MOSES COSMAS2

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF TANZANIA AT MANYARA CRIMINAL APPEAL NO. 000030376 OF 2024 MOSES COSMAS COSMAS............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC............................. RESPONDENT / DEFENDANT JUDGMENT KAMUZORA, J 6th & 24th March, 2025 The appellants were arrested at Cassablanka guest house within Babati District in Manyara Region for unlawful possession of eight pieces of elephant tusks. They were aligned before District Court of Babati (hereinafter referred to as the trial court), charged with one count of] unlawful possession of government trophy contrary to section 86(1) and (2)(b) of the Wildlife Conservation Act [Cap 283 R.E 2022], (hereinafter referred to as WCA) read together with paragraph 14 of the 1st schedule to and sections 57(1) and 60(2) of the Economic and Organized Crimes Control Act [Cap 200 R.E 2022], (hereinafter referred to as the EOCCA). The appellants pleaded not guilty and the matter proceeded to a full trial. After hearing evidence from both sides, the trial court found the appellants guilty of the offence as charged and consequently, convicted and sentenced them to serve;22 years imprisonment. The appellants were displeased with the conviction and sentence meted out against them so, they preferred the instant appeal with 10 grounds of appeal which can be conveniently summarized and reduced into 3 issues as follows; 1. Whether, the trial court convicted and sentenced the appellants based on illegal search and seizure and improper arrest of the appellants. 2. Whether, the case against the appellants was proved to the standard required in law. i 3. Whether, the sentence meted out against the appellants was illegal. On the date scheduled for hearing, the appellants appeared in person while Ms. Rhoida Kisinga, learned state attorney appeared for the respondent. Page. 1 Hon.. DEVOTHA KAMUZORA Starting with the first issue, the appellants are complaining that there was improper arrest and illegal search and seizure of exhibits. The 1st appellant denied being arrested with elephant tusks and he condemned the arresting officers for the arrest which did not involve government leaders and independent witness. On his part, the 2nd appellant admitted being arrested 21st May, but condemned the arresting officer for conducting search without a search warrant. He contended that, the bag was brought to them after their arrest and there was no independent witness during their arrest. He was of the view that, there was a need for an independent witness like the Mtaa executive officer or the chairman for the arrest to be proper. In reply Ms. Kisinga, the learned state attorney submitted that, the appellants were legally arrested because there was search order which was admitted as exhibit as PE4. That, when PW2 and others went to the guest house, they introduced themselves to the guest attendant and he led them to the intended room. That, the appellants opened the door and the arresting officers introduced themselves before they conducted search. That, after the search, all appellants and the guest attendant who was an independent witness signed the search order which was combined with the seizure certificate. She insisted that, the guest attendant was an independent witness who witnessed the search as required by sections 38 (3) of the Criminal Procedure Act [Cap 20 R.E 2022], (hereinafter referred to as the CPA) and 106 of the WCA. She added that, the law does not impose a requirement for the independent witness to be a government leader. I have considered the law, the evidence and the rival submissions from the parties. On the issue of arrest, there is clear evidence of PW2 that he went to Cassablanka guest house accompanied by other officers. They introduced themselves to the guest attendant (PW4) and he led them to the intended room. PW2 testified that they introduced themselves before they conducted the search and arrest of the appellants. PW2’s evidence was complemented by PW4 who admitted to have received the officers who were asking for two males. PW4 led PW2 and other officers to the appellants’ room, knocked and the appellants opened the door. PW4 explained clearly that the police officer informed the appellants that they were suspected and they wanted to conduct search. The appellants agreed and the search proceeded upon which, a small bag was found under the bed. After search, the appellants were arrested. With such evidence, I am satisfied that the arrest procedures were complied with and the appellant was unable to point out a single procedure of arrest which was not complied with by the arresting officers. On the issue of search and seizure, section 106 of the WCA, allows an authorized officer to conduct search in the land, building, tent, vehicle, aircraft or vessel. The term “authorized officer” is defined under section 3 of WCA to include; director of wildlife, wildlife officer, wildlife warden, wildlife ranger or police officer. Therefore, by virtue of section 106 of the WCA, PW2 being a police officer had powers to conduct search in the room hired by the appellants. As opposed to the appellants’ argument that there was no search order, PW2 had a search order and the same was admitted as exhibit PE4. The search Order was accompanied with a certificate of seizure in the same paper. The search exercise was conducted in the presence of PW4 who was the guest .2 Hon.. DEVOTHA KAMUZORA attendant. As opposed to the appellants’ argument that there was no independent witness, the evidence shows that PW4 was present and signed the certificate of seizure. I agree with the submission by the learned state attorney that PW4 was an independent witness within the meaning of the law as there is no any law which imposes a requirement for an independent witness to be a government leader. Therefore, I am of the settled view that, the arrest, search and seizure exercise were properly done. On the 2nd issue on whether the offence was proved beyond reasonable doubt, the appellants raised several complaints that; the case against them was fabricated, the search exercise was flawed and they were not arrested with anything. They contended that, there was variance between facts and evidence as well as inconsistencies in prosecution evidence. They challenged the evidence of the guest attendant for not indicating if they were carrying any bag and if it was recorded in the visitors’ book that they were carrying anything at the time they hired the room in that guest house. That, the said bag was not even listed in certificate o f seizure. In reply, Ms. Kisinga submitted that, the appellants were convicted for possession of government trophy contrary to section 86 of the WCA read with paragraph 14 of the 1st schedule to the EOCCA. She argued that in order to prove the offence under the said provisions, two elements must be proved; one, whether the appellants were found in possession of government trophy and two, whether they had permit to possess government trophy. On the first element, the learned state attorney submitted that, PW2 conducted search at Casablanka guest house in the room hired by the appellants. That, upon search of the appellants’ room, they found a bag with 8 pieces of elephant tusks under the bed. That, the search was witnessed by PW4 who was the guest attendant as an independent witness. That, the search order and certificate of seizure were signed by the appellants and the independent witness. That, the said seized exhibits were identified and verified by PW3 one Goodluck to be elephant tusks who also valuated the same|. The learned state attorney further submitted that, the chain of custody was also clear showing that, after I search and seizure, PW2 sent the exhibits to the police station and handed them to Stg. James (PW1) who also handed the same to PW3 to identification as per valuation trophy valuation certificate (exhibit P5). That, after valuation, the exhibits were handed back to PW1 who tendered them in court, the elephant tusks were admitted as exhibit PI while the bag and sulphate bag were admitted as exhibit P2. She was of the view that, the exhibits and evidence proved that the appellants were found in possession of elephant tusks which are government trophies. I On the second element, the learned state attorney submitted that, PW2 testified that the appellants were asked if they had a permit to possess the government trophy and they were unable to submit any permit. She was of the view that, all elements were proved that the appellants were illegally found in possession of government trophies. In order to resolve this issue, I undertake to re-evaluate the evidence on record. It is not in dispute that, the appellants hired room No. 108 at Cassablanka guest house and they were arrested in the same room. These facts were admitted by the appellants in their respective testimonies before the trial court. The .3 Hon.. DEVOTHA KAMUZORA only point of departure is being found in possession of elephant tusks. According to the prosecution evidence, on 21/5/2024 PW2 (a police officer) received a tip from an informer that there were two people selling elephant tusks at Cassablanka guest house herein Babati town. PW2 relayed such information to the OC-CID of Babati who issued search order to PW2. PW2 being accompanied by park rangers, went to the guest and were led by the guest attendant (PW4) to room No. 108 where they found appellants. PW2 and his team searched the room and they retrieved a bag under the bed and upon opening the said bag, they found 8 pieces suspected to be elephant tusks. A certificate of seizure was prepared and signed by PW2, the appellants and PW4 as an independent witness. The seized elephant tusks were handed to PW1, the exhibit keeper at Babati police station through a chain of custody form (exhibit PE3) and he tendered them as exhibit PEI collectively. PW3 is a wildlife officer who identified and valuated the seized elephant tusks (exhibit PEI). According to PW3 he used comparative method to identify exhibit PEI and reached to a conclusion that they were elephant tusks for they have features which can only be found in elephant tusks. He also explained that the identified tusks were equal to three killed elephants and proceeded on valuating the same as evidenced by the valuation certificate (exhibit PE5). In their defence, the appellant never denied being arrested at Cassablanka guest house. They admitted to have hired the room which was searched by PW2. They only denied being arrested while in possession of elephant tusks and condemned the arresting officer for arresting them without involving the local leaders. They claimed that the case against them was fabricated but they were unable to substantiate their claims that the case against them was fabricated by telling the person responsible and the reasons. This court is convinced with the prosecution evidence which shows that the appellants were found in constructive possession of elephant tusks. I say so because, the evidence from the guest attendant who attended them shows that the appellants were together and they hired one room but only the second appellant one Richard Lutema registered in the guest register as evidenced by exhibit PE7 (guest register). The appellants were arrested in the same room No. 108 which PW4 assigned them. The evidence of the police officer (PW2) who conducted search in the said room shows that, they found a small bag under the bed which upon being opened, eight pieces of objects suspected to be elephant tusks were retrieved. The search exercise was conducted in the presence of PW4 as an independent witness. As opposed to the appellants’ argument that there was no independent witness, the search was witnessed by PW4. I agree with the submission by the learned state attorney that PW4 stood as an independent witness as there is no law which imposes a mandatory requirement for the government leader to stand as an independent witness. On the argument that there was no search order, Exhibit PE4 contains search order and seizure certificate in one paper and the same was signed by the appellants, PW2 and PW4 among other people, acknowledging the seizure of items listed. The appellants’ claim that the bag was not listed in the certificate of seizure is unfounded because four items were listed in the certificate of seizure including .4 Hon.. DEVOTHA KAMUZORA the bag which was described as small bag with the name PL POWER. It is the same bag which was identified by the guest attendant as the bag he saw the appellants with at the time they hired the room. With such evidence, I am satisfied that, the appellants were in the same room where the elephant tusks were retrieved. Since the elephant tusks were found in the bag which the guest attendant claimed to have seen the appellants carrying when they hired the room, the claim that it was planted in that room cannot stand. As well argued by the learned state attorney, the chain of custody was also maintained from the time the elephant tusks were seized by PW2 from the appellants to the time they were tendered before the court. PW2 handed the exhibit to PW1 who was the exhibit keeper who also gave a detailed explanation on how he received and stored the seized items until he tendered them in court. Before tendering them is court, the items passed through the hands of PW3 for identification and valuation. The items seized were identified by PW3 as elephant tusks and he was able to give detailed explanation which distinguishes elephant tusks from other animals’ teeth. He also conducted valuation before and tendered trophy valuation certificate. All the people to whom the elephant tasks passed into their hands signed the chain of custody form (exhibit PE3. With the above record, I find no reason to disbelieve the prosecution evidence for it proved that the appellants were found in possession of elephant tusks and they had no permit. In short, the prosecution evidence proved two elements of the offence that; the appellants were found in possession of elephant tusks and without permit to possess government trophy. In that regard, the offence of unlawful possession of government trophy was proved beyond reasonable doubt. The trial court was therefore right to convict the appellants for the offence. The last issue is whether the trial court passed illegal sentence. The appellants claimed that they were sentenced with the maximum and illegal sentence of 22 years instead of 20 years prescribed by the law. In response, the learned state attorney submitted that, the sentence meted out against the appellant was legal. She referred section 60 (2) of the EOCCA which prescribes a sentence of not less than 20 and not more than 30 years upon conviction. She therefore maintained that, the sentence of 22 years imposed on the appellants was within the sentence prescribed by the law. Section 60(2) of the EOCCA reads; “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; [Emphasis added]. The above provision of the EOCCA prescribes the minimum sentence of 20 years and maximum sentence of 30 years imprisonment for the offender convicted of economic offence. While I agree with the learned state attorney that the sentence of 22 years is within the range of sentence which can be imposed by the trial court, I find that the trial magistrate passed sentence without taking into consideration the principles for sentencing the offender under the Tanzania Sentencing Guidelines of 5 Hon.. DEVOTHA KAMUZORA 2023. The Guidelines offers guidance and sets principles for sentencing the offenders to bring uniformity. It outlines factors to be considered in passing sentence and the sentencing process. It states that, in every case, the starting point for the court is to consider the maximum and minimum sentence set out by the law. Since section 60 (2) of the EOCCA sets a minimum sentence of 20 years and a maximum of 30 years imprisonment, it was expected for the trial court to first consider the minimum sentence. Therefore, any option above the minimum sentence need be preferred with reasons. According to the sentencing guidelines, the maximum sentence should only be imposed when the offence comes close to the worst of its type and should rarely be imposed on a first offender. The appellants were sentenced to serve 22 years imprisonment above the minimum sentence set by the law. The record shows that the appellants were the first offenders and no reason was advanced by the trial court to prefer sentence above the minimum range. I therefore partly find merit on this issue to the extent that there was no reason for preferring above the minimum sentence set by the law. From the above discussion, the appeal is partly dismissed and partly allowed to the extent above explained. The conviction and sentence meted out against the appellants by the trial court are upheld save for the sentence which is varied by substituting the 22 years imprisonment sentence with the 20 years’ imprisonment sentence. Dated at THE HIGH COURT OF TANZANIA AT MANYARA this 24th o f March 2025 . JUDGE OF THE HIGH COURT Page. 6 Hon.. DEVOTHA KAMUZORA