JUDGEMENT SELEMAN RAJABU ATHUMAN NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT DODOMA SUB REGISTRY CRIMINAL APPEAL NO. 26382 OF 2024 (REFERENCE NO. 202409132000026382) (Original from Economic Case No. 14071 of 2024 of Manyoni District Court at Manyoni) BETWEEN SELEMAN RAJABU ATHUMAN.......................................................APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT JUDGMENT 27/11/2024 & 11/12/2024 MANYANDA, J.: The Appellant namely, Seleman Rajabu Athuman, hereafter referred to as "the Appellant", is appealing against both conviction and sentence imposed to him by the Manyoni District Court, hereafter referred to as "the trial court". The Appellant was charged with five counts of various economic offences. The first count was unlawful entry into a game reserve, contrary to section 15(1) & (2) of the w ildlife Conservation Act, [Cap. 283 R. E. 2022], hereafter, the WCA. The second count was unlawful possession of government trophy, contrary to Section 86(1) and (2)(c)(iii) and 111(1) (a) of the WCA read with Paragraph 14 of the 1st Page 1 of 15 Schedule to, and Sections 57(1) and 60(2) of the Economic and Organized Crime Control Act, [Cap. 200 R. E. 2022] hereafter, the EOCCA. He was also charged with a third count of unlawful possession of firearm, contrary to section 20(1)(b) and (2) and section 56 of the Firearms and Ammunition Control Act, [Cap. 223 R. E. 2019], hereafter the FACA, read with paragraph 31 of the First Schedule to, and sections 57(1) and 60(2) of the EOCCA. In respect of the fourth count, he was charged with unlawful possession of ammunitions contrary to section 21(b) and section 60(1) of the FACA read with paragraph 31 of the First Schedule to and sections 57(1) and 60(2) of the EOCCA and in respect of fifth count, he was charged with an offence of unlawful possession of weapons inside a game reserve, contrary to section 17(1) and (2) and section 111(1 )(d) of the WCA, read with Paragraph 14 of the First Schedule to, and section 57(1) and 60(2) both of the EOCCA. Before the trial court, it was the evidence by the prosecution through five (5) witnesses and six (6) exhibits that while in their normal patrol at Muhesi Game Reserve in Manyoni District, John Biseko PW2, a Game Warden in company with other Game Wardens namely Elias Matias, Alfayo Moleli and Mussa Makuru by tracking footsteps of a person, they managed to arrest the Appellant within game reserve whom they found in possession of two muzzle loader guns (gobore), one Page 2 of 15 knife, four head of common duikers, one tin of gunpowder, 94 pieces of iron used as muzzle bullets kept in the red bag, one axe 4 'fusho' and one bicycle make phoenix. He had no permit from the Director of Wildlife. The Appellant gave general denial defence alleging that on 24/12/2023 was in his farm which was nearby to the game reserve. That, monkeys entered in his farm hence in order to scare them further, he chased them into the bush in the game reserve. While was in the bush he met with the Game Wardens who arrested him. They took him to Doroto Camp where they gave him various items, namely, two muzzle loader guns (gobore), and bush meat. Therefore, this case was framed against him. The trial court disbelieved the defence evidence and found the Appellant guilty, convicted him with all five counts and sentenced him; conviction and sentences with which he is aggrieved. Hence the instant appeal. The Appellants have four grounds of appeal as follows: - 1. That, PW4 in his evidence testified before the court stated that after handing over the exhibit, four heads o f common duiker (PE1) to John Biseko (PW2) who came with the accusedperson for the purpose o fseeking disposal order from the court, surprisingly he did not state whether the Page 3 of 15 court granted permission to PW2 to destroy the four heads o f fresh common duikers; 2. That, the trial magistrate erred in law by convicting and sentencing the Appellant on basis that the Appellant did not cross examine PW2 in respect o f seizer certificate, argument which is technical in eyes o f the law while the appellant is a lay man; 3. That, the prosecution fide (sic) failed to tender caution statement before the court to prove the case beyond reasonable doubt; and 4. That, the learned trial magistrate erred in law and in fact by ignored his defense and relying upon prosecution side only and failed to evaluate the evidence o f both sides. The appeal was argued orally, the Appellant was unrepresented, while the Republic was represented by Ms. Rose Ishabakaki, learned Senior State Attorney. In submission, the Appellant basically adopted his grounds of appeal. In reply submissions Ms. Rose Ishabakaki, opposed the appeal, supported conviction and sentence. She started by arguing the complaint in ground one that PW2 did not say that there was no disposal order of the four (4) heads of common duiker. She submitted that PW2 testified in court that on 04/12/2023 he took 4 Page 4 of 15 heads of common duiker and made application for disposal order in court, which was granted. PW2 evidence was corroborated with the evidence of PW5 the Magistrate who presided the inventory proceedings and granted the disposal order in the presence of the Appellant. Moreover, the Senior State Attorney submitted that the Magistrate, PW5, tendered the ruling and the inventory form which were admitted as Exhibit PE10 collectively. She concluded that the disposal order was issued in the ruling and the exhibits were disposed according to the exhibit disposal procedures. She referred this Court in the case of Mohamend Juma Mpakama vs. Republic Criminal Appeal No 385 of 2017. In respect of ground two, the Appellant alleges that the trial court wrongly condemned him for failure to cross examine PW2 when he tendered seizure certificate because he was a lay person. Ms. Ishabakaki responded that, ignorance of the law is not a defence. Moreover, she added that the conviction was not based on this complaint that he failed to cross examine PW2 though at pages 4, 5 and 6 of the judgement, the trial magistrate touched on the issue of failure by the appellant to cross examine PW2. That failure to cross examine PW2 was not the only basis for his conviction, the trial magistrate also considered other factors which were the appellant being found in a game reserve, was found Page 5 of 15 in possession of 4 heads of common duiker, seizure certificate (Exhibit PE9), inventory and disposal order (exhibit PE10 collectively), the appellant was found with a weapon in a game reserve per testimonies of PW1, PW2 and PW5. The Senior State Attorney added that the Appellant did not cross examine these witnesses in order to shake their evidence. She argued that in law failure to cross examine means admission of the evidence. She cited the case of Misara vs Republic Crim. App. No. 428 of 2016. In ground three, where the complaint is on failure to tender his cautioned statement, the Senior State Attorney submitted that the evidence adduced by the prosecution sufficed even without tendering his cautioned statement non­ tendering of the Appellant cautioned statement did not shake the prosecution evidence. Regarding ground four complaint is that the trial court did not evaluate defence evidence. The Senior State Attorney position was that the Appellant's evidence was thoroughly evaluated. She pointed that at pages 4 and 5 of the judgement, the trial court dully evaluated the evidence of both sides, the prosecution and defence. That the trial court disbelieved the defence evidence. Moreover, she asked this Court, in case finds that the trial court did not evaluate well the evidence, then it may step into the shoes of the trial court and evaluate Page 6 of 15 the evidence in which case it may come to its own findings. She referred to the case of Yusuph Ndaturu Yegera @ Mbunge @ Hitler vs. Republic, Criminal Appeal No. 195 of 2017.Then, she prayed the appeal to be dismissed in its entirety. In rejoinder, the Appellant simply reiterated his submissions in chief and prayed to be acquitted and set free. The main issue in this appeal is whether the same has positive fruits to the Appellant. Let me start with deliberation of ground four because the complaint in it is general that the prosecution's evidence did not prove the offences the Appellant was charged with. My perusal of the evidence on record reveals that it is not in dispute that the Appellant was arrested in the game reserve at Muhesi area. The Appellant's evidence is that he has a farm bordering the game reserve. On the fateful day 24/12/2023 monkeys entered his farm hence he had to chase them. To ensure that they do not return, he chose to chase them by following them into the game reserve. That, while in the game reserve, he was arrested by the Game Officers including PW2, John Biseko Joseph. Page 7 of 15 PW2 evidence is to the effect that while he was in patrol with his colleague Game Wardens namely Elias Matias, Alfayo Moleli and Mussa Makuru in Muhesi Game Reserve spotted some human footstep impressions. Been curious, they traced the same until they found the Appellant whom they arrested at GPS Coordinates 36M0651996 UTM9340417. They found the appellant with various items being two muzzle loader guns (gobore) (PE2 collectively), one axe and one knife (PE4 collectively), four head of common duikers, one tin of gunpowder (PE3), 94 pieces of iron used as muzzle bullets and 4 'fusho' kept in the red bag (PE5), and one bicycle make phoenix (PE6). A Seizure Certificate (PE7) was filled and dully signed by the Appellant and PW2. PW1, Msongo Migweli, supports PW2 in that the Appellant was brought to him together with the items he was found with which were handed to him for safe keeping. He signed a chain of custody form (PE1) evidencing the handing over. PW2 is also supported by the testimony of PW3, Kreti Vitalis Tarimo, an ICT officer who examined the coordinates recorded by PW2 at the crime scene in the Muhesi Game Reserve and sketched the map (PE8) showing that it was in fact within the said Muhesi Game Reserve. The four heads of common duiker were evaluated by PW5, Jonathan Musiba who established the trophy to be heads of four common duikers which Page 8 of 15 he valuated to be USD 250.00 each all four been valued at USD1,000.00 equivalent to Tshs 2,516,000/=, per Exhibit PE9. There is also the evidence of PW5, a Magistrate who conducted inventory proceedings on 04/01/2023 in the presence of the Appellant and granted disposal order of the four heads of common duiker. His ruling and the inventory form were admitted as PE10 collectively. As it can be seen, the Appellant had nothing to say as far as the evidence concerning the trophy being found with him, its valuation and ultimately disposal. He said nothing also about the weapons he was alleged to have been found with, He did not also say anything about the bicycle. What the Appellant did is a bare denial that he was not found with any of those items in the Game Reserve upon his arrest. With such tight evidence, the trial court had nothing to suspect the testimonies of five prosecution's witnesses it found their evidence credible and reliable because it was unshaken. I agree with the Senior State Attorney that the trial court adequately considered the defence case, especially at page 5 of its judgement, and found it too feeble to cast reasonable doubts to the prosecution's evidence. Page 9 of 15 This Court also has no reason to fault the finding of the trial court. The prosecution's evidence is coherent and reliable. This ground has no merit. This takes me to ground one. The Appellant alleges that per testimony of PW2, there was no disposal order for the four heads of common duiker. The Senior State Attorney opposed this allegation pointing out the testimony of PW2 and PW5 that there were inventory proceedings at which the Appellant attended. My perusal of the record reveals to me that in deed inventory proceedings as testified by PW2 and PW5 on 04/12/2023 was dully conducted. There was filed an application in court for disposal order of the four head of common duiker at which the Appellant participated and according to the records, he had nothing to say when asked to comment other than denying possession of the trophy. The requirement of the law in the case of Mohamed Juma Mpakama vs. Republic, Criminal Appeal No. 385 of 2017 [2019] TZCA 518 (27 February 2019) was complied. PW5, the Magistrate, as it is evidenced at page 22 and 23 of the proceedings, he granted the order in the presence of the Appellant. He tendered his ruling and inventory form as Exhibits PE10 collectively. In this regard the disposal order was issued, and the exhibits were disposed according to disposal procedures. Therefore, this ground has no merit. Page 10 of 15 Regarding ground two, the Appellant complaint is that he was condemned by the trial court on a basis that he did not cross examine PW2 in respect of tendering Exhibit PE7, the seizer certificate. His argument is that since he is a lay man, it was wrong for the trial court to condemn him based on a legal technicality of failure to cross examining a witness. First of all, I agree with the Senior State Attorney on the legal maxim that ignorance of the law is no defence. I am also aware that, the right of cross examining a witness is a constitutional right as an assurance of fair trial enshrined under Article 13(6)(a) of the United Republic of Tanzania Constitution of 1977. The Court of Appeal in the case of Abanus Aloyce and Another vs Republic, Criminal Appeal No. 283 of 2015 [2016] TZCA 616 (21 July 2016) emphasized that denial of the right to cross examine result to miscarriage of justice. In this case, the record shows that Exhibit PE7, the Seizure Certificate was admitted unobjected and after been admitted, its contents were read aloud in court. The Appellant was given opportunity to cross examine PW2 and he did exercise that right by asking questions of which answers were recorded at page 19 of the proceedings as follows: - "We arrested only you. We found you with two muzzle loader, four heads o f duikers, bicycle, axe, knife, fusho, 94 Page 11 of 15 pieces o firon. It is possible to use two muzzle loaders at the same time because o f its complication in using them." As seen, the Appellant was afforded with opportunity to cross examine PW2 and he chose the questions to put to PW2 on his free will. He chose not to ask any question about the act of filling and signing of the seizure certificate (PE7). A question is, if the Appellant managed to ask those cross-examination questions of his choice, can failure to cross examine on a seizure certificate be said to be a legal technicality? The answer, in my view, is in negative. I say so because there is no legal technicality involved here, but it is a matter of common sense to any accused person who knows that there is an incriminating fact directed towards him. Under normal circumstances, he was expected to test the truth of the seizure certificate by asking questions to negate it. It is from this rationale that the law was stated in case law that failure to question on vital evidence by a party to the proceedings is taken to have accepted the concerned fact as true. In the case of Emmanuel Saguda @ Sulukuka and another vs Republic, Criminal Appeal No. 422 "B" of 2013 (unreported) the Court of Appeal of Tanzania referred with approval an English Case of Browne vs. Dunn [1893] 6 R. 67, where it was held: - Page 12 of 15 "A decision not to cross-examine a witness at all or on a particular point is tantamount to an acceptance o f the unchallenged evidence as accurate, unless the testimony o f the witness is incredible or there been a dear prior notice o f intention to impeach the relevant testimony". In this matter, as explained above, the Appellant was given the chance to cross examine PW2 but he opted not to cross examine him on Exhibit PE7, leaving the facts therein, which he vividly knew, standing as nothing but truth. I fail to fault the trial court; it was justified to draw an inference that he admitted its contents. Moreover, as rightly submitted by the Senior State Attorney, the trial court did not convict the Appellant solely based on Exhibit PE7, the Seizure Certificate, but it was just part of the evidence from the prosecution side that was considered along with other pieces of evidence when analyzing the whole evidence including the defence evidence before coming to its finding. This ground too has no merit. In ground three, the complaint on failure to tender his cautioned statement, should not detain me. The Senior State Attorney rightly submitted that the evidence adduced by the prosecution sufficed even without tendering his cautioned statement. Page 13 of 15 On this issue, I may say that in law the prosecution is duty bound to prove their case beyond all reasonable doubts. Choice of adduction of evidence is upon their free choice. There is no law which compel them adduce certain evidence or adduce evidence just for the sake of entertaining accused persons. However, it is only where they abandon an important piece of evidence which is within reach and vital in proof of the case that courts can draw an adverse inference against them. In this case, they chose not to present the cautioned statement, if at all they had one. Even though, the Appellant was not prevented from tendering it, if he knew he had one and vital for his exculpation from the allegations he was accused with. This ground of appeal lacks merit it is hereby dismissed. I have visited the sentence and found that the same is a minimum sentence provided by the law. In the upshot, for reasons stated above, I find that this appeal is barren of fruits. Consequently, I do hereby dismiss it in its entirety. Order accordingly. Dated at Dodoma this 11th day of December, 2024 Page 14 of 15 F.K. MANYANDA JUDGE Delivered at Dodoma this 11th day of December, 2024 in the presence of the Appellant, Seleman Rajabu Athuman and Ms. Mwilongo State Attorney, for the Respondent. Appeal is dismissed in its entirety. Right of appeal explained to the parties. F.K. MANYANDA JUDGE Page 15 of 15