Shila Simtoni

\ IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CRIMINAL APPEAL NO. 26707 OF 2024 SHILA SIMTONI SHANTIWA APPELLANT SELEMANI HALFAN@KIWELE 2^0 APPELLANT VERSUS THE REPUBLIC RESPONDENT Date of Last Order: 24.02.2025 Date of Judgement: 21.03.2025 JUDGEMENT MAGOIGA. J. The appellant, SHILA SIMTONI SHANTIWA and SELEMANI HALFAN @KIWELE were charged i n the d istriet ecuit of Mcrogdro;at Morogoro (the trial court) with one count for unlawful possession of Government trophies contrary to sections 86 (1),(2)(b) and (3) of the Wildlife Conversation Act [Cap 283 RE 2022] as amended and read together with paragraph 14 of the First Schedule to and section 57 (1) and 60 (2) of the Economic and Organized Crime Act, [Cap. 200 R.E2019]. ■ \ 1 It is alleged In the particulars of the charge sheet that on April 30, 2022, In the Nane Nane area of Morogoro District, Morogoro Region, two appellants were apprehended In possessing fourteen elephant tusks worthy USD30,000 equivalent to TZS. Sixty-Nine Million Seven Hundred Forty-Eighty Thousand, Eight Hundred Ninety Shillings (TZS.69,748,890/=) the property of the United Republic of Tanzania without the necessary permit from the Director of Wildlife. The accused persons denied the charge facing them and It beseemed the prosecutlpn to steer evidence agplnst them. At the trial court, the prosecution paraded a total of nine witnesses, PW 1- Flora Solomon Lema (Wild Conservation Officer), PW2- Insp. Amanl Mboneke Mwaklpeslle (arresting officer), PW3 - PQ James, PW4 -Joseph Chagula Bunango , PW5 - G.5026 D/CPL Deus , PVVS - Jamila Selemani, PW7 - Ismail Mchome, PW8 - S.P Janeth Benard Nganga and PW9 - Exsuperlus Runkulatlle and tendered 7 exhibits which are Exhibit Register PEl, 14 pieces of elephant tusks-PE2, Certificate of seizure PE3 & PE4, Court exhibit register (PE5), Trophy yaluatj^ Rq^^ measuring report(PE7). , :; , ^ ov -, ; - n; After full, the trial court found^the appellants guilty and consequently convicted and sentenced them to serve (20)twenty years Imprisonment -T - , . < . ■ , ,1 -rr. :■ V-y vv^g.: ;:; i fip- ■ _ Being aggrieved with both conviction and sentence, the appellant appealed to this court with the following grounds of appeal couched in the following language: - 1. That, the learned trial SRM erredIn law and fact by Incriminating the appellants on the charges which were not pleaded as reflected In the Court's records at page 1,2 and 4 of the typed Court proceedings, that ^^sio kweli sijakutwa na nyara respect of each appellant, qontraQT to the law. 2. That, the learned trial SRM erredIn law and fact by Incriminating the appellants while failure to read over the charge to the aqcused persons/appellants to enter a plea of not guilty wheg the prosecution case marked open at Page 8 of the typed court proceedings contrary to the procedure Of law. 3. That, the learned trial SRM erred In law, and fact by Incriminating the appellants while erroneously admittedproqpcutlon exhibit, PE 2 tendered by PWl collectively while this witness, mi wnt^^ himself In the Issue of Identification of thgse exhibits In the sense that: , ^ „■ A At page 9 of Court proceedings he testified each piece of elephant task were marked with ERldl512022 and case y ,. no. vAy,!;MOR/IR/34901202'2 w/fe' contrary to what she tendered a? pmseauon /-y: > ^ • i ;■ 'V"! "■ ■ - v -./w ; ■' , .ij..', . - '' ■, -.y. < ■ • i.J • ■ - '• exhibits since at page 1 of the court proceedings she tendered exhibit register with oniy entry no. 315 and not ER131512022. a. AisOf PWl testimony has iot of doubts as far as Exhibits PE2 are concerned^ since she testified exhibits keeper at the time ofhandiing of the same was PW3^ very obvious doubt as how comes PC Jane corpe into possession of tho:^e exhibits. 4. That, the iearned trial Magistrate erred in iaw and fact to convict the appeiiant's reiying in unjustified testimony of PW2 pf Which, it has a iot of doubts: ^ ^ , i. He testified that day he was in patrpi at Nanenane area which is outside ofhis duty station which isIfakara as he stated and he did not say as hou, he ended up being in Nanenane area without tendering in court anydocuments which gave him authorit^^ to be there as a public officer iike Matching order or a patroischedule which is contrary to Police General Orders. ,. a. PW2's evidence was not corroborated by hip inforrner to whom ought to be testifiedbefore the triaipourt since thp iaw is very dear to that as when the arresting officer • 'v;; ly-- .v : cfTiC-;' concrjiv mention the source, then that person should give his testimony in court. 5. That, the learned triai Magistrate erredin iaw andfact by convicting the appellants based on the contradiction testimonies ofPWl and PW2 that one of them said the nine elephant tusks, exhibit, PE2 were labeled with case no. MOR/iR/3249A12022 whereas PW2 testified about the mark 51-59 and >ii-if6 contrary to the evidence ofPWl who did not ttestify anything about marks at aii, there this cast doubt that the exhibitsywgre.tem^ X/ 6. That, the learned thai magistrate;grredjn Jaw.and fact:tOicqny^ the appellants based.on The adrnitted: exhibits, PE6 whighrWerp prepared by PW4 to whom he poprlyjdenpifipffiexhibitg^^^ appliedfor identification in thosp fop/teen pieces of plephant:tpgl< in respect ofeach and he cgmestojjhe cpnpipsi^^^ thpt those places were pftwo elephants, cpptrary tojgectipn jfofthe Evidence Act. 7. That, the learned thai rrjagjstrate erred in law-and^ fpct to convict the appellants reiied on exhibits PE6 which were admitted contrary to the procedures ofiaw, as the same were not read aioud to the appellant during triai. '■ ■„ ' ';,•: ■ ■ ■ ^ 7) tne ajnausion ■■ ■ 1 ' r n ■ ■■ ;;. -X - '. f Of' If L:V;ilYY'!-Cr: 8. That, the learned trial magistrate erred In law and fact to convict the appellants relied on PWS evidence while the prosecution side failed to lead this witness to testify the colors ofthe bags In respects of entry no' 31112022 and 31512A22 respectively before they prayed to the court to show exhibit PE2 for Identification which Is contrary to the law. 9. That, the learned trial Magistrate erredJn law, and fact to convict the appellants based on exhibit PE8 which wasprepared byPW6 to whom she didn't testify as to her capacity at the office of Measurements Agency purposely^ for proving her competency, of preparing the alleged exhibits PE8, and she failed to testify on weight of each piece so that It can tally with the report prepared which Is contrary to the law. 10. That, the learned trial magistrate erred In Jaw, and faqt to convict and sentence the appellants as the case shifted hand of magistrates without assigning the reason thereof contrary to jaw governing criminal trials. 11. That, the learned trial. Magistrate erredJn convict and sentence the appellants while the prosecution failed to summon the crucial witness the chairperson ofHarnjet, one Zainap as testified by PW2 and the driver of car FUSSOJwho were ■ ■■ - V r:^j' yj _ ii-'y/'c: mentioned to have transported the appellants and carried those elephant tusk which Is contrary to the law. 12. That, the learned trial Magistrate erred In law and fact to convict and sentence the appellants basing on exhibits PE3and PE4 where as search and seizure of those exhibits PE2 was conducted contrary to the requirements ofsection 22(3Xiii) of The Economic and Organised Crime Control Act, read together with pection 3B(3) of The Criminal Procedure Act, Cap30 RE2022. 13. That, the trial Magistrate erred In law P appellants as the evidence of chain of custody the exhibits vyas broken hence did not warrant conviction ofapipeljants. 14. That the learned trial Magistrate erred p law, and fact to convict the appellants while she failed to record the qrpss examination of witness asshe recorded on XX which does notshow as to who examined who, the record does not show as the appellants were accorded with the right to exarnine the witness which Is contrary to the section 210 of The.CriminalProcedure Act, It was only recorded thatsection 210 ofCPA was compiled with. See ' y 'i::!! :av., ryyo r-:?cr- u^ the case of MANGALU MADUHU VS, REPUBLIC COURT OF APPEAL OF TANZANIA,KENTE,JA,UNREPqRTEp. y yiyr^iX: u'jys "h?"' ' 'tfyx' { Vjr'r'.- yyy:j' uyxy ■ y-'T- :fi}hy to .c-te';V/A//cr. ly-r :--'ryi:--y- 1 ■ '^0 X' 'y': Cyyy:\ ..'i ^^xyy. \:yi':y "\y'. ' 15. That, the learned trial magistrate reed In law and fact to convict the appellants while the prosecution side failed to prove the case beyond reasonable doubt When this appeal was called on for hearing, the appellants appeared In person and unrepresented, while the respondent. Republic was represented by Ms. Jackllne Nyoka, learned State Attorney. Based on the aforementioned grounds of-appeal/the^ appellants prayed- that the learned State Attorney to begin and they will reply there In to!' Ms. Nyoka, told the court that she strongly opposes this appeal and to her It Is without merlts. She noted that the appellants have jointly raised 15 grounds of appeal and will -address each ground seriatim. ; v' ^ Responding to the first ground concerning the alleged Improper recording of the plea as reflected on pages 1, 2, and 4 of the court proceedings pointed out same baseless, ishe explained that the central Issue was possession-of government trophy; not meat as the appellants had suggested. The charge sheet,'!she?submltted;i clearly, referred to elephant tusks, and not meat. She eventually urged the court to dismiss this ground for being without useful merits. , ,, Responding to the second ground of appeal in which the appellant claimed that the charge was not read over to tpe, accused persons as ■ ■. : ) ; . ■ ;C c.; * Ci'; p i — ;;3l • '/ pvOr CO > - 'v; ■ OViV^ r;'': reflected on page 8 of the proceedings pointed out that the claims are also without merits. She submitted that the charge was read twice: once, on the first day the appellants were arraigned in court and second during the preliminary hearing, as evidenced on pages 1 and 4 of the proceedings. She cited the case of Omaiya Makilage and Others v. Republic, Criminal Appeal No. 371 of 2022, where it was held that failure to remind the charge is not fatal, and therefore^.urged the court to dismiss this ground as well, '■ 'j/Tj -P:. -..-.r , '- Responding to the; third > ground/* concerning the admission of exhibits, Ms. Nyoka submitted that this ground iiacked meriti because PWl- Exhibit manager explained the marking procedures and "confirmed that ail procedures were properlyifoiiowed. She contended that any errors mentioned by the appellants were mere; typing errors, which would: hot lead to the failure of the prosecution's case. On that focused response, she urged this court to find this ground vyanting in merits and dismiss it. Responding to the fourth ground of appeahwhich concernsithe testimony of PW2's: that was iunreliablei due toPibcation;discrepancy (arresting the appellants in Mbrogoro-i butetestifying: as: being pfrom Ifakara), Ms. Nyoka argued that there was no requirement to mention the informer who was protected under Section 118 of the law^ and thgt PW2 .> " ' ^ - ^ 9 :■ j L'C:'; ijlf 1 testified that in 2022 when arresting the appeiiant was stationed at Morogoro. She, thus, urged the court to dismiss this ground for want of merits. Responding to the fifth ground of appeai which concerned aiieged contradictions between PWl and PW2 on marks that were put on exhibit PE2, Ms. Nyoka argued that there were no such contradictions, but what is seen in the proceedings are attributed:to perceived discrepancies due to typing errors, which were inconsequentiai: The learned Attorney cited the case of John Dickson Ngongole v. Republic, Criminal Appeal No. 477 of 2021, where it was heid that minor errors do not affect the substance of the case.She prayed to dismiss this grqund qiong ^ Pth^rs for want of merits. Responding to the sixth ground of;appeal which complaint was on exhibit PE6 on its identification/ Ms. Nyoka submitted that the complaint about the valuation report was unfounded. According to?the learned Attorney, the trial court record clearly showed how^ the expert identified the elephant tusks, emphasizing:ithat the:identificationi was corroborated by other evidence on record. She urged this ground to be dismissed for want of merits in this appeal.^ , . ^ ^ - ■ :■ i ■ n J/'d, ru:Lv:}rdinc/lO Ihi; 10 v; .' ' . ' ^ V, ■ fK'VV; trK:" ■ Responding to the seventh ground of appeal, which concerned the alleged failure to read out exhibit PE6, Ms. Nyoka pointed out the trial court proceedings are loud and clear that at page 23 of the typed proceedings confirmed that the exhibit was read out. She, thus, this court to find this ground baseless and proceed to dismiss It along with others for being merltless. Responding to the eighth ground' of appeal, which the main concern was that PW5 failed to mention:the color of the bags contalhing the tusks. Ms. Nyoka submitted that PW5 described pther characteristics of the exhibit In details, and that the color of the bags was not a.significant Issue In the case. On the same vein Invited this court to find this ground wanting In merits and dismiss It. Responding to - the ninth ground : of apepal concerning ■ nthe qualifications of the person who prepared exhibit PE8; Ms. Nyoka argued that the typed proceedings on> page 30.showed thatithe Ihdivlduahhad three years of experience and iwas well-qualified to prepare the report. The learned Attorney urged this court to find thls complalnt merltless and should be dismissed alongside other grounds. Responding to tenth ground of appeal. In which the appellants claimed that magistrates were changed without explanatlori-and reasons; wn:r-; Ms. Nyoka was brief to the point that iooking at triai court proceedings at pages 38-40 are ioud and ciear that the case was oniy adjourned before other magistrates during when the triai magistrate was on ieave but did not change hands nor reassigned, hence, no irreguiarities in the handiing of the case can be found as alieged. The iearned Attorney, thus, invited this court to find this ground wanting in merits and prayed that it be dismissed. Responding to the eleventh ground of appeal whichkGomplain:Was about the failure to call rnateriai witnesses such as Zainab and the driver of the FUSO truck, Ms. Nyoka argued that the certificate of seizure showed there were two independent witnesses, and one of them testified as PW9. According to the iearned Attorney, this ground is without merit and urged this court to dismiss it. Responding to the tweifthrgroundi of appeal,?where the:appellants claimed that exhibits PE3 and PE4 were:obtaihed in violation of Section 22(3)(iii) of the EAOCA and section 38(3)of the CPA, Ms:Nyoka submitted that no such section exists under EAOCA. As to section 38(3):of The:CPA, she argued that the appellants signed:certificate of seizure,: which amounted to a receipt under the law. In support of this she cited the cases of Song Lee v. DPP, Criminal Appeal No. 16 of 2016 and A'--; ,■ ■ 12 10"': ; ov OA" : ■'•: ',ao' -a ■V '/ie In i>uppar: ihi;-" hr('„: pitpd trpv ■. . > . Ci'i- Pi;;:.5P:i,r ^ :.P' ""PP PP';: PAPA Ole Sikaladai V. Republic, Crimmal Appeal No. 47 of 2020, where it was held that the absence of a formal receipt did not Invalidate the seizure. She Invited this court to dismiss this ground too. Responding to the thirteenth ground of appeal, concerning the alleged break In the chain of custody, Ms. Nyoka argued that the prosecution witnesses had clearly explained how the exhibits were handled; and there was no break; In the chain of custody. She submltte^d that the truck used for transporting the tusks could not have been easily tampered with and cited the case of Elf Isa Hassan Uki v. Republic, Criminal Appeal No. 197 of 2017, which held that elephant tusks cannot be easily altered. She, thus. Invited this court to dismiss this ground as well. > Responding to the fourteenth ground ofPappealp whiCh complaint was that the appellants were not given the opportunity to cross-examine witnesses and that Section 210; of theCPArwas nob cbitiplled with,;: Ms. Nyoka submitted that the courtsrecords clearly showed that alkappellants were accorded the right to cross-examine witnesses. She cited;the case of Onesmo Alex Nimbi v. Republic, Criminal Appeal No. 115 of 2016, where It was held that the use of abbreviations does not nullify the proceedings. Even If Section 210 was not strictly CQmjplled ■ - :.)c: -si')- '■-".'V'OP' -. ! •; '/i-'v w: ' ■ ■•1^ ;■ i: ;:" , ;■ Tiuir.:-iu iA/a;. ..ui.Stm Anrh:Avie NyoRS' argued that justice was still served, as supported by Macumba Benjamin v. Republic, Criminal Appeal No. 254 of 2020. Finally, responding to the fifteenth ground of appeal, concerning the overall Insufficiency of the prosecution's evidence, Ms. Nyoka pointed out this ground too Is without merit. She argued that the prosecution had proved all elements of possession of a Government trophy beyond a reasonable doubt. Including possession, the a;: identification of the Government trophy, and the absence ofla permit; The apjDellants were arrested with the tusks, and all documentary evidence corroborated the testimonies of the prosecution witnesses. Ultimately, Ms. Nyoka argued that the vyhple appeal lacked m on all grounds and prayed that the court dismiss the apppal In It? entirety. The first appellant beseeched thlsi honbrable'Court To give due consideration to all the grounds^of appeal, culminating In his release. On his part, the second appellant left It In the hands of the Court to dlspense justice, while maintaining that grounds 1, 2, 4, and 11 are meritorious as they raise points of layv. Further, the second appellant contended that grounds 2 and 11, premised on the prosecution's failure to call crucial and material witnesses which Is fatal to the prosecution's case, and thus 14 L i A-a Airj;,-a; ■ .i i A ^'a'ofld . lAI aAA AAariA.A'-OAA .:A: prayed that the appeal be allowed and both appellants be acquitted and set free. This marked the end of hearing of this appeal. The noble and solemn duty of this Court at this juncture is to meticulously examine and determine the merits or demerits of this appeal. I have carefully and thoughtfully considered the comprehensive submissions advanced by the learned State Attorney in conjunction with the record of appeal and the grounds therein^: This Court Is now duty- bound to resolve the issues raised for idetermination, addressing them sequentially as argued and presented by the parties. .I . - On the first ground, r am in full agreement withThe learned; Statd Attorney, Ms. Nyoka, that the charge sheet^was clears The; magistrate's error in recording a plea of"not guiltyT for meat instead of trophies was a clerical error, as it does not affect the substance of the case. It is clear from the charge sheet, the facts, and the exhibits that this matter;relates were elephant tusks. The error in wording does not change the essence of the charge or the evidence presented. This is supjDorfed by in the case of John Dickson Ngogole v:|lepublic,j:rjmin Appeal Np. 477 of 2021 cited by Ms. Nyoka. Therefore, this ground is found wanting and is hereby dismissed. 15 On the second ground of appeal, regarding the failure to remind the accused of the charge. This ground will not detain me much. Guidance by the Court of Appeal has consistently held that the failure to re-read the charge at every stage does not invalidate the proceedings or render them fatal, as long as the accused is not prejudiced by that failure. This procedural lapse is minor and does not affect the fairness of the trial. This position was highlighted in the cases of Mwanza p.C. v- Republic, Criminal Appeal No. 124 of 2017, and Oniaiya Makil^ge & Others V. Republic, Criminal Appeal No. 317 of 2p22^ cited by Ms. Nyoka. Accordingly, this ground is unmerited and is hereby dismissed. On the third ground of ^appeal, whjch iconcerns the'marking rof exhibits and the chain of custody, it is evident from the-triai proceedings that the handling of the exhibits was ciear^The tusks^ were seized Trom the accused, who were jointly charged,!hericey they shared-icase number and entry. Each ; tusk was properly irharked-as. Sl-SQ-and HlrH5, respectively. Therefore, I find'this ground: baseless, unfounded and equally dismissed for want of merits. r- ) • On the fourth ground of appeal;:regardingl;PW2's! presence i ]n Morogoro while stationed at Ifakara. Ini'my own opinion,: P\/\/2iexplained in 2022 was working at Central Police Morogoro and it was during that he 16 I •• v V , ■ Dv^/f' ooiriior' was informed of the accused possessing e|ephant tusks in a FUSO vehicle. His presence in Mordgoro was within his duty. Further, as Ms. Nyoka correctly pointed out, the identity of informers is protected under section 118 of the Criminal Procedure Act. Consequently, I find ground unmerited and consequently dismissed. On the fifth ground of appeal, regarding alleged contradictions between the^evidence of RWl:and PW2,^r have^cardfully considered! this complaint and found out that there were no feal contradictions^ However, what can be discern is that the trial magistrate; made a clerical error by recording "5i-5P''^instead of- in the proceedings. As correctly argued by Ms. Nyoka, this is curable, and the case of John Dickson Ngogole v. Republic, Criininal Appeal No. 477 of 2^^ provides a clear precedent for this complaint. That:Sqid wantimg in merits and is hereby dismissed. On the sixth ground of appeal on:;identification of exhibit PE2 by PW4,1 find this complaint baseless and unmerited. Looking at page 22 of the trial court typed proceedings, PW4? meticulously )described;^the elephant tusks, and his evidence was corroborated by other evidence.^tAs a principle, expert evidence must;be corroborated, a; position emphasized in Republic V. Khamis Hassan & Another,Criminal Appeal No. 270 M ;,'.,r';."'' yi ■... t :: y',.> y.i I'i iSi . . -.>!!,? Kjii ;, L.3 i-v.l. fi c.-^.-' - ..- of 2017, where the Court of Appeal underscored that expert testimony in specialized cases, such as those involving wildlife trophies, must be corroborated to ensure credibility and reliability. That said, this ground is hereby dismissed. On the seventh ground of appeal whose complaint was that exhibit PE6 was not read after its admission. Having revisited the trial court proceedings, I find this ground is unfounded as correctly argued by Ms. Nyoka. The trial court typed proceedings at page 23 can bear me out. For easy of reference, it reads: i ; i iunu ;; P1V4:1 pray to tender the valuation certificate as exhibit in this case: or yv^s -thEK-youHn?/ Accused:Ihave no objection .. . ■" ' y ■ '''.ir/." :;0 -3 il"; i .'. Accused:Ihave no pbjecdqn :} y -yv- ry-": •:^-Lny COURT:Certificate of valuation admitted and marked PE6 The contehi-dfthe exhibitPEGTead and expiairid^ this court. Sgd:HohjT. Kaniki-SRM 31/08/2023 "y.'-y: : 18- ; ">if y.' ii_: With the foregoing reference, I find the appellants' assertions on this ground not borne out by the record. That said and done, this ground is equally found wanting in merits and dismissed. On the eighth ground of appeal of appeal whose complaint is the color of the bags. This ground will not detain me much. Having considered the same and the circumstances of this appeal, I fully agree with Ms. Nyoka that this ground is baseless and lacks merit. The color ofThe bags does not go to the substance of the case,'and the failure to mention-the color does not weaken the prosecution's case. Hence,this ground is found wanting and is hereby dismissed. On the ninth ground of^ appeal whose/ "icomplaintf wasi&the competency of PW6 and weighty of the tusks, Khave carefully considered this ground, with due respect to the appellants, as correctly subrhittedsby Ms. Nyoka, I agree with her that PW6 gave her evidence, enumerated the weight of each piece of tusk, and-recorded theimeasurements accordingly in the presence of the appellants. And the report was later tendered in evidence without objection. This ground too has no rnerit and is dismissed. On the tenth ground of appeal whose complaint was that the case changed hands without reasons to another magistrate withoutcomplying \ ■ 19- ■■' ■■ i A.. .-Xl ■ i: nu .ikiiSc with the law. I have seriously considered this complaint and have followed the trial court typed proceedings at pages 38-40 and observed that the case was merely adjourned by different magistrates during the absence of the trial Magistrate but full trial was conducted by Hon. Kanlkl, SRM and not as averred by the appellants. The adjournment did not contravene any law. Therefore, this ground Is found wanting In merits and dismissed as correctly prayed by Ms. Nyoka. ^ , .. On the eleventh ground of appeal :wh6se ? complaint was -that prosecution failed to call crucial witnesses such as theichalrperson of the Hamlet and Zainab as testified by PW2. Having gone through trial court typed proceedings, I observed That In exhibit PE4 the certificates :of seizure there were two Independent witnesses:, Zainabu Makarabo and Exsuperlus Runkulatlle. And at page 45 of the triar court typed proceedings Exsuperlpus Runkplatlle testified as PVVQ was. listed as ap 1/ "-i" 1. Independent witness on both certificates. Therefore, by the testimony of PW9, the calling of Zainabu became pbsplete. While the absence of t^^^ driver could draw adverse Inferences to prosecution case because the charge was not on transporting but being found In possession. Thus, this ground Is unmerited and Is equally dismissed. V.-. -rx 4.5 oi ■ tnai OuLi\ [yp'cK;; ■ ■ ', . 1'":; ' clA , ■ xx:- -XAi ■' .AAf'Ax ia.a: 20 '■ K.' jSOaxA'-x. '45:45- of The On the twelfth ground of appeal on the legality of exhibit PE3 and PE4. Having considered this ground/1 am of the considered opinion that as rightly responded Ms. Nyoka and rightly so in my own opinion, no such section as 22(3)(iii)(f) of EAOCA exists. And as to the applicability of section 38, several cases have dealt with the interpretation of section 38(3) of the Criminal Procedure Act(CPA), Cap 20, regarding the Issuance of receipts during seizures. These are: Song Lee y, Di^ectjpr of PubH^ Prosecutions, Criminal Appeal No. 16 of ?016, the Court of Appeal > ■ • ■ ' f' ■ 'iO'. C'vMl Si CU:- \.n.' held that the failure to issue a receipt at the time of seizure is not necessarily fatal, as long as the accused signed the certificate of seizure, which indicates acknowledgment of the items seized. In Papa Oie Sikaladai & Another v. Republic, Cripiinal Appeal No.47 of 2^ the Court reaffirmed that failure to issue a receipt does^not invalidate the seizure or the trial, provided the certificate of seizure was signed. Similarly, in Makoye Samwel @ Kashinjp v. Republic, Criininal Appeal No. 32 of 2021, the court emphasized that failure to issue a receipt is procedural and does not nullify the case unless it causes material prejudice to the accused. As the/certificate of seizure in thi| case wgs properly signed and acknowledged, this ground is found wanting ip m^^ and is hereby dimissed. / /■ i i'.Cf -J't V. -RfeplyBeK;, On the thirteenth ground of appeal, unfortunately to the appellants, they did not specify when or where the chain of custody was broken. My own reading of the proceedings, I found out that the management of the exhibits was clear throughout the trial. That said and done, this ground lacks merits and Is dismissed as well. On the fourteenth ground of appeal which the appellants challenged the use of "XXD" to Indicate cross-examination, arguing that It violated section 210 of the Criminal Procedure ActlThls ground;vyill not detain me; Guided by the holding In the iOnesmo Alex- Nimbi iy.; Republic, Criminai Appeal No. 115 of 2016, the Court of AiDpeal held that the use ofabbreviations like"^XXD"for cross-examination Is acceptable as long as the meaning Is clear and does not cause confusion or prejudlc|e. The appellants were fully afforded the right to cross-examine yvltnesscs, and they used that opportunity. So, fheir argurnent that use of XXD alone without showing how It affected the appellants Is not enough .to undermine the prosecution case, and In my respccdve opinion, section 210 was compiled with. Therefore, this ground Is unmerited and is dismissed. , :, On the last ground of-Appeal; The-vappellantS'fargue: that the prosecution failed to prove the^case beyond a reasonable doubt. Having , 22 •jpDtv-;; thv' traversed the whole trial of the appellants, the testimony of both sides, with due respect to the appellants, I fully concur with Ms. Nyoka that the prosecution did indeed prove the case beyond a reasonable doubt. The evidence presented clearly established the chain of custody/ the seizure of the elephant tusks, and the involvement of the appellants in the unlawful possession of government trophies and want of licence from the Wildlife Director. To my opinion, the essential ingredients of the offense were all met, including possession of the trophies without a permit, as outlined in the Wildlife Conservation Act. The prosecution's case vyas further supported by the testimony of key witnesses^ the tendered exhibits (tusks), and the evaluation report. These elements, once proved, satisfied the burden of proof required in criminal cases. This stance is supported by the decision in Magendo Paul & Another v. Republic[1993]TLR 220, where the Court of Appeal ernphasized that , prpof beyond a reasonable doubt does not mean proof beiyopd any shadow of dou^^^^ such proof as leaves the court firmly convinced of the accused's guilt That said and done, the evidence presented rby the prosecutldri firmly established the appellants are guilt, and any minor discrepancies or dericah errors did not diminish^the overall strength^ptthe/prosecutionis )rrv''i;G UvG v..' G '-'viiG.- case to fail. Thus, the prosecution proved the case beyond a reasonable doubt, and this ground is equally unmerited. Ultimately, this appeal is found wanting in merits and consequently is hereby dismissed in its entirety. The conviction and sentence by the trial court are upheld, and the appellants shall continue to serve their sentence as imposed by the trial court. Order accordingly. 1 . ■ V Dated at Morogoro this day of arc >, 2024. <r ■D- , - 'n rr'eriE ■2: Uj AG teA 31 H- tri) JUDGE 21.03.2025 COURT: Judgement delivered in chambers at Morogoro in the presence of the appeiiants and Mr. Brian Msava, learned State Attorney for the respondents today on 21®^ Day of 4a h. 2025 U) (5 -7 X h- > S.M. MAGOIGA (JUDGE: 21.03.2025 ol '[qL: COURT: Right of appeal fully explained. qn r-q.-: ■ j, ■ q-qqqq r. or 24 G'ioqr, \ MAGOIGA JUDGE 21.03.2025 5 i .- I"''!" 25