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IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: NDIKA. J.A.. MWAMPASHI. J.A.. And RUMANYIKA. CRIMINAL APPEAL NO. 682 OF 2021 METAWASI LOMAYAN MESHULAI @ LEYOO............................. APPELLANT VERSUS REPUBLIC...............................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Corruption and Economic Crimes Division at Arusha) fLuvanda. 3.1 dated the 6th day of March, 2020 in Economic Case No. 21 of 2019 JUDGMENT OF THE COURT 5th & 13th August, 2024 NDIKA. J.A.: The appellant, Metawasi Lomayan Meshulai alias Leyoo, and two other individuals who are not parties to this appeal, Elibariki Rishael Urasa and Fred Kasaye alias Mojah, were tried before the High Court of Tanzania, Corruption and Economic Crimes Division, in Arusha (Luvanda, J.), for the unlawful possession of government trophies. The charge was brought under section 86 (1) and (2) (b) of the Wildlife Conservation Act, No. 5 of 2009, as well as 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. 2002, as amended by sections 16 (a) and 13 (b) of the Written Laws (Miscellaneous Amendments) Act, 2016, Act No. 3 of 2016. The appellant was found guilty of the offence; however, his two co­ accused were acquitted. As a result, the appellant was sentenced to pay a fine of TZS. 705,982,200.00 or to serve twenty years' imprisonment in default. Irked by the conviction and sentence, the appellant has lodged this appeal. The prosecution alleged that the appellant and his two co-accused were jointly and together, on 10th September, 2016 in the Makuyuni area of Monduli District in Arusha Region, found in unlawful possession of government trophies, to wit, two elephant tusks weighing 58.8 kilogrammes and valued at US$ 32,340, equivalent to TZS. 70,598,220.00. The trophies were the property of the United Republic of Tanzania and were not accompanied by a permit from the Director of Wildlife. PW2 Solomon Jeremiah Biloza and Raymond Mdoe were game wardens from the Anti-Poaching Unit, Northern Zone at Arusha, which is also known as Kikosi D hidiya U jangili(KDU). Even though PW2 provided testimony at the trial regarding the manner in which he and Mdoe confiscated the tusks in question, the latter was unable to appear and testify at the trial. PW5 Assistant Inspector Kaitira Machumu, a police officer from the Office of the Regional Crimes Officer, Arusha, stated that Mdoe was unable to be located after all attempts to trace him had been made. Consequently, the trial court admitted Mdoe's statement, dated 10th September, 2016, as exhibit P5, in accordance with sections 34B (1) and (2) (a) of the Evidence Act, Cap. 6. The prosecution's version, which was substantiated by PW2's testimony and exhibit P5, was that Mdoe and PW2 planned a buy-bust operation to entrap certain individuals who were selling elephant tusks in Arusha. This operation was initiated in response to a report Mdoe received from a confidential informant on 9th September, 2016. Mdoe contacted a party involved in the transaction the following morning and consented to meet with him at Makao Mapya in Arusha later that day. Malaki Pallangyo greeted Mdoe and PW2 upon their arrival at the location. Then, Pallangyo led them to Makuyuni, claiming that it was the place where the tusks were stored. Upon arriving at Makuyuni around 11:00 hours, they were joined on board their motor vehicle by two persons whom Pallangyo introduced as Elibariki Rishael and Fred Kasaye. Under the direction of the said Rishael and Kasaye, they drove to a thicket about two kilometres away where they found the appellant and two other persons, namely, Papaa Lusyeku and Lalashi Mollel. PW2 adduced further that the appellant retrieved two elephant tusks from a shrub where they had been stored after engaging in a brief conversation. The purchase price was fixed at TZS. 150,000.00 per kilogramme after the tusks were determined to weigh 58.8 kilogrammes. Afterward, the appellant and Rishael entered the vehicle after being duped to do so by Mdoe and PW2 in order to be given the buy-bust money. Subsequently, Mdoe and PW2 disclosed their identities and apprehended the appellant and Rishael. Four of the appellant's associates who were outside the vehicle fled the scene upon sensing peril. Mdoe completed and signed a certificate of seizure (exhibit P3) to verify the confiscation of the tusks. In addition to being signed by PW2, exhibit P3 was also countersigned by the appellant and Rishael. The appellant and his associate, along with the confiscated tusks, were transported to the KDU Offices in Arusha by Mdoe and PW2. As evidenced by a duly completed handing over form (exhibit PI), Mdoe transferred the tusks to James Kugusa (PW1), a game warden who also served as the exhibits custodian at the KDU Arusha, at approximately 15:00 hours on the same day. The appellant and Rishael appended their thumbprints to exhibit PI, thereby confirming that they observed the transmission. PW1 claimed that he weighed the tusks upon receiving them 4 and determined that their total weight was 58.8 kilogrammes. Next, he labelled and stored them under lock and key at the KDU Offices. It was in evidence that PW1 permitted PW4 Gilbert Bobewe, a wildlife Officer at the KDU, to access the tusks for the purpose of evaluating their value on 11th September, 2016 in accordance with the Wildlife Conservation (Valuation of Trophies) Regulations, 2012, Government Notice No. 207 of 2012. Based on his expertise in wildlife management, PW4 verified that the seized material was unpolished elephant tusks, weighing 58.8 kilogrammes, presumably extracted from a single exterminated elephant. He valued the tusks at US$ 32,340, which was equivalent to TZS. 70,598,220.00, as per a certificate of trophy valuation dated 11th September, 2016 (exhibit P4). He returned the tusks to PW1, who kept them in the store until 20th February, 2020, when he brought them to the trial court for tendering as an exhibit. They were admitted as exhibit P2. Gabriel Charles (PW3), also a game warden, provided testimony that he apprehended Kasaye on 5th October, 2016, approximately twenty-five days after he allegedly escaped from the scene when the appellant and Rishael were arrested. The said Kasaye was tried in conjunction with the appellant and Rishael, as previously indicated. The appellant and his two co-accused flatly denied the accusation against them. For his part, the appellant solely relied on his testimony on oath. He claimed that on 10th September, 2016, he was transporting a pillion passenger to Simanjiro on his motorcycle taxi, which is commonly referred to as a 'bodaboda'. Upon reaching Simangoli village, he exited the road at the passenger's request. After only a few minutes, he was abruptly apprehended and frisked by armed men who bundled him into their motor vehicle containing elephant tusks. They transported him to the KDU offices In Arusha, where they accused him of dealing in government trophies. The appellant was found guilty of the charge by the trial court, as previously stated; however, his two co-accused were acquitted of the offence. First and foremost, it is imperative to mention that the defence's argument that, the first portion of exhibit P5 (Mdoe's statement), recorded between 16:15 hours and 17:30 hours on 10th September, 2016, was illegal and improper, was upheld by the learned trial Judge. This was because the maker failed to provide a declaration regarding the veracity of the statement, which violated section 34B (2) (c) of the Evidence Act. Consequently, the learned Judge purged the said portion. Nevertheless, the learned Judge reserved the second portion of the statement, which was recorded later that day at approximately 18:00 hours. He referred to that part as the "supplementary statement." This portion, he determined, was in accordance with the law. To be certain, the expurgated part of the statement pertained to Mdoe's account of the buy-bust operation, which led to the arrest of the appellant and Rishael. Consequently, the only portion of exhibit P5 that is currently on record pertains to the transfer of the seized tusks from Mdoe to PW1 at the KDU Offices. Acting solely on the evidence of PW2 and the certificate of seizure (exhibit P3), the learned trial Judge found it established that the appellant was found at the scene possessing the tusks (exhibit P2) without any requisite permit. Moreover, the learned Judge, citing Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2017 [2018] TZCA 361 [10th May, 2018; TanzLII], was impressed that the chain of custody of the seized tusks was fully accounted for and maintained from seizure to when they were unveiled at the trial. In the end, he disregarded the appellant's argument that the case was fabricated against him and determined that the charge had been proven beyond a reasonable doubt. As a result, the appellant was sentenced in the manner that was previously specified. 7 The appellant had lodged eleven grounds of grievance to contest the conviction and sentence. However, at the hearing of the appeal, Mr. John M. Shirima, learned counsel for the appellant, argued, with the leave of the Court, two grounds in substitution of the initial grounds contained in the memorandum of appeal. The said grounds argue that: 1. The tria l Judge erred in law and in fact in convicting and sentencing the appellant based on exhibit P2, which was not listed as and intended exhibit during com m ittal proceedings contrary to section 246 (2) o f the Crim inal Procedure Act, Cap. 20. 2. The tria l Judge erred in law and in fact in convicting and sentencing the appellant believing the prosecution's evidence, which was inconsistent and incredible while the second accused a t the tria l was acquitted based on his defence o f alibi. Mr. Shirima contends, on the first ground, that the two elephant tusks (exhibit P2) that were purportedly confiscated from the appellant and his cohorts were inadmissible in evidence due to their failure to be mentioned during the committal proceedings. He argues that the omission violated the mandatory provisions of section 246 (2) of the Criminal Procedure Act, Cap. 20 ("the CPA"). He urges us to expunge exhibit P2 based on Joachim Ikechukwu Ike v. Republic, Criminal Appeal No. 432 of 2019 [2024] TZCA 195 [19th March, 2024; TanzLII] and Marwa 8 Joel Marwa & Others v. Republic, Criminal Appeal No. 157 of 2021 [2024] TZCA 537 [10th July, 2024; TanzLII]. According to him, the absence of the purported government trophies would be fatal to the case, rendering the charged offence unproven. The respondent, through the erudite Senior State Attorneys Mses. Grace Madikenya, Eunice Makala, and Neema Mbwana, vigorously contests the appeal. Ms. Mbwana argues that the seized contraband is specifically stated in the transmittal letter submitted by the Director of Public Prosecutions ("the DPP") to the Deputy Registrar of the trial court on 4th September, 2019, as shown at pages 67 and 68 of the record. Even though the seized contraband is not included in the transcript of the committal proceedings, as revealed at page 64 of the record of appeal, the letter specifies that "physical exhibits shall be produced during trial." Certainly, by that letter, the DPP lodged in the trial court the information against the appellant and his co-accused, consent to their prosecution, statements of eight intended witnesses and four documentary exhibits. Ms. Mbwana also urges us to consider the fact that the tusks were explicitly listed during the preliminary hearing, as evidenced by page 76 of the record of appeal, as the tangible exhibit that was intended to be presented at the trial, in addition to four pieces of documentary evidence. Her trump card is the recent decision of the Court in Edwin Cheleh Swen v. Republic, Criminal Appeal No. 649 of 2021 [2024] TZCA 272 [17th April, 2024; TanzLII], which established that the use of the phrase "physical exhibits shall be produced during tria l" satisfies the legal requirement by adequately informing the party against whom the exhibits were to be produced that such physical exhibits would be presented as evidence. We observe that the admissibility of the tusks (exhibit P2) was initially contested when PW1 submitted them for admission on 20th February, 2020. This information is on pages 86 and 87 of the record of appeal. The learned trial Judge overruled the objection after hearing the opposing submissions of the learned counsel. He reasoned as follows: "Elephant tusks are not documentary evidence, even the [com m itting] magistrate explained that the documents containing the substance o f the evidence and documentary [exhibits] were read over a t the com m ittal [stage]. I t is n o t th e la w th a t p h y sic a l e x h ib its sh o u ld be lis te d d u rin g co m m itta l [p roceed in gs]. A s m uch [a s ] a t th e p re lim in a ry h earin g th e tw o e le p h a n t tu sk s w ere m entioned, th e o b je ctio n by th e defence can n o t be e n te rta in e d [ ...] [and it] is overruled. The two 10 elephant tusks are adm itted and marked exhibit P2 collectively. "[Emphasis added] In essence, the learned trial Judge was interpreting section 246 (2) of the CPA, which is mirrored in rule 8 (2) of the Economic and Organised Crime Control (the Corruption and Economic Crimes Division) (Procedure) Rules, Government Notice No. 267 of 2016 ("the CECD Rules"). Certainly, the CECD Rules are the governing document for committal proceedings before a subordinate court in cases involving economic and organised crime. We commence with section 246 (2) of the CPA. It provides as follows: "246-(2) Upon appearance o f the accused person before it, th e su b o rd in ate co u rt s h a ll re a d a n d e xp la in o r cause to be re a d to the accu sed person th e in fo rm a tio n b ro u g h t a g a in st him a s w e ll a s th e sta tem en ts o r docum ents co n ta in in g th e su bstan ce o f the evidence o f witnesses whom the Director o f Public Prosecutions intends to call a t the trial. "[Emphasis added] Rule 8 (2) of the CECD Rules restates the above requirement thus: li "8-(2) Upon appearance o f the accused person before it, th e d is tric t o r re sid e n t m a g istra te 's c o u rt s h a ll re a d an d e xp la in o r cause to be re a d an d e xp la in e d to th e accused perso n or if need be, interpreted in the language understood by him, th e in fo rm a tio n b ro u g h t a g a in st him a s w e ll a s th e statem en ts o r docum ents co n ta in in g th e su bstance o f th e evid ence o f w itn esses whom the Director o f Public Prosecutions intends to call a t the trial. " [Emphasis added] It is evident that the learned trial Judge applied a literal interpretation of the said provisions, which limited them to the obligation to read out and elucidate the statements or documents that contained the substance of the evidence that was intended to be presented at the trial. Consequently, the listing of physical or tangible exhibits was excluded. However, in a sequence of its decisions that commenced with Remina Omary Abdul v. Republic/ Criminal Appeal No. 189 of 2020 [2022] TZCA 118 [15th March, 2022; TanzLII], this Court broadly interpreted the said provisions based on the tenet of the accused's right to a fair hearing to include the requirement of explaining to the accused person the substance of evidence of real exhibits or physical exhibits. If a physical or tangible exhibit is not listed during committal proceedings it 12 can only be admitted if the prosecution complies with section 289 of the CPA by serving on the accused person a notice of intention to rely upon such proof as additional evidence. This standpoint has since been strictly followed in Michael Maige v. Republic, Criminal Appeal No. 222 of 2020 [2023] TZCA 54 [24th February, 2023; TanzLII]; Mussa Ramadhani Magae v. Republic, Criminal Appeal No. 545 of 2021 [2023] TZCA 181 [11th April, 2023; TanzLII]; Said Shabani Malikita v. Republic, Criminal Appeal No. 523 of 2020 [2023] TZCA 17302 [5th June 2023; TanzLII]; Mashaka Juma @ Ntatula v. Republic, Criminal Appeal No. 140 of 2022) [2022] TZCA 506 [15th August, 2022; TanzLII]; Kristina Biskasevskaja v. Republic, Criminal Appeal No. 65 of 2018 [2023] TZCA 17434 [20th July, 2023; TanzLII]; Grace Teta Gbatu v. Republic, Criminal Appeal No. 84 of 2019 [2023] TZCA 17516 [23rd August, 2023; TanzLII]; Joachim Ikechukwu Ike {supra)] Marwa Joel Marwa {supra) and Wolfgang Sylvester Lwamtonga v. Republic, Criminal Appeal No. 248 of 2022) [2024] TZCA 678 [1st August, 2024; TanzLII]. The Court recently reaffirmed in Wolfgang Sylvester Lwamtonga {supra) that section 289 (1) of the CPA prohibits the admission of evidence of, among other things, a physical or tangible object whose substance was not disclosed or explained to the accused 13 person during the committal proceedings. The Court also reiterated that the exhibit may be admitted if the prosecution complies with section 289 (1) of the CPA by providing the accused person with a requisite notice. For clarity, we extract the said provisions thus: "289 (1) A witness whose statem ent or substance o f evidence was not read a t the com m ittal proceedings sh all not be called by the prosecution a t the tria l u n le ss th e p ro secu tio n h a s g ive n a n o tice in w ritin g to th e accused perso n o r h is advocate o f th e in te n tio n to c a ll su ch w itness. "[Emphasis added] Pertinently, the Court in that case noted that section 289 of the CPA had been amended vide section 8 of the Written Laws (Miscellaneous Amendments) Act, 2020, Act No. 1 of 2020, by adding subsection (4) immediately after subsection (3) of that section to clarify the expression "substance o f evidence" under that section to include "tangible object"as follows/ "(4) For the purpose o f this section, \substance o f evidence' includes substance contained in a document, record or any other ta n g ib le o b je ct. " [Emphasis added] 14 We would like to emphasise that the committal proceedings in this case, which were conducted on 18th September, 2019, predated the aforementioned amendment. However, the perspective on the matter at hand, as articulated in the preceding sequence of decisions, was undoubtedly not founded on section 289 (4) of the CPA in its current form. It is clear as a pikestaff that the confiscated elephant tusks are not mentioned in any way in the transcript of the committal proceedings, which spans pages 62 through 70 of the record of appeal. Ms. Mbwana cited the DPP's transmittal letter, which stated that "physical exhibits shall be produced during tria l" and that the tusks were explicitly mentioned during the preliminary hearing. This Court will not be influenced by these facts in its decision to enforce the prohibition under section 289 (1) of the CPA against the admission of evidence that did not satisfy the requirements of section 246 (2) of the CPA or rule 8 (2) of the CDEC Rules. In fact, the Court deemed the physical or tangible exhibit cited at the preliminary hearing to be irrelevant in both Remina Omary Abdul {supra) and Wolfgang Sylvester Lwamtonga {supra). Ms. Mbwana, as previously indicated, utilised Edwin Cheleh Swen {supra) to substantiate her argument. Her submission is not supported by that decision, which pertains to the admissibility of 1,509.35 grammes of 15 a narcotic substance. In that instance, the transcript of the committal proceedings plainly stated that "physical exhibits w ill be tendered during the tria l." On that basis, this Court concluded in that case that: "In the circumstances,, since the appellant was made aware that physical exhibits w ill be tendered in court a t the trial, we are thus o f the firm view that he was duly inform ed and accorded an opportunity to know and understand in advance the substance o f the case for the prosecution for him to mount an inform ed defence." In the present instance, the DPP's transmittal letter contained the indication that certain tangible exhibits would be offered for admission during the trial of the case. But that indication did not appear in the committal proceedings. Moreover, the prosecution did not invoke the provisions of section 289 (1) of the CPA to remedy the situation by giving a requisite notice for admission of the tusks. Thus, we uphold Mr. Shirima's argument that exhibit P2, consisting of the two elephant tusks purportedly seized from the appellant and his cohorts, was inadmissible in evidence. Consequently, we conclude that the first ground of appeal is valid and proceed to expurgate the tusks from the evidence. Without proof of corpus delicti or rather, the body of the crime, conviction for the charged offence is virtually impossible and the 16 appellant's acquittal becomes inevitable. Since the complaint in the first ground is sufficient to resolve this appeal, there is no pressing need to consider and determine the second ground of appeal. In the final analysis, we allow the appeal, quash the appellant's conviction and set aside the sentence. He should be released from prison unless he is otherwise lawfully detained. DATED at ARUSHA this 9th day of August, 2024 G. A. M. NDIKA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 13th day of August, 2024 in the presence of the Appellant in person, and Mr. Godfrey Nugu, learned State Attorney for the Respondent, is hereby certified as a true copy of the original.