CRIMINAL APPEAL MOREMI MARINTA

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000028443 of 2024 REFERENCE NO. 202410032000028443 (Original Economic Case No. 14 of2023 of the District Court ofBunda at Bunda) MOREMI S/O MARINTA AND TWO OTHERS........................... APPELLANTS VERSUS THE REPUBLIC......................................................................... RESPONDENT JUDGMENT 12th & 18th November, 2024 M, L, KOMBA. J.: Moremi Marinta together with the other two persons (who are not subject of this appeal) was arraigned before the District Court of Bunda at Bunda (the trial court) charged with six counts; first, unlawful dealing in Government trophies contrary to section 80 (1) 84(1) and 11 l(l)(a) of the Wildlife Conservation Act, Cap 283 R.E. 2022 as amended by written Law (Miscellaneous Amendments) (No. 2) Act of 2016 read together with Page 1 of 15 Paragraph 14 of the First Schedule to, and sections 57 (1), 60 (2) of the Economic and Organized Crime Control Act [Cap. 200 R.E. 2002] (EOCCA). Second, third and fourth counts was charged with Unlawful Possession of Government Trophies contrary to section 86 (1) and (2)(c) (iii) of the Wildlife Conservation Act read together with Paragraph 14 of the First Schedule to, and sections 57 (1) and 60 (2) of Cap. 200 R.E. 2002 while in fifth and sixth counts the appellant was charged with unlawful possession of ammunition contrary to section 21 of Fire Arms and Ammunition Control Act, No. 2 of 2015 read together with para 31 of the first schedule to, and sections 57 (1) and 60 (2) of Cap. 200 R.E. 2002. After the prosecution case was finalized, the trial Court found the two accused with no case to answer and appellant was supposed to enter his defence. The trial court then convicted the appellant on three counts, the second, fifth and sixth and sentenced him to twenty years imprisonment collectively. It was appellant who was dissatisfied by the decision of the trial court and decide to appeal. In Electronic Case Management System (ecms) the appeal was filed showing three appellants but in actual fact, the two others were not convicted. For the purpose of keeping record, this judgment concerned only one appellant who is moremi s/o marinta. Page 2 of 15 In brief, it was prosecution allegation that police got information from informer that there is a person who is involved in illegal business of elephant tusks and in that particular date (07/07/2023) that person who was an appellant was going to Bunda from Mugeta Village. Appellant used a car make TOYOTA RAV 4 which was hired by one intelligence officer in order to facilitate arrest of the appellant, they collected ivory from the house of appellant and started their journey to Bunda town. Informer was purported to be a buyer and was in a said motor vehicle. When reached at Kiroreri village, police stopped the car and arrested appellant, they searched the car and found something when asked appellant he replied he carry ivory. It was five pieces of ivory which was marked KI, K2, K3, K4 and K5. Certificate of seizure exhibit P2 was prepared and signed. Appellant led the police to his house where upon search they found two pieces of dried zebra meat and along the hill appellant shows the place where he buried bullets and certificate of seizure exhibit P5 was prepared and signed. From prosecution testimony, the trial Magistrate was convinced that three offences were proved and convicted appellant as narrated. Aggrieved by the decision, appellant appeared before this court to express his innocence with ten (10) grounds of appeal which reads; Page 3 of 15 1. That the trial court erred in law to determine the proper arrest and search during the appellant Is apprehended, the search or arrest was conducted without a warrant and without proper legal procedure. 2. That the trial court didn't consider the lawful leisure of evidence, that is to say unlawful leisure of evidence. The government trophies and ammunition were leased without adhering to legal protocols. The admissibility of this evidence were obtained through correction. 3. That there is weakness of evidence, the prosecution side failed to prove the elements of the offence beyond reasonable doubt. The prosecution might not have clearly linked the possession of trophies or ammunition to the accused. 4. That the trial court erred in law and fact to prove the intent of possessed the government trophies or ammunition. 5. That the trial court wrong Interpretation of statutory provision that is to say the trial court misapplied the provisions of the fire arms and ammunition control act and the relevant laws on the government trophies. 6. That there is a breakdown in evidence handling the chain of custody of the leased ammunition or government trophies was not maintained. 7. That there is violation of constitutional rights, the appellant confession or evidence was obtained through coercion intimidation or illegal detention it may violate constitutional protections. 8. That there is exculpatory evidence, the evidence favorable to the defense was not disclosed by the prosecution side. Page 4 of 15 9. That the trial court erred in law and facts in sentencing. The sentence imposed to die appellant was overly harsh or not commensurate with the severity of die offence. 10. That the trial court failed to consider mitigation factor of the appellant such as lack ofprior criminal history, age, health status. During hearing, the appellant appeared in person without representation while respondent, Republic was represented by Ms. Beatrice Mgumba and Mr. Jonas Kivuyo, both State Attorneys. When given time to defend his appeal, appellant was brief, he prayed this court to adopt his petition of appeal so as it can be considered. Ms. Mgumba responded to appeal by first registering position for the respondent that they don't support the appeal. She started her argument by submitting on 9th and 10th ground which was about punishment and mitigation, she submitted that Judgment show mitigation factors were submitted and considered in judgment. However, State Attorney was of the position that the minimum sentence of the offence as per law is twenty years imprisonment and therefore, she added, trial Magistrate had no option to reduce below 20 years. She prayed this court to find the two grounds has no merit. Page 5 of 15 She went on submitting on seventh ground that appellant was not tortured as he collaborated to prosecution witnesses when was arrested and informed PW1 that he was holding elephant tusks. It was her position that the issue that appellant was tortured was afterthought as during trial he did not dispute neither adduce evidence of torture. The 6th ground about breakdown of chain of custody, Ms. Mgumba submitted that chain of custody was intact and the prosecution witness explained in their testimony how seizure was done, how PW3 took pieces of ivory from exhibit keeper and hand it to valuer. Then bullets were taken to ballistic expert for examination till the day they were tendered. She insisted that the paper trail was intact. She supplied the case of Abas Kondo Gede vs Republic, Criminal Appeal 472 of 2017 at 93 in which Court of Appeal allowed oral testimony when there is no documentary evidence. She proceeded that court in various decision rule that there are some exhibits which cannot easily be tempered as was in Sharif Mohamed Athuman and 4 Others vs Republic, Criminal Appeal No. 251 of 2018 at 63. In the case at hand, she submitted that, Ivory was labeled and the label was shown during hearing, the same was to bullets when seized were kept in a box and were tendered during trial while intact. Page 6 of 15 She went on submitting on the 5th ground about the charging section that the appellant was property charged as the offence was established under section 86(1) and (2) (b) of Wildlife Conservation Act. So far as he was found with weapon, State Attorney said they charged appellant under Firearms and Ammunition Control Act which establish an offence for a person who own ammunition without license and clarified that under the law bullets were defined to mean ammunition and under paragraph 14 of the firth schedule of Economic and Organized Crime Control Act referred these all to be Economic Offences. Then State Attorney joined grounds 1st, 2nd, 3rd and 4th on proving the offence beyond reasonable doubt. She submitted that arrest and search was done by law as section 106 (1) (b) of Wildlife Conservation Act allow authorized officer to enter and search any building or anything without warrant if he is accompanied by independent witness. She proceeded that PW6 was independent witness who signed certificate of seizure. To prove that items were taken from appellant he too signed certificate of seizure which admitted as Exh. P2 while bullets were seized under fire Arms and Ammunition control Act and exhibit P3 and signed by appellant. Page 7 of 15 About identification of bullets she submitted that prosecution had PW2 who is ballistic expert and testified that he examined 39 bullets and find all were active. PW3 testified that seized suspected pieces of ivory was confirmed to be ivory as it has specific features which differentiate with other animal horns. Another area which prosecution needed to prove it was whether it was the appellant whom was found with Government trophy without permit. She elaborated that when arrested, appellant did not show any permit. However, she specifies that, section 100 of Wildlife Conservation Act shift burden of proof of offences of this nature to accused and therefore, she posed it was for appellant to prove that he had permit or that trophy was from domestic animals. About existing grievances between that appellant and witness who show ivory, she submitted that was afterthought as appellant did not ask such questions to witness while in the witness box. She prayed this court to dismiss an appeal. When given time to make rejoinder, appellant prayed to be found innocent. I have thoroughly gone through the submissions by both parties, though not contested, it's the duty of this court to determine whether the appeal is Page 8 of 15 meritorious. The cardinal principle in criminal cases is that, it is upon the prosecution to prove the case against an accused person beyond reasonable doubt as was in John Makolebela vs Kulwa Makolobela and Eric Juma @ Tanganyika [2002] T.L.R. 296. Proving an offence beyond reasonable doubt has been defined in the case of Samson Matiga vs. Republic, Criminal Appeal No. 205 of 2007, CAT at Mtwara (unreported) where the Court of Appeal said; 'What it means, to put is simply, is that the prosecution evidence must be strongly as to leave no doubt to the criminal liability of an accusedperson. ’ The appellant was convicted on three counts which are the second, fifth and sixth on unlawful possession of Government trophy and unlawful possession of ammunitions. I shall analyse this appeal basing on grounds of appeal as fronted by the appellant in a sequence opted by respondent. The 9th and 10th about mitigation, State Attorney submitted that mitigation was considered and the minimum sentences for the offence is 20 years. I read proceeding and find on 23th September 2024 when judgment was read in court appellant had time to mitigate and said he has problems with his ribs and prayed for lenient punishment. Page 9 of 15 Also referring to section 60(2) of ECOCCA Cap 200 R.E 2022, it reads; '(2) Notwithstanding provision of a different penalty under any other law and subject to subsection (7), a person convicted of corruption or economic offence shall be liable to Imprisonment for a term of not less than twenty years but not exceeding thirty years, or to both such imprisonment and any other penal measure provided for under this Act; Provided that, where the law imposes penal measures greater than those provided by this Act, the Court shall impose such sentence.' Due to the fact that some offenders are punished to thirty years when convicted to similar offence, I find 20 years imprisonment was lenient punishment to the convicted and I find the combined grounds lacks merit. On the 7th ground appellant complained of illegal detention and confession which was obtained through coercion. State Attorney submitted that appellant was not tortured and he cooperated. I had time to read proceedings when the vehicle in which appellant boarded was stopped, that vehicle was searched and when a parcel was found appellant was asked and he replied it was Elephant tusks. That was done in the presence of independence witness, PW6 who explain during trial that when asked what he was carrying, appellant said he carries Elephant tusks. Further, Page 10 of 15 when he took police to his home, he directed police including PW1 to the farm where bullets were hidden, he dug and come out with black plastic bag which had bullets. That was testified by appellant and DW2 who was village chairman. I am settled that both trophies were found in appellant possession in circumstances which does not suggest torture neither intimidation. Appellant further complained of chain of custody. In this ground Ms. Mgumba relied on Sharif Mohamed Athuman and 4 Others vs Republic, (supra) that chain of custody not necessarily to be intact for items which are not easily tempered and that oral evidence may be accepted when there is no documentary evidence as was in Abas Kondo Gede vs Republic (supra). PW1 testified and when tendered for identification elephant tusks were labeled Ki, K2, K3, K4 and K5 and the same was testified by independent witness PW6 that when seized, tusks were labeled and the exhibit Pl was signed. According to PW1 tusks were kept in store. It is in record that PW4 who identify and conduct valuation testified that tusks were labeled KI, K2, K3, K4 and K5 as seen at page 46 of ecms proceedings. Page 11 of 15 PW1 at page 19 testified that he kept seized bullet in store though there is no further explanation, weapons are kept in a special store called armory and PW3 who took bullets to PW2 at page 28 explained he took bullet from armory to Dar es salaam for examination. PW2 testified he examined 39 bullets with different caliber as counted by accused at the farm when was seized. I am aware of the principle established Paulo Maduka & Others vs Republic (Criminal Appeal 110 of 2007) [2009] TZCA 69 (28 October 2009). However, just as submitted by State Attorney that the principle was relaxed when item is not easily tempered. See Sharif Mohamed Athuman and 4 Others vs Republic, and Joseph Leonard Manyota vs Republic, Criminal Appeal No. 485 of 2015. I find exhibits were well kept and the ground has no merit. Ground number 5 appellant is complained of interpretation of Firearms and Ammunition Control Act. It was submission of State Attorney that bullets have been defined to mean weapon and therefore the charge was right. I have read Firearms and Ammunition Control Act and find ammunition includes bullets and the paragraph 31 of the 1st schedule to Cap 200 make it an offence to own ammunition without license. Appellant had no license Page 12 of 15 to own ammunitions and it is an offence under Firearms and Ammunition Control Act which is recognized under paragraph 31 of the 1st schedule to Cap 200 as narrated. I find the definition of ammunition and punishment imposed to appellant was correct. The 1st, 2nd, 3rd and 4th grounds of the petition is about to prove the offence beyond reasonable doubts. Appellants complained on proof of possession of Government trophy, there was no link between item seized and appellant admissibility of the evidence and last search and arrest was done unlawfully. About warrant of arrest and search, DI testified that while on the way from village to Bunda the vehicle was stopped and was searched, PW1 testified the same that they stopped the vehicle searched and seized five elephant tusks the seizure was witnessed by PW6. The bullets were seized on the farm while PW1 and accused were from arresting other accused. PW1 testified at page 18 of ecmsproceedings that it was emergency search as they become aware of the fact when they were on the way and police worried that information could leak and acted immediately. Search and seizure of exhibit P5 was done in presence of Page 13 of 15 PW5. There is no doubt that no warrant was issued, however, to make if official and just, PW1 testified that they had independent witness, PW5 who also testified to witness appellant digging In a farm and came out with black plastic bag. So far as the search was done by police after appellant confession, that is permissible under section 14 (1) of the Criminal Procedure Act, Cap 20 thus; 14. -(1) A police officer may without a warrant arrest- fa) any person who.......... (b) any person who........ (c) any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to such thing; (d) any person............ There was independent witness in both area when seizure was done, appellant collaborated when asked what he was carrying and answered it was elephant tusks. Prosecution planted informer in the same car so was easy for arrest of appellant and that confirm on the possession of the Page 14 of 15 exhibit P5. To make it clear, appellant signed exhibit Pl and P3 and therefore he cannot complain that he was not associated with trophies. I find all the grounds lacks merit, prosecution managed to prove their case to the required standard. In the consequence, I dismiss the appeal for want of merit. It is so ordered. DATED in MUSOMA this 18th Day of November,2024. Rd IOmI > M. L. KOMBA / Judge Judgement delivered in chamber before Appellant who appeared in person while Republic was represented by Ms. Beatrice Mgumba, State Attorney, M. L. KOMBA Judge 18th November, 2024 Page 15 of 15