michael leo kafuvi and 1 another vs republic 2020 tzhc 3917 27 november 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT TABORA APPELLATE JURISDICTION (DC) CRIMINAL APPEAL NO. 131 OF 2019 (From Original Criminal Case No. 12 of 2018 of the Resident Magistrate Court of Tabora atTabora) MICHAEL LEO KAFUVI--------------------------------------- -Ist APPELLANT KENEDY BAHATI SANGA-------------------------------------- 2nd APPELLANT VERSUS REPUBLIC---------------------------------------------------------- RESPONDENT JUDGMENT 30/09 & 27/11/2020. BAHATI, J.: As per the Judgement of the Resident Magistrate Court of Tabora in Original Economic Crime Case No. 12/2018 delivered on 29/10/2019 the appellants herein Michael Leo Kafuvi and Kenedy Bahati Sanga were convicted and sentenced for the offence of Unlawful Possession of Government Trophies contrary to section 86(1) and (2)(c)(ii) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 of the First Schedule to and Sections 57(1) and 60(2) of the 1 Economic and Organized Crime Control Act, Cap. 200 [R. E 2019] as amended by Written Laws (Miscellaneous Amendment) Act No. 3 of 2016. After a full trial, the appellants were convicted and sentenced to serve 20 years imprisonment hence this appeal. A brief fact as gathered from the record is that on 16 April 2018 during night hours at Kapilula village within Urambo District in Tabora Region, the appellants were found in possession of Government trophies with four (4) pieces of elephant tusks valued at TZS 68,529,000/= the property of the Government of the United Republic of Tanzania without a permit from the Director of Wildlife. The appellants preferred this appeal against conviction and sentence armed with the following grounds; 1. The trial magistrate erred in finding that the case for the prosecution against the appellants was proved beyond reasonable doubt. 2. The exhibit P3 (Certificate of seizure) and P4 (the issue voucher) were wrongly admitted in evidence since they were not read out in court. This made the appellants not to understand the nature and subject of the exhibits tendered. 2 3. The learned trial magistrate erred when failed to consider the effect of non-production of the chain of custody of elephant tusks (exhibit P2) 4. The trial magistrate erred for failure to link between the certificate of valuation (Exhibit Pl) of the elephant tusk allegedly found in possession of the appellants and the elephant tusks tendered in court is very much wanting. 5. In the absence of a scientific analysis or chemist report, to confirm the identification of the elephant tusk, the subject matter of the charge, it was wrong for the trial magistrate to hold with certainty that the items allegedly found in possession of the appellants and admitted in court were identified satisfactorily to be elephant tusks. 6. The certificate of valuation of trophy exhibited in evidence had no evidential value and it was useless at all due to the failure by the author to lay down his special knowledge and to mention any scientific criteria used to arrive at his findings or opinion. 7. The trial magistrate erred when failed to trace and/or satisfy himself to whose custody the elephant tusk was kept from their recovery to the time of tendering the same as an exhibit in court. 8. PW4 was not a credible witness because she did not take part in identifying the said elephant tusk in court while in her existence 3 she said she is the one who identified to be the elephant tusk and she valued the same. 9. The learned trial magistrate erred in law in believing and upholding the evidence of PW2 and PW3 (the OCS and Village Chairman respectively) since they only saw the appellants after their arrest they didn't take part in the arrest of the appellants and they were not sure whether the elephant tusk in question was found in possession of the appellants or not. When this matter was called on for hearing, the appellants were represented by Mr. Hassan Kilingo, learned counsel while the respondent Republic had the services of Mr. Innocent Rweyemamu learned State Attorney. Both parties agreed to argue the matter by way of written submission. Submitting for appellants Mr. Kilingo prayed to abandon ground number 2, 4, 9, and 10; he consolidated ground 6 and 8 to be first ground for argument, ground 3 and 7 to be second ground, and completed with ground number 1. He submitted that the trial magistrate grossly erred in law for failure to consider a break of the chain of custody from the recovery of elephant tusks to the time they were tendered in court. He contended that PW2 stated to the court that after he apprehended the appellants 4 with the said exhibits he temporarily kept them in the station at Urambo and then they were relocated to KDU. It is Mr. Killing© argument that no document shows handling over of exhibit P2 to the said station and its movement from station to KDU offices in Tabora. He cited a reference from llluminatus Koka vs. Republic [2003] TLR on pages 9 and 10 where the court emphasized that a trial court should know in whose custody exhibits were kept. Also, he cited the case of Paulo Maduka and Others vs Republic, Criminal Appeal No. 110 of 2007 to emphasize that there is no explanation from all prosecution witnesses on how the exhibits were taken care of, how they moved to KDU Tabora, and on whose custody. Mr. Kilingo contended that a missing link suggests that the exhibits were concocted and fabricated to injustice the appellants. He further contended that PW4 was neither credible nor reliable witness when she stated that on 25/4/2018 together with the storekeeping assistant she went to KDU store where elephant tusks are kept and identified them to be elephant tusks weighing 14 kg. Mr. Kilingo argued that the appellants were conned, planted to tusks that its movement papers were missing, and figured to be seen guilty to the charge while they are innocent. Still disvaluing the evidence of PW4 Mr. Kilingo argued that PW4 failed to account for which procedure she employed to conclude that 5 the kept four items at KDU store were actual elephant tusks and not cassavas. Back to the first ground, Mr. Kilingo submitted that the case was not proved beyond reasonable doubt since there was a clear missing link as to the proper management of the seizure, custody, control, and tendering of elephant tusks as an exhibit in court thus the trial magistrate convicted the appellants based on suspicious, shallow and weak evidence.At the end of his submission, the learned Advocate asked this court to allow the appeal, quash the conviction and sentence metered by the trial court, and ultimately set the appellants free. In reply, Mr. Tito Mwakalinga learned State Attorney submitted that PW2 explained how the exhibits were seized, taken to Urambo, and temporarily kept in Urambo Police Station and later to KDU for obtaining an expert opinion and later when exhibits were needed in Court PW2 collected the same and he was issued with Exh. P4. Mr. Mwakalinga submitted further that, there is no implication of planting or concocting exhibit against the appellants since at the crime scene there was an independent witness PW3 who witnessed and signed a certificate of seizure. Mr. Mwakalinga agrees with the appellants on the importance of maintaining a chain of custody as envisaged in David Athanas Makasi and Another vs Republic Criminal Appeal No. 168 of 2017 CAT at DODOMA but he argued that the case 6 never made it necessary there be documentation in proving chain of custody. He supported that the explanation given by PW2 is better and more explanatory than the paper trail, the explanation shows that the exhibit relates to a crime. As to the issue of credibility of PW4, Mr. Mwakalinga stated that the ground has no legal merit since PW4 is an expert and in her testimony, she explained her qualifications and experience that makes her an expert and credible for identifying and making the valuation of trophies. He then prayed for the appeal to be dismissed in its entirety. Having read the rival submissions tabled by both parties it is my profound view that three important questions need to be properly answered for the appeal to reach the proper destination. One is whether the chain of custody was broken, two is whether PW4 was a credible witness to testify and three is whether the prosecution case was proved beyond reasonable doubt. In respect of whether the chain of custody was broken, it is in the record that the alleged four pieces of elephant tusks were seized at Kapilula Village within Urambo District and after the seizure, one ASP Rubbe Mputa, a Police Officer in charge of Urambo District Station filed a Seizure Certificate in the presence of PW3 a Chairman of Kapilula Village. From there I have found that there is no chronological 7 documentation showing the handling and movement of the said exhibits. It should be noted that the idea behind recording the chain of custody is to establish that the alleged evidence is related to the alleged crime not otherwise. In the instant appeal, the evidence on the chain of custody was not elaborated, I am saying so because the handling process of the exhibits from seizure up to the exhibition in court was not shown. The record shows that the exhibits were taken to the police station but there is no record which shows the same were received in the police station. Second, there is no documentation stating the recipient of such exhibits and in whose care they were placed, bad enough the record is missing on how the same was transferred from Urambo Police Station to KDU Tabora. It is likely for one to believe that the exhibits that were seized at the scene of the crime are not the ones that were presented before the court. This position was stated in Alli Hassan Uki v Republic, Criminal Appeal No.129 of 2017,CAT at Mtwara (Unreported ) when the Court of Appeal held: "In case relating to custody of the chain of custody, it is important to distinguish items which change hands easily the elephant tusks in the case at hand were such that they could not change easily and therefore could not easily be tempered with. Neither was 8 there a danger to have them tempered with. They were therefore appositely received in evidence." In this case, to that end, I agree with Mr. Kilingo that, the lacuna creates doubt which the appellants must benefit from. On the second issue on the credibility of PW4, one Magreth John James, this court has found it that the witness was credible as she stated in the trial court about her position at work, education status, and experience she had when she performed a valuation of exhibits before they were tendered in court. I abide with the decision in Makame Junedi Mwinyi vs. Serikali ya Mapinduzi Zanzibar (SMZ) HC Zanzibar at Vuga( Garba Tumaka,D/CJ, where the court held that:- "The position of the law is that expert evidence is admissible in cases where specialized knowledge is required, and the competence of an expert witness should in all cases be shown before his evidence is properly admissible in this case PW5 is a qualified medical doctor, gynecologist, sufficiently qualified and experienced to prefer." Guided by the above decision, I am satisfied that the prosecution left behind a trail of doubts, and therefore, I allow the appeal, quash the conviction, and set aside the sentence metered against the appellants. I 9 further order the immediate release of the appellants from prison unless they are lawfully held for other reasons. Order accordingly. A. A. BAHATI JUDGE 27/11/2020 Judgement delivered under my hand and seal of the court in the chamber, this 27th day November 2020 in the presence of the Appellants (Hassan Kilingo), learned counsel for the appellants. A. A. BAHATI JUDGE 27/11/2020 Right of appeal explained. A. A. BAHATI JUDGE 27/11/2020 io