SELEMAN ALLY 3 V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL NO. 57 OF 2023 SELEMAN ALLY …………………………......................... 1st APPELLANT JOHN MARCO …………………….…………………..……. 2nd APPELLANT DAMIANO MATU …………………….………….…..…….. 3rd APPELLANT VERSUS REPUBLIC ……………………...………………………..…… RESPONDENT [Appeal from the Decision of the Resident Magistrate’s Court of Simiyu at Bariadi] (Hon. M.J. Mahumbuga PRM) dated the 15th day of March, 2023 in Economic Case No. 1 of 2023 ----------- JUDGMENT 29th April & 11th July, 2024. S.M. KULITA, J. This is an appeal from the Resident Magistrate’s Court of Simiyu at Bariadi. The appellants herein above were charged with and upon conviction were 1 sentenced to serve the imprisonment of 30 (thirty) years for “Unlawful Possession of Government Trophies”, contrary to sections 86(1) and 2(b) of the Wildlife Conservation Act No. 5 of 2009, read together with sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2019]. Apart from that count, the 1st Appellant one Seleman Ally was also charged with “Leading the Organized Crime”, contrary to Paragraph 4(1)(a) of the 1st Schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap 200 RE 2019]. However, the said 1st Appellant was found not guilty on that count, hence acquitted. Aggrieved with both, conviction and sentence on the offence of “Unlawful Possession of Government Trophies” the appellants herein lodged a petition of appeal comprising 5 (five) grounds as follows; 1. That, the trial Magistrate erred in law to convict the appellants relying on the visual identification of the Motor Vehicle’s lights, the finding which is not certain. 2. That, the weighing machine that had been used to weigh the elephant tusks was not tendered to court as exhibit. 2 3. That, no witness on the prosecution side testified as to who had carried the sulphate bags purported to have been found with the tusks. 4. That, the Ten Cell Leader for a place where the scene is located was not called to witness the search. 5. That, the trial court didn’t properly analyze/evaluate the evidence on record, hence arrived into a wrong decision. The matter was argued through oral submissions. The Respondent (Republic) is represented by Ms. Rose Kimaro, Learned State Attorney while the Appellants are unrepresented. In their oral submissions in support of appeal, the Appellants sought for their grounds of appeal in their joint petition of appeal to be adopted as the submissions for their appeal. They added by praying for their appeal to be allowed and they accordingly be found not guilty, hence acquitted. In her reply to the 1st ground of appeal which states that, the trial Magistrate erred in law to convict the appellants relying on the visual identification of the Motor Vehicle’s lights, the finding which is not certain, the State Attorney submitted that the witnesses who arrested the Appellants stated in their testimonies that they had a big torch with sufficient light to see and identify 3 the Appellants. The Counsel added that, upon being arrested at the scene, Mwanhunzi bridge, the appellants were taken direct to the Police Station. She argued that, in that sense the issue of identification of the bandits had no importance in constituting the prosecution case against the Appellants herein. He thus prayed for the court to dismiss this ground of appeal for having no merit. Replying the 2nd ground of appeal that the prosecution side was wrong for not tendering to court as exhibit the weighing machine that had been used to weigh the alleged elephant tusks, the Counsel stated that the said equipment is not an issue for the matter at hand. She said that the important thing in the case was the weight of the trophy whose figure is mandatory in determination of the case. That, it is a legal requirement which was actually complied by the prosecution side during trial, whereby after measuring the trophies’ weight, PW8 filled the Valuation Report which was tendered to court and admitted as exhibit P8. On this ground, the Counsel concluded that, as tendering the weighing machine was not a legal requirement, this ground of appeal is unmeritorious. As for the 3rd ground of appeal, that no witness on the prosecution side testified as to who had carried the sulphate bags purported to have been 4 found with the tusks, the State Attorney replied that it is ample on page 18 of the lower court proceedings that the prosecution witness, PW1, who was among the arresting officers testified that, during the arrest the 1st and 2nd Appellants, namely Seleman Ally and John Marco respectively, were carrying the sulphate bags which had been found holding the tusks therein, while the 3rd Appellant one Damian Matu was carrying a torch. In her reply to the 4th ground of appeal which states that the Ten Cell Leader for the scene premises was not called to witness the search, the State Attorney stated that, as PW9 was also the independent witness, there was no need of calling the Ten Cell Leader for the area where the scene is located, as he could have served the same purpose. The Counsel further stated that, apart from the said PW9 who signed on the Seizure Certificate (Exh. P2) as an independent witness, the Appellants herein, as the suspects, also signed. The 5th ground of appeal suggests that the trial court didn’t properly analyze/evaluate the evidence on record, hence arrived into a wrong decision. In her reply to this ground Ms. Rose Kimaro, State Attorney submitted that almost all testimonies were evaluated by the trial Magistrate, save for the issue of chain of custody. The Counsel, however added that, 5 this being the 1st appellate court has mandate to step into the shoes of the trial court and analyze the evidence that has been adduced before the trial court. The Counsel stated that, the issue of chain of custody was not analyzed by the trial Magistrate during the composition of her judgment inspite of the fact that the same had been raised during trial. On it, the State Attorney argued that the chain of custody, Exhibit P7, in respect of the elephant tusks in question was prepared by the Store Keeper (PW7) and the same used to be filled in all movements of trophies until the time that the said trophies were tendered to court. The State Attorney submitted that this ground of appeal has no legal weight too. She thus prayed for the same to be overruled as well. Upon considering the above submissions by the Appellants and the Republic, and upon going through the lower court’s record, I find the issue to be determined is whether the appeal is meritorious. In their 1st ground of appeal the Appellants alleged that, the trial Magistrate convicted the appellants relying on the visual identification of the Motor Vehicle’s lights, the finding which is not certain. In my perusal over the lower 6 court record I have noticed that the appellants were not arrested subsequently to the commission of the offence. They were arrested on the spot at the scene of crime which is Mwanhunzi bridge in Meatu and directly taken to Meatu District Police Station, before they were charged for this case. Under that situation the issue of visual identification has nothing to do in the matter. That could be an issue if the bandits (Appellants) disappeared after the commission of the offence and that they had been identified at the scene. The fact that they were arrested at the scene, taken to police, then charged before the court, the Appellant’s argument on the strength of the prosecution evidence on visual identification has no legal weight. Hence, overruled. As for the issue of Weighing Measure not being tendered to court as exhibit, I find it not fatal. Its aim is just to ascertain weight of the trophy in question so as to determine its value which is a requirement of the law as per Regulation 4 of the Wildlife Conservation (Valuation of Trophies) Regulation, 2012, read together with sections 86(4) and 114(1)(3)(4) of the Wildlife Conservation Act. The said equipment was for the Valuer to determine the value of trophy(s) in question before filling the Valuation Report Form. Among the things that the valuer is required to fill in the said 7 form, as it can be read by itself includes weight of the trophy, and its value per Kg or value of each of specie/animal as a whole. The said Report which was admitted to court as Exh. P8 transpires weight of the trophy which was the elephant tusks being 39.2 Kg, 8 (eight) pieces, collected from 2 (two) animals (elephants). The value of each elephant in USD is 15,000. For 2 animals, the total amount is USD 30,000. Thus, the fact that the said Weight Measure was just for enabling the valuer to ascertain weight of the trophy before he fills the Valuation Report, there was no need of tendering it to court as exhibit. In fact, non tendering of the said machine by the prosecution side during trial does not preclude the appellants from the allegation of being found in possession of the trophies, namely elephant tusks, to wit 8 (eight) pieces, weight 39.2 Kg, valued at USD 30,000 which is equivalent to Tsh. 71,730,000/=. On the 3rd ground of appeal, the Appellants alleged that, no witness on the prosecution side testified as to who had carried the sulphate bags purported to have been found with the tusks. I went through the record and noticed that, PW3 and PW9 who were also at the scene of crime while the Appellants were arrested, testified in general that the Appellants arrived at the scene, 8 Mwanhunzi Bridge, with the said 8 (eight) pieces of elephant tusks. They didn’t specify as to who had carried what while arriving thereat. However, it is there in the prosecution case, particularly at page 18 of the lower court proceedings, in which PW1 testified to the effect that Seleman Ally (1st Appellant) and John Marco (2nd Appellant) had carried the parcels of trophies while Damian Matu (3rd Appellant) carried a torch. Inspite of the fact that the said PW3 and PW9 didn’t specify in their testimonies as to who had carried what, but only PW1 made the specification, still this does not exonerate the Appellants from the allegation of being found in possession of the trophies. The fact that, the evidence transpires that they were all together in commission of the offence, no matter which role each of them has played in the commission of the crime, all of them are regarded the Principal Offenders as per section 22(1) of the Penal Code [Cap 16 RE 2022]. The said section provides; "When the offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the 9 offence, and may be charged with actually committing, namely: (a) every person who actually does the act or makes the omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) every person who aids or abets another person in committing the offence; (d) any person who counsels or procures any other person to commit the offence, in which case he may be charged either with committing the offence or with counselling or procuring its commission." In the case of Director of Public Prosecutions V. ACP Abdallah Zombe and 8 Others, Criminal Appeal No. 358 of 2013 (unreported), the Court had an opportunity to interpret the above quoted section and it held a view that all persons enumerated in that 10 section are principal offenders and as such they can be jointly or separately charged and convicted. The Court went on to state that; "…………. it is clear that the 2nd respondent was the architect so to speak of the whole incident by sending the four deceased persons to Pande Forest with a view to killing them and in actual fact they were eliminated. In terms of section 22(1)(b) of the Code a person who enables another person to kill another person and that other person is actually killed, the person who facilitated the killing is guilty of unlawful causing death of the person notwithstanding the absence of the actual perpetrator. "[Emphasis added] In the instant case, the 3rd appellant is the one who had carried a torch at that night time when the trophies were taken to Mwanhuzi Bridge for the alleged unlawful business. There is no doubt that the said 3rd appellant’s act was for facilitating the said movement of trophies to the business place from where they had been kept. In that sense the 3rd appellant is also regarded 11 to be in unlawful possession of the Government Trophies with the 1st and 2nd Appellants who had carried the said trophies to the scene of crime. Therefore, contrary to what the Appellants have alleged in their memorandum of appeal, the record shows at page 18 that, the witness, PW1, testified to have seen and so mentioned during trial the 3rd Appellant one Damiano Mato carrying a torch while the 1st and 2nd Respondents carried the trophies. Furthermore, even if there could be no witness who testified as to who had carried what, still all Appellants are regarded to have committed the said crime under the provision of section 22(1) of the Penal Code as Principal Offenders. This ground of appeal also fails. The Appellants alleged on the 4th ground of appeal that it was wrong for the prosecution not to call the Ten Cell Leader for the area where the scene is located, as the independent witness for the search. I find this argument with no legal weight, as there was another independent witness (PW9) who witnessed the trophies being seized from the Appellants, and that the said witness signed the Certificate of Seizure (exh. P2) in respect of the said trophies. According to the record, the said witness, who was just a passerby, 12 namely Emmanuel Zuberi, was prior ordered by Police to stay with them at a place where they were waiting for the luggage (trophies) to be handled by the appellants. He then witnessed the arrival of those bandits with trophies, the act which was followed with by the arrests of the bandits and seizure of the trophies that they had. Therefore, the fact that PW9 is also an independent witness, as it could be for the Ten Cell Leader, I find it not fatal for the arresting officers not to invite the Ten Cell Leader for a premise where the scene is located, to witness the search. Regarding the 5th ground that the trial court didn’t properly analyze/evaluate the evidence on record, I went through the proceedings and the judgment of the trial court. Therein, I have noticed that, in her judgment the trial Magistrate made analysis on the evidence that had been adduced before her. As for the issue of “Unlawful Possession of Government Trophies”, the offence which the Appellants have been convicted with, the copy of judgment from page 13 to 15 shows that, the trial Magistrate made analysis on it by stating, among the other things, that the Appellants herein raised the defense of alibi, that on the material date they were not at the scene but they were somewhere else, but in raising the said defense they had never 13 given a prior notice as per the requirement of section 194 of the Criminal Procedure Act [Cap 20 RE 2022]. I can agree with the appellants’ argument on the issue of improper analysis of evidence done by the trial Magistrate but only on the fact that it was not detailed. However, this being the 1st appellate court, can step into the shoes of the trial court and make analysis on those parts as regard to the evidence on record. This procedural mode was also highlighted by the Court of Appeal in the case of EDSON SIMON MWOMBEKI V. R, Criminal Appeal No. 94 of 2016, CAT at Mwanza. In filing the said lacuna regarding analysis of evidence adduced during trial at the Resident Magistrate’s court, I hereby start with the issue of the Appellants’ defense during trial. The trial Magistrate just dictated on the fact that the appellants wrongly relied on the defense of alibi without having a prior notice that they could have relied on such kind of evidence. However, she had not stated as to how strong the Prosecution case was. In stepping into the shoes of the trial court, I have got the view that the trial Magistrate ought to have touched the contents of section 86(1) of the Wildlife Conservation Act which provides that, no person is allowed to be 14 in possession of, or buy, sell or otherwise deal in any Government trophy, unless for any other lawful cause. The fact that it has been testified by the Prosecution witnesses during trial, particularly by PW1, PW3 and PW9 that the appellants were found in possession of the elephant tusks, in their defense the said Appellants had a duty to prove on how the said tusks came into their hands, if they had justifiable reasons for that. Otherwise, the said possession is regarded unlawful. As the Appellants never raised any justification on that, the trial Magistrate was right to convict and sentence them accordingly. The trial Magistrate, also said nothing on the issue Chain of Custody (exh. P7) for the subject matter. The original record, as transpires at pages 62-65 of the typed proceedings, shows that a Police Officer, H 7803 PC Iddy (PW7) who is a Store Keeper at Bariadi Police Station, testified to the effect that on 18/02/2022 at the morning hours, he received from the CRO (Reception) In- Charge namely Cpl. Edward, 8 (eight) pieces of elephant tusks kept in two sulphate bags. The said handling over to PW7 by Cpl. Edward, was recorded in the chain of custody. The said recording in the chain of custody, was adopted in all other movements of the exhibit. It includes taking of the said exhibit from the police store to court for the testimony purposes. The said 15 Chain of Custody was properly admitted to the trial court and marked as Exhibit P7. For those reasons, I find the appeal with no merit, hence dismissed. The conviction and sentence of 20 (twenty) years imprisonment imposed by the trial court against the Appellants are hereby upheld. S.M. KULITA JUDGE 11/07/2024 DATED at SHINYANGA this 11th day of July, 2024. S.M. KULITA JUDGE 11/07/2024 16