MICHAEL EMMANUEL JOHN

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY

AT DODOMA CRIMINAL APPEAL NO 72 OF 2023 (Arising from Economic Case No. 14 of2022 before the District Court of Dodoma) MICHAEL EMMANUEL JOHN........ ....... APPELLANT

VERSUS REPUBLIC ............................... RESPONDENT

JUDGMENT Date ofiast order: 04/04/2024 Date of the Judgment: 09/05/2024 LONGOPA, J.: In this appeal, the appellant one Michael Emmanuel John is challenging the decision of the District Court of Dodoma which convicted and sentenced him to twenty years imprisonment for offence of being found in unlawful possession of firearms contrary to section 20(1) and (2) of the Firearms and Ammunition Control Act, 2015 read together with Paragraph 31 of the First Schedule thereto and section 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R.E.

2019. It was alleged that on the 23rdDecember 2020, the appellant was found in possession of two locally made firearms designed to fire calibre 12 a bore without licence or permits from the Registrar of Firearms. The 1 | Page offence was committed at Chalinze Nyama in Chamwino District within Dodoma Region. The appellant is aggrieved by both conviction and sentence thus this appeal on the following grounds, namely: 1. That the honourable trial court erred In law and fact when misapprehended the evidence thus came to a wrong finding that charge against the appellant was proved beyond reasonable doubt.

2. That the honourable trial magistrate erred in law and fact for basing conviction on illegal evidence for failure to issue a receipt acknowledging seizure of anything; failure to account on non- compliance to this mandatory provision of section 38(3) of the Criminal Procedure Act, Cap 20 R.E. 2022 and the case of Abuhi Omary Abdallah and 3 Others versus R, Criminal Appeal No. 28 of2020.

3. That the honourable trial Court erred in law and fact when failed to notice the failure ofprosecution to tender a sketch map or any evidence evidencing that really the alleged locally made guns were found under the ground covered by grasses despite existence of high technology no video clip showing the appellant showing the police the locally made guns at the locus in quo.

4. That the honourable trial court erred in law and fact when failed to notice that appellant was not in good terms with 2 | Page PW 2 and unfortunately enough the police officers used PW 2 as an independent witness basing on that the trial court was supposed to caution itself that the evidence of PW 2 was the evidence of a person with interest and should be acted with a great care.

5. That the learned trial magistrate erred in law and fact for attaching weight on unreliable evidence hence reached to erroneous decision, namely: (i) there is glaring lack of connection between the appellant and two locally made thus no cogent evidence that the same were found in possession of the appellant; (ii) cautioned statement was recorded after expire of the time from the date the appellant was arrested in violation of section 51 and 51 of the Criminal Procedure Act, Cap 20 R.E 2022; and (ill) cautioned statement was recorded in violation of section 57 of the Criminal Procedure as there is no certificate on caution statement itself whether the same was read to the appellant in language he well understands which makes it doubtful on its genuineness.

6. That the honourable trial court erred in law and fact when acted on the evidence of PW 2 due to the fact that there was no evidence tendered in court to prove that real he was a member of village authority or villager at Chalinze Nyama basing on that PW 2 was transplanted by police officers to accomplish a mission of incriminating the appellant as the appellant and PW 2. 3 | Page 7. That the honourable trial court erred in law and fact when failed to notice that the prosecution side did not establish the evidence on chain of custody from the place where locally made guns alleged to have been obtained until when the same was brought to court.

8. That the honourable trial court erred in law and fact when failed to notice that the extrajudicial statement was recorded not within the requirements of the instructions given by the Chief Justice of Tanzania that five steps when recording statement under justice of peace must be observed or followed.

9. That the honourable trial court erred in law and fact when did not act on evidence of the appellant when analysing and evaluating the whole evidence tendered by both sides unfortunately the trial court acted only on the prosecution side which it was a wrong principle of the law.

10. That the honourable trial court erred in law and fact to convict the appellant while the proceedings does not indicate that issues which are not in dispute were read out to the appellant during the Preliminary Hearing (PH)in line with section 192(3) of the Criminal Procedure Act, Cap 20 RE. 2022 thus making the whole charge and conviction a nullity.

11. That the honourable trial magistrate erred in law and fact to commence hearing of the prosecution case without 4| Page reminding the appellant on charge he faced contrary to the law.

12. That the honourable trial court erred in law and fact for failure to evaluate the compliance with legal requirements on search/seizure and handling of exihibits after the appellant refused to sign whereas the Court ought to have establish that the signature belonged to the appellant in Exhibit P3.

13. That the honourable trial magistrate erred in law and in fact for failure to comply with mandatory provisions of section 10(3) and 9(3) of the Criminal Procedure Act, Cap 20 R.E. 2022 that caused random calling of prosecution witnesses thus fabrication of the evidence.

14. That the honourable trial court erred in law and fact for failure to notice that Exhibit P 3 was signed on 23/12/2020 while it appears that the appellant had led the police officers to scene ofcrime on 24/12/2020.

15. That the learned trial magistrate erred in law and fact by failure to note that testimony of PW 2 informed the court to have not witnessed signing of the seizure certificate by the appellant thus contravening the mandatory requirements of section 38(3) of the Criminal Procedure Act as such Exhibit P 3 was admitted illegally 16. That the learned trial magistrate erred in law and fact for failure to notice that Exhibit P4 which is a cautioned statement of the appellant was recorded in contravention 5| Page of mandatory provisions of the law for Jack of certificate that confirms that appeiiant was willing to record his statement contrary to sections 50, 51, 57(2X3) and (b) of the CPA as well as section 53 and 54 for failure to call a friend, relative or a lawyer of the appellant's choice.

17. That the honourable trial court erred in law and fact as the prosecution to tender evidence that appellant did touch the allegedly local made guns.

18. That the learned trial court magistrate erred in law and fact by failure to notice that rights of appellant were violated for failure to arraign him to court immediately as the appellant was arrested on 22/12/2020 while he was brought to court some two weeks later, that is, 07/12/2022.

19. That the honourable trial court erred in law and fact by admitting and use of Exhibit P 8 to convict the appellant while recording and transmission of the said extrajudicial statement did not state whether he sealed and named the messenger entrusted to deliver the extrajudicial statement. On 4th April 2024, the parties appeared before me for oral submission. The appellant appeared in person to fend for himself, and the respondent was represented by the Francis Mwakifuna, learned State Attorney. When raised on the appellant prayed that all his grounds of appeal be adopted to form part of my submission in this Court. 6JPage A It was the appellant's version of submission that he was convicted wrongly. He asserts that the evidence was not proper and there were no exhibits indicating that he confessed or admitted at the police station to be in possession of firearms. He denied having led the police to the allegedly hide out of the said guns. The appellant complained on selective justice as among three accused persons it is only the appellant whose extra judicial statement was recorded. The appellant argued that PW 2 was not reliable, and he testified that he does not know how to read and write but on Seizure certificate he signed. It was also reiterated that PW 3 was not reliable and credible witness. According to appellant, PW 3 stated to have arrested three accused persons in

possession of locally made guns. This contradicts PW 1 who stated that it is only the appellant who led the police officers to the hide out/scene of crime. Further, it is argued that PW 3 testified to have sent all the three accused persons to the justice of peace but evidence of justice of peace indicated that it is only the appellant who was sent to the justice of peace for recording extrajudicial statement. It was appellant's version of argument that PW 3 is thus unreliable witness. Furthermore, there is contradiction on timing of handing over of locally made guns. According to appellant, the Exhibit Keeper at the Police 7| Page station indicated to have been handed over with guns on 23/12/2020. However, in the exhibit he tendered reveals that the same was handed over at 10:00 am while independent witness (PW 2) stated to have gone to the scene of crime at 1200 hours before the discovery of the guns. Additionally, appellant reiterated that the seizure certificate tendered should ascertain the timing of discovery of the guns at the hide out and that handing over to the Exhibit Keeper at the Police station in Dodoma for the same to be reliable by the court. The appellant cemented his lamentation on absence of any reports from the Government Chemist to discover if the alleged items were guns. He questioned the reasons for the prosecution to explicitly charge him with offence of

unlawfully possession of guns while there was nothing from Government Chemist revealing that the same were guns. The appellant was of the view that trial court failed to notice that there is no exhibit indicating that the guns had been touched by him. He reiterated that prosecution ought to have brought fingerprint report that appellant had touched the same. Also, it was reiterated that the trial court erred in admission of the Cautioned statement and the extrajudicial statement that were vehemently objected in their admission. He argued that there was no handwriting expert who confirmed that the signature was appellant's signature. According to appellant, there were no cautioned statement nor extrajudicial 8| Page statement. Neither a relative, friend or lawyer was present when alleged cautioned statement was recorded. Furthermore, appellant argued that there is contradictory evidence on prosecution. Some witness testified that appellant was at the police station on 24/12/2020 while the other one stated that he had been arrested at 0100 hours on 23/12/2020. He reiterated that the whole case is a fabrication by PW 2 and urged this Court to allow the appeal. It was the appellant prayer that this appeal deserves to be allowed, conviction quashed, and sentence set aside. On the other hand, the respondent did not support the appeal. Mr. Mwakifuna stated explicit that both

conviction and sentence of the appellant were correct and legally sound. On the first ground, it was submitted that prosecution proved the case beyond reasonable doubt. PW 1 testified that the appellant admitted and took the police officers to the scene of crime with an independent witness for discovery of the gun at the hide out. The Certificate of Seizure was prepared, signed by the appellant as well the independent witness. It was admitted as exhibit P3. The guns were tendered and admitted as Exhibits PE 1 and PE 2 respectively. PW 2 was an independent person who witnessed the appellant leading the police to the hide out where the guns were hidden. PW 2 recognised the Exhibits PE 1, PE 2 and PE 3 that were found on the material date when the appellant led the police to the hide out to discover the guns. 9| Page The evidence of PW 6, Exhibit Keeper was handed over with the exhibits after they were seized. Evidence of PW 9, a justice of peace, corroborated to have recorded the appellant's extrajudicial statement whereas appellant named second and 3rd accused persons to be corroborators. For those reasons, the prosecution managed to prove the case beyond reasonable doubts as the evidence was sufficient to indicate and proved that the appellant is the one guilty of the offence. On the second ground, it was argued that where there is certificate of seizure under section 38(3) of

the Criminal Procedure Act, Cap 20 R.E. 2019 is signed then it is the same as certificate of seizure which is the one's referred to. It is not mandatory requirement to issue a receipt if the accused person had signed the Seizure Certificate. This was the case in Gibri Okash Ahmed versus Republic, Criminal Appeal No. 331 of 2017 at page ...where it was stated that signing of the certificate of seizure is adequate receipt acknowledging the property received. Regarding the third ground, it was argued that sketch map is only when there is something to explain. It is not necessary or mandatory. The arresting officer and the independent witnesses are adequate to address the role of sketch map. On the fourth ground, it was submitted that PW 2 was an independent witness and a member of Mtaa/ Hamlet government leadership. PW 2 stated that he witnessed the discovery of the guns at the 10 ( P a g e hide out and it was evidence of PW 2 that it was only the second time he saw the appellant. The appellant never cross examined the PW 2 about the existing allegedly conflict. It is just an afterthought. The appellant was arrested by the police during the police patrol whereas PW 2 was not there. On the fifth ground, it was submitted that the evidence was reliable. The guns were in the possession of the appellant as he is the one who led the police officers and independent witness to the hide

out where those guns were hidden/stored. This indicates that the guns were in his possession. Delay in recording the appellant statement was caused by timing of the arrest i.e. midnight during the police patrols and the cautioned statement was recorded immediately after arrival at the police station. Though the appellant objected to the cautioned statement, at page 50 of the proceedings the cautioned statement was admitted as Exhibit PE 4. The cautioned statement was proper and in accordance with the law. Regarding section 57 of the CPA, the respondent reiterated that the section that was used is section 58 of the CPA, Cap 20 R.E.2019 as per record. There was nothing to complain against the recording. The appellant signed the same after having been informed of its contents. It is not fatal to record cautioned statement in either section 57 or 58 of the CPA. Halfan Bwire Hassan and Others versus the Republic, Economic Case No. 16 of 2021 is illustrative on this matter. On sixth ground, it was argued that there was no fabrication by PW 2. The Court was satisfied that the witness was the resident of Chalinze Nyama and member of Mtaa/ hamlet leadership at that place. The appellant did not question the validity of residence of PW 2. PW 2 was only an independent witness without any interest in the case. Regarding the seventh ground, it was submitted that chain of custody was well

established and tendered in Court whereas Exhibit PE 6 was demonstrating that the same were handed over to the exhibit keeper. The witnesses demonstrated the chain of custody and movement of the same. This was Exhibit PE 5 (Form PF 16). There was both oral and documentary proof on the chain of custody. The case of Issa Hassan Uki versus Republic, Criminal Appeal No. 129 of 2017 is illustrative on oral and documentary proof of the chain of custody. On the eighth ground, respondent argued that the cautioned statement/extrajudicial statement tendered adhered to all the requirements that are in the Chief Justice Guidelines. All the prerequisite conditions were adhered to. PW 9 categorically on pages 67-69 revealed about of recording the cautioned statement. The appellant admitted in extrajudicial statement to have used those guns. Though he denied having signed, the trial court admitted after satisfaction. It was admitted as Exhibit PE 8, at page 72 of the trial court proceedings. 12 | P a g e On nineth ground, it was submitted that there was analysis of evidence from both the prosecution and defence. On pages 4 to 10 of the judgment, there is analysis of evidence. There is clear analysis of evidence. Regarding the 10th ground on PH weaknesses, respondent stated that pages 11-13 of the proceedings reveal that Preliminary Hearing was properly conducted as he signed the same after

the Memorandum of Undisputed Facts were read over to the parties before the signing of the same. In the 11th ground on reminding the offence, it is submitted that it is untrue. The trial magistrate did remind the accused on the charges he faced prior to respective proceedings. On 12th ground on procedurally irregularities, it is respondent's view that all the objections on the seizure certificate were categorically considered by the trial court and determined. The prosecution's witnesses testimony pointed out to the same direction that appellant did sign the same. The Court was satisfied that the Exhibit was in accordance with the tenets of law. Regarding 13th ground of appeal relating to section 10(3) and 9(3) of the CPA contravention, it was submitted that this is not fatal as the complainant came to court and the appellant was afforded the opportunity and right to cross examine. There was nothing to complain. 13 | P a g e On the 14th ground of appeal, it is submitted that Exhibit PE. 3 signed on 23/12/2020 while the appellant led the police to the hide out on the same date 23/12/2020. It was argued that there is no difference at all on the dates. For the 15th ground of appeal, it is submitted that PW 2 narrated that the Seizure Certificate was signed at the place where they went to hide after it started raining at the place of discovery of the guns hide out. There was an

independent witness who testified that the appellant signed the seizure certificate. On 16th ground, respondent argued that appellant waived the right to call relative or lawyer of his choice as revealed by Exhibit PE 4 and oral testimony of as witnessed also by PW 5 at page 50 of the proceedings. On 17th ground, it was submitted that the guns were examined by PW 8 and at page 65 of the proceedings the Forensic/ Ballistic expert testified, the guns were examined on whether they function or operate, and it was found they were functioning. It was the evidence of PW 8 that the guns were operating properly. He also recognised Exhibit PE 1 and PE 2 as the ones examined by him. He stated that there was labelling of the same thus Exhibit PE 7 was admitted. PW 7 also stated about the procedure of handing over whereas the guns were properly handed over and recorded as stated in page 53 of the proceedings relating to Exhibit PE. 5. 14 | P a g e On the 18th ground, it was submitted that arrest and arraignment to the Court on 07/01/2021 was preceded by investigation that was going on including examination of the guns functionalities. It is that time that there was a minor delay for the appellant to be arraigned in court. The respondent argued that in respect of 19th ground on extrajudicial statement, the same was correctly recorded and adhered to the law. It was respondent's view that it

is not legal requirement of the law for the extrajudicial statement to be send or delivered by the personal secretary of the justice of peace. It was submitted that the second and third accused persons were examined by PW 3 at the police station and they both denied any truthfulness of the allegations and there was nothing to tie them. It is only the person who confesses the offence is sent to the justice of peace to record his extrajudicial statement to be recorded. It was respondent's prayer that this appeal lacks merits thus deserves to be dismissed. The conviction and sentence be upheld for being valid and proper as the prosecution managed to prove the case to the required standard of proof beyond all reasonable doubts. I have dispassionately considered the rival arguments of the parties on this appeal to determine validity or otherwise in this appeal. It is my considered opinion that all these grounds can be addressed in limbs by combining some of them in major themes, 15 | P a g e The first one shall be the chain of custody. I am aware that chain of custody is vital in establishing the validity of exhibits that support the case. There must be unbroken chain of items or exhibits from the time of seizure to tendering and admission in the Courts of law. For instance, in the case of Chacha Jeremiah Murimi & Others vs Republic (Criminal Appeal 551 of 2015) [2019] TZCA 52 (4

April 2019), at pages 23-24, the Court of Appeal reiterated on chain of custody. It stated that: In establishing chain of custody we are convinced that the most accurate method is on documentation as stated in Paulo Maduka and Others vs R,f Criminal Appeal No. 110 of 2007 and followed in Makoye Samwel @ Kashinje and Kashindye Bundala, Criminal Appeal No. 32 OF 2014 cases (both unreported). However, documentation will not be the only requirement in dealing with exhibits. An exhibit will not fail the test merely because there was no documentation. Other factors have to be looked at depending on the prevailing circumstances in every particular case. For instance, in cases relating to items which cannot change hands easily and therefore not easy to tamper with, the principle laid down in Paulo Maduka (supra) would be relaxed. According to this position of law, chain of custody may be proved by either documentary evidence showing unbroken series of events regarding 16 | P a g e such item or exhibit. In cases where chain of custody is not broken such evidence makes the exhibits admitted legally acceptable and valid. It is on record that PW 6 one Donny Hilary Mwenda that on 23/12/2020 he was handed over two locally made guns which he recorded in the Exhibit Register (Police Form 16) and it was entry number 40 in the Register. The same was admitted as Exhibit P5 and its contents were

read out in Court loudly. PW 6 stated to have handed over the PC Elias who took the to Forensic Bureau and they were returned to him later for safe custody after conclusion of examination. It was PW 6 evidence that he received two locally made guns ("gobole"). This is well corroborated by evidence of PW 7 who stated to have handed over the weapons for DW 6 and the same were entered in the Exhibit Register. The Chain of Custody Form was tendered, admitted, and marked as Exhibit P.6. The same was read out loudly in Court. PW 4 also testified to have been handed over two guns on 04/01/2021 with instructions to send them to a Ballistic Expert in Dar es Salaam for conducting examination. The guns were examined and returned on 14/01/2021 and handed over to Exhibit Keeper (PW 6). PW 4 identified Exhibit Pl and P2 as the same guns he received from the Exhibits Keeper, sent them to Ballistic Experts in Dar es Salaam and returned them to the Exhibit Keeper. 17 | P a g e A At this juncture, it is lucid that oral testimonies of PW 4, PW 6 and PW 7 provide a thorough account of the chain of custody of the two local made guns that are allegedly to have been found in possession of the appellant. In Metwii Pusindawa Lasilasi vs Republic (Criminal Appeal No. 431 of 2020) [2024] TZCA 139 (23 February 2024), at pages 25-26, the Court of Appeal noted that: In the end, we are satisfied that the

appellants were arrested red handed in possession of exhibit P3 and there was clear chronological documentation and/or paper trail showing the seizure, custody, control, transfer, analysis, and disposition of the tusks. The testimonial accounts of PW1, PW2, PW3, and PW4 sufficiently explained the handling of the tusks from their seizure to exhibition at the trial. As the Court held in Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2019, elephant tusks constitute an item that cannot change hands easily and thus it cannot be easily altered, swapped, or tampered with, there was possibility of being interfered. The locally made guns are items that cannot be easily altered, swapped or tempered with thus an oral account to prove seizure, custody, control, transfer, analysis and disposition may suffice through oral testimonies as revealed in the proceedings. 18 | P a g e 1 In Mintanga Chambuso vs The Director of Public Prosecutions (Criminal Appeal No. 523 of 2019) [2024] TZCA 187 (18 March 2024), at page 15, the Court of Appeal reiterated that: In the case of Paulo Maduka (supra), this Court insisted that chain of custody of an exhibit must be proven by producing the chronological documentation and/or paper trait showing the seizure, custody, control, transfer, analysis and disposition of that exhibit. In the case of Kadiria Said Kimaro v. Republic, Criminal Appeal No. 301

of 2017 (unreported), this Court relaxed the application of the principle restated in the case of Paulo Maduka to cater for situations involving substances that cannot change hands easily and therefore not easy to temper with. The available evidence on record sufficiently enumerates the chain of custody of the two locally made guns subject of this appeal. This is vividly evidenced by Exhibits R5 and P.6 which are the Exhibits Register [(Police Form (PF) 16)] and the Chain of Custody Form as well as oral testimonials of PW 4, PW 6 and PW 7 provide a thorough and uncontroverted account of the chain of custody. Thus, seventh ground of appeal collapses for being destitute of merits. The appellant challenged both the Caution Statement and Extrajudicial Statement applied in convicting him to have been illegally 19 | P a g e secured. The reasons are: first, there are no records that extrajudicial statement was sealed, and the messenger was named. Second, the cautioned statement was made after expiry of time. Third, that there is no certificate indicating that cautioned statement was read out to the appellant. Fourth, that no relative, friend of lawyer was called to witness the appellant's recording of the cautioned statement. In respect of the extrajudicial statement, the only contention is that there are no records that the same was sealed and the messenger who delivered it to Court

was named. I should observe at the outset that this was not subject of contention before the trial court. It is an afterthought. It is on record that PW 9, one Amani Mayanga testified that on 28/12/2020 he received the appellant for recording extrajudicial statement. It was upon inquiry on all relevant issues prior to recording the statement that PW 9 proceeded to record appellant statement. According to PW 9, the appellant confessed to have been found in possession of two firearms namely gobole. It was further PW 9's testimony that after reading the extrajudicial statement the appellant did sign to authenticate it. The trial Court did overrule the objection that the appellant did not sign the extrajudicial statement and that it was made at all. Exhibit R 8 reveals that the same was recorded in compliance with all legal requirements. Regarding the cautioned statement, I have noted that in Exhibit R4 the appellant was availed opportunity to call a lawyer, friend or relative of his own choice and he admitted that such rights were availed to him by 20 | P a g e signing before the caution statement was recorded. Also, at the end of the cautioned statement, the appellant stated in his own words that: UTHIBITISHO: Mimi Michaei Emmanuel nasibitisha (sic) hapa kuwa mae/ezo niiiyotoa ni sahihi na ndio yaiiyoandikwa. Nimeyasoma yapo sahihi kama niiivyoeieza mwenyewe biia kuiazimishwa na mtu. Signed (Thumb print and Written signature). Similarly, the police officer who recorded the same at the end of the statement stated clearly that he certifies that he had recorded the same diligently and faithfully without any alterations. Indeed, the certification complies with section 58(2) of the Criminal Procedure Act, Cap 20 R.E.

2019. Further, testimony of PW 5 reveals that all rights of the accused were afforded prior to recording of the statement and that appellant chose to record the statement alone. PW 5 stated that the appellant did admit being in possession of the firearms. The trial Court did analyse and determine the contention on whether the cautioned statement was recorded on time or otherwise. It found that there was no merit on the objection. I find no reason to differ with the finding of the trial court on this aspect. It is my finding that the cautioned statement was recorded in accordance with tenets of the law. 21 | P a g e A Having found that both cautioned and extrajudicial statements were in order, I am inclined to find that all lamentations on these two aspects are delinquent of merits. The role of the statements has been reiterated by the Court in plethora of authorities. In Menroof January Haule vs Republic (Criminal Appeal No. 121 of 2022) [2024] TZCA 69 (20 February 2024), at pages 18-19, the Court of Appeal stated that: It is our considered view, and as rightly found by the learned trial Judge that, all these facts provide overwhelming evidence of the appellant’s participation in the commission of the offence. In the circumstances and taking into account that the appellant did not challenge the admissibility of the said statements during the trial, we agree with Ms. Mgimba that

challenging them at this stage of an appeal, is nothing but an afterthought. In the case of Mohamed Haruna Mtupeni and Another v, Republic, Criminal Appeal/Vo. 259 of2007[2010] TZCA 141: [4 June 2010: TanzLII], the Court stated that: "The very best of the witnesses in any criminal trial is an accused person who freely confesses his guilt." Similarly, in the instant appeal, it is our settled view that, what is contained in the appellant’s statements is the best evidence, we can have on what transpired on that fateful night. 22 | P a g e I fully subscribe to the principle of this case as articulated by the superior court of the land. The appellant having admitted in a cautioned statement and in an extrajudicial statement to have been in possession of the two firearms, he cannot be heard at this stage lamenting on the validity of the same given that such statements were made voluntarily. Further, it was the appellant admission before the police to be in possession of the two firearms that made the police to discover and retrieve the same. According to testimonies of PW 1 and PW 2, the appellant led the police officers and independent witness to a scene of crime where the two firearms were retrieved. In the case Director of Public Prosecutions vs Fadhili Chengula (Criminal Appeal No.565 of 2019) [2023] TZCA 17525 (24 August 2023), the Court elaborated at lengthy on confessions and

confession leading to discovery. At pages 15-16, the Court of Appeal stated that: Certainly, an oral confession made by a suspect, before or in the presence of reliable witnesses, may be sufficient by itself to found conviction against the suspect - see for example the Director of Public Prosecutions v. Nuru Mohamed Gulamrasul [1988] CLP, 82. In Martin Manguku v. Republic, Criminal Appeal No, 194 of2004 [unreported), the Court stressed that for an oral confession to be valid and form a basis for conviction it must have 23 ( P a g e been made when the suspect to whom the words are imputed was a free agent. Furthermore,, section 31 of the Evidence Act provides for admissibility of any information received from an accused person under police restraint, be it a confession or not. If it leads to discovery of a fact. We interpose to observe that while for an oral confession to be valid it must have been made by the accused person when he was a free agent, a confession made by an accused person under police restraint leading to discovery of a fact relevant to a case Is admissible under section 31 of the Evidence Act. For confessions leading to discovery see Mathias Bundala (supra)) Peter Mfalamagoha v. Republic, Criminal Appeal No. 11 of 1979 [1979] 7ZCA 13 [7 November, 1979; TanzLII]; and Mboje Mawe & Others v. Republic, Criminal Appeal No. 86 of 2010 [2011] TZCA 136 [29 June, 2011;

TanzLII] In view of the above position of the law, it defies argument that the oral confession allegedly made by the respondent at the scene of the crime within the earshot of PW4, PW6 and PW7 upon being prompted by PW3 did not amount to a valid confession because the respondent was all along not a free agent. The appellant's admission to be in possession of unlawful firearms which led the police officers in presence of independent witness to discover 24 | P a g e the hide out of the two guns and confession made by the appellant before a justice of peace in extrajudicial statement cemented the prosecution evidence. These confessional statements are made the oral testimonies of the prosecution so tight that appellant cannot be heard that there was issues regarding discharging the duty to prove the case by the prosecution to the required standards. At this juncture, it is lucid that 5th, 8th, 16th and 19th grounds of appeal are devoid of merits, and they are hereby dismissed in their totality. Seizure and issuance of Receipt acknowledging seizure is another aspect that is seriously challenged in the grounds of appeal. The arguments are that: First, that no receipt was issued acknowledging taking of the properties. Second, no signing as the appellant refused to sign the seizure certificate. Third, differences on dates for signing between 23/12/2020 and 24/12/2020. Fourth, that PW

2's evidence that he did not witness signing. It is correct that on basis of section 38 (3) of the Criminal Procedure Act, Cap 20 R.E. 2022 upon search and seizure there is a requirement to ensure that a certificate acknowledging receipt to be issued. It provides that: 38(3) Where anything is seized in pursuance of the powers conferred by subsection (1) the officer seizing the thing shaii issue a receipt acknowiedging the seizure of that thing, being the signature of the owner or occupier of the premises or his near relative or other person for the time 25 | P a g e being in possession or controi of the premises, and the signature of witnesses to the search, if any. Generally, the search which leads to seizure entails issuance of the receipt acknowledging the seizure. The receipt should be signed by occupier of the premise and that of the witness. It was the evidence of PW 1 that appellant led them to the scene of crime where two firearms were retrieved. It is at that time when the Certificate of Seizure was filled and witnessed by an independent witness who signed thereto by both appellant and independent witness to signify correctness. PW 2 testified that on material date he witnessed the appellant leading the police officers to the scene of crime where appellant retrieved two firearms and signed the document at the scene of crime. Exhibit P. 3 is the Certificate of Seizure

which indicates that two firearms were retrieved from the appellant, one Michael S/O Emmanuel. The same is signed by the arresting officer, the appellant, and an independent witness. Testimonies of PW 1 and PW 2 reveal that appellant led them to the scene of crime, the two firearms were retrieved, and that Certificate of Seizure was prepared and signed. The oral evidence and documentary evidence in Exhibit P.3 demonstrate that appellant led the police officers and independent witness to scene of crime to retrieve the two firearms. 26 I P a g e The complaint that date had issued, and non-signing of the Certificate of Seizure was resolved by the trial Court in admission of Exhibit P.3. Though, there was no receipt issued acknowledging the seizure of the two firearms, I am of the settled view that does not vitiate the evidence that two firearms were retrieved from the appellant. It is my view that oral account of PW 1 and PW 2 reveal that appellant led to the police officers to scene of crime for retrieval of the firearms. This is direct evidence under Section 62(1) (a) of the Evidence Act, Cap 6 R.E.

2022. Further, 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) 27 | 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 piace 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 of2020 (unreported), a Judgment we rendered on 28.12.2022. In that appeal, we relied on a number of previous decision 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. 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. 28 | P a g e On strengths of these two guiding cases from the superior court of the land, it is this finding of this Court that the question is validity or otherwise of Certificate of Seizure is lucid that the same was procured properly and in accordance with the law. Thus, 2nd, 12th, 14th and 15th grounds of appeal on the issue of seizure and issuance of receipt of acknowledgment lack merits. I proceed to dismiss them for being devoid of merits. On other irregularities allegedly vitiating the trial proceedings were subject of this appeal. First, there was failure to remind the accused about the charge. Second, weaknesses in the Preliminary Hearing for not being read

out. Third, failure to tender a Sketch Map by the prosecution. Fourth, PW 2was an interested party thus his evidence was not reliable and there was no proof that he is the villager at Chalinze Nyama. Fifth, failure to analyse evidence of both sides. Regarding the failure to remind the accused about the charge, it is my view that the appellant was reminded about the charge he was facing. It is on record that on 01/04/2022 when the accused persons were arraigned to Court, they were reminded of the charge, but did not plea of the Court have no jurisdiction to deal with the matter. Also, on 06/07/2022, upon DPP filing a Certificate conferring jurisdiction to the trial court, the appellant entered plea of not guilty. Further, on 03/08/2022 during the Preliminary Hearing the appellant was reminded of the charge and reiterated on plea of not guilty. The only lapse is on 28/09/2022 when the prosecution commenced its case. However, such lapse is not fatal as I shall demonstrate. On weaknesses of the Preliminary Hearing (PH), it is my observation that such lamentation is far-fetched without any iota of truth. The record indicates that on 03/08/2022 the accused were asked on the stated facts and each of them admitted only on personal particulars. Each of the accused, appellant inclusive, was informed of the admitted fact and signed to signify the same was read and understood to the

appellant prior to appending his signature. It is the opinion of this Court that eventhough Preliminary Hearing would have been defective, that same does not vitiate trial proceedings. This was the principle in the case of Daktari Jumanne vs Republic (Criminal Appeal No. 602 of 2021) [2023] TZCA 18020 (28 December 2023), where the Court of Appeal stated that: 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). 30 | P a g e The evidence of PW 2 was vehemently challenged that it was evidence from interested party and business rival to the appellant. Also, it was argued that there was no proof that PW 2 is a resident of Chalinze Nyama. It is settled principle of the law that a person who alleges must prove as per Section 110 of the Evidence Act. It was the duty of the appellant to reveal during cross examination of PW 2, the interests that PW 2

had about arrest and prosecution of the appellant. Also, appellant would have impeached PW 2's evidence on residential address at Chalinze Nyama if he had any concerns about the residency of PW 2. There is none on record. The appellant had all opportunity to call witnesses from Chalinze Nyama who would have testified in his favour regarding conflicts between PW 2 and appellant if existed, or about residence of PW 2 but none was called. Appellant's lamentation of evidence of PW 2 is a clear afterthought. It should not be entertained at this stage. On non tendering of sketch map by the prosecution, I am of settled view that it is not mandatory that sketch map must be tendered. The oral evidence of PW 1, PW 2, PW 3, PW 4, PW5, PW 6, PW 7, PW 8 and PW 9 together with exhibits tendered had explained all the necessary ingredients of the offence. Thus, there was no need at all tendering a sketch map. On considering and analysing of evidence of both sides is worth considering at this stage. It is a settled law that failure to consider the defence evidence in decision makes such decision a nullity. In the case of Leonard Mwanashoka vs Republic (Criminal Appeal 226 of 2014) [2015] TZCA 294 (24 February 2015), the Court of Appeal noted that: 31 (Page We have read carefully the judgment of the trial court and we are satisfied that the appellant's complaint was and still is well taken. The

appellant's defence was not considered at all by the trial court in the evaluation of the evidence which we take to be the most crucial stage in Judgment writing. Failure to evaluate or an improper evaluation of the evidence inevitably leads to wrong and/or biased conclusions or inferences resulting in miscarriages of Justice. It is unfortunate that the first appellate judge fell into the same error and did not re-evaluate the entire evidence as she was duty bound to do. She did not even consider that defence case too. It is universally established jurisprudence that failure to consider the defence is fatal and usually vitiates the conviction. However, the current case is not within this cherished principle of failure to accommodate the defence evidence in the decision. I have perused the judgement of the trial court dated 29/05/2023 thoroughly and it is my finding that trial court summarised evidence from both sides, evaluated and considered such evidence of the parties to reach a conclusion that evidence of the prosecution was watertight to warrant conviction. The finding of the trial court was arrived at after carefully analysis and consideration of the evidence of both sides. It was found that prosecution evidence was so strong that no reasonable doubt was cast by the defence. 32 I P a g e Having demonstrated these aspects of illegalities allegedly touching the root of the

case, I am certain that 3rd, 4th, 6th, 10th, and 11th grounds have no merits thus they stand dismissed. The failure to prove the case beyond all reasonable doubts is the last ground of appeal. In the case Chausiku Nchama Magoiga vs Republic (Criminal Appeal No. 297 of 2020) [2023] TZCA 17810 (9 November 2023), at page 11, the Court of Appeal stated that: The duty of the prosecution to prove a criminal case beyond reasonable doubt is universal and, in our case, it is statutorily provided for under section 3 (2) [a] of the Evidence Act, Chapter 6 of the Revised Laws. Further, in the case of Woodmington v. DPP [1935] AC 462, it was held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. The term beyond reasonable doubt is not statutorily defined but case laws have defined it. In the case of Magendo Paul & Another v. Republic [1993] TL.R. 219, the Court held that: 'For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed." The available evidence on record reveals that the prosecution managed to establish beyond reasonable doubt that appellant was culpable of the offence of unlawful possession of the firearms and ammunition. The 33 j P a g e evidence of PW 1, PW 2, PW 3, PW

4, PW 5, PW 6, PW 7, PW 8 and PW 9 left not gap that would warrant to find that there was a reasonable doubt that was raised by defence evidence. The testimonies of the prosecution witnesses is watertight that it point to one and same direction that appellant was found in possession of unlawfully firearms. Thus, remaining grounds, namely 1st, 13th, 17th and 18th grounds are destitute of merits and are hereby overruled. In the final analysis, the appeal against conviction and sentence is hereby dismissed for want of merits. The decision of the trial Court is upheld, both the conviction and sentence imposed against the appellant for the offence of unlawful possession of firearms contrary to section 20(1) and (2) of the Firearms and Ammunition Control Act, 2015 read together with Paragraph 31 of the First Schedule thereto and section 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R.E. 2019 by the District Court of Dodoma in Economic Case No 4 of 2022. In the circumstances of this appeal having demonstrated that there are no merits on all the preferred grounds of appeal, it is lucid that there are no cogent reasons to interfere with such decision of the trial Court. It is so ordered. DATED and DELIVERED at Dodoma this 9th day of May 2024. E.E. LONGOPA

JUDGE 09/05/2024. 34 | P a g e