CRIMINAL APPEAL NO 152 OF 2021 PARYUMBAI KIDOKI KISHANDO V R

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MUGASHA, J.A.. LEVIRA. J.A.. And MAKUNGU. J.A.^ CRIMINAL APPEAL NO. 152 OF 2021 PARYUMBAI KEDOKI KISHANDO............................................... APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Arusha) (Banzi. 3.^ dated 17th day of February, 2021 in Economic Case No. 06 of 2020 JUDGMENT OF THE COURT 2nd & 15thJuly, 2024 MAKUNGU. J.A: In the High Court of Tanzania, Corruption and Economic Crimes Division, Arusha Sub Registry (the trial court), the appellant was prosecuted and convicted of two offences of unlawful possession of government trophies contrary to section 86(1) and (2)(b) of the Wildlife Conservation Act, No. 5 of 2009 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 ("the EOCCA"). Upon conviction, he was sentenced to twenty (20) years imprisonment. i The facts that led to the appellant's conviction are such that: It was alleged in the particulars of the first and second counts respectively that, on 24th October, 2016 at Mhoro Village within Ngorongoro District in Arusha Region, the appellant was found in possession of government trophies namely; four (4) whole elephant tusks and two (2) pieces of elephant tusks and one leopard skin valued respectively at USD 60,000 which is equivalent to Tanzania Shillings one hundred and thirty one million one hundred sixty thousand (TZS 131, 160,000.00) and USD 3500 which is equivalent to TZS 7,651,000.00 all being the property of the Government of the United Republic of Tanzania without permit from the Director of Wildlife. After the information was read to the appellant, he pleaded not guilty. Therefore, a full trial ensued. To prove its case, the prosecution called a total of four (4) witnesses and tendered seven (7) exhibits whereas the appellant fended for himself. According to the evidence of Aloyce Melkiori Mtui (PW2), a park ranger at Ngorongoro Conservation Area, on 24th October, 2016 he received a tip from an informant that there were some people at Mhoro area who were dealing in elephant tusks and they were looking for a buyer, thus he was linked with the suspects. PW2 along with other officers arranged a trap purporting to be the potential buyers. They agreed to meet the dealers at the scene around 7.00 pm. On arrival, 2 they agreed on the deal, thus the appellant and his co-dealers who are not parties in this appeal retrieved from the bush two bags which had four whole elephant tusks and two pieces of elephant tusks together with one leopard skin (exhibit P3 and P4). The trophies were packed in two separate bags. The deal had to be conducted in the car and once the suspects got into the vehicle they were arrested. There and then, PW2 seized the trophies and filled in a certificate of seizure, exhibit P5, which was signed by him and the suspects including the appellant. He took the retrieved items, the suspects and the appellant to Ngorongoro Police Station. At the Police Station, he prepared and filled in a chain of custody form, exhibit PI, and handed over the exhibits (P3 and P4) to a police officer with force number D. 7033/D/SSGT Yohana (PW1), the exhibit keeper. On the same date, PW1 labelled exhibits P3 and P4 as case file number NGOR/IR/150/2016. Later on, he handed over the exhibits to Solomon Jeremia (PW4), a Wildlife Officer of Anti-Poaching Unit North Zone Arusha for valuation. According to the evidence of PW4, on 25th October, 2016, he was at Ngorongoro Police Station in order to examine and value the government trophies. At the police station he met PW1 who handed him two different bags. The first one was a sulphate bag cream in colour and second one was a cement bag of Simba Company. After he 3 had opened the bags, he was able to identify the items by their colour, feature and shape and confirmed that, those items were elephant tusks and one leopard skin. He further observed that the exhibits were marked NGOR/IR/150/2016. Thereafter, he weighed and found out that a total weight of tusks was 21.5 kg valued at TZS. 131,160,000.00 (USD 60.000). He recorded his findings in the trophy valuation certificate, exhibit P7 and returned the exhibits to PW1 who stored them up to when tendered before the trial court on 9th February, 2021. ASP James Kilosa (PW1) recorded the appellant's cautioned statement (exhibit P6) in which he admitted the offences. In his defence, the appellant (DW1) denied to have committed the charged offences. He recounted how he was arrested and said that, on 22nd October, 2016 he was at Ololosokwan, Loliondo. He was arrested at the auction in the course of selling cattle. He was arrested by police for allegation of cattle theft. They took and drove him to Ngorongoro Police Station where he found two persons who were strangers. They stayed there from 22nd October, 2016 to 7th November, 2016, they were beaten and forced to sign the certificate of seizure, exhibit P5 and the cautioned statement, exhibit P6. Nevertheless, at the conclusion of the trial, the learned trial High Court judge was fully satisfied that the appellant was properly and legally arrested for being found in possession of government trophies. She, therefore, believed the prosecution evidence and found that the appellant's defence had not raised meaningful doubt to discredit the prosecution account. In the end, the appellant was found guilty, convicted and sentenced as stated earlier. As it were, the appellant was seriously aggrieved, hence the instant appeal. Initially, the appellant through the services of his advocate lodged a memorandum of appeal comprising five grounds. However, at the hearing, Mr. Fridolin Bwemelo assisted by Mr. Nerius Rugakingira, learned advocates, who appeared for the appellant abandoned the third ground of appeal. In this regard, and as it was argued by the parties, we think that the remaining grounds can be conveniently paraphrased as follows: "1. That, the trial court proceedings are tainted with gross incurable procedural irregularities which render the whole decision thereof null and void. 2. That, the trial court erred in law and in fact when it dealt solely with the prosecution evidence without considering the defence evidence. 3. That, the trial court failed to evaluate evidence properly to wit the Exhibits PI and P5 and thus the chain o f custody was broken. 4. That, the prosecution case was not proved beyond reasonable doubt". Submitting in support of the first ground of appeal, Mr. Bwemelo's thrust of argument was to the effect that there was no consent of the Director of Public Prosecutions issued after the charge was amended and substituted. He contended that after amendment on 9th February, 2021 of the original charge sheet which had a consent and certificate conferring two accused persons to be tried by the trial court leaving out the 2nd accused person, there was no new consent to try the appellant and the matter proceeded for trial without such new consent. In his view, failure to do so was a fatal irregularity which vitiated the whole trial. Reference was made to the cases of Dilipkumar Maganbai Patel v. Republic, Criminal Appeal No. 270 of 2019, Hashim Nassoro @Almas v. Director of Public Prosecutions, Criminal Appeal No. 312 of 2019 and Peter Msimbe and Another v. The Republic, Criminal Appeal No. 168 of 2020 (all unreported). He prayed the ground to be allowed. In response to this complaint, Ms. Lilian Kowero, learned Senior State Attorney assisted by Ms. Grace Medikenya and Mr. Godfrey Nugu, 6 both learned State Attorneys, who appeared for the respondent Republic, in the first place conceded that the charge was substituted. Ms. Kowero strongly resisted the contention that the omission is fatal. She said, the consent at page 77 of the record of appeal was valid to cloth the Court with Jurisdiction to entertain the charged offence. She was of the view that the substitution of the charge after removing the former 2nd accused did not oust the court's jurisdiction. She referred us to the case of Peter Kabi and Another v. Republic, Criminal Appeal No. 5 of 2020 (unreported). She said, there is no need of filling a new consent therefore, the ground has no merit. On our part, we agree that the initial charge sheet involving two accused persons that was filed on 25th November, 2016 had its consent conferring the trial court with jurisdiction to try the economic offence. It is equally without question that on 9th February, 2021 the charge sheet was substituted where the former 2nd accused was removed and the charge remained with the appellant only. Nevertheless, we are of the considered view that, the omission to re-issue such consent after having removed the 2nd accused in the charge did not oust the trial court's jurisdiction in respect of the appellant. We say so because, we think, as was argued by Ms. Kowero there was no need of filling a new consent as the appellant was already 7 covered in the said consent. Thus, we find that cases cited above by the appellant's counsel with regard to this offence are distinguishable to this case because unlike in this case where the consent for offences under paragraph 14(d) of the First Schedule to, and sections 57(1) and 60(2) of the EOCCA was in place, in the former cases the trial of the appellants was conducted without a consent and a certificate confering jurisdiction on the trial court. In this regard, considering the circumstances of this case and guided by the decision of Peter Kabi and Another (Supra), we are of the settled view that failure to issue a new consent after having substituted the charge by removing the 2nd accused, did not vitiate the former consent as the jurisdiction which was conferred to the trial court remained undisturbed. That apart, there was no additional count to necessitate new consent. Besides, the charge was not withdrawn so as to require new consent on the subsequent charge. Therefore, we find that this ground of appeal is devoid of merit and dismiss it. Another appellant's complaint, which is in ground two, is that his defence was not considered by the trial court. The appellant's counsel contended that there is contradiction on the prosecution evidence in respect of the location where the appellant was arrested that is Mhoro, Muhuro or Mholo Village. He pointed out that, the appellant in his 8 defence stated clearly that he was arrested at Ololosokwan Village and not Mhoro Village. He faulted the trial judge that he came with a new version which was not stated in the evidence, which is wrong. He prayed the ground be allowed. On her part, Ms. Kowero did not agree that the defence evidence was not considered by the trial court. She said, Muhoro and Digodigo was not in the defence of the appellant but the issue was raised in the submissions of the advocate. She pointed out that the trial Judge evaluated and considered the appellant's defence as shown at pages 280 - 282 of the record of appeal. She added that the trial Judge gave explanation to clarify on the location in the judgment. She urged us to disregard this ground. It is settled that, failure to take into account any defence put by an accused person, will vitiate the ultimate conviction. See Venance Nuba and Another v. Republic, Criminal Appeal No. 425 of 2013 (unreported). In the instant case, the trial court when analysing and evaluating the evidence of both sides, as seen on pages 279, 281 and 282 of the record of appeal, did consider the appellants defence. However, the trial court rejected the defence case on the ground that it did not cast doubt on the prosecution's evidence. Thus, the appellant's conviction was meted out of the unshaken prosecution's evidence. 9 Therefore, we are satisfied that his evidence did not raise any reasonable doubt to shake the prosecution case. (See Issa Said vs. Republic, Criminal Appeal No. 109 of 2014 (unreported)). This ground therefore is devoid of merit. We now turn to consider whether the chain of custody concerning exhibits P3 and P4 was broken. The appellant's counsel argued that the chain of custody of the seized elephant tusks and leopard skin was not established. He claimed that there were two bags which contained the exhibits but PW2 tendered only one bag and the other bag was not explained. Thus, he added that the exhibits were tampered with and therefore the chain of custody was broken. He referred to us the case of Paulo Maduka and 3 others v. The Republic, Criminal Appeal No. 110 of 2007 (unreported). He prayed that the appeal be allowed. On her part, Ms. Kowero dismissed the appellant's counsel argument contending that it has no basis. She submitted that there was no probability for the chain of custody to be compromised. She pointed out that, PW2 explained in detail on how he retrieved the elephant tusks and the leopard skin from the appellant, guarded them until in the morning before taking them to Ngorongoro Police Station where they were handed over to PW1. She, was of the view that the trial court found that the witnesses were credible. She thus, concluded that the 10 exhibits seized from the appellant, later examined by PW4 and finally tendered in the trial court by PW1 was one and the same. Therefore, she urged us to dismiss the complaint. It has been repeatedly stressed that in cases involving arrest, seizure, custody and later production in court of a seized item as exhibit, there must be a proper explanation of who and how the property was handled from where it was found and seized up to the point when it is tendered in court. See Paulo Maduka and 3 others (supra) and Jibril Okash Ahmed v. The Republic, (Criminal Case No. 331 of 2017) [2021] TALA 13 (11 February, 2021, TANZLII). Our appraisal of the evidence on the record reveals that there is an oral account on the chronology of events showing the retrieval of exhibits PI and P5 by PW2, their safe custody and control at Ngorongoro Police Station by PW1 and then tendering before the trial court by PW1. Besides, the entire trail was documented in exhibit P.l. Accordingly, we agree with Ms. Kowero that the chain of custody was not compromised from the moment the exhibits were seized from the appellant until when they were tendered before the trial court. Moreover, given the credible account of PW1, PW2, PW3 and PW4 that upon seizure of the elephant tusks, they were labelled as case file number NGOR/IR/150/2016 and kept in safe custody up to when they ii were tendered at the trial and positively identified, failure to tender the empty cement bag did not at any stretch of imagination compromise the chain of custody. We thus find this ground of appeal to have no merit. We dismiss it. Lastly, there was a complaint whether the prosecution managed to prove the case beyond reasonable doubts. Mr. Bwemelo argued that the prosecution failed to prove the offences beyond reasonable doubt because, one; that, oral testimonies of the prosecution witnesses were insufficient to establish the chain of custody; two, that there are variance between the charge sheet and evidence, three, the contradictory prosecution evidence on the name of the location where the arrest was effected. He therefore prayed the impugned judgment to be quashed and set aside and the appellant be set free. On her part, Ms. Kowero briefly submitted that the evidence of PW1, PW2, PW3 and PW4 comulatively, proved beyond reasonable doubt the offences which the appellant was facing. She, therefore, implored the Court to dismiss the appeal in its entirety. On our part, we agree with Ms. Kowero that the offences were proved beyond reasonable doubt. Undeniably, the evidence connecting the appellant with the offences comes from PW2 who effected the arrest, seized the trophies as per certificate of seizure which was signed 12 by the appellant to acknowledge that he was found with exhibits P3 and P4, PW3 who examined the trophies and skin and established that were elephant tusks and leopard skin. In addition, the appellant himself did not dispute the tendering in evidence of exhibits PI and P5. With that evidence in the record of appeal, we are satisfied that the offences were proven beyond reasonable doubt against the appellant. We therefore dismiss this ground of appeal as it lacks merit. In the final analysis, we find the appeal unmerited. We accordingly, dismiss it in its entirely. DATED at ARUSHA this day of 13th day of July, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 15th day of July, 2024 in the presence of Mr. Nerius N. Rugakingira, learned counsel for the Appellant and Mr. Stanslaus Halawe, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.