NGUNULA

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 15617 OF 2024 (Originating from the decision of the Resident Magistrate of Lindi at Lindi in Economic Case No. 3 of2023) RAMADHANI HAMISI NGUNULA................................................. APPELLANT VERSUS THE REPUBLIC........................ .......RESPONDENT JUDGMENT 12!‘ November & 5® December, 2024 DING'OHI, J; The appellant, Ramadhani Hamisi Ngunula, was charged and convicted on a single count of unlawful possession of a Government Trophy contrary to section 86(1) and (2) (b) of the Wildlife Conservation Act, Cap 283 R.E 2022 read together with paragraph 14 of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap 2002 R.E 2022. It was speculated that on the 29th day of March 2023 at Nyengedi "B" Area within the District and Region of Lindi was found in unlawful possession of a government trophy, to wit five whole Elephant Tusks valued at Tanzanian shillings One Hundred and Five Page 1 of26 Million, Two Hundred Thousand Fifty-Five thousand (105,255,000/=) being the property of the Government of Tanzania without permit from Director of Wildlife. The appellant pleaded not guilty to the charge. In an attempt to prove the charge, the prosecution side brought a total of seven witnesses to wit; Nikas Gaspa Mvogo (PW1), Inspector John Ijumba (PW2), Yusuph Ahmad Mcheche (PW3), Tunu Athuman Mkwanje @Mama Neema (PW4), F1680/D/Sgt Ambonile (PW5), G213D/C Hezron (PW6) and E3805D/Sgt Shein (PW7). They also tendered the following exhibits namely; Trophy valuation Certificate (Exhibit Pl), Five Tusks (Exhibit P2), Three sulfate bags, two light yellow and one white (Exhibit P3), Certificates seizure (Exhibit P4 and P5), Motorcycle (Exhibit P6), Bags (Exhibit P7), Measuring scale (Exhibit P8) and Phone (Exhibit P9). Generally, the prosecution evidence against the appellant was to the effect that on 29th March 2023, the wildlife officers from Ngorongoro were in patrol at Lindi accompanied by Police Officers from the RCO's office led by Inspector John Ijumba (PW2). While patrolling, they received information from the informer that a business on trophies was going on in the area beside the road. The informer told them further that the business involved the appellant who was at the bus stand waiting for Page 2 of 26 customers. Upon arrival, they interrogated the appellant who admitted that he carried the elephant tusks in his bag. He was then arrested, and on search, the wildlife officers seized from him the trophy per a certificate of seizures (exhibit P 2) which was signed by the appellant and witnessed by Yusuph Ahmad Mchehe (PW3) VEO and Tunu Athuman Mkwanje (PW4). In due course, the appellant was taken to Lindi police station for further interrogation and investigation. Upon arrival at the police station, the exhibits were handed over to G 213 D/C Hezron (PW6) an exhibit keeper. Subsequently, Nikas Gaspa Mvogo (PW1) was summoned to identify the alleged tusks and make a valuation. In the course of identifying and making a valuation, he realized that there were five elephant tusks equal to three elephants worth Tshs. 105, 255,000/=. Subsequently, PW1 filled in a trophy valuation Certificate (Exhibit Pl). The appellant was then arraigned before the trial court. In his defence, the appellant denied having committed the offence. On his case side, he defended himself. He avowed that on the material day, he was at the Nyengedi B village doing his activities including taking spares for four vehicles he was administering. He arrived there at 15:00 hours by motorcycle, the property of a teacher at Mnara secondary school. Thereafter, a teacher who is the owner of the said motorcycle Page 3 of 26 proceeded to Mtama. After that, he allowed his workers to continue with the journey to Rondo village to take the passengers. When still at Nyengedi, the appellant went to Mama Neema's place for food while waiting for the vehicle. As he was there, he saw different people, he didn't know but one person whom he knew at his working place. The appellant asked him for transport. While he was standing on the edge of the stand at Mama Neema's place, the appellant saw a vehicle standing on the opposite part of the road, and a person went after him asking him what was happening. Then the person who was seated on the motorcycle and other people at Mama Neema's food ran away. The appellant was then apprehended, laid down, and ordered not to stand, otherwise he would be killed. Then the vehicle came and seven people got out of the vehicle armed with guns. Then one officer, John Ijumba (PW2) went asking the appellant why he was in the area that night. The appellant told him that he was waiting for transport from the person who ran away to carry him with his motorcycle. He was then forced to open the sulfate bags, or one wildlife officer would open the same. According to him, the said sulfate bag was opened. In the bag, the tusks were found. After arresting procedures were Page 4 of 26 completed the appellant was taken to Lindi police station and on 17th April 2023, he was arraigned before the trial court. After the trial, the trial court was satisfied with the prosecution evidence. It found that the charge against the appellant was proved to the required standard that is beyond a reasonable doubt. The appellant was thus convicted as charged. He was sentenced to serve an imprisonment term of 20 years or to pay a fine of one billion, and fifty- two million, five hundred and fifty thousand (TZS. 1,052,550,000/-). Unhappy with the trial court’s findings, the appellant preferred this appeal armed with seventeen (17) grounds for his grievance as outlined in the petition of appeal which I will not reproduce here but will consider in the course of discussion herein. When the appeal was called on for hearing, the appellant appeared in person, unrepresented. Mr. Wilbroad Ndunguru, learned State Attorney represented the Respondent. On being allowed to take the floor the appellant commenced that the essence of this appeal is mainly based on the 9th ground of appeal According to him, the independent witness (PW4) who testified before the trial court on 7/2/2024 received a person called Ngoro who allegedly came Page 5 of26 from Rondo. She received Ngoro as his customer because he wanted to have food in her restaurant. According to him, Ngoro arrived there using the motorcycle SUNLG. In the proceedings, the PW4 is recorded to have told the trial court that his customer Ngoro came with consignments which were admitted as exhibits. He added that the trial court did not consider the evidence of Tunu Athumani Mkwanje@ Mama Neema (PW4). According to the appellant, PW4 told the trial court that all the seized properties were the properties of Ngoro, a person who fled from the scene of the crime on 29/03/2023 at 23.00hrs. Another complaint from the appellant was that the trial court heard the case in the absence of the certificate from the DPP. Further, he complained that the trial court erred also by not considering that he was taken to court after 48 hours counting from the time he was arrested. He added that the trial court erred in law by not considering that the trophies (Exhibit P2) and motorcycle (Exhibit P6) were not found in his possession. He prayed that his grounds of appeal be considered. Against the appeal, Mr Ndunguru supported the decision of the trial court on the conviction and sentence passed to the appellant. He argued collectively against the 1st ground on the main grounds of appeal and the first ground on the supplementary grounds in which the appellant Page 6 of 26 contended that the trial court had no jurisdiction to try the economic case subject to this appeal. The learned state attorney was of the view that the trial court had jurisdiction. It is the learned state attorney's stance that admittedly, there are different positions given by the Court of Appeal on that issue. He referred this court to page 7 of the trial court's proceedings where it is shown that the Republic successfully prayed to submit/tender the consent and certificate by the DPP conferring jurisdiction to the trial court to try the economic offense. That the trial court received those documents that formed part of the court records. He referred this court to the case of Nassibu Bubakari Mwanziega @ Ras vs. Republic, Criminal Appeal NO. 146/2021 (unreported), and the case of Sefu Abdallah Chombo @ Baba Fatina & Others (Criminal Appeal No. 628 of 2022) [2024] TZCA 811. He further insisted that, in reaching the decision the Court of Appeal applied the Oxygen principle seen in the Appellate Jurisdiction Act, Cap 141 R.E 2019 under section 3A (1). According to the learned State Attorney, the Court of Appeal also referred the cases of Johnson Amir Garuma vs The Attorney General & Others (Civil Appeal No. 206 of 2018) [2023] TZCA116 and that of Geita Gold Mine Ltd vs Jumanne Mtafuni (Civil Appeal 30 of 2019) [2021] TZCA 157. He insisted that the documents were properly received in court. Page 7 of 26 He also argued on grounds 1,9 and 11 in the main grounds jointly on the issue of whether the case was proved beyond reasonable doubt. He submitted that; in this case, the appellant was charged with unlawful possession of the Government trophy. The prosecution side proved the possession as outlined in the case of Moses Beo vs. RepublicTLR1977 on page 34. In this case, the evidence of Inspector John Ijuma (PW2) on page 14 is to the effect that he was the one who arrested the appellant and seized the Trophy and other items connected with the charge against the appellant. There is also evidence that PW2 prepared the seizure certificate which the appellant signed. The learned State Attorney added further that in the trial court, the appellant did not dispute that he signed the seizure document. According to the learned state attorney, Yusuph Ahmadi Mchehe (PW3) a VEO of Nyengedi where the appellant was arrested, participated in a search and seizure exercise. Mr Ndunguru insisted further that the appellant stated before the trial court that at the scene he knew that the seized properties were the elephant tusks and explained the way he brought the trophy by using a motorcycle. At the same time, the said motorcycle (Exhibit P6) was also seized. Further, F 1680 Surgent Ambpnile (PW6) in his evidence also stated that he participated in the Page 8 of 26 search and was the one who recorded the cautioned statement of the appellant. The said cautioned statement was admitted as Exhibit PIO without objection. Therefore, on the strength of the evidence, according to the learned state attorney, there is no doubt and dispute that the appellant was arrested in possession of the Government Trophy. In addition to that, the Republic has been also able to prove the credibility of the witnesses who appeared before the trial court. The learned State Attorney prayed for this court to find that the witnesses were credible in their respective evidence before the trial court. On the issue of the chain of custody, the learned state attorney argued that the chain has never been broken as per the evidence of the PW2 and PW6 which have been shown on page 35 of the trial court proceedings. According to him, the exhibits which were seized at the scene of the crime were admitted and marked as Exhibits Al to A5, and others as Exhibits Bl and B2. They were properly identified in court. To bolster his position, the learned advocate referred this court to the case of Issa Hassani Uki vs Republic (Criminal Appeal No. 129 of 2017) [2018] TZCA 361. He insisted that the chain of custody in this case did not break. Page 9 of 26 Next is the complaint found on the 2nd and 10th grounds. The complaint is that the trial court did not evaluate the evidence and further that the appellants defence was not considered. The learned State Attorney was of the view that the trial court evaluated the evidence of both sides. After considering it all, it found that the appellant did not challenge crucial matters including his cautioned statement. According to him, the prosecution evidence was enough to find the appellant guilty. To bolster his argument, he cited the case of Director of Public Prosecutions vs Josephat Joseph Mushi & Another (Criminal Appeal No.471 of 2019) [2023] TZCA 17536. In respect of the 4th, 5th and 8th grounds the complaint is on the alleged irregularity of seizure, cautioned statement, and admissibility of search. The learned State Attorney contended that the procedures of search, arrest and admission of exhibits were complied with. According to him, PW2 and PW5 stated in evidence that on the patrol at the Nyengendi area, they received information that the appellant was involved in the illegal dealing of government trophies. In response to the information, the appellant was arrested. He argued further that, normally there must be a search warrant when arresting an accused. That is per section 38 of the CPA. According Page 10 of 26 to the learned State Attorney, since PW2 and PW5 received information from the infomer while they were in patrol an emergency search was arranged and the search was accordingly conducted under section 42(1) of the CPA which allows the police to conduct a search without a warrant. The appellant was arrested and searched on that basis. Mr Ndunguru conceded to the fact that the seized properties were not taken to the Magistrate and there was no receipt issued. However, nothing was done that prejudiced the appellant. To cement his points, he referred this court to the case of Juma Mugaya (supra) and the case of Ramadhan Idd Mchafu vs Republic (Criminal Appeal 328 of 2019) [2022] TZCA 723. Another complaint was about the admissibility of all exhibits. The learned State Attorney argued that the complaint was of no merit because PW2 tendered a seizure certificate of elephant tusks and a motorcycle as exhibits. Also, the PW5 tendered the caution statement and the sketch plan of the scene of the crime. Those documents were identified after they were cleared for the purpose and finally admitted. He was of the view therefore that since the procedures were well complied with there was no wrong in admitting those documents. To emphasize his argument, Page 11 of 26 Mr Ndunguru cited the authority in the case of Halfan Rajabu Mohamed vs Republic (Criminal Appeal 281 of 2020) [2023] TZCA 178. Regarding the 3rd ground on the main ground of appeal that the trial court erred when it failed to consider the shortfalls, the learned State Attorney submitted that, they had already submitted to this ground earlier. He prayed this court to dismiss the appeal and to uphold the conviction and sentence meted by the trial court. However, if this court finds that the trial court had no jurisdiction to entertain the matter merely because the consent and certificate were not properly admitted he prayed for the order of retrial. In rejoinder, the appellant has nothing to add other than reiterating what he had submitted in his submission in chief. I have considered trial court records, the grounds for appeal and the submission of both parties. The issue for determination is whether this appeal has merits. I will start with the first complaint found in the additional grounds of appeal that raise concern on the procedure of admitting the DPP consent on the economic offences in the subordinate courts. The complaint touches the jurisdiction of the trial court to entertain the instant case. It is a well-settled principle of law that points of law on the jurisdiction of the court to entertain the matter may be raised at any time. Page 12 of 26 It may be raised even at the appellate stage. Authorities on the that are not difficult to find. That was observed in several cases like the cases of Simon Josephat vs Dar es Salaam Water and Sewerage Corporation (Civil Appeal No. 441 of 2021) [2024] TZCA 1095, Tanzania Revenue Authority v. Tango Transport Company Limited, Civil Appeal NO. 84 of 2009 [2016] TZCA 84, and Richard Julius Rukambura vs Isaack Ntwa Mwakajila & Another (Civil Appeal No. 2 of 1998) [2004] TZCA 67. Having found as above, I need not spend much time giving my reasons for refusing this complaint because the matter is straightforward. The power to try cases involving economic offences like this one at hand is vested to the High Court according to section 3 (1) of the Economic and Organised Crime Control Act (EOCCA)[CAP. 200 R.E. 2022] which provides as follows; ’5. -(1) There is established the Corruption and Economic Crimes Division of the High Court with the Registry and sub-registries as may be determined by the Chief Justice, in which proceedings concerning corruption and economic cases under this Act may be instituted.' Page 13 of 26 However, the subordinate courts may try the economic case if the DPP or any State Attorney duly authorized by him directs by certificate that, the particular economic offence case be tried by a subordinate court. This has been provided under section 12 (3) of the Economic and Organised Crime Control Act (EOCCA)[CAP. 200 R.E. 2022] that; 'The Director of Public Prosecutions or any State Attorney duly authorised by him, may, in each case in which he deems it necessary or appropriate in the public interest, by certificate under his hand, order that any case involving an offence triable by the Court under this Act be tried by such court subordinate to the High Court as he may specify in the certificate.' In addition to that, it is trite law under section 26 (1) of EOCCA that for a trial to be initiated at the respective subordinate court, there must be consent from the DPP, and such consent and certificate of transfer must be admitted by the subordinate court to form part of the record. Applying the above-guiding principle in the instant appeal, I have ample time to scrutinize the records of the trial court, particularly the proceedings of the 30th October 2023. The records show that; I quote; 'the matter is for PH, I pray to supply the court with Certificate and Consent Conferring Jurisdiction to the court. Page 14 of 26 Prayer Granted: Certificate conferring jurisdiction on subordinate court to try economic case under section 12(3) of the Economic and Organized Crimes Control Act CAP 200 and consent to try economic case are hereby fitted, forming part of court record. C.P.Singano, PRM/ Upon my careful perusal of the trial court records, I have found the consent and certificate that conferred the trial court the jurisdiction to try the economic offence subject to this appeal. They were filed and formed part of the record as shown herein above. The appellants complaint that he was tried without consent by the DPP is without foundation and, hereby dismissed. I will now turn to the 1st, 9th, and 11th grounds of main appeal and the 5th ground on the additional ground of which the main complaint is that the prosecution side failed to prove its case beyond a reasonable doubt. The law is clear that a duty to prove the case is on the shoulders of the prosecution. The duty should be exercised efficiently to leave no doubt. The prosecution side is obliged to build up its case to make the accused person understand clearly what the case is all about. This duty has been discussed and emphasized in various decisions, the Court of Page 15 of 26 Appeal in the case of George Mwanyingili vs Republic (Criminal Appeal No. 335 of 2016) [2018] TZCA 20, it was stated inter alia that; 'We wish to re- state the obvious that the burden ofproof in criminal cases always lies squarely on the shoulders of the prosecution, unless any particular statute directs otherwise. Even then, however, that burden is on a balance ofprobability and shifts back to the prosecution.' Similarly, in the case of Mohamed Matuia Vs R, the Court was in the same view that; In a criminal trial the burden ofproofalways lies on the prosecution. And the proofhas to be beyond reasonable doubt.' Thus, the prosecution side has to make sure that all the reliable and credible witnesses are called to testify to prove its case. In the case subject to this appeal, to prove its case the prosecution paraded seven (7) witnesses, the arresting police officer Inspector John Juma (PW2) inclusive. In his evidence, the PW2 told the trial court that they arrested the appellant and seized from him the trophies and other items connected with the charge against him. He was the one who prepared a seizure certificate which the appellant signed. For easy reference, the evidence of Page 16 of 26 PW2 is reproduced from page 15 of the trial court proceedings which was recorded as follow; We interrogated the accused as to what he was carrying in the bag and he said that it was elephant tusks, and so we required him to open the bag before the witnesses, ....... We filled the seizure certificate for the motorcycle, which was filled with the bag containing the measuring scale, phone and two lines. I filed the seizure certificate in the presence of the VEO and Tunu Athuman and my fellow officers.' The piece of evidence reproduced above, explains clearly what PW2 witnessed from the appellant and what action was taken after discovering that the appellant carried the elephant tusks. The evidence of PW2 was corroborated by the evidence of Yusuph Ahmad Mchehe, VEO (PW3), of Nyengedi where the appellant was arrested, and participated in a search and Seizure exercise. PW3 said that he knew the appellant as Ramadhani Ngunula. He lives in a nearby village at Mnara Rondo which was near to his village of Mitanda. Part of his evidence is reproduced as hereunder; ■The officers asked him what it was and he said that it was elephant tusks. They labelled the tusks. There were five tusks. They were marked Al, A2, A3, A4 and A5...... after Page 17 of 26 seizing the tusks, the accused was asked how he brought them there and he said that he used a motorcycle to bring them at the area.' The evidence of the appellant also added weight to the evidence of the prosecution at trial court when he stated that, at the scene of the crime he knew that the seized properties were the elephant tusks. During cross-examination on page 49 of the trial court proceedings, the appellant was recorded saying that; It is true that the exhibit I was apprehended with was elephant tusks........I signed the seizure certificate, I signed before Tunu @ Mama Neema, I did not ask her about the tusks being of the person who ran.' Moreover, F 1680 Surgent Ambonife (PW5) in his evidence stated that he participated in the search and was the one who recorded the cautioned statement of the appellant. The said cautioned statement was admitted as exhibit PIO without objection. Part of the evidence of PW5 on page 33 of the trial court proceedings says in part that; I showed the water channel, the place where the vehicle was packed and the house of Mama Neema and her neighbors but Page 18 of 26 also the place where the accused was found and the tusks as well as the place where the motorcycle was kept with the bag.' Also, it is clear from the records that, when the trial court availed the appellant the opportunity to question the admissibility of the cautioned statement he replied that he had no objection. This connotes that he was comfortable and aware of the contents of the cautioned statement tendered by PW2. Had he had any query or doubt as to PW2's testimony regarding the tendering of the cautioned statement as an exhibit, he would not have failed to question or object to its admissibility. It is for the foregoing reasons, that I feel constrained to hold that, the appellant's complaint on that aspect has no basis both in law and in fact. I accordingly dismiss it. On the 2nd and 10th grounds on the main ground of appeal, the issue is whether the trial court did not evaluate the evidence and also whether the appellant's defence was not considered. It is trite law that failure to consider defence evidence is fatal and contrary to the rule of a fair trial. In the case of Yusuph Amani vs Republic (Criminal Appeal 255 of 2014) [2015] TZCA 245 the Court of Appeal of Tanzania underlined the consequences of failure to consider defence evidence by stating that; Page 19 of 26 is the position of the la w that, generally failure or rather improper evaluation of the evidence leads to wrong conclusions resulting into miscarriage of justice. In that regard, failure to consider defense evidence is fatal and usually vitiates the conviction. I have carefully gone through the trial court judgment. I am satisfied that in the judgment the trial court considered the defence evidence of the appellant when properly evaluating the evidence of both sides. The relevant part of the judgment is hereunder quoted; Accused person denied the offence charged, informing the court that he was not found in possession of the government trophy. He said he was at the scene waiting for a ride from the person who ran away after the police came, informing the court that he was tortured while being interrogated by the officer, and threated to be killed that he decided to agree with the officer, knowing that he will have a chance to talk and defend his case.' It is my settled view therefore that the trial court has evaluated and considered the defence case. This ground is devoid of merits. It is hereby dismissed. Moving to the 4th, 5th, and 8th of the main grounds and 2nd additional ground of appeal, the complaints are against the certificate of seizure, cautioned statement, admissibility of search, the procedure of search, Page 20 of 26 arrest and exhibits. In these complaints, the issue is whether the exhibits were properly tendered. The appellant's main complaint is that the trial court convicted the appellant relying on the exhibits which were tendered un procedurally. In this matter, the exhibits that were tendered and admitted in the trial court are thirteen (13). However, the appellant's complaint is only about exhibit PIO, a cautioned statement. It is a settled principle of law that, once a document is intended to be relied upon in court, after being admitted, the contents of that document should be read over loudly in court to the extent that the accused can hear and understand the contents of that document. The rationale behind this is to allow an accused to know the contents of such a document so that he can understand the case and prepare his defence. Failure to do so is fatal and, such document may be expunged from the court records. That was held in various decisions including the persuasive decision of this court in the case of Gode Cleophace vs Republic (Criminal Appeal 41 of 2019) [2020] TZHC 295 (7 February 2020), the court stated that; 'Apart from the prosecution witnesses who testified in court, there were three exhibit which when tendered before trial court and admitted namely, the certificate of seizure, valuation form and inventory form. However, all these documents were Page 21 of 26 tendered but not read in court to allow the appellant to know the contents and challenge them. This procedure error is contrary to the agreedprinciples oflaws which have been stated by the higher court.' A similar aspect occurred in the case of Mathias Dosala @ Adriano Kasanga vs Republic (Criminal Appeal 212 of 2019) [2020] TZHC 166 (5 February 2020), the court stated that; 'With respect to miss. Lazaro, as correctly submitted by Mr. Mutalemwa, the stand of the law as elaborated in the two cases authorities cited by Mr. Mutalemwa makes it a necessity for the document admitted in evidence to be read in court......' The remedy for failure to read the contents of the document(s) admitted in court is that the same is to be expunged from court records. This position was pronounced in the case of Mbaga Julius vs Republic (Criminal Appeal No. 131 of 2015) [2016] TZCA 274 (25 October 2016), the court stated that; 'Failure to read out documentary exhibit after their admission renders the said evidence contained in that documents, improperly admitted, and should be expunged from the record. ' Page 32 of the typed proceeding is self-speaking. The trial court followed ail the required procedures when PW5 tendered exhibit P10 Page 22 of 26 (cautioned statement). After the trial court admitted the exhibit PIO it allowed the witness to read over the exhibit. That is what the law requires. I am also aware that the appellant further complained that the certificate of seizure was received in violation of the law and that no acknowledgement receipt was tendered in court during the exhibit's admission. I think this complaint should not detain me much because as per the evidence adduced before the trial court, the certificate of seizure was witnessed at the scene of the crime and signed by PW3, PW4 and the appellant himself. Moreover, as stated herein above the appellant did not raise an objection when the prosecution side requested to tender the same as an exhibit. The Court of Appeal of Tanzania in the case of Nusura Sultani Mtinge @ Nusura Sultani Mtinde vs Republic (Criminal Appeal No. 61 of 2021) [2024] TZCA 779 quoted with approval the decision in the case of Matata Nassoro and Another v. R, Criminal AppealNo. 329 of 2019 (unreported), stated that; 'There is no dispute that PW1 did not issue a receipt following seizure, but in view of the fact that the appellants counter-signed a certificate of seizure containing a list of items seized from them, such certificate was sufficient under the circumstances, considering that there was also ora! evidence from the arresting witnesses and the independent witness. In any Page 23 of 26 case, as we held in Nyerere Nyague v. R, CriminalAppeal No. 67 of 2010 (unreported) not every apparent contravention of the CPA would result in the automatic exclusion of the evidence in question/ Further, the appellant faulted the trial court for convicting him while the procedures for arrest and search were done unlawfully. I have considered that, but as shown herein above, PW2 and other officers were on patrol. They received the information that the appellant was dealing with the illegal business when walking on a patrol. It was not very easy to prepare the search warrant in the manner required without the possibility of the appellant escaping at that night time. As rightly submitted by the learned State Attorney under section 42 (1) of CPA the search was proper under the circumstances of this case. Coming back to the 6th ground of the main grounds of appeal and the 4th ground on the additional grounds. The main complaint is that the trial court failed to observe and establish the chain of custody. It is trite law that to have a solid chain of custody it is important to follow carefully the handling of what is seized from the suspect until the exhibit seized is received in court as evidence. The movement of the exhibit from one person to another should be handled with great care to eliminate any possibility that there may have been tempering of that exhibit. Generally, Page 24 of 26 there should be no vital missing link in handling the exhibit from the time it was seized in the hands of the suspect until it was handled over to the court as evidence after being satisfied that there was no meddling or tampering done in the whole process. In the case of Paulo Maduka & Others vs Republic (Criminal Appeal 110 of 2007) [2009] TZCA 69, the Court of Appeal of Tanzania had this to say; 'In establishing chain of custody, the most accurate methodison documentation. However, documentation will not be the only requirement in dealing with exhibits. An exhibit will not fail the test merely because there was no documentation. Other factors have to be looked at depending on the prevailing circumstances in every particular case/ I have carefully reviewed the evidence on record. In this case, the trial magistrate in my view subjected the evidence of PW2, PW5 and PW6 tp a critical evaluation and concluded that there was careful handling of the exhibits from the time the exhibits were seized to the time when taken to the police for custody and subsequently tendered in court. There is nothing to suggest that in between they were intercepted and tempered with. On that basis, the exhibits were properly administered. This ground must fail. Page 25 of 26 It is my findings that, according to evidence on the record as discussed in this appeal, the prosecution managed to prove its case to the standard required by law. I have no reason to differ with the findings of the trial court. In conclusion, based on the discussion above, this appeal is without merit. It is hereby dismissed in its entirety. It is so ordered. DATED at MTWARA this 5th day of December 2024 JUDGE 05/12/2024 COURT: Judgment delivered this 5th day of December 2024 in the presence of Mr Edson Laurance Mwapili, the learned State Attorney for the Republic and the appellant who appeared in person. Page 26 of 26