MUSA NDEMLA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CRIMINAL APPEAL NO. 202407112000019243 (Arising from Criminal Case No. 6 of 2023, before Simiyu Resident Magistrate’s Court) MUSA S/O NDEMELA ...............................................APPELLANT VERSUS REPUBLIC …........................................................RESPONDENT JUDGMENT 2nd & 30th September 2024 F. H. MAHIMBALI, J. The appellant before the trial court faced the charge of Unlawful Possession of Government Trophies, to wit: three elephant tusks which is contrary to section 86(1)(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 the Economic and Organised Crime Control Act. It was alleged that on the 4th day of September 2023 at Mwandoya village within Meatu District in Simiyu region, the appellant was found in unlawful possession of Government Trophy to wit; Three Elephant Tusks 1 equivalent to two Elephants unlawfully killed valued at Tshs 102,000,000/=. The charges the appellant had denied. In establishing the charge, the prosecution brought a total of seven witnesses and tendered six exhibits which in total tended to establish how the appellant was on 4th September 2023 arrested with the alleged three ivories unlawfully. The prosecution’s evidence goes this way: On 4th September 2023 at night time (around 22.00hrs), PW1 being with PW4 (D/Sgt Abdalah) together with one Sgt Godfrey and two conservation rangers, at Mwandoya – Meatu had arrested the appellant being in possession of government trophies namely: three ivories clothed in sulphate bags. They searched him in the presence of VEO (PW2). As he denied having any permit authorizing his possession, they seized them (exhibit P.1, P.2, P3). As to whether what the appellant was arrested with was really elephant tusks, PW6 said it all. That he is a wildlife officer, having a Bachelor of Science in Wildlife Management from Sokoine University experienced in wildlife matters for over eleven years. In his examination of the said trophies alleged to be elephant tusks, he stated that the said tusks were three (exhibit P.2), labelled MEA/IR/448/2023. One out of three was big, while the remaining two were small ones. He described them as being cream in color, tangential profile, cave feature 2 extends interior. The same is differentiated from other wild tusks such as of hippopotamus, warthog etc. He tendered the valuation report which was admitted as P.6 exhibit. Other exhibits collaborating the evidence of the case were P.4 and P.5 which are weight and measurement report and chain of custody report respectively. On his side, the appellant denied being arrested in possession of the alleged trophies as charged, but only arrested with his three fellow men he didn’t name them while on his way back home from his duties. After a thorough valuation of the prosecution’s evidence and that of the defense, the trial Court was satisfied beyond reasonable doubt that the charge of being unlawful possession of government trophy was established and sentenced him to suffer 30 years’ imprisonment. Dissatisfied with both conviction and sentence, the appellant has appealed to this court armed with six grounds of appeal namely: 1. That the prosecution’s case was not established against the appellant beyond reasonable doubt. 2. That the chain of custody of the seized items (exhibit P.2) was not intact. 3. That the search and seizure were irregular as there was not issued receipt acknowledging its seizure. 3 4. That the trial magistrate had erred in placing reliance on the evidence of PW1 on the fact that PW2 was an independent witness. 5. That the trial magistrate erred in law in ignoring the undisputed evidence which showed that there was more than one suspect arrested. 6. That the appellant was excessively punished to serve a custodial sentence of 30 years despite the fact that the appellant was the first offender. In digest to the above grounds of appeal, they all boil into two major grounds i.e on the question of fact that the prosecution’s case was not proved to the required standard and there were procedural irregularities in conducting search. During the hearing of this appeal, the appellant was present and represented by Mr. Geni Vitus Dudu learned advocate, while the respondent/republic was represented by Ms. Caroline Mushi the learned State Attorney. In arguing for the appeal Mr. Dudu, the first and second grounds of appeal he argued them jointly. Similarly, was to the 4th and 5th grounds. The remaining two grounds of appeal, he argued them separately. 4 Mr. Dudu commenced his submission by amplifying the legal principle that, it is trite law that in the prosecution of the criminal cases, the republic is duty charged to establish their case beyond reasonable doubt as held in numerous cases such as Mohamed Saidi Matela V. Rep, (1995) TLR 3 and John Makolobela & 2Others V. Rep, (2002) TLR 296. In the current case, he argued that there are two main doubts which remain unresolved: Whether the alleged trophies were really sent to the weighing agency and whether are the same that were sent to the weighing officer. Scanning the evidence of the arresting officer (at page 11 of the typed proceedings - 18th line), that just after the said arrest, the alleged trophies were marked with a marker pen - A, B, C, without specifying the colour of it. They detained him at Mwandoya. It is not clear from this evidence, whether the alleged labelled exhibits after their arrest were the same with those sent to the valuer. The evidence of PW5 - CPL Lucas, simply stated that on the 5th September 2023 had received the said trophies without explaining whether the alleged labels were in existence. However, it is him (PW5) who stated to have marked them with investigation number of the case (MEA/IR/448/2023). Therefore, it is doubtful whether the alleged trophies were the ones arrested with. It is therefore doubtful if the same trophies referred to the valuer are the 5 same as arrested, taking into account that it is PW3 testimony that who had marked the said trophies with letters A, B, C and not PW1 or PW4. Mr. Dudu further alluded that the second doubt is on the broken chain of custody. The importance of chain of custody from the point of arrest was supposed to be dully explained - see the case of Paul Maduka & Others, vs. Republic, Criminal Appeal No. 210, CAT at Dodoma which insisted on proper documentation of paper tray. He however submitted that he is aware that this requirement of chain of custody can be broken. (See DPP V. Steven Gerald Sikikuka, CAT TZCA 330 of 2021). Further Mr. Dudu stated that in the circumstances of this case, the testimony of PW2 (weighing officer), instead of weighing them, he started tempering with it as it lost its natural look. With the 3rd ground of appeal, Mr. Dudu fortified that the grief is, search and seizure were irregular contrary to what is provided under section 38(3) of the CPA, where the procedure of arrest and seizure is well stated. Further importance was placed in the case of Andrea Augustin @ Msigala & Others V. Criminal Appeal No. 365 of 2018 page 22 & 23. Certificate of seizure was found to be important despite the issuance of receipt on the said search. 6 With the fourth and fifth grounds of appeal, Mr. Dudu stated that the grief is, the trial court had erred in treating PW2 as an independent witness in the matter without considering the fact that the accused person's retraction was supposed to be accorded weight. Thus, he argued this Court that being the first appellate court is duty mandated to revisit the evidence of the whole case and reach its own findings. To boost his argument, he referred this Court to the case of Hassan Ally Mfaume V. Republic, (1981) TLR 167, and prayed for the Court not to consider the prosecution's case at all. Mr. Dudu also cited to me the cases of Goodluck Kyando vs. R (2006) TLR 363 and Athuman Rashid V. Rep, Criminal 246 of 2016, CAT to the effect that evidence of both parties should be fairly treated by the Court. Further Mr. Dudu submitted that, the accused person and his three fellows were arrested at night time - bush area. The said arrest was not an emergence one. As they had prepared it, why did they not use the independent officer- queried Mr. Dudu. On this, he concluded that, the search was an improbable one and can hardly be reliable. By the way he was just along his walk and his fellows, where he was just arrested without knowing the reason of their arrest, he banked his argument by making reference to the case of Flavian Gaspal V. Republic, Criminal Appeal No. 643 of 2024 at page 10. 7 With the 6th ground of appeal, Mr. Dudu stated that the sentence imposed was so harsh. It ought to be imposed with a minimum sentence pursuant to section 60(2) of the EOCCA. Thus, he was only supposed to be sentenced a minimum sentence of 20 years and not as the trial court did. Finally, Mr. Dudu prayed for this appeal be allowed and the sentence meted out be varied to the extent of 20 years' imprisonment or fine sentence, should this court in its good mind be satisfied that the evidence in record is water tight to maintain conviction. For the respondent, Ms. Mushi resisted the appeal and thus supported the conviction and sentence meted thereof. Further, in her digest to the evidence in record (the testimony of PW1 and PW4 (arresting officers)), she submitted that truly tell how they had labelled the said trophies (A, B, C), therefore finds the first and second grounds of appeal as misplaced. She submitted that, in her considered view, these witnesses said all on how they had arrested the appellant and what was arrested with, labelled it and eventually handed over to the PW5. Though PW5 in his testimony had not testified receiving the said three trophies with two accused persons from PW1 and PW2, however, it is evident that he had received them for purposes of safe custody. On 12th Sept 2012, he had sent them to the PW3 for purposes of weighing the alleged trophies (P4 exhibit). They had signed to the chain of custody form. The issue whether 8 the alleged trophies are the ones sent to the weighing scales, she submitted that the testimony of PW3 is very clear on this as he had also put some marks on it. The reason why PW3 had put other marks, could be well told by the PW3 himself, nevertheless, Ms. Caroline was of the view that the additional marks are just procedural issues at his office. It does not fault anything but adds value to it. As to where they had sent them, PW1 says all. As regards to the chain of custody, Ms. Mushi stated that it was orally stated and well stated on paper tray explanations. Thus (exhibit P.5) by PW5 is very clear. So, the argument that the case was not established beyond reasonable doubt, is challenged as per submission above, thus it be dismissed for want of merit, clarified Ms. Mushi. With third ground of appeal on seizure and receipt issuance pursuant to section 38(3) of the CPA, Ms. Mushi was of the stance that as per current legal position, so long as the appellant had signed on the certificate of seizure, detailing on the officer who seized, the alleged requirement is not fatal. She watered her argument with reference to the case of Marwa Joel Marwa and 5 Others V. Rep, Criminal Appeal No. 2021. 9 With the 4th and 5th grounds of appeal, Ms. Mushi was of the formed view that the trial court had not erred when placed reliance to the testimony of PW1 and PW2 as it was the trial court's discretion to do so. An independent witness can be anyone including even a leader. This PW2 attended to Court, if that is the case, failure by the defence to question and challenge the said witness, is not the court's issue but of the appellant. On the fact of his arrest, Ms. Mushi was too anger against the submission by Mr. Dudu and reacted that he has missed the good point. On the issue that he was arrested being with others, by itself does not make his trial or arrest unlawful. Thus, it be dismissed. As regards to the fact of sentence being excessive, pursuit to section 60(2) of the EOCCA, the sentence imposed there being within the statutory range between 20 and 30 years, Ms. Mushi was of the considered view that, it was lawful and nothing infringed. Thus, submitted that the grounds of appeal being bankrupt of any merit need to be dismissed. Resting his submission by way of rejoinder, Mr. Dudu reiterated his submission in chief and further added that the trial court's proceedings are self-explanatory on this. There was no double labelling. On the 10 sentencing jurisdiction, the trial magistrate ought to have imposed the minimum penalty, insisted Mr. Dudu. At the closer of the submission of both parties, this Court had a legal concern, which needed the learned minds’ address: whether the certificate conferring jurisdiction to the trial court and the DPP's consent to prosecute which in totality authorize the commencement of the trial of an economic case, for them not naming the offences the appellant was charged with, whether it was proper. In reply to the issue above Ms. Mushi had two cases for her support: Peter Kongoli Maliwa & 4 Others V. Republic, Criminal Appeal 253 of 2020, CAT at Musoma and the case of Chacha Chiwa Marungu vs. Republic, Criminal Appeal 364 of 2020, CAT at Musoma. She submitted that in these both situations, the Court of Appeal had commented on the none insertion of the actual charging section and not naming of the offence. In her considered view, it is not fatal for the said consent and certificate not to name the charged offence so long as the contravened section of the law is named therein. On the other hand, Mr Dudu submitted that as a matter of law, the charged offence must be named into the instrumenting certificates 11 commencing the economic offences in line with the charging sections. However, he had no authority to substantiate his position. Having heard both parties on merit, I have now to determine this appeal and the issue for deliberation is whether this appeal has merit. It is the trite law in criminal cases, that the prosecution is placed with a heavier burden than that of the accused as correctly submitted by Mr. Dudu when he referred the cases of Mohamed Saidi Matela V. Rep, (supra) and John Makolobela & 2Others V. Rep, (supra). See also Joseph John Makune vs. Republic [1986] TLR 44 at page 49 and Mohamed Haruna@ Mtupeni & Another v Republic, Criminal Appeal No. 25 of 2007; the first long-established principle in criminal justice is that of onus of proof in criminal cases, that the accused committed the offence for which he is charged with is always on the side of the prosecution and not on the accused person. This is reflected under Section 110 and Section 112 of the Evidence Act Cap.6 [R.E 2022] (The evidence Act). In the instant appeal, the complaint is on whether the appellant was arrested with the alleged government trophy seized and whether the alleged elephant tusks seized were dully established as ones and whether are they the same with those taken to court? 12 To ascertain the same, I have thoroughly scanned the trial court’s records whereby, PW1 who led the arresting of the appellant testified that on material date at night hours while on patrol at Mwandoya Village with collaboration with other officers (PW4) saw a person who had carried a luggage, they stopped him, searched and saw him possessing the government trophy which is elephant tusk. They called PW2 to witness the search. Thereafter PW1 filled the seizure certificate. They then went to the police station Mwandoya, later Meatu, and finally to Bariadi station where they handed over to one CPL Lucas. The critics to the above evidence could be, one; when was the PW1 aware that the appellant had elephant tusk, two; since they were doing normal patrol how they knew that they would arrest a person for them to walk with seizure certificate despite the fact that it was not a prepared search? Thirdly; whether there is a scientific evidence that what was alleged to be a government trophy –elephant tusk was so established and Fourthly; is there any evidence establishing that the seized elephant tusk passed through the custodianship of Mwandoya Police Station, Meatu Police Station and Langangabilili police station? Going through the testimonies of prosecution’s witnesses, it is nowhere their credibility is questioned by the appellant. The manner how 13 PW1, PW2, PW4 had testified on how the appellant was arrested and the possession he had, if that had not taken place, I had expected a serious cross-examination against the testimonies of PW1, PW2 and PW4. Failure to examine on important and serious issues of allegations, legally suggests truthfulness of the alleged fact as per the authority in the case of Nyerere Nyague vs. Republic, Criminal Appeal No. 67 of 2010. That since the appellant did not cross examine the PW1, PW2 on the substance of his arrest and possession of the alleged government trophies evidence, he is deemed to have accepted the same as true. As every witnesses must be accorded credence and his evidence believed (see Goodluck Kyando vs Republic (2006) TLR367). Exception to this legal principle is only where there are good and cogent reasons for not believing a witness. In the current case, studying the evidence and arguments posed, I have not been able to find any. It is settled law that the best test for the quality evidence is based on the credibility of a witness (see Yohana Msigwa v. The Republic (1990) T.L.R. 143, Anangise Masendo Ng'wang'wa v. The Republic (1993) T.L.R. 202 and Richard Mtengule and Another v. The Republic (1992) T.L.R. 5. It is in this regard that in Shabani Daudi v. The Republic, Criminal Appeal No. 28 of 2001 (unreported) the Court stated that: 14 "Credibility o f a witness is the monopoly of the trial court but only in so far as demenor is concerned. The credibility of the witness can also be determined in two other ways. One, when assessing the coherence of the testimony of that witness and two, when the testimony of that witnesses is considered in relation to the evidence of other witness including that of the accused person. In those two occasions, the credibility of a witness can be determined even by the first appellate or second appellate court when examining the findings of the trial court or first appellate court" However, as regards to the second question, the issue for consideration is whether there was a legal search or not. It is the testimony of PW1 and PW4 that they did arrest the appellant and did search accordingly to recover P.2 exhibit. If that was done, was it a prepared search or not. If it had been, then he would have enclosed with search order. In the case of Mbusule Ndazi and Another vs Republic, Criminal Appeal No.29 of 2022, the court ruled that where there is a prepared search, then search order is a must but if it is an intermediate search, search order is not a must. In this case, the manner the appellant was arrested while the police officers had been in possession of the search 15 order. But so long as PW1 was himself an OCS of Mwandoya of Police post, it is of no doubt that he authorized it by himself. Whether P.2 exhibit was really elephant tusk as alleged, is the central discussion of the case. On this, the relevant evidence is that of PW6 who says that he is a wildlife officer, having a Bachelor of Science in Wildlife Management from Sokoine University experienced in wildlife matters for over eleven years. In his examination of the said trophies alleged to be elephant tusks (P2 exhibit), he established that the said tusks were three (exhibit P.2), labelled MEA/IR/448/2023. One out of three was big while the remaining two were small ones. He described them as being cream in color, tangential profile, cave feature extending interior. The same is differentiated from other wild tusks such as of hippopotamus, warthog etc. He tendered the valuation report which was admitted as P.6 exhibit. With respect, the above linear statement in my considered view demonstrates a kind of expertise that PW6 had, in identification of animal species or their body parts. He does vividly conclude that the items were elephant tusks and not any horn or tooth of any other animal. The point I want to clarify here is that, not every person can identify and differentiate animals or animal parts particularly wild animals. In this case 16 it is expected some animal science in the evidence of PW6, at least to mention a feature or two, that are peculiar to elephant tusks and which are not available in any other animal species. See William Maganga @ Charles Vs. Rep, Criminal Appeal No. 104 of 2020 and Evarist Nyamtemba v. R, Criminal Appeal No. 196 of 2020 (unreported), where in the latter case, a case involving identification and valuation of elephant tusks, it was observed that: "The testimony of PW5 lacked all this information. As rightly submitted by the learned State Attorney, PW5 gave a generalized statement that exhibit PI was elephant tusks with no further explanation as to the peculiar features of it that led him to conclude that exhibit PI was truly elephant tusks hence a government trophy." That is the precise point the Court of Appeal was making in these cases above. A generalized statement is not acceptable, because anybody can make such a sweeping statement. In wildlife conservation related cases, identification of a particular specie of the animal affected or part of it in relation to an offence charged, is a matter of considerable significance. That aspect of the case, is provable by tendering a properly filled in Trophy Valuation Certificate, which is a standard form document 17 created under the Wildlife Conservation (Valuation of Trophies) Regulations 2012, (Government Notice No. 207 of 2012). Tendering of that certificate must go hand in glove with a proper explanation of a wildlife expert detailing the distinctive features of a given animal. Such oral explanation or description may be based on animal science or the witness's experience in wildlife conservation and management (See William Maganga @ Charles, supra). The issue for consideration after all this discussion is whether this description is sufficient to be scientific features of elephant tusks? Can those features not be borne by other domestic animals? According to law, an expert witness is expected to furnish the court with necessary scientific criteria for testing the accuracy of their conclusions so as to enable the court to form its own independent judgment by application of these criteria to the facts proven in evidence (see Rep V. Kerstin Cameron [2003] T.L.R 85). In my considered view as to the present facts of the case, the explanations offered by PW6, being an expert in animal science and having explained the distinctive features of animal tusks from other animals –wild or domestic, I find no good reasons to fault that finding and as such, it has sufficiently enabled this court to form its own independent judgment by application of these criteria to the facts proven in evidence 18 that what the appellant was arrested with is nothing, but the government trophy known elephant tusks. On the alleged broken chain of custody, I have squarely scanned and digested the evidence of PW1 (arresting officer), PW7 (Police officer who had sent the appellant with the elephant tusks to PW3’s office for weighing and scaling), PW5(police store keeper at Bariadi), PW6 (Wildlife officer who did examine the said objects and established as being elephant tusks and accordingly valued the same) there is no doubt that the chronological chain events from the arresting point, immediate custody at Meatu Police station, Bariadi Police station, to the Weighing and Scales office, Police custody and eventually its production at court as exhibit P.2 is chronologically stated. As correctly held on the rationale of chain custody when comes to exhibits was explained in the case of Chacha Jeremiah Murimi and 3 Others versus Republic, Criminal Appeal No.551 of 2015, where the court held that chain of custody when comes to exhibits is very important to prove origin and custody of the exhibits up to the time such exhibits are taken to Court. The aim is to prove that such exhibit was not tempered anyhow. See also the cases; Paul Maduka & Others vs Republic (supra), DPP V. Steven Gerald Sikikuka, (supra) cited to me by Mr. Dudu to the effect. 19 In the instant appeal the chain of custody on how the events took place from the point of arrest to when the same were tendered as exhibits in court, was sufficiently intact, thus unbroken to the large extent, that brings no doubt on reliability of exhibits (elephants tusks) to ascertain as to whether were the real and the ones seized from the scene of crime. With the complaint on the sentence meted to be huge, I have gone through the contravened provisions which is section 86(1)(2)(c) (iii) Wildlife Conservation Act, read together with paragraph 14 of the First Schedule to and section 57 (1) and Section 60 (2) of the Economic and Organised Crime Control Act, indeed it blesses the verdict entered by the trial Court. The imposition of punishment inserted by the provision empowers the court with discretion powers in issuing sentence from the range of twenty years but not exceeding 30 years or penalty or both. On this the trial magistrate was correctly within the sentencing range as statutorily conferred to her. The only problem I see, is on wrong charging, the charge was wrongly drafted. Section 86 (1)(2) of the Wild Conservation Act, provides for many sub provisions which provides for different punishment. Therefore, it was difficult for the trial Court to ascertain which provision is referred by the prosecution. Be it the way it is not fatal. See Jackobo 20 Emmanuel Mbeba and 3 Others vs Republic, Criminal Appeal No.17956 of 2024. The question as to whether receipt was necessary in the circumstances of the present case should not detain me. It is established position that whenever a certificate of seizure is filled and signed by accused person(s), like in the case at hand where the appellant signed, the same constitutes evidence of seizure of that seized items even without a receipt being issued. See: Matata Nassoro and Another v. Republic, Criminal Appeal No. 257 of 2019 [2022] TZCA 690 (2 November 2022, TANZLII) and Papaa Olesikaladai @ Lendemu V. Republic, Criminal Appeal No. 47 of 2020 [2023] TZCA 51(20 February 2023, TANZLII). Therefore, I agree with Ms. Mushi that the appellant's complaint for non-issuance of a receipt is unfounded. See also Marwa Joel Marwa & Others vs Republic (Criminal Appeal No. 157 of 2021) [2024] TZCA 537 (10 July 2024). With the legal issue raised by the Court, I am of the formed view that the offence committed by the accused ought to be as well inserted in the certificate/consent conferring jurisdiction over the Court. However, the flap on is not fatal. I accordingly agree with the submission by Ms. Mushi that what is needed is the inclusion of provisions contravened in the both certificates conferring jurisdiction to the Court. As correctly 21 submitted by Ms. Mushi when referring to the cases of Peter Kongoli Maliwa and 4 Others vs Republic, (supra), Chacha Chiwa Marungu vs Republic, (supra), in addition is the case of Hashim Nassoro @Almas vs. Director of Public Prosecution, Criminal Appeal No.312 of 2019. With all the above discussion and the analysis made, I find this appeal to have been brought without any sufficient cause; and thus it is accordingly dismissed. However, taking into account that the appellant had no previous criminal record, the sentence meted out of 30 years is varied to the minimum term of 20 years. Save for the length of the sentence imposed which is varied to the extent explained above, the Appellant’s appeal is hereby dismissed for want of merit. Right of further appeal hereby explained. DATED at SHINYANGA this 30th day of September, 2024. F.H. Mahimbali Judge 22