulations, Government Notice No. 207 published on 15/06/2012. Regulation 4 and Second Schedule to the Regulations are explicitly on the Certificate of Valuation and it empowers the Director of Wildlife or another person of the rank of Wildlife officer to do the valuation of the trophy thus competent to testify on that aspect. This regulation cements the contents of Section 86 of the Wildlife Conservation Act. Second, the witness provided a thorough oral account and documentary evidence to substantiate that the animal tusks involved in a case belonged to the elephant tusks. Exhibit P. 4 which is Trophy Valuation Certificate and Exhibit P. 5 which is Chain of Custody Form are explicit that 28 | P a g e they relate to two pieces of elephant tusks. In the view of this Court there is nothing cogent to complain on this aspect. The evidence of PW 5 is within the ambits of the principle enunciated in Shabani Ally Athuman vs The Republic (Criminal Appeal No. 151 of 2021) [2024] TZCA 192 (19 March 2024), at pages 19-20: Sections 86 (4) and 114 (3) of the WCA provide in clear terms that a trophy valuation certificate signed by the Director or wildlife officer from the rank of wildlife officer is prima facie evidence of the matters stated therein. A wildlife officer is defined under section 3 of the WCA as follows: “a wildlife officer, wildlife warden and wildlife ranger engaged for the purposes of enforcing the Act.” In the case of Jamali Msombe & Another v. The Republic (supra), the Court considered the import of section 3 of the WCA and held that: ''It is our considered view, from the above discussion and the definition of who is game ranger, that a game warden, wildlife officer, 29 | P a g e wildlife ranger and a game ranger are same persons whose main task is to protect wildlife." In the present appeal, the designation of the person who assessed, valued, weighed and issued the trophy valuation certificate was a principal game officer. It is common ground that the main task of any game officer is to protect the wildlife and ensure proper implementation of the WCA. We are, therefore, satisfied that PW6 was a competent person to assess, value, weigh and issue the trophy valuation certificate. With regard to improper conduct of the Preliminary Hearing, it is the views of this Court that should not detain this Court. Failure to conduct or improper conduct of the Preliminary Hearing does not vitiate the hearing as PH is not in law a hearing itself. In recent decision in the case of Daktari Jumanne vs Republic (Criminal Appeal No. 602 of 2021) [2023] TZCA 18020 (28 December 2023), the Court of Appeal stated that: 30 | P a g e From settled case law in this jurisdiction, a trial of a case will not be vitiated for failure to conduct a preliminary hearing or for conducting it improperly. In the case of Benard Masumbuko Shio v. Republic, Criminal Appeal No. 123 of 2007 (unreported), the Court held that a trial will not be vitiated by a defective preliminary hearing. Same position was held in decisions in Mkombozi Rashid Nassor v. Republic, Criminal Appeal No. 59/2003; Joseph Munene and Another v. Republic, Criminal Appeal No. 109/2002 and Christopher Ryoba v. Republic, Criminal Appeal No. 26 of 2002 (all unreported). That being the legal position, I find that lamentations of the preliminary hearing are far-fetched aspect that has nothing to deal with conviction and sentence of the appellant. I shall disregard the same. 31 | P a g e Failure to tender an acknowledgment receipt for seizure of two pieces of elephant tusks purportedly was another area of contention between the appellant and respondent. The position is demonstrated that On seizure certificate and absence of receipt acknowledging seizure, it a settled position of the law in our jurisdiction that where Certificate of Seizure is prepared and signed by the accused person is available that certificate serves the purpose of the receipt of acknowledgment. In the case of Shabani Ally Athuman vs The Republic (Criminal Appeal No. 151 of 2021) [2024] TZCA 192 (19 March 2024), at page 18, the Court of Appeal stated that: Further, we are of the strong view that, by signing a certificate of seizure, the appellant admitted to be found in possession of the government trophy. Given that circumstance, we find that the omission to issue a receipt was not fatal. This legal position was also reiterated in Papaa Olesikaladai @ Lendemu & Another vs Republic (Criminal Appeal No. 47 of 2020) 32 | P a g e [2023] TZCA 51 (20 February 2023, at pages 13-14, where the Court of Appeal stated that: We agree with Ms. Madikenya that the complaint for non-issuance of a receipt will have no place in cases where a certificate of seizure is issued. This stance is fairly settled in our jurisdiction. We discussed this position at some considerable length in Gitabeka Giyaya v. Republic, Criminal Appeal No. 44 of 2020 (unreported), a judgment we rendered on 28.12.2022. In that appeal, we relied on a number of previous decisions including Ramadhan Idd Mchafu v. Republic, Criminal Appeal No. 328 of 2019 Abdalah Said Mwingereza v. Republic, Criminal Appeal No. 258 of 2013 (both unreported) and Matata Nassoro and Another (supra) to underscore the point that where, like here, a certificate of seizure is issued and is signed by the accused person, the same constitutes evidence even without a receipt. 33 | P a g e In the appeal before us, the appellants thumb printed the certificate of seizure and PW2 testified that they were found in possession of the elephant tusks after waylaying them. Given the authorities referred to above, and in the light of the testimony of PW2, we find and hold that the omission to issue a receipt in terms of sections 38 (3) of the CPA or 22 (3) of Cap. 200 was not fatal. The ailment is curable under the provisions of section 388 of the CPA. I tend to concur with the respondent that given the expunging of Exhibit P. 3 that was the Seizure Certificate does not invalidate all oral testimonies on record. I should restate that evidence of PW 1, PW 2, PW 3 were lucidly revealing that on 3rd day of November 2023, the triple witnessed search and seizure of the two main items: elephant tusks and motorcycle with registration MC 689 EAD make Kinglion. Another set of evidence is that of PW 4 who testified to the effect that on 3rd day of November 2023 he received from one A/ Inspector Dawson (PW 1) two pieces of tusks and a motorcycle registered MC 689 34 | P a g e EAD make Kinglion black in colour. It was PW 4’s evidence that on 4 th day of November 2023 he handed over the tusks to PW 5 for identification and valuation of the same. This evidence tallies squarely with that of PW 7 who investigated the offence. He stated that he interrogated the accused person, recorded witness statements, drew a sketch map and on 4th day of November 2023 handed over the two pieces of tusks to PW 5 for identification and valuation. The same were returned to Exhibit Keeper for safe custody. PW 7 tendered Chain of Custody report as an Exhibit P5 which was not objected thus admitted, marked and read out in Court as well as the Sketch Map of the scene admitted as Exhibit P.6. The evidence of PW 4 and PW 7 was not challenged at all by the appellant. The oral testimonies and documentary evidence on record are from what is termed as best evidence as these witnesses are witnesses of truth who saw the event or assessed and evaluated the pieces of tusks. 35 | P a g e Testimonies of PW 1, PW 2, PW 3, and PW 6 reflect witnesses who are direct witnesses under the law. The Evidence Act, Cap 6 R.E. 2019 provides that: 62.-(1) Oral evidence must, in all cases whatever, be direct; that is to say-(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it. At the same time, PW 5 testimony is referring to evidence under Section 61(1) (d) of the Evidence Act. As PW 5 was expert opinion, it is the one who holds that opinion that tusks belonged to the elephant tusks. It is without any flicker of doubts that prosecution evidence was so consistent, lucid, credible and reliable to ensure that criminal justice is served. In the case of Shilanga Bunzali vs Republic (Criminal Appeal 600 of 2020) [2022] TZCA 750 (1 December 2022) (TANZLII), at page 12-13, the Court of Appeal observed that: 36 | P a g e We are aware that, it is a settled position of the law that, the credible oral account shall not fail the validity test merely because there is no corresponding documentary account. Failure to arraign the appellant to court timely was also subject of lamentation in this case. The appellant was of the view that there was a lapse of 26 days from date of arrest to arraignment in Court. This period was too long without the reasons thus contravening the provision of section 29 of the Economic and Organised Crimes Act states that the accused should not be held without arraigning him to court for more than 48 hours. It was the respondent’s view that offence under section 86(1) and (2) of the Wildlife Conservation Act require time to comply with investigation and analysis of the evidence prior to arraignment of the accused to court. There is a plethora of authorities that hold the view that failure to arraign the accused person to court does not necessarily vitiate the 37 | P a g e proceedings. For instance, in Shabani Salim vs Republic (Criminal Appeal No. 519 2021) [2023] TZCA 18015 (21 December 2023) (TANZLII), at page 24, the Court of Appeal stated that: Luckily, this is not a first scenario the Court is facing. In Jafari Salum @ Kikoti v. Republic, Criminal Appeal No. 370 of 2017 (unreported), while dealing with a case where the appellant's arraignment was delayed for about thirty- nine (39) days, the court had this to say: "The appellant claims this to have offended the mandatory provisions of sections 32 (1) of the CPA. Indeed, as Ms. Ally submitted, the evidence is silent as to what made the appellant be arraigned after about 39 days after he was arrested. This is perhaps why Ms. Ally went into speculation that the delay might have been caused by the appellant's endeavours to have the matter settled out of court. Much as we do not find ourselves safe to go into speculation, as 38 | P a g e Ms. Ally did, we do not think this procedural mishap was fatal as to vitiate the trial of the appellant. Being guided by our previous decision above, we are as well, not ready to work on speculations, as whatever reason we may try to think, it will end up leading us into speculations. Just as it was in the above case, we do not think that failure to arraign the appellant herein within twenty-four (24) hours was fatal as to vitiate the trial of the appellant. In more recent decision of Daktari Jumanne vs Republic (Criminal Appeal No. 602 of 2021) [2023] TZCA 18020 (28 December 2023) (TANZLII), at pages 18-19, the Court of Appeal reiterated that: Equally so, in the most recent decision of the Court in the case of Shabani Salim v. Republic, Criminal Appeal No. 519 of 2021, while faced with the same scenario as in this case, Court held at page 24 of the Judgment that: 'We do not think that failure to arraign the appellant herein within 39 | P a g e twenty-four (24) hours was fatal as to vitiate the trial of the appellant". In the case at hand, records are silent as to what made the appellant be arraigned about 17 days after he was arrested, despite learned State Attorney's submission that, delay was caused by process of investigations of the offence. We have seriously examined the record of appeal, it is our finding that, despite delay to arraign the appellant, did not vitiate the trial. I have thoroughly perused the proceedings of the trial Court; it is settled opinion of this Court that the appellant was not prejudiced in any manner by the delay in arraignment to court timely. The appellant was availed opportunities before the trial court to object on tendering of physical and documentary evidence, cross examine the prosecution witnesses and enter defence. All these intended to uphold the rights of the appellant in the circumstances. The lamentation therefore is not valid. 40 | P a g e Lastly on proof of the case to the required standard as the appellant argued that in absence of Exhibit P 3 the seizure certificate there is nothing on record to warrant conviction. This argument was couched in the line of argument that absence of seizure certificate in court record signifies that nothing was seized from the appellant thus there was no proof of the case to the required standard. On the other hand, the respondent was of the view that the case was established to the required standard. In the case of Pascal Yoya @ Mganga vs Republic (Criminal Appeal No. 248 of 2017) [2021] TZCA 36 (24 February 2021) (TANZLII), at pages 16-17, the Court observed that: It is a cardinal principle of criminal law in our jurisdiction that, in cases such as the one at hand, it is the prosecution that has a burden of proving its case beyond reasonable doubt. The burden never shifts to the accused. An accused only needs to raise some reasonable doubt on the prosecution case and he need not prove his innocence. See the cases of Woolmington v. Director of Public 41 | P a g e Prosecutions [1935] AC 462; Abdi Ally (supra) and Mohamed Haruna @ Mtupeni & Another v. Republic, Criminal Appeal No. 25 of 2007 (unreported). In the just cited case of Mohamed Haruna @ Mtupeni & Another (supra) the Court stated that: - "Of course, in cases of this nature the burden of proof is always on the prosecution. The standard has always been proof beyond reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." Again, in Mwita and Others v. Republic [1977] TLR 54 the Court said: "The appellants' duty was not to prove that their defence was true. They were simply required to raise a reasonable doubt in the mind of the magistrate and no more." Similarly, in the case at hand, the appellant was not required to prove that his defence was true. He was only supposed to raise a reasonable doubt, which he did. 42 | P a g e It is definite that the trial court was satisfied with strengths of the prosecution evidence on record to find the appellant herein guilty of the offence that he stood charged. My re-evaluation of evidence on record has nothing cogent to depart from a well-founded finding by the trial Court. That decision of the trial Court both conviction and sentence should be upheld for being arrived to correctly in accordance with available evidence and applicable principles of law. In totality of the events, the appeal lacks merits and it is hereby dismissed in its entirety for being devoid of merits. It is so ordered. DATED at DODOMA this 6th day of November 2024. E.E. LONGOPA JUDGE 06/11/2024. 43 | P a g e