amon nikolaus ntiluka and 3 others vs dpp 2023 tzhc 20023 11 august 2023

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA CONSOLIDATED CRIMINAL APPEAL NOS. 91 AND 92 OF 2022 (Originated from Economic Case No. 3 of 2020 in theRes^^kffegistrate Court of Sumbawanga) AMON NIKOLAUS© NTILUKA ^APPELLANT CLEMENT SAMWEL ©SALUM .......2nd APPELLANT 'Wk YONA MSOMA ................... .................................................... 3rd APPELLANT BARAKA SINDANI ...... . 4th APPELLANT 1F % VERSUS 27h July & if^os^ MRISHA, J. Before me is a consolidated appeal resulted from Criminal Appeal No. 91 of 2022 by the 1st appellant, and Criminal Appeal No. 92 of 2022 by the 2nd, i 3rd and 4th appellants respectively, following the order of this court issued on 20.12.

2022. Initially the four were jointly charged, tried and convicted by the Resident Magistrate Court of Sumbawanga at Sumbawanga (the trial court) in Economic Case No. 03 of 2020 of the two counts n^^> Unlawful Dealing in Government Trophies contrary to section 80W%M84(^^tl^^/ildlife Conservation Act No. 5 of 2009 (the WCA^^^tog^^^fe^aragraph 14 of the. first Schedule to and of the Economic and Organized Crimes Contfe^ct/Wp 200|R.E/2002(the EOCCA) which is now R.E. 2019). II The second v^^jWMul^^essio.n of Government Trophies . . contrary to section 86(1) andtg) (c) (ii) of the WCA read together with Para^^fW^^S^S^ * In add Sop to the I|ove counts, the first appellant was also charged alone on the third^MRt of Unauthorized Possession of Minerals contrary to section 18(1) and (4) of the Mining Act, Cap 123 read together with Paragraph 27 of the first Schedule to and section 57(1), 60(3) of the EOCCA. The particulars of the first count were that on diverse dates 2 between July, 2019 to 23rd January, 2020 at Chunya District in M.beya Region and Safu Village within Kalambo District in Rukwa Region the 1st, 2nd, 3rd and 4th appellants did jointly and together dealing in Government trophies to wit purchasing and selling of twenty four (24) pieces of Elephant Tusks valued at a total of (USD) 60,000/- equivalent to Tanzania shillings One hundred and Thirty Nine millid^^^^^®^^^^

Forty thousand only (TZS 139,140,000/=) the^^^ert^^^^jle^^^ffnent of the United Republic of Tanzania wit^^^^^^^c^^ from the Director of Wildlife Division. In the second count the pjjticuWi the 23rd day of January, 2020 at Safu Village^^^^^^^^^rict in Rukwa Region the 1st, 2nd, 3rd and 4th^^^^ts w^^^^^^and together found in unlawful possessfiR^Sto^rl^pLptl^ pieces of Elephant Tusks valued ata total of (USD)||0,000/= wiival|nt to Tanzania shillings One hundred and Thirty Nine milS^^gpndred and Forty thousand only (TZS 139,140,000/=) the property of the Government of the United Republic of Tanzania. As for the third count, it was alleged that on the 23rd day of January, 2020 at Safu Village within Kalambo District in Rukwa Region the 1st appellant was found in possession of minerals to wit; 79kg of Green Kyanite valued 3 at 393.95 USD which is equivalent to Tanzania Shillings Nine Hundred, Two thousand, Sixty-Nine shillings and Twenty-Four cents (TZS. 902,069.24/=) without a valid Mineral right, dealer's licence or brocker's licence. As a result, each of them earned a sentence of 20 years in prison on the 15 being guilty of-that offence. As thelpresenVcase rsh consolidated criminal appeal case originating from Criminilxppeals N|g:91 and No. 92 of 2022, and because all the appellants are petitioningRagainst the same decision of the subordinate court which was delivered on

18.07.2022 as per the trial court records, I find it apposite to paraphrase their grounds of appeal in order to have a good 4 flow when I will be dealing with such grounds, one after another. The same can be paraphrased into the following grounds: - 1. That the trial Court was biased as it based its decision to convict the appellant basing on the caution statement of the appellant which was not forming part of trial court records. hisowh interest to save in ^yrmiinalliabi/ity haying being found ^ntravena^w/m^the principles of natural justice by admitting the affording the Appellant right to be heard during admission of the prosecution exhibits mean while the said exhibits were affecting the appellant.

5. That the appellants were convicted basing on the objected exhibits which were improperly admitted as evidence against the appellant. 5 6. The trial Court erred in law and fact for convicting the appellant basing on what the trial Court considered to be weakness of the defence case.

7. That the trial Court erred in law and fact for convicting the Appellant on the offence which was hot proved to standard required by the law as the prosecution evidence was contradi&ory and incgnsistent.

8. That the trial Court erred in law a^^^^^^^^^^^^der the weight of defence case which^^^^^^^^^^ innocence of the appellant 9. That the trial Cdul^erred ih^^and^ict for failure to analyze properly the When this a|||al (She fori^.earin|f the appellants were represented by Learn^^^^g^^^^^^^udodi, while the respondent Republic was repre^^ted by^^^l^z, Senior State Attorney. Addressing this court in respect o^|||^||pellantsA grounds of appeal, the learned Advocate requested the court to adopt both Petition of Appeal Criminal Appeal No. 91 of 2022 and Criminal Appeal No. 92 of 2022 to be part of their submissions in chief. Submitted grounds of appeal based on the list of 6 petitions of appeal as shown in the Criminal Appeal No. 91 of 2022 which was mentioned herein above. Starting with the first ground of appeal which is similar to ground three of the Petition of Appeal in DC Criminal Appeal No. 92 of 2022, the learned Advocate submitted that the trial court was based iBklecision to convict the appellants on the caution statement of th^^^gus^^hicMid not form part of the trial court's proceedings^^ia.^^^^^^^) pages 114 to 118 of trial court proceedinqsjn^^^fag^^^^^^ose pages there is a ruling of the trial court d^^o^^^l.2^^^^®learly shows that the trial court rejected the ca|tioned^statem|nt cRhe 1st Appellant who was also 4th accused of thefcial j|| It was his that despite the said

ruling, the trial magi^BB|^J|^3%®page 36 and 43 relied on the said cautioned staterrilgt to convilt thf appellants. He also said that is not an over sight because iWS|gjjSfent at page 43 the first paragraph, that the trial magistrate confirmed he was aware that the said cautioned was not admitted, but he went on to believe that its contents were of essence as they showed a clear picture that all the appellants were dealing with Government Trophies. 7 To bolster his argument, the learned counsel referred the case of Japan International Cooperation Agency v Kaki Complex Ltd Civil Appeal No 107 of 2004 at page 15 paragraph 2. The Court of Appeal Tanzania held that: - "The document in question somehow was not oShffied in evidence. This was a substantia! error^^^gph^'^d^_ which amounted to a miscarriage He added that the rationale, to the rejected documents is irrelevant.||ince t^^o^feitsWe not part of the proceedings. HenceforthWie t^^^ii^^ke finding on the extraneous matters, whic^^^^^^^^^^^^^udgment. He referred the. case of Frorence DPP, Criminal Appeal No. 98 of 2019 sitting®Mfft||^S^ggeli|ast paragraphs and 21 last paragraphs. He thereSe prayedl^thi^ourt to nullify the entire proceedings of the trial cou rt, gualfctegtto me nt together with convictions and set aside the sentences imposed on the appellants. Turning to the second ground of Appeal, Mr. Budodi made reference to

the proceedings and judgment regarding the contradiction on convictions and acquittal of the appellants at the same time. He submitted, for instance, 8 that at page 48 of the Judgment the second paragraph, the trial magistrate convicted all the appellants on the first count, on the third paragraph of the same page the trial magistrate stated that on the part of the 2nd and 3rd counts prosecution failed to prove the case beyond reasonable doubt. He further argued that the first contradiction is orRhe first and second pages of the typed judgment which show that^ftmella^Were^arged

A IF with only two counts and not three cou®|jThe s^^^p^^^iaittion was on the third paragraph at page 48 i^m^istrate stated that for the second and third c^^^^^^^^^^^^^hiled to prove beyond reasonable doubt, neveifSeless: tfee ^fela® were charged with two counts and not threp^^u^^^lHe^^pidered how the trial Magistrate convicted th^^^^^tejJt^^'fifs? and second counts except the 4th accus^^SlJ^^^^^ffi§^are convicted: the appellants on the second count||the fir^^e^^d acquitted the 4th appellant on the second count. He concW^^^pjing that since the trial court found the appellants not guilty and acquitted then that court became functus officio; hence it could not decide contrary to what it ordered before. Regarding the third ground which is also a first ground in the consolidated appeal, it was the learned counsel submission that the trial court erred in 9 law by relying on the evidence of PW3 who had his own interest to save when he exonerated himself from the criminal liability. Mr. Budodi referred to exhibit P5(a seizure certificate) which shows that the possessor of the Government Trophies is one Philemon Said Ntibasi who testified as PW3; that is shown at page 47 to 50 of the type proceedings. Mr. Budodi added that PW3 was the one who ^^y^^^w^^^^nment trophies, but for undisclosed reasons accused persons, father he become a prind^^fes^fcg^toess. The Court of Appeal while

dealing with case, of Abraham Saiguran v Republic, case provide a principle that: - interest of his own must be should not be acted upon, lk|?ss’ cw^borated with some other independent evidii^^^ He also argued that the trial court believed the evidence PW3 without considering if there was other independent evidence. He went on submitting that in his evidence PW3 stated that he was informed by 1st io appellant to welcome his guests and take the trophies and he communicated with the 1st appellant through mobile phone and his phone was seized, but ho evidence of audio devices was tendered before trial Due to the above defects the learned counsel was oftheview that the trial court committed a gross error in its finding. Mo|fe>y|r, tt^bpjed^at the cautioned statement of a co-accused can^^^^.^^^^^^^^ronviction in absence of corroboration; that po^^^wa^^^^^^he case of Damas Lucas and another v 04 of 2021 High He al^referred'lte ci^ to the case of Rajabu Abdallah @Mselemu v Republ^^'iminwVppeal No. 134 of 2014, Court of Appeal Tanzania Iringa at page 4. In regards to the search process, the learned advocate indicated that the same also contains irregularity which is contravened the provisions of section 38(2) of Criminal Procedure Act (CPA) arguing that the search was ii conducted without search warrant. He submitted that there is no any nature of emergency which permitted search

without warrant because the information was received on a work day. He referred the case of Shabani Said Kindamba v Republic, Criminal Appeal No.390 of 2019 Court of Appeal Tanzania Mtwara at page 15, to'support his argument. As for the fourth ground of appeal is simila®t^^ 9r0un^ 'of appeal on consolidated appeal, Mr. Bulbdi.'argmd i^^tai^^pellants were not given rights whether to a^fel^^^gi^dmission of exhibits when was tendered this v^^^d^^^ron^^^^^bqht to be heard. The trial Magistrate Court pro^pd ajp^^Slr^ toThe 4th appellant to object the cautioned stater^^^vhi^he re^|ere denied to object Or admit the said statemerlir He re^^^^^^^^^^fefproceedings, where PW10 tendered caution staterffi||tof 3rd aftuseSwho is the 4th appellant in this appeal, and argued that the trial^^^^ave the 4th appellant a right to object only while the caution statement affected other appellants. The caution statement of 4th appellant was admitted as Exhibit PIO. 12 Likewise, the counsel submitted that the admission of exhibits P9 and Pll that is cautioned statement of the 2nd and 3rd appellants respectively was considered when the trial court convicted the appellants, while the same were illegally admitted, he referred page 43 of the typed Judgment. To bolster his argument, he referred the case of Geophrey Jonathan @ Kitomari v Republic, Criminal Appeal No. 2§j|gf 2017<Court of Appeal Tanzania

Arusha at page 12. " Wherever ft is indented t^^p^^^^jy^^cument in evidence ft shouldand be actually admitted Aore it can otherwise it is difficult for thll^ur^Jbeseer^b&t have been influenced by thesamS. lb Howe^^^^^^^^^^^^learned counsel, the 4th accused raised a paran&,nt important objection regarding his name, but when delivering its ruling the wial^^E admitted the document without it being tendered by the witness. Therefore, he argued that the exhibit was admitted illegally but it was formed basis of conviction. He argued further that the above said submission covers the fourth and fifth grounds on consolidated appeal. 13 In winding up with ground six of appeal which is also ground six of consolidated appeal, Mr. Budodi pointed out that the trial court based on the weakness of the evidence of the appellant to convict them. He referred page 48 to 49 of the Judgment which shows clearly. The trial court stated that the defence is "weak'and shoddy"for the 1st appellant at page 48 and for the 2nd, 3rd and 4th Appellants the trial ma^^^^^e^^^^p word, evidence "weakand'shoddy. The learnedBCOunill^foSified?vhil^ffisition by relying on the cardinal principle tha^^^yrdi^^ fSthe Court to convict the accused person based on th^^ikre^pf^^wpnse. as it was stated in the case of Vicent [1992] TLR 200. Mr. Budodi merged ar^^>f the appeal; and submitted that the above sd^^^^c^efe^^^^^wnds

of the appeal. Therefore, the qroun^Ws^dbn^idat^^^feal was concluded by covering the 2nd, 3rd and -fcirounds^fep^^ He furtherWibmiyi that the 2nd, 3rd and 4th appellants were convicted based on the fact that they were found at the house in which the alleged government trophies were found, but they were not in possession of the same, rather they were merely found at the scene of crime. To him that does not constitute an offence in law. To add more weight on that point, 14 the learned counsel cited the case of Emmanuel Chigogi Vs. Republic, Criminal Appeal No.355 of 2018 Court of Appeal Tanzania Dodoma at page 18 in which the Court of Appeal held that: "Mere presence of the first appellant at the scene of crime was not sufficient to Implicate him to the murder". Therefore, he prayed to the Court to acquit th^fe^^^^^^^^^llants because of the principle stated above. Lastly, the learned Advoca^^fo^^^^@^yaBs submitted by showing/mentioning som^proceduShjrr^llarities which he allegedly among them /areMcontraveritidnoOhaturaI justice basing finding on extraneous a non-admitted exhibit and on co - the remedy is to do trial denovo when the counts^lxceed. W Nevertheless/thOefence counsel quickly argued that this is a fit case to order acquittal rather than denovo as it stated in the case of Florence Mubiri (supra) and the case of Rajab Abdallah Mselemu (supra). 15 More so, he contended

that since there is illegality of the search warrant, that means the exhibit tendered cannot be a base of the case before the trial court because the center of the case was found in the search warrant. Therefore, he prayed to this Court to find that the case is not proved beyond reasonable doubt, quash conviction, set aside sentence and set free the appellants. In replying about the grounds of appeal,^UleanW^^^^^te Attorney opposed the appeal and submittedlBitbeJPfcglan^were convicted by the trial court basing on together with the exhibits admitted in co&. concurred with the submission of the l^^d^^pcate^ffit the exhibit referred by the trial Magistrate 43 was not admitted. Neveplaint that convictions of the appellants were I|^d on thl^auuoh statement which was not admitted in court. He further cautioned statements have shown clear picture that both accused persons were dealing with the unlawful Government Trophies. lb In regards to the issue of extraneous matters, the learned Senior State Attorney submitted that the 4th accused (1st appellant) caution statement does not fall under extraneous matter; since the statement was rejected then the remedy is to expunge a piece of evidence available at pages 36 and 43 of the typed Judgment. However, the learned counsel submitted even if the same will be expunged from r^^^^^^^^gcution evidence will remain intact to convict

tt^gppelf^^/^^^^^ffie view that the mistake appearing in the triagggurt's^ldgnSf does no vitiate the whole judgment. lb, Turning to the complaint appeal, Mr. Perez contended that a charge sh^t^^i^oM^ta^^^ which shows a number of counts the appellan^feer^harg^^ith. He proceeded to submit that all the appell^^^fe^^^^^^^gd in respect of the first and second counts, but onlthe third tHe first appellant one Amon s/o Nikolaus @ Ntiluka, was charcBd|||Qny However, at page 2, paragraphs three of the typed judgment it shows that there are three counts in the charge sheet and the 4th accused was only charged with the 3rd count. Regarding a complaint that the trial Court convicted the appellant and at the same time acquitted the appellants, the learned counsel submitted that 17 the language used by a trial Magistrate is clear; hence there is no contradiction, what is apparent is that the trial magistrate had his peculiar style of writing judgment. Mr. Perez Submitted that the trial magistrate convicted all appellants on 1st count, but the prosecution failed to convince the triaTcourt for it to convict the 4th in respect of the second and third <8fe^|^?^^^^^^punsel fortified his position by referring the ^teion^bf^c^^^^ of the Criminal Procedure Act to cure any Ofe^|g^gd^jtie judgment.. Regarding third ground ^®p^^^^^^^^^^fenior State Attorney hesitated to say much th^PW3^^^^^^^^his. own

to serve because that issue wa^ng||er rai|J&U|i^^y ial of the appellants nor were the prosecution wi^^^^ross^^mined on the same during trial. He went on argui^SlB||^J^^^Jfe^section 127 of the Evidence Act, Cap 6 [R.E 2022pguides thelbmpelfence of a witness; hence according to him, PW3 was a c^^^Jgpness because the trial court measured his evidence on credibility, reliability and acceptance before it accepted his evidence. Mr. Perez also argued that the evidence which implicates the 1st appellant is cautioned statement of 1st, 2nd and 3rd accused persons which were 18 admitted as Exhibit P9, PIO and Pll corroborated by the evidence of PW3. He further argued that the 2nd, 3rd and 4th appellants were convicted based on their confessions and also corroborated by the evidence of PW1, PW2 and PW3, he invited this court to refer page 32 and 43 of court proceedings. ’ Regarding issue of search, Mr. Perez contendldithat theWiSsue (feearch was not part of grounds of their appealppMthe ^g^^^MjWhat PW1 and PW6 received information aroui^^^^^^^^^^not easy for them to approach the Court as it. was an emergence. More so, tffi seardjov^<conScted in the presence of independence witnes^f|^2Wlage Exegtive Office and PW4 a resident of the said areaw^ lb advocate on the principle that it is necessary to obt®vseaiih warrant from court when search conducted at night, theWggggP counsel argued that

even if there is apparent contravention of the Criminal Procedure Act, it is not automatic exclusion of the evidence especially when the circumstance of a particular case fall under emergency situation. He fortified his stance by citing the case of 19 Matata Nassoro and another v Republic, Criminal Appeal No. 329 of 2019. In replying about the fourth ground of appeal, the learned Senior State Attorney submitted that the cautioned statements of the accused persons were cleared for admission, admitted by the court arBsmarked as Exhibits P9, PIO and Pll and their contents were readW^befoi®|(he Cgurt. He continued submitting that clearness of ^^^uti^^^^^^Rvas only allowed to the maker, hence the^^e’^fejiKo^^/vho can clear his statement. He concurred with the p^cipl^ptow^^ted in the case of Geofrey Jonathan and added that the land mark case is the cas^^^^gn^^^njisi v Republic, 2003 TLR at page 218 whicMHil pMde^gr instructive procedure that before a document is admit^^it must o||cleared for admission. He concludeB^dEhat ground by submitting that the procedure of admitting the caution statement of the third accused as appearing at page 136 and 137 of the court proceedings, was not violated; the objection was overruled and the said document was admitted as exhibit PIO. 20 In winding up on ground six of the appeal, Mr. Perez argued that the trial Magistrate considered the defence of

the appellants in the judgment. To fortify his stance, he referred this court to pages 47, 48 and 49 of the said judgment. The trial Magistrate weighed defence evidence and clearly stated that defence evidence was weak. In addition, the learned Senior State Attorney used in the judgment of the trial court sh^^^n^^^^^fe^onnote that the appellants were convicted due t^^^^^^^^e^defences, rather it should be used to mean tha^^^^yalua^^^^M|>rosecution evidence, the defence evidence cou^rot Mr. Perez procegdgsd^^M^^teat asthis court is the first leg of appeal, it has mandate^^w^pj^s^^^ the trial court in order to evaluate the defen^ff^gi2^[f~ol§|merit and come up with its own conclusion. To bolster his arg|rnenf|‘he referred the case of Jafari Mussa v DPP, Crimina^^^^^^34 of 2019 at page 11. Finally, he concluded by submitting that the prosecution proved their case beyond reasonable doubt, and the trial court was justified to believe the prosecution witnesses, their testimonies and accept them. According to the 21 said counsel, this position was stated in the case of Goodluck Kyando vs. Republic, 2006 TLR 367. He thus submitted that the evidence against the appellants is credible and water tight. He therefore, prayed to this court to dismiss the present appeal and upheld convictions and sentences imposecfepon the appellants, indicating that the irregularity observed is

mi^fe^c^^fecur^ under section 388 Criminal Procedure Act, [Cap z^R.E In rejoinder, Mr. Budodi reiterat^^^^^^^^^^^by submitting that learned State Attorney conceded ground oW||pf appeal by concurring with him that the trial Court m^^re^^^toi^exhibit which was not part of the record position stated in the case of Japanese International Cdpperation Agency (supra) nor distinguished Regarding issue of corroboration, he submitted that the caution statement is the statement of co-accused which need corroboration and further the evidence of PW3 is evidence of a person who have interest which needed 22 corroboration. In furtherance of his submission, he stated that the cautioned statements were improperly admitted and their legality is questionable. I have considered all the rival submissions by the counsel for both parties together with the trial court's record. I have also (Sh^kmuch attention to the authorities as well as the provisions the I think, the burning issue for consideratife is ^^^^R^^secution proved its case beyond reasonable At the outset, I wish win conviction, the prosecution must prove iijcase.^^^^^^reasonable doubt as required of it under seddgilliW tfiie^Evide n® Act, Cap 6 R.E. 2022(the TEA), short of that will be entitled to the benefits of doubts left Proof Beyond readable doubt refers the cardinal principle which entails that in any criminfr trial, the accused

person must not be convicted merely because he has put forward a weak defence, but rather the evidence led by the prosecution incriminates him to the extent that there is no other hypothesis than the fact that the accused person committed the offence 23 with which he stands charged (See Antony Kinanila & another v Republic, Criminal Appeal No. 83 of 2021 (unreported). This Court is the first appellate court and as it was held in a number of cases such as the case of Kaimu Said v Republic, Criminal Appeal No. 391 of 2019 CAT Mtwara (unreported), the Court heldThat: "... a High Court being the first appe/i^^^^^^^^^^^to step into the trial Court's shoes and reconsider both sides and come up with its own As I perused the records^^fc tr^^^ui^^alized that the appellants' convictions were n^^y^^^d^^^^^^cumentary exhibits and oral testimonies as will be described shortly. It appears that PW2, PW3, PW4 and PW6 justifiably testifiSr to h^^te^^^h^cene crime. However, the caution statement of the^|Lappellan|lwas discarded by the trial court for being tainted by vitiating factompafiicularly promises by the policemen. Starting with the first ground of appeal, the learned Advocate has contended that the trial court based on the caution statement of the 1st appellant which was rejected to be admitted as exhibit and convicted the 24 appellants despite the fact that such document was not

admitted. The learned counsel made reference to page 36 and 43 of the judgment and argued that what was done by the trial magistrate amounted to extraneous matter. He cited case law to support his contention. In his reply to this ground of appeal Mr. Perez argueSlthat what was done by the trial magistrate was something which to,J?e used in the course of composing his judgemebtbut "tfetj^^^Wnount to extraneous matter. Hence, in order^^^^^^^gl a^maly, the learned counsel submitted that the ^^ed^fer^&W expffiBfb a piece of evidence which indicated that the||ial mgj^^fi|y^clWhe rejected evidence. He also said that even Wj|ere^gs such i^gularity, the same is curable and can be cured«^^^^bn^^bprovi!Si'ohs of section 388(1) of the CPA. In or otherwise of this ground it is important to be Wided by tie principle stated in the case of Ramdhani Shabani @Maqurumbata|lhd 3 others v Republic, DC Criminal Appeal No. 81 of 2016 my learned sister Hon Mansoor, J held that: 25 "The caution statements being tainted by irregularities are hereby expunged from records, and cannot be relied by the either the prosecution or the trial court for conviction. "[Emphasized] See also Abuhi Omari Abdallah and 3 others v Republic, Criminal Appeal No. 28 of 2010 and the case of Makoye lajpwel @ Kashinje and others v Republic, Criminal Appea^fep^^^^^^^^ (both unreported). ” In the case at hand, it is records

that the caution statement of jg^lant^js rl|i||ed 6ythe trial court after conducting an inquiry an<declaowan®e said caution statement was made based^^^e "^^^^^^^ygntrary to section 27(3) of the. Evidence Act^^^^g^201^-lowever, the trial Magistrate referred the said whenihe was composing his judgment at page 43 of thMyped find it necessary to quote the said part of the "iBk. IB judgment tot|iake|ine point clear, and I quote: - "Basing on cautioned statement for the 1st, 2fd 3fd accused person together with that of the fourth accused person though was rejected during the hearing of this case by the court basing on influential 26 aspect, but the contents and essence of those cautioned statements have a dear picture that both accused persons were dealing with unlawful Government trophies, "[emphasis added] The above quoted excerpt clearly demonstrates that the trial Magistrate referred the document which was not part of tRigjproceedings when composing his judgment. In the circumstance^^mof the^ew jgat the consequence thereof is nothing, but documentary exhibit which containS^^^g|^gati|g, as I hereby do. Having said the above, I Jndgtha^^^^^^^^^fche of the appellants' petitions of appeal has megt. The issue caution statement of the first appellant, th^^^^^^^y^gution evidence is sufficient to ground convi^^^^^nst^ta^dl^nts. I havel^mihed records of the trial court and I have also

considered all the docfel^fery exhibits tendered by the prosecution side and admitted by the trial court save for the caution statement of the first appellant which I have already expunged earlier. It appears that apart from the said expunged documentary exhibit, there is another prosecution 27 evidence implicating the appellants herein in relation to the first and the second counts which they were jointly charged and arraigned before the trial court, save for the first appellant whom I have noted that he was acquitted by the trial court for want of proof by the prosecution side in respect of the second count. The same, is divided into two categories oral testimonies of PW1, PW2, PW3, PW4, PV^toV6^^^p§^Wand PW 10. The second category is based ^^^^^^^g^^exhibits which are. the three mobile phones^pgr^|^oti^^^^feh were 24 pieces of elephant tusks, the kyanffiiminerals arBj^o^rfeotor cycles allegedly used by the appellants to^^^^^^^^^^hies. from Chunya to Safi Village. Other exhi.bit^^^^^rat^^^eizQrfe/seizure certificate, chain of custody, troph\|yaTOlat^n^re^WHte^rS caution statements of the second, third and fSirth appelra|ts/^ JSsmj In their second^qflund of appeal, the appellants have alleged that the judgment of the trial Court was contradictory on the basis that it acquitted and convicted the appellant on the first count. The appellants' counsel while submitting on the above

ground has indicated two contradictions in the typed judgment. According to him, the first contradiction is on the first 28 and second pages of the typed judgment which show that the appellants were charged with only two counts and not three counts. That the second contradiction was on the third paragraph at page 48 in which the trial magistrate stated that for the second and third counts the prosecution side failed to prove beyond reasonable doubt, nevertheless the appellants were charged with two counts three.cougts. He wondered how the trial Magistrate conviAkthe first and second counts except the 4th accuSjstil[|5i|gp^^agistrate convicted the appellants on the secgggcpu^Ig^^^^^^^^^nd acquitted the 4th appellant on the second Sunt. Onahis side, tW respondent's counsel was of the view that ther^hwas|np such Witradiction pointing that the trial magistrate h^piiswn jSbuliairTO^f composing a judgment. He has also pMp®S|||ut u®fc|gr|e sheet is very clear as it stipulates three countsjtwo of which shbws the appellants were jointly charged and one which is th^g^gynt shows it is one the first appellant who was charged on that count. Regarding the first alleged contradiction, I do not see if there was such contradiction. This is because the trial magistrate clearly indicated that the prosecution side had sufficiently proved its case regarding the first count 29 and the second counts

and convicted the 2nd, 3rd and 4th appellants accordingly, but refrained from convicting the first appellant in respect of the second and third count for want of proof by the prosecution side. This is justified at page 50 of the typed judgement in which the trial magistrate stated, thus:' "..therefore, I find the prosecution sS^j^ed thq^casq^o the standard required by law on the i^^^^^^asses-both accused persons. Likewise, o^^^^p^^^^Mhich include first, second and third ac^^p ^fs^^f^^^Sdution side proved its case beyond reasoh^tde co^^^^^^^ut failed to prove the case beyond reasc^i^ d&ubt on second count to the fourth accused personySas exhausr^i^nu^^Soye.. I therefore, found the first, ^^md^^^^^^&h^ccused person guilty of the offence charged ^^^oilar^^^W^ count, and second count to the three accused pefsonspad^ularly first, second and third accused persons." [the underline is mine] The only defect which in my view is curable, is the act of the trial magistrate to use the word "both" to refer to accused persons (the appellants). I am of the considered view that the use of that word was not 30 proper because both' is normally used when one refers to two persons, or two things. The correct word ought to be the word "all* if the trial magistrate intended to make reference all the four accused persons who are now the appellants. That apart, at page 42 of the typed judgment, the

tnaf magistrate stated the following: - iflk A a. ik "...Consequently, I proceed to acq^^^^oq^^^^^d person on the third count as for the,^^^^^d^^^^^sons above based on insufficientevide^^ftom^^^^^^^Se.'[emphasisadded] The above fortifies ^^^^rt d^^^t^^iat the counts of which the appellants herg|tsjgpd cbgrged^^ye trial court were three in that on the first and ^cond|counts, the said appellants were jointly charged for the q®nces^^^^^ftiiraealing with Government Trophies and. Unlawful Possession of Government Trophies respectively, but the first appellantlWaftharged alone on the third count with an offence of Unauthorized Possession of Minerals. So, I am certain that there were no such contradictions. Thus, due to the above reasons, the second ground of appeal fails. 31 In their third ground of appeal, the appellants have complained that the trial Court erred in law and fact by relying on the evidence of the principal witness PW3 who had his own interest to save in exonerating himself from the criminal liability having being found right-handed in possession of the "Accomplice" ^btit. through otfier.aids one can simply understand what the term Sactly^^m^fcr exfrhple, the Blacks' Law Dictionary, 4th Edition, St PaoBMhn. Publishing Co. 1968 at page 32, "Accomplice" has been defineoWW^ person who knowingly, voluntarily, and with common intent with the principal offender unites in

the commission of a crime." 32 From the above definition it is quite clear that for a witness to be qualified as an accomplice he or she must have knowledge about the plan to commit an offence, again he must have volunteered to participate in its commission and the last condition is that he or she must have a common intention with the principal offender and unite in^fce commission of a crime. In the case at hand, PW3 whose evidencebeen corroborated by the prosecution PW2, PW4, PW5 and PW6 testified tha|g|^gwa8(g§tru8^gl bymSfirst appellant to host the second, third and foi&i t0 s'ei>t 'n ^ouse rented by him, pickkfheirShree luggage and kept them until the first appellant coriST Therejp noWfe^e ifei wffifes said that he participated with either of the said appellants tffifcommtt the offences the subject of this appeal. Also, there is n^M^ythe trial court records it shows that the said witness confessed to PW2 and PW6 who are members of law enforcement agents that he formulated a common intention with the appellants to commit such offences. Therefore, due to the above reasons, I am of the firm view that PW3 was not an accomplice rather he was a normal witness just like the 33 rest of the prosecution witnesses. Therefore, the third ground of appeal has no merit. As for the fourth ground of appeal in which the appellants seem to fault the trial court for denying them a right to be

heard during admission of the prosecution exhibits while the same affected each oRtt-igm, I should start by saying that as a matter of law, there are th^fcages with a trial court has to observe before a document is admffi|d in first be cleared for admission, secondly in evidence and thirdly,, it should be readoutein Si^^^l^RoBlnibn Mwanjisi and 3 Others vs Republic(Cri&al 1994[2001] TZCA 28(at Tanzlii). The reason d^^dj^dhng^lfa^contents of the admitted document is to enabl^^^^^^^^^^W^w the contents of the same and be prepare his defence. This was emphasized in the case of John Mghandi @ Ndovo v. The R3>wJ^^yiniinal Appeal No. 352 of 2018 (unreported), in which the Court of Appeal stated that: "...whenever a documentary exhibit is introduced and admitted into evidence, it is imperative upon a presiding officer to read and explain 34 its contents so that the accused is kept posted on its details to enable him/her give a focused defence7' In the case at hand, the appellants seem to complain that they were hot given a right to be heard when their fellows caution statement was sought to be tendered as exhibits before the trial court. I do seeif their complaints have legs to stand because what I know, as in^fe^froi^^e autterities I have cited above, the one who has a ri|h|jto co^^^^ft^^ocument sought to be tendered as exhibit is^^^^^^^^^^tement. What, the rest of the appellant

coul<^^^w^^ l^^to^^feontents read by the prosecution witness whicl® belieyg|hef||kl btCause they were present in court. For instance,^^^^^ftiibit PWwhich is the caution statement of the fourth appel^^^^M^^^^^fe^rt, it was that appellant who had a right to commeh| on it wtehlW he had an objection or not; the rest of the g&x m appellantswlg^gpthe first, second and third appellant were supposed to hear its contents and prepare their defence if they thought the same affected them. However, none of them, leaving alone the first appellant whose caution statement was not admitted, said anything in their defences. Thus, from what I have said above, I find that the exhibits 35 tendered by before the trial court were properly admitted and the appellants were not denied a right to be heard. Hence, I hold that the fourth ground of appeal has no merit. Next is the fifth ground in which the appellants through their learned advocate have alleged that the appellants were convicted basing on the objected exhibits which were improperly admi^fefese^^fe agajnst the 38(2) of the CPA; he citedjfhe caseipf ShabanSaid Kindamba (supra) to support his position. W|^ Howeverz th^goi^^^lcg^sel took a different view that since search was. ^^^Bted|ff^^^^fegency situation at midnight, there was not neces^^^obtait™ alearch warrant from the court. Admittedly, section 38(2) of clear about the requirement of

obtaining search warrant from the court before an authorized police officer wants to conduct search a premises or a vessel in which he suspects an offence has been committed or is intended to be committed. 36 However, I think that the circumstances in Shaban Said Kindamba (supra) were different to the ones in the case at hand. In that case there was no emergence situation which could necessitate the police officer to conduct search without warrant which exception is provided under section 42(1) of the CPA and because of that the Court of Apfeal resolved that the search was illegally conducted In the instant case, there was an pointed but by the respondent's counsel. T^^^^^^^^t^^rial court's reveals that at 1800 hours PW1 wa^p^i|y^wgh^^^ mobile phone about the appellants' illegal bus||ess c^^^pb^^g government trophies which were elephant tuskJljgrrRthunya twjafu Village, Kalambo District, in Rukwa regiorWndtfbt the?teiidfp|Snants were moving to that village in order^^^^^^^^^^l^^^fel.low who is the first appellant. In the circui^^^ce^^^^^^ib^is that. search warrant not inevitable as rightly argued byTl^res|ondent's counsel. Therefore, due to the above reasons I find that the fifth ground of appeal too has no legs to stand. In their sixth ground of appeal the appellants have complained that the trial court erred in law and fact for convicting the appellants based on what it

considered to be weakness of the defence case. He took refuge on the 37 principle stated in Vicent Sonfo Mapunda V Republic(supra) that it is wrong for a court to convict the accused basing on the weakness of defence case. To the contrary, the respondent's counsel has insisted that the trial court properly considered evidence of both sides before arriving to its findings against the appellants. He has referred Wis court to pages 47, 48 and 49 and concluded that the word Veajfeuged irShe judgment of the trial court should not be used to conjnotewere convicted due to weakness of their|defenceB|rathei||t should be used to mean that, after evaluation fro^tanldes, ^^^^ence evidence could not supersede that of the^^^cut^^^^^^^ Having heard the r^^^^s^^^^he counsel for both parties and gone througbjSe court r^M^p^^Erly on the pages referred to by the respogt^K^^offiff^^iM^Srtaih that the appellants' complaint is unfounded as iP^obw|ps that the trial magistrate properly considered both parties^evidence; the defence evidence inclusive, and came to a conclusive finding that the defence evidence was weak compared to the one adduced by the prosecution side. In my view, the trial magistrate could have been in a wrong path had he confined himself to the prosecution evidence, but that is not what he did, and I commend him for being fair to 38 both parties by properly considering their

evidence before determining the case before him. Thus, due to the reasons which I have given hereinabove, I find that the ground number is unmerited. Coming to ground number seven which I find to be similar to ground number 8 of the appellants' petition of appeal, it is tllinoomplaint that the trial court erred in law and fact for convid^fehthe a8p0llants.<on the offences which were not proved to the law. As indicated above, the appel|ai^^^^fe|ged^gl arraigned before the trial court which after he^i^an^^^®^^^eviSce from both sides, convicted and sentencedlthemjtf^omhjtting the offence of unlawful dealing with Government trophies pnd for being found in unlawful possession oR^^^^^ment^^ph ies. Argui^^^^l^^^^^^ibve ground, the counsel for the appellants submiftd that thev2nd, 3 rd and 4th appellants were convicted based on the fact that^^^^T^e found at the house in which the alleged government trophies were found, but they were not in possession of the same, rather they were merely found at the scene of crime. To him, that does not constitute an offence in law as mere presence of the accused at the scene 39 of crime is not sufficient to implicate him to the offence he stands charged. Conversely, the respondent's counsel stressed that the offences the appellants were charged with and convicted accordingly, were sufficiently proved basing on the oral evidence of the prosecution

witnesses as well as the documentary exhibits. Admittedly, it is not in dispute that the allege^^tenm^^oplfe were material day, but were found in theHbm.?PW3;?hadisleot. However, the appellants through their adwgte noftaeniecftevery crucial fact that the said trophies were a&ally same premises the three of them slept. J# Also, it is n^|^dggjfll|^hen the said Government trophies were unco^^^^^^^^^^W^hrough the aid of PW3 and in presence of PW2, W4 and Pwjg wn& were independent witnesses, the first appellant l|l was not house. However, I have noted that there is a piece of evidence adduced by PW3 which reveals that the second, third and fourth appellants approached him on the material day after being directed by the first appellant and that it was that appellant who instructed PW3 his then employee, to host the second, third and fourth appellants together with 40 their luggage in the house he had rented from PW4 and keep the luggage brought by the said appellants which contained 24 pieces of elephant tusks. That evidence was corroborated not only by PW1, PW2, PW4 and PW6, but also it was corroborated by the second, third and fouftbhappellants through their caution statements which were admitted ^^^^ial^^rt a^exhibits P9, PIO and PH. For example, in his statement b§tg)r^^^i§^g>n^ppellant stated the following: - tfylipitia ^jia y^PShf Jirani ya Zambia Hi tusionekane kwa urahisi

na kutbkea Kijiji cha Jirani cha Zambia tukavuka kuingiria^'Kijijini Safu.Basi tuiifika hapo kwenye nyumba ya mwaiimu ndipo Yona akampigia simu mwaiimu ambaye tuiikubaiiana kununua menu hayo kwa shilingi elfu 80,000/- kwa kilo; Yona akampa simu ndugu yake mwaiimu aiiyejitambuiisha kwa jina ia Philemon ambaye 41 aiiongea na mwaiimu kumueiekeza cha kufanya na baada ya hapo PhHemoni aiitupokea mizigo tuliyokuwanayo kwenye pikipiki ambayo ni meno ya tembo..." Also, according to the exhibit PIO which is the caution statement of the third appellant which was recorded by PW10, he statefcs follows: - " Yona Msoma aiikuwa na pikipiki yake wote tukiwa tumeongozana hadi Kijffi c/^^lwj^^ia^^^^^ffka Stand ya Ulumiyniliona mabegi mawiii na na kifurushi cha mfgko wa sulphatefYona aiibeba mabegi mawiii kwenye pikipiki yake na ^mUiilSfeba Ciemence Samwei pamoja na kifurushi kite cha sulphate, Yona Musoma aiiongoza msafara tuiipita Kijiji kueiekea Zambia na Kwenda had! Kijiji cha Kaiekwa nchini Zambia na Kwenda Kijiji cha Safu. 42 Baada ya kufika Safu mwalimu NtHuka Amon alipiga simu kwa Yona Musoma na kuelekeza meno hayo ya tembo tushushe kwa Philemon Said @Ntubasiga na mzigo huo ulipelekwa na Philemon Said akauingiza ndani kwake na baada ya hapo mwalimu NtHuka alipiga simu tusiondoke eneo hilo yeye yuko nj/ani. Philemon/affinglza mzigo ndani sis! akatupa chumba cha uani tukd^^^^^^^^l^^i

zetu mbili zHichukuHwa na Philemon! akaenda kiS^/n^^^ Jiran/Saa sita usiku askari walifika hapo viongozi wa Kijiji wakatukamata na Again, when making his gtatem^t|^^|Wft the fourth appellant was recorded to have st^^|]5^|pwin " Tareh^^^^^20 majira ya asubuhi tuHondoka nyumbani kwangu Kijiji cha Safu kupelekea ule mzigo wa eno ya t^bo kwa mwalimu Amon NtHuka kwa kutumia usafiri wa piki9^bflSmbapo pikipiki moja Hikuwa ni He ya mdogo wake Baraka Sindani na nyingine aina ya Qing QWQI n'Hiazima kwa baba Mesi kwani niliamuahidi kuwa nitampatia pesa nikirudi kwani Clement Samwel aliahldi kuwa atatupatia pesa kiasi cha shHingi milioni moja l,000f000/~ baada ya biashara kufanyika, tulipitla njia ya nchi Jirani 43 ya Zambia kwani ndio mkato, tulifika Kijiji cha Safu jioni ambapo tulipokelewa na mdogo wake mwalimu aitwaye Phiiemoni Said @ Ntibansiga na mizigo yote tuiiyokuwanayo aiipokea na kuiingiza ndani, pia pikipiki tuiizokuwanazo ndugu Phiiemoni aiikwenda kuhifadhikwa Jirani yake." It is quite clear that the above confessions byl®te:ond,W||jd anctfourth Wk appellant not only reveals how they partici^|ted i^the-^cominission of the two offences they were jointly cha implicated the fourth appellant as the m^^^^^^^^^^ommt§ston of such economic offences. There are s^yn use to know if the what is contained in "S^^c^^^c^^gsion is true or hot. The Court of Appeal in Vs Republic, Criminal

Appeal No. 205 of 20l^unreport^). outlined them as follows: - Second, if the confession contains a detailed, elaborate relevant and thorough account of the crime in question, that no other person would have known such details, but the maker, 44 Third, since it is part of the prosecution case, it must be coherent and consistent with the testimony of other prosecution witnesses, especially with regard to the centra! story (and not every detail) and the chronology of events, And, lastly, the facts narrated in the confession; mi^be plausible". Reverting back to the present appeal, it do^rB^neea^le^tyuse a microscope in order to see how the aboveq||^^ p^pofllW confessions by the second, third and fourt||^^?j^^0^g^^detailed, elaborate relevant and thorough question, that no other person would have.^ow^uch^^iils/^^the. maker who are the said appellants, Also, being be plausible, as part of the prosecution c^^U:l^feid confessions which were admitted by the trial court E^jdiibits F^PIO and PH respectively, are coherent and consistent with the teSffiSny of other prosecution witnesses including PW1, PW2, PW3 and the rest of the prosecution witnesses, especially with regard to the central story about their involvement in commission of the two offences they stood charged, and the chronology of events. Hence, I am satisfied 45 that what is contained in such appellants' confessions is

nothing, but the truth. That apart, in the case of Moses Charles Deo vs Republic [1987] TLR 134 which was also cited in the cases of Simon Ndikulyaka vs Republic, Criminal Appeal No. 231 of 2014(unreported) arid Mwinyi Jamal Kitalamba @ Igonza and 4 Others vs The^fe^ublic/'Grhmin^l^Appeal No. 348 of 2018 (unreported), the Court of Appeal held that: - ' "...for a person to be found, to have possession, actual or constructive of goods, it must be proved either that he was aware of their presence and tha t he exercised control over them, or that the goods came, aibeitfinhis absence, at his invitation and arrangement. But it is also true that mere possession denotes ■'.'iy. ’J.- v ■' knowledge and control. "[Emphasis added] Guided by the above principle, I am of the considered opinion that the above established principle suits the circumstances of the case at hand, and I am inclined to apply it accordingly. First of all, it is evident that the second, third and fourth appellants who were hosted by PW3 under the instructions of the first appellant, were aware of the presence of the 46 alleged Government trophies particularly the 24 pieces of government trophies, in the premises they had slept on the material day and they had control over them just as indicated in their caution statements above which were well corroborated by the evidence of PW3. Secondly, it is evident that despite

his absence at the scene of crime when his fellow appellants were found in constructive possession of the Government trophies to wit 24 pieces of elephanttusks, the first appellant too was in constructive possession of the said Government trophies, save for the minerals of which the prosecution evidence failed to prove his possession, as rightly found by the trial magistrate. This is because according to the evidence of PW3 which:was also corroborated by that of PW1, PW2, PW4, PW6 and the caution statements of the second, third and fourth accused persons, he is the one who invited his fellow appellants and arranged for their reception through his employee who is PW3. All that justifies that even though the first appellant was absent at the scene of crime, yet he had knowledge about the presence of the said 24 pieces of elephant tusks and had arranged for their storage. Hence, I find the argument by the appellants counsel that mere presence of the second, 47 third and fourth appellants at the scene of crime falls short of constituting the alleged offences, unfounded. Before I pen off, I wish to point out that apart from the above evidence which I have found to be sufficient in proving the charged offences against the appellants herein, I have also taken into consideration other pieces of evidence which were also considered by the The. same include the two mobile phones

use^^^rom^^^fe^Siveen the appellants, two motor cycles to transport the alleged Government trophiesaand tfe^weffiMourpi® sof elephant tusks. Others were the Trophy^alua^h|^Ji|^te (the TVC), the Chain of custody and d^SejSfc^gfidg^ggie were, admitted by the trial court as Exhibits. Taking f® example the TVC (Exhibit P8), it clearly describes 24^enty-four) pieces of elephant tusks, equal to iuui eippnaiiis Weir value is 60,000/= USD equivalent to value tallies with the one indicated in the charge sheet. As for the Chain of custody (Exhibit P2), I have noted that it clearly shows the paper trail of the seized exhibits from one person to another until their 48 production before the trial court, which tells that there was no possibility of tempering with such exhibits. Thus, due to the reasons which I have given herein above, I do not see any reason to fault the findings of the trial magistrate who rightly held that the case against the appellants in respect of the fiShcount, and second count in respect of the 2nd ,3rd and 4th appellarHiwas pr3v|d beyond any reasonable doubts. to have been j^^^u^^^^^sessi® of minerals to wit; 79 kg Green Kyanite valu^^a^^^.9^^SD equivalent to Tanzania Shillings 902,0^^^^^^^^^^^^gistrate ordered the said minerals to be confis^^d to thO|/Government of Tanzania. Moreso, as I was going through t^^^d^al court judgment, particularly at page 48, it came

to my mind that the first appellant was acquitted in respect of the third count. In that part the trial magistrate wrote that: 49 "On part of second and third counts, this court found that the prosecution side failed to prove the case beyond reasonable doubt thus, I hereby acquit the fourth accused person under section 135(1) of the Criminal Procedure Act [ Cap 20 R.E. 2019]" ■ ■ The above bolded part clearly indicates that the trialcourt did not convict the first appellant who was by then the f^fe^ccusetkperso^. This necessitated this court to call upon the counsel foRthe,parties, toaddress it particularly on whether the trial cou^^wd^^^^lWtinq such minerals was lawful. In addressing the court ® Budodrhadllthat the trial court committed a gross error ^^ft^ofel^^h^^^^scation of minerals weighing 79 kilograms wiffi^t^^^in|^conviction against the first appellant. He was wfci>was done by the trial magistrate was a contravention of the CPA-As for the way forward, the III learned counse|gjt)rriitted that trial court ought to invoke the provisions of section 353(1) of the CPA and make an order of returning the minerals to the first appellant upon disposal of the proceedings. 50 However, he quickly changed his position and submitted that the right position is for the court to make an order allowing a person who appears to be entitled to possess the said minerals to claim it in court,

and if there could be no such claim within twelve (12) months, then the trial court could make ah order that the same be sold, destroyed or otherwise disposed of so that the proceeds of sale theiroof coufl||e paid to the General Revenue. "Wf On the: adversary side, Mr. David M^^)hg^^^d|yate Attorned who partly assisted Mr. Perez,court of right to make an order of confiscating th^aidWinerals which according to the typed court proceedings^wer^&admitted|^s Exhibit P7 due to the fact that the first appe^^^^feco^^S^^did not claim Ownership over them, nor a certificate as proof of ownership of the s^^^nng'^^.^^ It was Mn TCw||i|olwafs further submission that the first appellant did not raise any objection when such minerals were tendered before the trial court as exhibit and he even did not claim ownership of such minerals when adducing his evidence during defence hearing. 5:1 Having so argued, the learned counsel submitted that section 351(1) of the CPA, read together with section 9 of the Proceeds of Crimes Act, Cap 256 R.E. 2022 do not provide for an automatic right; the claimant of the property must file an application before the court within twelve (12) months. He also referred section 351(2) of CPA and sd||mftted that the trial court ought to have made an order that the ^^^^^^ar^^^^scated immediately after expiration of six mont^fronv^p^^^^^^^ring its judgment, ilk Having heard

the learned^j|d^^i|^J^^^^^^ issue raised by this court suo motut I am novfe a go|^.p^Rion tc)^determine it accordingly. It appears to me that^^c^^l for traparties have parted ways on the propriety of the trial court. However, while I appreei^R^^^^KSffi^^rv I would, with all due respect, differ with the the respondent has invited me to take, and instead the one taken by the appellants' counsel. I will give my reasons shortly. Section 3.51(1) of the CPA which has been cited by counsel for the parties in their respectful submissions, provide that: 52 ”... (1) Where a person is convicted of an offence and the court which passes sentence is satisfied that any property which was in his possession or under his control at the time of his apprehension- (a) has been used for the purpose ^f committing or facilitating the commission of any o^fS^ce; (b) was intended by him to be that property shall be Hable ito ^^^^pe^^^coh^scation and any property so forfeit^^nde^^^^^^^Srbe disposed of as the court may direct" From the abQvel|^^i|Jll5^^lged parts, it does not need much thought to 1 is applicable when an. accused person has and the trial court is satisfied that there is a pro^^ unde^^kpossession or control which was used and/or intended to be usedRl^llirn for the purpose of committing or facilitating the commission of any offence. In other words, forfeiture order which is normally applied

interchangeably as confiscation order, is made if the person charged is convicted of the offence charged and the property found 53 in his possession has been used or is intended to be used for the purpose of committing or facilitating the commission of the offence. (See Director of Public Prosecutions vs Kilo Kidang'ai and 2 Others, Criminal Appeal No. 340 of 2017, CAT (unreported). In the present appeal the trial court's record clearly^eveals that the order of confiscating the minerals weighing 79 kilog^^^gs^^hfe wit^gut the trial court having convicted the first appellant o^i^^fe^^ftfence of unauthorized possession of such miWal^Jn^^ci^mstance, the trial magistrate had no power^^a^^^g^^^^fctb want of conviction which is supposed to bewked wito. tRefordehOf confiscation, as per the to bisection 353(i)of CPA.In supporting his position, the learned counsel submit^^fejlgj^^rovision is applicable in the case at hand because the trial court did hot convict the first appellant and basing on that, a proper way was for the trial court to make an order that the allegedly minerals be sold or otherwise disposed of and let the proceeds of its sale be paid to the S4 general revenue of the Republic. For an ease of reference, I find it apt to reproduce the above provision as hereunder: - .353-(l) Where anything which has been tendered or put in evidence in any proceedings before any court

has not been claimed by any person who appears to the court to belittled thereto within a period of twelve months after the fina^^^^^^^^^^^edings or if any appeal is entered in resp^^^ere^^^Sp^^ay be sold, destroyed or otherwise as the court may by order direct and^^pi^^^^^^^^^hail be paid into the genera! revenue offne Rept^^^^ From the foregpjgg^^^j^^^is obvious that the same applies where anything has iifeen t^iered'^put in evidence in any criminal proceedings beforAl^^^^^^hasWl|been claimed by any person who appears to the cofrt to be erJfe[ed fereto within a period of twelve months. l am of^^^fej^Fview that the above provision is applicable given the circumstances of the case at hand, as rightly submitted by Mr. Budodi.I say so because first, it is evident that the said minerals were tendered by PW7 55 before the trial court and admitted as exhibit P7 and secondly, the first appellant did not claim ownership over such minerals. Therefore, due to those reasons, the above raised issue is answered negatively that the order of confiscating the minerals weighing 79 kilograms made by the trial court was not lawful. Hathg said the above, I do not see if there is any pressing reason to c^^tede^^kwit^ie last ground of appeal since all that ! have disci&Kd a^^e^^i^^Ospose of the present appeal. 1k In fine, I hold that owing present consolidated appeal has no merit.

Con3quent^|t[|dismi!5|5it on its entirety and I uphold the trial. courtfs^deci^|^^stain bt^the convictions, sentences and orders impos©^^^^^fii^:^^cond, third and fourth appellants herein, save confiscating the minerals weighing 79 kilograms, whiclvlbccoraing to the foregoing reasons, I hereby revise acco rdinglWiay^y In lieu thereof, I order that the said minerals be under Police custody pending the filing of an application before the trial court by any interested person, and in the event no such application is lodged within the period of 56 twelve months from the date of this judgment, then such minerals should be disposed of by way of public auction through the nearby Government Mineral Market and the proceeds of its sale be paid into the general revenue of the Republic. 57