SAID RAMADHAN MSHANA vs REPUBLIC

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI DC CRIMINAL APPEAL NO. 17096 OF 2024 (Originating from Economic Case No. 05 of 2023 of Same District Court at Same) SAID RAMADHAN MSHANA ……………………………. APPELLANT VERSUS REPUBLIC ………………………………………….......... RESPONDENT JUDGMENT 12/12/2024 & 10/02/2025 SIMFUKWE, J. The appellant, Said Ramadhan @ Mshana, was arraigned before the District Court of Same (the trial court) charged with unlawful possession 1 of government trophy, contrary to sections 86(1) and (2)(c)(iii) 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 Crimes Control Act, [Cap 200 R.E 2022]. The prosecution alleged that on 28th day of February 2023 at Kandoto area within Same District in Kilimanjaro region the appellant was found in possession of Government Trophy to wit, six Elephant Tusks weighing a total of 33 kilograms which is equivalent to three Elephants killed, each elephant valued at 15,000 USD the total value being equivalent to one hundred and five million two hundred fifty five thousand Tanzanian shillings (TZS 105,255,000) only, the property of the United Republic of Tanzania, without the permit from the Director of Wildlife. The appellant denied the charge against him and thus he was fully tried. The prosecution built their case upon evidence of a total of five witnesses and seven exhibits. Whereas the appellant summoned one witness. Briefly, the facts leading to the arraignment of the appellant are as follows: PW3 was informed by an informer that certain individuals in Same were engaged in elephant tusks business and were seeking a buyer. PW3, 2 posing as a potential buyer, proceeded to the location of the alleged transaction, accompanied by Wildlife Officers and Police Officers. Upon arrival, PW3 continued to act as the buyer. At that time, the appellant was engaged in communication related to the transaction, which was, in fact, a trap. The law enforcement officers successfully reached the location and apprehended the appellant while in possession of the exhibits, which were purported to be elephant tusks concealed inside sulphate bags. The bags were opened, revealing the seized exhibits suspected to be elephant tusks. Search and seizure were witnessed by PW4, a Hamlet Chairman and PW5 DC Benjamin Temani the investigator. PW5 testified that upon seizure, the exhibits were taken into custody and handed over to PW1, the Exhibit Keeper. Subsequently, the exhibits were transferred to PW2 for identification and valuation. According to PW2, on 01/03/2023, he identified and evaluated six elephant tusks. He tendered a Trophy Evaluation Certificate, which was admitted into evidence as Exhibit PE6. In his defence, the appellant contended among other things that he was required to sign as a witness of seizure of elephant tusks. That, after he 3 had signed as a witness he was arrested and forced to admit the crime by being beaten. DW2 a prison officer and doctor testified that he attended the appellant whose leg was swollen and his hand had bruises. The trial court was satisfied that the prosecution proved their case beyond doubt. Consequently, the trial court convicted the appellant and sentenced him to serve twenty (20) years imprisonment. Aggrieved, the appellant preferred the instant appeal armed with five grounds of appeal as follows: 1. That, the trial learned honourable Magistrate erred both in law and facts when convicted the appellant while relying on contradicting evidence of the prosecution. 2. That, the trial learned honourable Magistrate erred in law and facts when convicted the accused (appellant herein) relying on retracted caution statement and seizer report obtain through false promises. (sic) 3. That, the trial learned honourable Magistrate erred both in law and facts when convicted and sentenced the appellant herein basing on unproved case beyond reasonable doubt by the prosecution. 4 4. That, the trial learned honourable Magistrate erred both in law and facts when passing judgment against the appellant without explaining right of appeal to the appellant. 5. That, the trial learned honourable Magistrate grossly erred in law by passing sentence against the accused (appellant herein) which is limited contrary to available sentence guidelines. When the appeal was called for hearing, the appellant was represented by Mr. Justus J. Ilyarugo, learned counsel, while the respondent was represented by Mr. Frank D. Wambura, learned State Attorney. At the hearing, the learned counsel for the appellant withdrew the 4th and 5th grounds of appeal and proceeded with the 1st, 2nd and 3rd grounds of appeal. In support of the first ground of appeal, Mr. Justus submitted that the trial court erred in relying on contradictory evidence. He cited the case of Goodluck Kyando v. Republic [2006] TLR 363 which held that: “…. contradicting evidence is not the best evidence and must be rejected.” 5 Mr. Justus pointed out a contradiction regarding the date of arrest of the appellant and search. While PW1, PW2, and PW3, at pages 48 and 60 of the proceedings, testified that the arrest and search took place on 28/02/2023 at around 17:00 hours, PW5, at page 89 last paragraph, stated that the cautioned statement was recorded on 18/02/2023 at 17:27 hours. That, the same date is reflected on page 90 of the proceedings, as well as in the seizure certificate and cautioned statements of the accused, which were admitted as Exhibits P6 and P7, respectively. Mr. Justus emphasised that the contradiction was grave and went to the root of the case since the appellant was arraigned in court on 28/02/2023. Thus, since the evidence and exhibits are dated 18/02/2023, they did not reflect the charge, and the case was not proved beyond reasonable doubt. He contended that the prosecution evidence should be rejected. He cited the cases of Michael Aeshi v. Republic [1992] TLR 92 and Kibwana Salehe v. Republic (1968) HCD 391 to support his argument. Another noted contradiction was in respect of the evidence of PW3 and PW4 on who was present at the scene of crime. The learned counsel pointed out that while PW3, at page 57 of the typed proceedings, stated that he was at the scene and witnessed the cautioned statement of the 6 accused being recorded, PW4, at page 64 of the proceedings, stated that they were not present when the cautioned statement was recorded and never went to Same Police Station. Further, PW5, who recorded the cautioned statement, testified that he did so at Same Police Station and that there was no independent witness. From the foregoing, Mr. Justus concluded the first ground of appeal by stating that the credibility of the prosecution evidence was destroyed to the extent that it could not be relied upon for conviction. Regarding the second ground of appeal, the learned counsel contended that the prosecution failed to prove its case against the appellant beyond reasonable doubt. The ground was supported with sections 110(1) and 111 of the Evidence Act, Cap 6 R.E. 2022, and the cases of Magendo Paulo and Another v. Republic [1993] T.L.R 125 and Hassan Fadhili vs. Republic [1994] T.L.R 98 CA, which held that the standard of proof in criminal cases is proof beyond reasonable doubt, and the duty to prove is on the prosecution side. His argument was based on the submission made under the first ground of appeal. He maintained that the prosecution did not establish that on 28/02/2023, the appellant was found in unlawful possession of a 7 government trophy. To buttress his point, he cited the case of Christian Kale and Another v. Republic [1992] T.L.R 302 which held that: “…. Inference on conviction of the accused must be irresistibly point of the guiltiness of the accused person to do such act and not mere assumption.” He emphasized that the evidence on record was insufficient to establish the appellant’s guilt. He prayed the ground of appeal to be allowed, judgment and sentence of the trial court be quashed and set aside. On the third ground of appeal, Mr. Justus argued that the trial court erred by relying on a retracted cautioned statement and a seizure report allegedly obtained through false promises. He submitted that during the trial, as reflected on pages 79 to 84 of the typed proceedings, the appellant objected the admission of the seizure certificate and cautioned statement, asserting that they were obtained through false promises and torture. His objection was based on section 27(3) of the Evidence Act, (supra). To substantiate the claim of torture, he averred that the cautioned statement contained omissions, blank spaces and lacked proper 8 endorsement by the accused, rendering it fatally defective under section 58(6)(a) and (b) of the Criminal Procedure Act, Cap 20 R.E. 2022. Furthermore, he noted that Exhibit P7 contained additional pages with details of the alleged offence, which the accused did not sign. That, the appellant was forced into placing a fingerprint on the document after he had initially refused to sign it for containing false facts. To cement his argument, Mr. Justus relied on the cases of Bakari Ahmad @ Nakomo and Abdallah Mohamed @ Dulla v. Republic, Criminal Appeal No. 74 of 2019 [2022], and Jackson Protaz v. the Republic, Criminal Appeal No. 385 of 2020 [2021] TZCA 705 (29 November 2021) in which the Court expunged exhibits obtained through false promises and torture. It was submitted further that the appellant's allegations of torture were confirmed by DW2, the prison medical officer, who testified at page 112 of the typed proceedings that upon admission to prison, the appellant was in critical condition, suffering from leg pain, swelling, and bruises. The learned counsel urged the court to exercise its appellate jurisdiction by re-evaluating the evidence and come up with its own findings, as held in Deemay Daati and Others v. Republic [2005] TLR 132. 9 In conclusion, the appellant’s counsel reiterated that the prosecution failed to prove the case beyond reasonable doubt. He implored this court to reverse the decision of the trial court and set free the appellant. In response, Mr. Frank started by submitting that the prosecution had successfully proved the case beyond reasonable doubt in accordance with section 3(2)(a) of the Evidence Act (supra). In reply to the first and third grounds of appeal, Mr. Frank submitted that the prosecution’s evidence was sufficiently strong to sustain the appellant’s conviction. He argued that the appellant failed to discharge his duty of raising doubt to challenge the prosecution’s evidence. In support of his position, he cited the case of Mwita and Others vs Republic [1997] T.L.R 54. Mr. Frank referred the testimony of six prosecution witnesses and elaborated that their evidence was adequate to establish the charge against the appellant. In addition, Mr. Frank discussed the issue of chain of custody, contending that it was properly maintained. He explained that it started during the arrest of the appellant where PW4 witnessed the search and seizure of the elephant tusks. Thereafter, the certificate of seizure was signed by the arresting officer (PW5), PW4, and the appellant. 10 Then, the six elephant tusks were handed over to PW1, the exhibit keeper. He insisted that the transfer of exhibits from PW5 to PW1 was done by chain of custody document, which was admitted as Exhibit PE1. The same was done to ensure that what was seized at the crime scene was what was handed over to the exhibit keeper. Furthermore, PW2 identified the exhibits as described by PW1 and after evaluation of the elephant tusks, he handed them back to PW1 for keeping them. The learned counsel insisted that the movement of the elephant tusks from one place to another, from one person to another was effectively monitored not only during the investigation but also throughout the trial. Regarding the alleged contradiction of the date by PW5, Mr. Frank submitted that the discrepancy was merely a typographical error made by the learned trial magistrate. He stressed that the prosecution had met the standard of proving the case beyond reasonable doubt. In response to the second ground of appeal, that the trial magistrate improperly relied on a retracted cautioned statement and a seizure certificate allegedly obtained through false promises; the learned State Attorney reiterated that the burden of proof rests on the prosecution to establish the accused’s guilt beyond reasonable doubt, in accordance with 11 section 3(2)(a) of the Evidence Act (supra). Mr. Frank asserted that this burden does not imply that the defence’s assertions must be accepted by the court without scrutiny. Addressing the appellant’s complaint that he was beaten and forced to sign the seizure certificate, Mr. Frank argued that such an allegation requires corroboration to be credible. He cited section 62(2) of the Evidence Act, which underscores that evidence must be direct one. Mr. Frank observed further that the appellant called DW2 as a witness, who testified that he found the appellant with bruises. However, the learned State Attorney challenged DW2 for not stating if he witnessed the appellant being beaten by police officers nor did he provide any documentary proof that he treated the appellant. He said that, under normal circumstances, nobody can be treated at the hospital without being given any documentary proof. That, mere words of DW2 cannot be believed without corroboration. He was of the opinion that, the appellant’s claim that he was subjected to force to sign the seizure certificate lacks merit. In conclusion, the learned State Attorney prayed the appeal to be dismissed, conviction and sentence by the trial court be upheld. 12 In rejoinder on the issue of contradictory dates, the learned counsel for the appellant submitted that there cannot be typographical error in the documents and oral testimonies. He said that the same suggest nothing than to confirm that the alleged crime was fabricated against the appellant. He buttressed his submission with the case of Mohamed Said Matula vs Republic [1995] TLR 3 (CA) which held that: “The burden of proof in criminal cases generally is always on the prosecution and the standard is beyond reasonable doubt.” It was insisted that the noted contradictions are fundamental and run to the root of the offence charged. Thus, evidence does not prove the charge as the charge sheet indicates that the offence was committed on 28/02/2023 while the certificate of seizure shows that the government trophy was seized on 18/02/2023. The learned counsel reiterated his submission in chief and authorities. He stressed that the contradiction stained the weight of the prosecution evidence. I have carefully examined the grounds of appeal, the written submissions of both parties, and the record of the lower court. Having done so, on the outset I have noted that the appellant initially raised five grounds of appeal but later dropped the fourth and fifth grounds of appeal, 13 proceeding with only three grounds. In addressing these grounds, I will begin with the second ground of appeal, as it raises a question of law. Then, I will resolve the remaining grounds if necessary. On the second ground of appeal, the appellant contended that the trial magistrate erred in law and fact by convicting him based on a retracted cautioned statement and a certificate of seizure allegedly obtained through false promises. Elaborating this ground, Mr. Justus submitted that during the trial, the appellant objected to the admission of both the cautioned statement and the certificate of seizure, arguing that they were obtained through force and torture. Mr. Justus asserted that the appellant's objection was premised on section 27(3) of the Evidence Act, Cap 6 R.E. 2022. He faulted the trial magistrate for admitting the exhibits despite the objection. Supporting the ground, the learned Counsel for the appellant explained how the appellant was subjected to torture. Conversely, Mr. Frank, representing the respondent, strongly opposed the arguments, maintaining that the prosecution had proved its case beyond reasonable doubt. He further asserted that the appellant's claim of torture was not corroborated with credible evidence. 14 At page 90 of the typed proceedings the prosecution sought to introduce the cautioned statement into evidence. At that juncture, the appellant’s counsel objected to its admission, contending that the statement had been obtained through force and threats. The critical issue, therefore, is whether the trial magistrate adhered to the legal requirements in determining the raised objection against admission of a cautioned statement on the ground of force or threat (voluntariness)? The procedure in such cases has been clearly articulated by this Court and the Court of Appeal. As a matter of practice, upon an objection being raised regarding the voluntariness of a cautioned statement, the trial magistrate must immediately pause proceedings and conduct an inquiry if the matter is before a District court or Resident Magistrates’ Court. In trials before the High Court, a trial within a trial must be conducted. An inquiry and a trial within a trial serve the same purpose, the difference being the court in which they are conducted. To simplify the matter and ensure consistency in handling exhibits, the Judiciary of Tanzania has streamlined the process through the Judiciary’s Exhibits Management Guidelines of September 2020. These Guidelines explicitly state that the rationale behind conducting an 15 inquiry is to determine the voluntariness of a confessional statement, whether it is a cautioned statement or an extra judicial statement. For ease of reference, I will quote the procedures as outlined at page 12 of the Exhibit Management Guidelines. “The procedure entails the following steps: (a) When an objection is raised as to the voluntariness of the statement intended to be tendered as an exhibit, the trial court shall stay the proceedings; (b) The trial court shall commence a mini trial from the stage where the main proceedings were stayed and call upon the prosecutor to adduce evidence in respect of that aspect of voluntariness. The witnesses must be sworn or affirmed; (c) Whenever a prosecution witness finishes his evidence, the accused or his advocate should be given opportunity to ask questions; (d) Then the prosecution will re-examine its witness; 16 (e) When all witnesses have testified, the prosecution shall close the trial within trial or inquiry; (f) Then the court is to call upon the accused to give his evidence and call witnesses, if any. They shall be sworn or affirmed; (g) Whenever a witness finishes, the prosecution to be given opportunity to cross-examine the witness; (h) The accused or his advocate to be given opportunity to re-examine his witness if he so wishes; (i) After all witnesses have testified, the accused or his advocate shall close his case in the trial within trial or inquiry; (j) The court will then deliver a ruling on a trial within trial or inquiry; (k) In case the court finds out that the statement was voluntarily made (after delivery of the ruling) then the court should resume the proceedings by reminding the witness who was testifying before the proceedings were stayed 17 that he is still on oath and should allow him to tender the statement as an exhibit. The court shall accept and mark it as an exhibit and thereafter require the witness to read it loudly in court; (l) If the court finds out that the statement was not made voluntarily, it shall reject it and resume the main trial; and (m) In cases of trials with the aid of assessors, the assessors shall be discharged during the process of trial within trial and invited back after the ruling after which the witness who was testifying before the proceedings were stayed that he is still on oath and shall allow him to tender the statement as an exhibit. The court shall accept and mark it as an exhibit and thereafter require the witness to read it loudly in court.” In the present matter, without further ado, it goes without saying the trial magistrate failed to adhere to the established procedures. After the learned counsel had raised an objection that the cautioned statement was obtained through threats, the trial magistrate was required to stay the proceedings and receive evidence regarding the voluntariness of the 18 cautioned statement. However, instead of conducting an inquiry as a matter of procedure, the trial magistrate merely heard the submissions of both parties and thereafter composed a ruling. It is trite law that submissions do not constitute evidence. Thus, voluntariness cannot be determined by merely considering arguments of parties. Consequently, the appellant was prejudiced, as the cautioned statement being one of the exhibits relied upon to convict the appellant, was admitted without following the proper procedure. Apart from that, the learned state attorney attempted to introduce evidence regarding the voluntariness of the cautioned statement at this appellate stage. With due respect, such an approach is misplaced, as the proper forum for adducing such evidence was during the inquiry at the trial stage. It is the considered opinion of this court that the procedure adopted by the trial magistrate was flawed and infringed the appellant’s right to be heard. In the circumstances, this court invokes its revisionary powers under section 366(1)(a)(i) of the Criminal Procedure Act (supra) and nullifies the proceedings of the trial court from the stage where the objection was raised until the delivery of judgment and sentence. 19 Judgment of the trial court is quashed and sentence meted against the appellant is set aside. Having resolved the second ground of appeal as such, I find it insignificant to engage in an academic discussion of the remaining grounds, as the resolved ground suffice to dispose of this appeal. Therefore, it is hereby ordered that the proceedings be conducted afresh from the stage where the objection was raised, in strict compliance with the prescribed procedures. Appeal partly allowed. It is so ordered. Dated and delivered at Moshi this 10th day of February 2025. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 10/02/2025 20