CRIMINAL APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 36744 OF 2023 (Original Economic Case No. 06 of 2022 of the Resident Magistrates ’ Court of Lindi at Lindi before Hon. C.P. Singano, PRM) MIKIDADI MOHAMED MKALALA.................. 1st APPELLANT MT. 91203 CPL WILSON PETER MKALALA .................. 2™> APPELLANT MT. 90921 OBE1D JOHN MWAKATOBE........_____ ____ ..3^ APPELLANT ABDUL HEMED KOLELA___ ____________ _____________ ___ 4™ APPELLANT VERSUS THE REPUBLIC............. ............... RESPONDENT JUDGMENT 18,fi March & 313f May, 2024 EBRAHIM, J; The appellants herein above were charged before the Resident Magistrates’ Court of Lindi (the trial court) with the offence of Unlawful possession of a government trophy contrary to sections 86 (1) and 2 (c) and (iii) of the Wildlife Conservation Act No. 05 of 2009 Page 1 of 30 as amended by written Laws (Miscellaneous Amendment) Act No. 02 of 2016 read together with paragraph 14 of the first schedule and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap 200 R.E. 2019]. The facts giving rise to the arraignment of the appellants can be briefly stated as follows: On the 14,h day of November 2021the police officers at Liwale-Lindi received information from their informer that, the 1st, 2nd- and 3rd appellants went to Liwale at Navikubo Executive Lodge to conduct illegal business of buying the government trophy from the 4th appellant. Acting on that information, Inspector Hygiene John Massanja (PW2) with other police officers went to Navikubo Executive Lodge and asked the guest attendant Haji Abas (PW3) and lodge manager (Twaiba Hassan Mpoko) to search a room where the 1st, 2nd and 3rd appellants had boarded. The search was conducted and the appellants were found with six whole elephant tusk thirty pieces of elephant tusks, four mobile phones, and an ATM card. When the search was conducted the 1st appellant was worried and several times, he was spotted communicating using his mobile Page 2 of 30 phone; The police officers intervened and took his mobile phone where they discovered that he was communicating with the 4th appellant. On interrogation, the 15t appellant informed the police officers that those elephant tusks belonged to the 4th appellant. After receiving such information, the police officer(s) went to arrest the 4th appellant and interrogated him. The 4th appellant led the police officers to a farm located at Kichonda village where he had hidden the Elephant tusks. Thereafter, he took them to the Ts1, 2nd, and 3rd appellants using his motor vehicle make Land Cruiser with registration number T 873 BXY (Exhibit P6) The suspects were taken to the Liwale Police Station. Sweetbert Joel Haishi (PW1) was summoned to identify and value the trophies and he confirmed that six whole elephant tusks and thirty pieces of elephant tusks (Exhibit PI) were Government trophies to wit; ten elephants valued at Tanzania Shillings Three Hundred Forty-Five Million One Hundred and Fifty Thousand (TZS. 345,150,000/=). The appellants were then arraigned before the trial court. The prosecution summoned a total of ten witnesses to wit; Sweetbert Joel Haish (PW1), Insp Hygiene John Massanja (PW2), Haji Abas Page 3 of 30 (PW3), A/lnsp PF Tiganya (PW4), Ahmad Hamza Ngahama (PW5), G.2735 D/C Mudi (PW6), F.9887 D/C Fredrick (PW7), E.3494 D/C Gaitan (PW8), Vincent Amede Ndassa (PW9), and H.4333 Forensic Coplo Victor (PW10). The prosecution also tendered the following exhibits; Thirty-six pieces of Elephant Tusks (Pl )> Trophy valuation certificate (P2), Measuring scale (P3), Certificate of seizure (P4), Certificate of seizure (P5), Motor vehicle registration card (P6), a car sale agreement (P7), a certificate of seizure (P8), Motor vehicle Toyota Land cruiser (P9), a caravan (PIO), Sketch of the scene (PH), Chain of custody form (Pl2), Envelope containing four mobile phones (Pl3), a caution statement of Mikidadi (IP1), a caution statement of Mikidadi (Pl4), Sketch of the scene at the lodge (Pl 5), Letter to Dar es Salaam in respect of forensic investigation (Pl 6), a caution statement of Abdul (Pl 7), five phones (P18), and a forensic report (Pl.9).. Before the trial court, the appellants gave their sole sworn evidence and they did not call any other witnesses. In their defense, they denied being found in possession of the said Elephant tusks. In the Page 4 of 30 end, the appellants were convicted and were each sentenced to serve twenty (20) years imprisonment. Dissatisfied with the trial court findings, the appellants have appealed to this court raising five grounds of appeal namely; J. That the trial court erred in law and fact by proceeding to entertain the matter and convict the Appellants while the court was not vested with the jurisdiction. 2. That, the trial court erred in law and facts by convicting the Appellants while the prosecution failed to prove the case beyond the reasonable doubt. 3. That the trial court erred in law and facts by convicting the 1st and 4th Appellants by relying on cautioned statements that were illegally obtained and the same were recorded out of time. 4. That, the trial court erred in law arid facts by convicting the Appellants without considering and evaluating properly defense evidence. Page 5 of 30 5. That the trial magistrate erred in law and facts by convicting the Appellants herein without evaluating the contradictions emerged in the prosecution case. It was agreed by both sides that this appeal argued by way of filing written submissions. The appellants were represented by Mr. Rainery Songea, learned advocate; whereas the respondent/Republic had the services of Mr. Jagad Jilala, learned State Attorney. In support of the appeal, Mr. Songea consolidated the 2nd and 5’h grounds together and opted to argue the remaining grounds separately. On the first ground of appeal, Mr. Songea faulted the trial court for entertaining the matter without having jurisdiction. He argued that the High Court has been vested with jurisdiction to try the charged offences under 3 (1) and (3) (a) and (b) of the Economic and Organized Crime Confroi Act Cap 200 R.E 2022. He added that subordinate courts are vested with the jurisdiction to try economic crime cases only if the certificate conferring jurisdiction and consent has been filed before them, Mr. Songea submitted further that the trial court proceedings show the consent and certificate conferring jurisdiction to the trial court Page 6 of 30 were not admitted at all. He opined that the trial court had no jurisdiction to entertain the matter from the beginning. He added further that upon perusal of the court file, he realized that the said documents were neither endorsed by the trial court nor signed by a trial magistrate. He thus prayed for this court to review the proceedings and judgment of the trial court and nullify the whole proceedings. To bolster his arguments, he cited a number of cases including; Hashim Nassoro ©Almas vs Director of Public Prosecutions Criminal Appeal No. 312 of 2019; Aioyce Joseph vs. Republic, Criminal Appeal No. 35 of 2020; Maganzo Zelamoshi ©Nyanzomola vs. Republic, Criminal Appeal No. 355 of 2016; and John Julius Martin & Another vs. Republic, Criminal Appeal No. 42 of 2020. On the 2 nd and 5:h grounds of appeal, the learned advocate challenged that the case was not proved beyond reasonable doubt and the trial court erred in convicting the appellants without resolving the contradictions. Through his submissions he presents three folds of the complaint; First, the way search and seizure were conducted and alleged government trophies were obtained. Mr. Songea argued that the law under Item 17 (b) of Police General Page 7 of 30 Order No. 226 provides four requirements for d valid search i.e.., search warrant, the presence of the owner of the premises, the presence of an independent witness and issuance of a receipt acknowledging seizure of the property. He further argued that PW3 was mentioned in the seizure certificate (Exhibit P4) as an independent witness but on his testimony during cross-examination, PW3 contended that the police were not involved when the search was conducted. Mr. Songea was of the views that since it was not an emergency search the police had enough time to prepare for independent witnesses who would assist the court in knowing exactly what transpired during the search. In this fold, the learned advocate also faulted the prosecution side for not calling Twaiba Hassan Mpako who witnessed the search of the appellants being an important witness since she is the daughter of the owner of the premises. To support his stance, he cited the case of Aziz Abdallah vs R [1991] T.LR 71. The Second, told is that other police officers who conducted the search save for PW4 were not authorized in terms of section 38 (1) of the Criminal Procedure Act Cap 20 R.E. 2020. He contended the Page 8 of 30 exercise was errenous because there was a possibility of fabricating evidence. The learned advocate thus prayed to this court to expunge from the record the evidence obtained from an illegal search. He referred this court to the case of Ritha Goodluck Mosha vs. Republic, Criminal Appeal 49 of 2021; and Director of Public Prosecutions vs. Doreen John Mlemba, Criminal Appeal 359 of 2019 to name but a few. From this fold, the learned advocate added that the sole independent witness (PW3) was not credible in the sense that he had given a shred of contradictory evidence. He exemplifies that PW3 testified that on the 14th day of November 2021, he received 1st, 2nd, and 3rd appellants at Nakivubo lodge and gave them room No. 01. Again, he said there were four people and one of them was not apprehended by the police officers. Responding to cross- examination questions, PW3 testified that he was not involved at all during the search of room No. 1 while he had previously said that he was: involved during the search exercise with police officers. Again, on different occasions when cross-examined, PW3 was heard saying that he did not witness the 1s}, 2rd- and 3rd Appellants signing Page 9 of 30 the seizure certificate during the search while on re-examination he said the 1st, 2nd, and 3rd appellants signed the seizure certificate. Mr. Songea urged the court to consider the danger of relying on the evidence of PW3 as a basis for convicting the appellants, He cited the case of Toyldoto Kosima vs Republic, Criminal Appeal No. 525 of 2021. On the third fold the learned advocate doubled the prosecution evidence on the measuring scale that which was admitted as Exhibit P3. He argued that the said exhibit was obtained in the presence of PW3 who on cross-examination testified that the measuring scale presented before the court was different from the measuring scale that was observed during the incident. On the third ground of appeal, the learned advocate faulted the trial court for basing its conviction of all appellants on a caution statement of the 1st and 4th appellants. According to Mr. Songea the reliance of such exhibit was contrary to the principle set in the case of Nyerere Nyague vs. Republic, Criminal Appeal No. 67 of 2010. He further added that since the said caution statements were objected before the trial court it was dangerous to base the conviction on an Page 10 of 30 uncorroborated caution statements. He bolsters his stance with the case of Ally Msutu vs. Republic [1980] T.LR T. On the fourth ground of appeal Mr. Songea impugned the trial court for convicting the appellants without considering and evaluating properly the defence evidence. He stressed that the testimonies of the appellants were not considered at all by the trial court. Responding to the grounds of appeal as argued by the appellants’ advocate, Mr. Jilala learned State Attorney, submitted on the first ground that the prosecution submitted the consent and certificate conferning the trial court with power to deal with the matter. Thus the issue of endorsement of the said documents were not in the hands of the prosecution rather the trial court. More distantly, the learned State Attorney argued that as shown at page 34 of the typed proceedings the consent and certificate were received by the court. In the alternative, the learned State Attorney prayed for a retrial order should this court find that the trial court had no jurisdiction in the interest of justice. He supported his prayer by citing the case of Fatehali Manji vs. The Republic [1966] 1 EA 343. Page 11 of 30 Regarding the second ground that the prosecution failed to prove the case beyond reasonable doubt, the learned State Attorney argued on the complaint made by the appellant's counsel that the search was not properly done the search was made as per Order No. 226 item 12 of the Police General Order of 2021 which does not put a mandatory requirement of involving the local leader as stipulated by the appellant’s counsel. He added that the search warrant was not issued because as per the evidence of PW4, the appellants kept moving from one area to another which made the situation difficult to issue a search warrant. On the issue of an independent witness, Mr. Jilala argued that it is true that there were two independent witnesses but it was not mandatory to bring them all to prove the same facts. Responding to the third ground which challenges the trial court’s conviction basing on the cautioned statement of the 1st and 4ih appellants, Mr. Jilala contended that the trial court’s finding was based on the evidence of all witnesses adduced before it and not merely on the cautioned statement of the 1st and 4th Appellants. As for the complaint that the cautioned statement was taken out the Page 12 Of 30 prescribed time by law, Mr. Jilala argued that the law the time spent in the investigation to be excluded from the four hours. However, Mr. Jilala argued in the alternative that should the court find that the cautioned statement was made in violation of section 50 (1) of The Criminal Procedure Act this court should overlook it for the interest of justice seeking assistance from the case of Nyerere Nyague vs. Republic, Criminal Appeal No. 67 of 2010. As for the fourth ground of appeal that the trial court failed to evaluate the defence evidence; Mr. Jilala vindicated that the trial court did properly evaluate the evidence adduced by the appellants and thus convicted the appellants on the strength of the prosecution plausible evidence. In a brief rejoinder, Mr. Songea opposed the submission made by the learned State Attorney. Reiterating the contents of the grounds of appeal, the learned advocate maintained that the prosecution evidence did not prove that the appellants unlawfully possessed government trophies. I have carefully reviewed the trial court's records and the parties' submissions. To begin with the first ground the crucial point for Page 13 of 30 determination is whether the trial court had jurisdiction to entertain the matter. Pondering the importance of ascertaining the existence of jurisdiction, the Court of Appeal in the case of Richard Julius Rukambura vs Isaack Ntwa Mwakajila & Another (Civil Appeal No. 2 of 1998) [2004] TZCA 67 provided that; “The question of jurisdiction is paramount in any proceedings. It is so fundamental that in any trial even if it is not raised by the parties at the initial stages, if can be raised and entertained at any stage of the proceedings in order to ensure that the court is properly vested with jurisdiction to adjudicate the matter before it;'1 The appellant’s advocate complained that the consent and Certificate of transfer which confer the trial court with jurisdiction to try the economic offences made under sections 26 (1) and (2) of The Criminal Procedure Act were not admitted before the commencement of the proceedings. The law is crystal clear that an economic offence like this one is within the jurisdiction of the Corruption and Economic Crimes Division of the High Court in terms of section 3 (3) of the provisions of EOCCA. Under section 12 (3) of the same Act however, these economic Page 14 of 30 offences can be fried by d subordinate court if the DPP or any State Attorney duly authorized by him directs by certificate that it should be tried by such subordinate court. It is also the law that for a trial to commence at the respective subordinate court, there must be consent from the DPP under section 26 (1) of the EOCCA. Such consent and certificate of transfer must be admitted by the subordinate court. Failure to do so, the certificate and the consent documents, will have no legal force for hot forming part of the record. See; Maulid Ismail Ndonde vs Republic (Criminal Appeal 319 of 2019) [2021] TZCA 538, Joseph Ngadupa Akilimbaya & Another vs Republic (Criminal Appeal No. 632 of 2020) [2024] TZCA 39, and Samwel Slaa @ Sarea & Another vs. Republic (Criminal Appeal No. 153 of 2021) [2024] TZCA 32; to mention but a few. The learned advocate's argument prompted me to revisit the first page of the trial court proceedings both the handwritten and the typed proceedings, which reads; "Public Prosecutor: It is a new charge; accused persons are before the court and are represented by Michael Fyumagwa. With the charge we have certificate of Regional Prosecution officer, conferring jurisdiction on a subordinate court to try economic case. In addition to Page 15 of 30 that the charge is accompanied by the consent of Regional Prosecution officer under section 26 of Economic and Organized Crime Control Act, CAP 200, RE 2019 as they stand charged before the court. We are ready to read oyer the charge to the accused persons. Defence: We are ready Court: Charge is read over and explained to the accused persons who are asked to plead thereto." However, going through the handwritten proceedings, I find the proceedings read as follows: “PP: It is a new charge; accused persons are before the court and are represented by Michael Fyumagwa. With the charge we have certificate of Regional Prosecution officer, conferring jurisdiction on a subordinate court to try economic case. In addition to that, the charge is accompanied by the consent of Regional Prosecution officer under section 26 of Economic and Organized Crime Control Act CAP 200, RE 2019 as they stand charged before the court. We are ready to read oyer the charge to the accused persons. Defence: We are ready. Court: Certificate and consent are accepted, forming part of court record. Crt: Charge is read-over and explained to the accused persons who are asked to plead thereto." Page 16 of 30 it is clear from the outset that the typed proceedings do not show that the learned trial magistrate admitted the certificate and consent. However, the handwritten proceedings clearly reveal that the trial magistrate admitted the certificate of transfer and consent as required by the law. It is my settled view that the handwritten proceedings are considered as the original record compared to the typed ones. I am also persuaded by the holding of my learned brother Mbagwa, J in the case of Shadrack Ambakisye vs. The Republic [Criminal Appeal 63 of 2021) [2021] TZHC 9472 where it was observed inter alia that; “In fact, there is variance of between typed proceedings and handwritten proceedings as to pregnancy of PW1, It is a settled practice and indeed cardinal principle of practice that whenever there is a dispute or impeachment of court record, it is handwritten proceedings that must be resorted to ascertain the veracity of the court document to meet the ends of justice." See also Joseph Nylgana @ Baba Bhoke vs. Republic (HC Criminal Appeal 218 of 2019) [2020] TZHC 2338. In the circumstances, the complaint in the first ground of appeal is unmerited, and therefore dismissed. Page 17 of 30 On the 2nd and 5th grounds of appeal, the learned counsel for the appellant contested that the case was not proved by the prosecution beyond reasonable doubt. In determining these grounds, I will at least resolve all three limbs argued by the counsel for the appellants in supporting his grounds. In the first limb, the learned advocate was of the considered views that the search was not properly made in the sense that PW3 who was ah independent witness was not involve when the search was conducted in room no. 01 at Nakivubo lodge and that he did not witness the 1st, 2nd, and 3rd appellants sign before him. My observation on the complaint is that the appellants were charged under the Wildlife Conservation Act (WCA) where the law provides for the procedures for searching and seizing anything alleged to be connected to the commission of the offence. For clarity, I extract the provision of section 106 of the Act thus; "706. -(1) Without prejudice to any other law, where any authorized officer has reasonable grounds to believe that any person has committed or is about to commit an offence under this Act he may - Page IS of 30 (a) require any such person to produce for his inspection any animal, game meat, trophy or weapon in his possession or any licence /permit either issued to him or required to be kept by him under the provisions of this Act or the Arms and Ammunitions Act; (b) enter and search without any warrant any land, building, tent vehicle, aircraft, or vessel in the occupation or use of such person, open and search any baggage or other thing in his possession: Provided that no dwelling house shall be entered into without a warrant except in the presence of at least one Independent witness;" [Emphasis supplied] The provision is crystal dear that there are circumstances where search and seizure would be valid without a search warrant provided that there is at least one where such exercise is done in a dwelling house independent witness. The question arises as to whether Nakivubo Lodge qualifies as a dwelling house. Section 5 of the Penal Code defines a dwelling house as; "dwelling house includes any building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or servants or any of them, and it is immaterial that it is from time to time uninhabited; a building or structure adjacent to dr occupied with a dwelling house is deemed to be part pt the dwelling house if there is communication between Page 19 of 30 that building dr structure and the dwelling house, either immediate or by means of a covered and enclosed passage leading from the one to the other, but not otherwise;" [Emphasis supplied] Indisputably, according to the foregoing definition of a dwelling house, Nakivubo Lodge does not fall within the criterious set by the above definition. Moreover, I see no major contradiction in the evidence of PW3 because it is not disputed that he was the one that received the appellants. He clearly stated that the person who registered came with the sulphate bags and was driving. Again, he rectified as to the fact that he was involved when police came and saw two sulphate bags. He said he was in the laundry when the person who was driving left. However, I have also noted that the said search was not an emergency one, as according to PW2 they were tipped by an informer on the intended illegal business. That notwithstanding it is also on record that the said informer did not specifically reveal the names of the suspects to enable PW2 to prepare an arrest order and/or search warrant as claimed by the appellants' advocate. The Page 20 of 30 circumstances would not be convenient to have a search warrant. In the circumstances, I agree with the learned State Attorney that the search was properly made. Equally baseless is the complaint on the prosecution's failure to call one Twaiba Hassan Mpako who was together with PW3 at Nakivubo Lodge as a witness. This is because the prosecution was at liberty to bring only those witnesses who could advance their case regardless of the number. The term “material witness” has been defined in The Black's Law Dictionary, 2nd Edition, to mean; ‘‘The name that is given to the witness who can give information no one else can and is important to the case of the prosecution." Failure to call the said Twaiba Hassan Mpako would have only adversely impacted the prosecution case only if she was the only material witness to the case. See; John Mwendamaka vs. Republic [Criminal Appeal No. 38 of 2021) [2024] TZCA 260, and Azizi Abdalah vs. Republic [1991] T.L.R 71. Else, PW3 sufficed. Page 21 of 30 On the second limb, the appellant's counsel argued that police officers who: conducted the search save for PW2 were not authorized as per section 38 (1) of the Criminal Procedure Act CAP 20 R.E. 2020. I have duly considered the rival submissions of the learned counsel for the parties. To begin with, it is crystal clear that the search and seizure of objects of crime are matters that are regulated by law. In our jurisdiction, the guiding pieces of legislation are the Criminal Procedure Act and Police General Orders (PGO). However, for wildlife offences the governing law is the Wildlife Conservation Act [CAP. 283 R.E. 2022]. While the CPA provides for the procedure on how search and seizure should be carried out; the PGO and WLA complement the provisions of the CPA by providing details on how police officers should carry out their mandate in effecting search and seizure. To cement my observation above, I produce the provisions of section 38 (1) of CPA that: ’71/ Where a police officer in charge of a police station is satisfied that there is reasonable ground for suspecting that there is in any building, vessel, carriage, box, receptacle or place- Page 22 of 30 (a) anything with respect to which an offence has been committed; (b) anything in respect of which there are reasonable grounds to believe that it will afford evidence as to the commission of an offence; fc) anything in respect of which there are reasonable grounds to believe that it is intended to be used for the purpose of committing an offence, and the officer is satisfied that any delay would result in the removal or destruction of that thing or would endanger life or property, he may search or issue a written authority to any police officer under him to search the building, vessel, carriage, box, receptacle or place as the case may be. (2) Where an authority referred to in subsection (1J is issued, the police officer concerned shall, as soon as practicable, report the issue of the authority, the grounds on which it was issued and the result of any search made under it to a magistrate." [Emphasis supplied] The records revealed that PW2 was authorized by a police officer in charge of Liwaie (PW9) and later on he led other police officers to search at Nakivubo Lodge and seized the said thirty-six elephant tusks. Of course the certificate of seizure (P4) was signed by Inspector Hygiene John Massa nja (PW2) as the authorized officer to search the appellants. Other officers, including A/lnsp PF Tiganya (PW4), E.3494 D/C Gaitan [PW8), and F.9887 D/C Fredrick (PW7) Page 23 of 30 witnessed the operation at the lodge. Of course, in a normal circumstance, PW2 could not go by himself to search three appellants. It was expected to have a company of other police officers to accomplish what he was ordered to do. On the whole, this limb is also unfounded. On the third limb, the learned advocate doubts the prosecution evidence on the measuring scale that was admitted as Exhibit P3 the argued that when PW3 was cross-examined he testified that the measuring scale presented before the trial court was not the same that he observed during the incident. In my view, what was stated by PW3 during cross-examination was cured by himself during re­ examination as he testified that the measuring scale (Exhibit P3) that was admitted in court is the one that he saw at Nakivubo Lodge on the material date. However, the discrepancies are minor and did not affect the facts that the 1st, 2nd, and 3rd appellants were found with thirty-six tusks of Elephant at Nakivubo lodge, and it does not go to the root of the matter. In considering that the human memory is not infaliiable, the witness could not remember each and everything. He was expected to tell what he knows in connection Page 24 of 30 with an offence the appellants were charged with. In the case of Hezron Ndone vs. Republic (Criminal Appeal No. 263 of 2021) [2024] TZCA 15, on page 17, the Court of Appeal of Tanzania quoted the case of Said Ally Ismail vs. Republic, Criminal Appeal No. 242 of 2010, where it was observed that; "Contradictions. by witness or between witnesses is something which cannot be avoided in any particular case." Under the circumstances, the third limb of the complaint is; also without merits and it is equally dismissed. On the third ground of appeal, Mr. Songea contested that the trial court relied on the cautioned statement of 1st and 4th appellants to convict all the appellants. Mr. Songea was of the views that it was dangerous to rely on un-corroboration cautioned statements Exhibits Pl 4 and Pl 7. On records, there are two: cautioned statements (Exh. Pl4 and Pl7) on which the 1st and 4tn appellants both confessed to have dealt with the illegal business of selling the elephant tusks to the 2nd and 3rd appellants. Though the cautioned statements were initially objected when they were at tendered the trial court, they were admitted after Page 25 of 30 an inquiry had been conducted. It was, however, the concern of the appellant's counsel that it was unsafe to rely on those statements as they were retracted. I am aware of the danger of convicting an accused person based on an uncorroborated cautioned statement. However, the court may convict an accused person based on a repudiated or retracted confession if it is satisfied that such confession contains a true story about the offence. This position was well observed in the case of Kashindye Meli vs. Republic [2002] T.L.R 374, where the Court of Appeal of Tanzania stated that: "...if is now settled law that although it is dangerous to act upon a repudiated or retracted confession unless such confession is corroborated, the court may still act upon such a confession if if is satisfied that the confession could not but be true." [Emphasis supplied] Also, in another case of Dickson Elia Nsamba Shapwata and Another vs. Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17, the Court of Appeal of Tanzania quoted with approval the decision in the case of Tuwamoi vs. Uganda [1967] EA 84 at page 91, it was observed inter alia that; Page 26 of 30 “The present rule then as applied in East Africa, is regard to retracted confession, is that as a matter of practice or prudence the trial court should direct itself that it is dangerous to act upon a statement which has been retracted in the absence of corroboration in some material particular, but that the court might do so if it is fully satisfied in the circumstances of the case that the confession must be true." [Emphasis supplied] However, in this case, I have gone through the cautioned statements (Exhibits Pl 4 and Pl 7), trying to evaluate their weight if any. Upon making a careful examination of them, I found that crucial details for both statements of the 1st and 4ih appellants were the same in the sense that all appellants were dealing with the illegal business of elephant tusk and they both confessed to have given those thirty-six elephant tusks to the 2nd and 3rd appellants. However, on the cautioned statements the 1st and 4th appellants elaborated in detail on how they started the business. The detailed description adduced by the 1st and 4th appellants could not have been articulated by anyone else other than those with personal knowledge of the events. I am thus sufficiently convinced that Page 27 of 30 confessions mode in the cautioned statements contain a true story about the offence. in addition to that, the following part of the appellants' story is consistent and it is corroborated with other prosecution evidence. First, the 1st appellant testified that he went to Liwale on 12/11/2021 to check on her sick wife Nuru Kassim, but on 14/11/2021 while still at Liwale bus stand he was arrested by police. Nevertheless, prosecution evidence through H.4333 Forensic Coplo Victor (PW10) and Exhibit Pl 9 shows that the 2nd appellant sent the following messages to the 1st appellant through his Nokia mark E3 0684753191 on the same date of 14/11 /2021; "Tuko nakiyugo rage, tumechukua chumba... Father sikupaf, why?... naufudfa na gar/ yake tuulefe, umenielewa father." Second, when PW10 tendered Exhibit P19 (a forensic report) which revealed the calls and messages of both appellants, it was expected to be objected by the defence side, failure to object attracts that what is contained in Exhibit Pl 9 is true. Under the circumstances, in this case, I agree with Mr. Jilala that the trial court did not rely on the cautioned statements of the 1st and 4th appellants only rather it also relied on the other shreds of evidence Page 28 of 30 which I have found to be reliable. Therefore, ground of appeal this also is also without merit. The last ground of appeal I dismiss it concern the failure to evaluate defence resulting to a wrong conclusion. The law is settled that the trial court is obligated to evaluate the evidence of each witness and make findings on the issues. However, the learned advocate for the appellants did not point out the area or matters on which the trial court is said fa have disavowed its duty to evaluate the appellants' evidence. Still, this court is also being the first appellate court obligated to re-evaluate the evidence on record to satisfy itself as to whether the trial court properly appreciated the evidence before it, including that of the defence side. This is position was held by the Court of Appeal in the case of Marceline Kolvogui vs. Republic (Criminal Appeal 469 of 2017) [2020] TZCA 252, CAT at DSM, among many others, where the first appellate court's duty was expounded in the following terms: - "A first appeal Is in the form of a re-hearing and as such, this being the first appellate court, it is duty bound to re­ evaluate the entire evidence on record by reading it Page 29 of 30 together and subjecting it to a critical scrutiny and if warranted arrive at its own conclusions of fact." Upon perusal of the entire records of the trial court, I have observed that the presiding magistrate analyzed the evidence on record and made reasoning on the evidence of both parties concerning the offence for which the appellants were charged. That it is well-spoken from the impugned judgment of the trial court. In the circumstances, I found this last ground of appeal not to be clothed with. In the upshot, I find that the offence of unlawful possession of a government trophy was proved beyond any reasonable doubt. I dismiss the appeal in its entirety. R.A Ebrahim Judge. Mtwara. Page 30 of 30