CONSOLIDATED CRIMINAL APPEALS NO

AT MOSHI fCORAM: MWARIJA. J.A.. KEREFU. J.A. And KAIRO. J.A.> CONSOLIDATED CRIMINAL APPEALS NO. 516 OF 2020 AND 725 OF 2023 FREMINI JULIUS MREMA........ ....................................... .......1st APPELLANT EVANCE NOLASCO SHIRIMA @ TITO...................................... 2nd APPELLANT SIMON BONIFAS TAIRO......... .............................................. 3rd APPELLANT AMEDEUS DIONIS KAVISHE® TESHA@ FURAHA.................. . 4™ APPELLANT VERSUS THE REPUBLIC.......................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Corruption and Economic Crimes Division at Moshi) ( Luvanda. J.^ dated the 08th day of September, 2020 in Economic Sessions Case No. 01 of 2020 JUDGMENT OF THE COURT 21st October, 2024 & 3rd January, 2025' MWARIJA, J.A.: In the High Court of Tanzania, Corruption and Economic Crimes Division sitting at Moshi, the appellants, Fremini Julius Mrema, Evance Nolasco Shirima @ Tito, Simon Boniface Tairo, Amedeus Dionis Kavishe @ Tesha @ Furaha (the 1st - 4th appellants respectively) and another person, Aristidius Onesphory Massawe @ Bosco, who is not a party to this appeal (hereinafter the 3rdaccused person), were jointly and severally charged with six counts under the Wildlife Conservation Act, No 5 of 2009 (the WCA), Economic and Organized Crime Control Act, Chapter 200 of the Revised Laws (the EOCCA) and Arms and Ammunition Act, Chapter 223 of the Revised Laws. In the first and second counts, the appellants and the 3rd accused person were charged with the offences of unlawful possession and unlawful dealing in Government trophies contrary to section 86 (1) and (2) (b) of the WCA read together with paragraph 14 of the First Schedule to and sections 57 (1) and 60 (2) of the EOCCA as amended by sections 16 (a) and 13 (b) of the Written Laws (Miscellaneous Amendment) Act No. 3 of 2016, respectively. It was alleged in the first count that, on 21/7/2019 at Ikwini Village within the District of Rombo in Kilimanjaro Region, they were found in possession of eight elephant tusks valued at USD 60,000, which is equivalent to TZS 138,180,000.00, the property of the United Republic of Tanzania, without the permission of the Director of Wildlife. It was alleged further in the second count that, in the month of July 2019 at the same place stated in the first count, the appellants and the 3rd accused person were found dealing in Government trophies, the quantity and the vaiue of which has been specified above in the first count, without a permit from the Director of Wildlife. The 4th appellant was also charged separately with four more counts. In the third count, he was charged with unlawful possession of Government trophy, that, in the same month of July, 2019 at Munga area in Rombo District, he was found in unlawful possession of nineteen elephant tusks valued at USD 4,500.00, equivalent to TZS 103,519,350. As for the fourth and fifth counts, he stood charged with unlawful possession of firearms without license contrary to section 20 (1) and (2) and unlawful possession of ammunition contrary to section 21, both of the Firearms and Ammunitions Control Act, No. 5 of 2015 read together with paragraphs 31 and 16 respectively of the First Schedule to and section 57 (1) of the EOCCA. The prosecution alleged that, in the same month and at the same place stated in the third count, the 4th appellant was found with one Rifle 458 and eight bullets of sub machine gun respectively, without license. In the sixth count, the 4th appellant was also charged with unlawful possession of ammunition contrary to the provisions of the Firearms and Ammunition Act and the EOCCA stated above in the fifth count. It was alleged that, in July 2019 at the same area stated in the fifth count, he was found with four bullet shells of Rifle 458 without firearms license. When the information was read over, the 4th appellant, who was the 1st accused person, pleaded guilty to all counts leveled against him. As a result, he was found guilty, convicted and sentenced to pay a fine of TZS 27,636,000.00- or twenty-years imprisonment for the first count, twenty years imprisonment for the second count and a fine of TZS 1,035,193,500.00- or twenty-years imprisonment for the third count. For the fourth and fifth counts, he was sentenced to three years imprisonment and a fine of TZS 15,000,000.00- or three-years imprisonment, respectively. The imprisonment sentences were to run concurrently. On their part, the 1st to 3rd appellants (the three appellants) and the 3rd accused person, denied the first and second counts with which they were jointly charged. That prompted the prosecution to call a total of ten witnesses to testify. As for the three appellants and the third accused person, they each testified on his own behalf without calling any other witnesses. Having considered the prosecution and the defence evidence, the trial court (Luvanda, J.) was satisfied that the prosecution had failed to prove its case against the third accused person. He was thus found not guilty and acquitted. With regard to the three appellants, the learned trial Judge found that, the case against them had been proved beyond reasonable doubt, He thus found them guilty and upon conviction, sentenced each of them to pay a fine of TZS 34,545,000.00 or imprisonment for twenty years for the first count and for the second count, they were sentenced to twenty years imprisonment. Whereas the sentences were to run concurrently, the burden of paying the fine of TZS 34,545,000.00 was to be equally shared by all the appellants (the 1st - 4th appellants). The three appellants were aggrieved by the decision of the High Court and therefore, preferred Criminal Appeal No. 516 of 2020. They initially filed a memorandum of appeal consisting of 14 grounds and later, on 18/7/2022, they lodged a supplementary memorandum raising 7 grounds of appeal. At a later stage, when they, engaged an advocate on 9/5/2024, the learned advocate filed another supplementary memorandum of appeal consisting of 6 ground of appeal. On his part, the 4th appellant filed a separate appeal, Criminal Appeal No.725 of 2023. In his memorandum of appeal filed on 9/5/2024, he raised 7 grounds of appeal. On the date when the two appeals were called on for hearing, having considered that they arose from the same trial, acting under rule 69 (1) of the Tanzania Court of Appeal Rules, 2009, we consolidated and proceeded to hear them as one appeal. The background facts giving rise to the appeal may be briefly stated. On 15/7/2019, police officers arrested two persons, Wilson Ndekilwa Nko @ Wille and Madaya Renatus Madaya on suspicion of having been found in possession of Government trophy, to wit, 56 lion nails. Following the incident, the then Regional Crimes Officer, Arusha, ASP Kingai, informed the in-charge of the Anti-poaching Task Force, who was at the material time A/Insp. Mathias Mkayaga, about the incident with a view to participate in interrogating the arrested suspects. The interrogation of the suspects led to the arrest of the appellants who, according to the said suspects, were involved in poaching and dealing in Government trophies. The in-charge of the anti-poaching team, the said A/Insp, Mathias Mkayaga, who testified as PWI, adduced evidence to the effect that, by assistance of one of the arrested suspects, Wilson Ndekilwa Nko @ Wille, the police managed to arrest the appellants. It was his evidence that, on 17/7/2019, he travelled from Arusha to Moshi with the said suspect in the company of, among others, A/Insp. Mapunda. At Moshi, on the instruction of PWI, the arrested suspect called the 4th appellant who described the location at which he was; in a bar near the bus stand and agreed to meet him outside that bar. As he was getting out, PWI who had entered into the bar shortly before the arrested suspect communicated with the 4th appellant, arrested him and another person who had accompanied him. PWI testified further that, upon interrogation, the 4th appellant confessed that he was involved in poaching and unlawful dealing in Government trophies and allegedly named the 1st - 3rd appellants as his companions in those illegal activities. They were arrested after the 4th appellant had provided their mobile phone numbers including that of the 6 2nd appellant. On 21/7/2019, posing as a purchaser of elephant tusks, PW1 went to Rombo Mashati after the 4th appellant had communicated with the 2nd appellant and informed him that, there was a person who wanted to purchase 8 elephant tusks which were allegedly in his possession. PW1 went on to state that, at the scene, it transpired that the seller of the elephant tusks was not the 2nd appellant alone but the 1st and 3rd appellants as well as the 3rd accused person, who were among the persons present at the purported sale and who were mentioned by the 2nd appellant as the joint owners of the elephant tusks. They were all arrested and taken to police station, Arusha together with 8 elephant tusks. Thereafter, the elephant tusks were handed over by WP 6440 CpI. Tausi (PW8) to one Anthony Ntoros Peria (PW7) of the anti-poaching unit (KDU) for valuation. After valuation, they were kept by the exhibit keeper, one James Kugusa (PW6), a Game Warden. The same were later tendered in Court and admitted as exhibit P2. The evidence of PWi was supported by Solomon Jeremiah (PW2) who was, at the material time, a game warden and who accompanied PWI to Moshi and later to Rombo Mashati where the 8 elephant tusks were seized and the 1st and 3rd appellants were arrested. In his evidence, he narrated on how the information from the 4th appellant led to the arrest of the said appellants and the seizure of exhibit P2 as testified by PWI. After his arrest, the 3rd appellant was interrogated by D 7213 D/Ssgt Jumanne (PW9) who was at the material time, a member of the national anti-poaching task force. According to his evidence, the said appellant confessed that he committed the offences with which he was charged. The witness tendered the cautioned statement recorded by him and the same was admitted in evidence as exhibit P13. Another appellant whose cautioned statement was recorded was the 2nd appellant. It was recorded by E2757 D/C Leodger (PW10) who testified that, on 21/7/2019 he was assigned to do so. It was his evidence that, the said appellant confessed that he was found in possession of exhibit P2. The cautioned statement, which according to PW10, was signed by the said appellant, was tendered in court and admitted in evidence as exhibit P14. In their defence, the appellants exonerated themselves from the charges leveled against them. The 1st appellant, who testified as DW1, told the trial court that, on 21/7/2019 he was arrested by the persons who identified themselves as police officers. He explained that, he was arrested while cutting grass for cattle in his father in-law's farm. After his arrest, he was taken to the road where there was a certain young person. Beside that young person was a large bag. From there, he said, he was taken to Rombo and later to Arusha Police Station, he was detained until on 1/8/2019 when he was transferred to Moshi Police Station and a day later, was taken to court. On his part, the 2nd appellant who gave evidence as DW2, testified that, on 21/7/2019 at about 10:00 a.m. at Rombo Mashati area, while he was about to ride away after having refueled his motor-cycle, a car, in which were four persons approached and stopped beside him. One of the persons, asked him whether he was operating a bodaboda business and when he replied in the affirmative, the person who was in the car wanted to be taken to Lower Road area. After negotiation on the fare, they agreed at TZS 20,000.00. The 2nd appellant took two out the four persons who were in the car and when he arrived at the agreed destination, instead of being paid the agreed fare, he was paid TZS 5,000.00. He demanded the balance but according to him, the passengers did not pay him and as a result, a quarrel ensued. He was overpowered by the passengers who, at that point, identified themselves as police officers. He was handcuffed and informed that, he was under arrest for pretending to be a bodaboda rider while he was a thief. They then communicated with the other police officers and a police motor vehicle was sent to collect him. He was taken to Rombo Mkuu Police Station where he was informed that his case had been registered at Arusha Police Station. He was taken there and sent to KDU camp where, he said, after being tortured; stayed there until on 28/7/2019 when he was returned to Arusha Central Police Station and later to Tarakea, Rombo. On 1/8/2019 he was taken to Moshi Central Police Station and on 2/8/2019 was taken to court. The 3rd appellant (DW3), testified that, at the material time, he was a peasant and a bodaboda rider. On 2/7/2019 in the afternoon, while on the way after having transported a passenger, he met a group of people who were in a car. They wanted him to follow their instruction and ride to where their motor vehicle, which was with their colleagues, had been parked. After agreement on the fare, the said appellant rode them and arrived at where the motor vehicle was parked. When he demanded his money, those persons could not pay him, instead, after exchange of words, he was arrested, handcuffed and forced to embark on the motor vehicle. He was taken to Rombo Mkuu Police Station and later to Arusha where he stayed in the police lock-up until on 1/8/2019 when he was transported to Moshi Police Station. While at Arusha, he said, he was tortured and forced to sign certain documents, the contents of which were unknown to him. On 2/8/2019 he was charged in court. As stated above, the learned trial Judge was satisfied that the prosecution evidence had sufficiently proved the case against the 1st - 3rd appellant and thus convicted and sentenced them as pointed out above while as for the 4th appellant, he was convicted on his own plea of guilty. 10 At the hearing of the appeal, the 1st - 3rd appellants were represented by Ms. Lilian Mushemba, learned counsel. On his part, the 4th appellant appeared in person, unrepresented. On the other hand, Ms. Rose Sulle, learned Senior State Attorney who was being assisted by Mr. Isack Mangunu, learned State Attorney, appeared for the respondent Republic. Ms. Mushemba argued the grounds of appeal contained in the supplementary memorandum filed by her on 9/5/2024 and abandoned the grounds contained in the two memoranda of appeal filed by the appellants. The supplementary memorandum of appeal lodged by the learned counsel consists of the following six grounds: "1. That the trial court erred in iaw and in fact in relying on exhibit P2 while the same flouted the mandatory provisions o fRule 8 (2) o f the Economic & Organised Crimes Control Rules (GN No.267of2016) read together with Section 246 (2) o f the Criminal Procedure Act, Cap. 20 [RE2002] 2. That, the trial court grossly ered in iaw and fact when it convicted and sentenced the appellants while the charge was defective; unpieaded and consequently not consented to by the DPP as legally required. 3. That, the trial court erred in law and in fact for failure to note that the requirements o f sedion 38 (1) and li (3) o fthe Criminal ProcedureAct, Cap. 20, [RE2002] were not compiled with. 4. That, the trial court erred in iaw and in fact when it failed to note that the evidence o f PW7 and PW10 was recorded in contravention o f the provisions o f the Wiidiife Conservation Act, No. 5 o f 2009 and section 289 (1) o f the Criminal Procedure Act, Cap 20 [RE2002] respectively. 5. That, the triai court erred in iaw and in fact when it failed to take into consideration the 1st accused's plea o fguilty. 6. That, the trialJudge erred in iaw and in fact for failure to scrutinize and evaluate properly the entire prosecution evidence which was contradictory, incredible, insufficient, unreliable, and had material inconsistencies which rendered such evidence highly improbable; hence the case was not proved beyond reasonable doubts and instead, he used the appellants defence against them and proceeded to convict them. " For reasons which will be apparent herein, we do not find it necessary to consider the submissions made on all grounds of appeal. We will consider only the arguments made in support of the first and second grounds of appeal. Submitting in support of the 1st ground of her supplementary grounds of appeal, the learned counsel argued that, exhibit P2 was admitted in evidence in contravention of rule 8 (2) of the Economic and Organized Crime Control (The Corruption and Economic Crimes Division (Procedure) Rules, 2016 (hereinafter the CECD Rules). It was her submission that, the eight (8) elephant tusks, which were the subject of the charges in the first and second counts, were not listed during the committal proceedings as exhibits which would be tendered at the trial. Citing the cases of Joachim Ikechukwu Ike v. Republic (Criminal Appeal No. 432 of 2019) [2024] TZCA 195 (19th March 2024; TANZLii) and Grace Teta Gibatu v. Republic (Criminal Appeal No. 84 of 2019) [2023] TZCA 17516 (23rdAugust 2023; TANZLii), Ms. Mushemba urged us to expunge that exhibit. In the two cited cases, similar exhibits were not listed at the committal proceedings conducted under the provisions of section 246 of the Criminal Procedure Act, chapter 20 of the Revised Laws (the CPA). Under section 247 (2) of the CPA, which is similar to rule 8 (2) of the CECD Rules, the committing court is required to read the information to the accused person as well as the statements and documents intended to be tendered by the prosecution as exhibits. The learned counsel argued thus that, since the prosecution did not comply with rule 8 (2) of the CECD Procedure Rules, exhibit P2 was wrongly admitted in evidence and should thus be expunged. She argued further that, if that is done, the remaining evidence cannot sustain the conviction of the 1st - 3rd appellants. With regard to the second ground of appeal, Ms. Mushemba argued that, the prosecution of the appellants on the second count was not only based on a defective charge but also without the consent of the DPP. She explained that, the offence of dealing in Government trophy falls under section 80 of the WCA which was neither cited in the charge nor in the consent given by the Prosecuting Attorney In-charge, Kilimanjaro. In the consent document, the cited section is 86 (1) and (2) (b) of the WCA which prohibits possession of Government trophy. The learned counsel argued therefore that, the trial of the appellants on the second count was a nullity and urged that, their conviction on that count be quashed. In response to the submissions made by the learned counsel for the 1st - 3rd appellants on the two counts, Mr. Mangunu readily conceded that the same have merit. He agreed that, whereas exhibit P2 was not listed at the committal proceedings, the second count was not only defective but lacked the consent of the DPP. He cited the case of Jonathan Joseph v. Republic (Criminal Appeal No. 391 of 2020) [2022] TZCA 444 (18th July, 2022) to bolster his argument that, once the exhibit is expunged, the evidence to the effect that the appellants were found in possession of elephant tusks will not sustain the appellants' conviction. Having considered the submission of both learned counsel for the 1st - 3rd appellants and the respondent Republic, we agree that the first and second grounds of appeal have merit. For both counts, the subject matter of the evidence at the trial. The same were not listed during the committal proceedings and were thus not brought to the attention of appellants as part of the substance of the evidence which the prosecution intended to rely upon at the trial. That requirement, as provided for under rule B (2) of the CECD Rules, is mandatory. The provision states as follows: ”8 (1).... (2) upon appearance o f the accused person before it, the district or resident Magistrate Court shaii read and expiain or cause to be read and explained to the accused person or if need be interpreted in the language understood by himr the information brought against him as weli as the statements or documents containing the substance o f the evidence o f witnesses whom the Director o f Public Prosecutions intends to call at the trial? [Emphasis added] As shown above, rule 8 (2) of the CECD Rules is similar to section 246 (2) of the CPA which applies to committal proceedings for cases other than those involving economic crime offences. In the case of Remina Omary Abdul v. Republic, Criminal Appeal No, 189 of 2020 [2022] TZCA 118 (15 March 2022) in which, a tangible exhibit, which was not listed at the committal proceedings, was admitted in evidence, the Court expunged that exhibit observing as follows: "Court not only read and fist potential prosecution witnesses but also read/explain the contents o f document and then Ust down documentary and physical exhibits the prosecution would rely on during [the trial]..." See also the cases of Joachim Ikechukwu Ike and Grace Teta Gibatu (supra) cited by the learned counsel for the appellants. Having found that exhibit P2 was admitted in contravention of rule 8 (2) of the CECD Rules, we hereby expunge it from the record. The effect is to render the first and second counts without sufficient evidence to sustain the conviction, not only of the 1st - 3rd appellants but also of the 4th appellant as far as the two counts are concerned. That finding suffices to dispose of the appeal against the 1st and 3rd appellants. In the circumstances, we allow the appeal against them and thus quash their convictions, set aside both the sentences of fine and imprisonments. They should be set to liberty forthwith unless they are otherwise lawfully held. Having disposed of the 1st - 3rd appellants' appeal, we now proceed to consider the 4th appellant's appeal. In his memorandum of appeal, he raised the following 7 grounds of appeal: "1. That the learned trialJudge grossly erred both in law and fact in convicting and sentencing the appellant on an equivocalplea o fguilty. 2. That the learned trialJudge grossly erred both in law and fact in failing to note that, all physical exhibits which were produced, tendered and admitted in evidence as exhibits ... i.e. Exhibits PI, P2, P3, P4 and P5, flouted the mandatory provisions o f section 246 (2) o f the C.P.A. Cap 20 R.E 2019, now R.E.2022, and Rule 8 (2) o f the Economic and Organized Crime Control Rules. 3. That, the learned trialJudge grossly erred both in law and fact in convicting and sentencing the appellant on a fatally and incurably defective charge. 4. That, the learned trialJudge grossly erred both in law and fact in treating the admitted facts by the appellant as a plea o fguilty, despite the same being imperfect, ambiguous and unfinished. 5. That the learned trial Judge grossly erred both in law and fact in failing to note that upon the admitted facts, the appellant could not in law have been convicted o f the offences charged. 6. That, the learned trialJudge grossly erred both in law and fact in failing to note that the appellant's plea was a result o f misapprehension. 7. That, the learned trial Judge grossly erred both in law and fact in relying upon the appellant plea to enter conviction against him, despite there being no proof whether exhibits PI and P2 were indeed the elephant tusks, exhibits. P3 and P4 were real firearms’ ammunitions and Exhibit P5 was indeed a weapon to wit; Riffle 458." When he was called upon to argue his grounds of appeal, the 4th appellant did not have any substantial submissions to make. He urged us to find that, his grounds of appeal have merit and thus allow his appeal. He insisted that, he did not comprehend the nature of the charges to which he pleaded guilty. In response, Mr. Mangunu started by conceding that, since as found above, the consent of the DPP was given for the first and second counts only, the other counts with which the 4th appellant was charged lacked the necessary consent and therefore, the proceedings on those counts were rendered a nullity. He also agreed that, the second count was fatally defective because, from both the cited provision and the particulars of the offence, as found above, the charge did not disclose the offence of dealing in Government trophy. The learned State Attorney argued however that, as for the first count, that the 4th appellant was properly convicted on his own plea of guilty. He disputed the contention by the said appellant in the first, fourth, fifth and sixth grounds that, his plea was not unequivocal and that, the admitted facts did not justify his conviction. As for the second and seventh grounds, Mr. Mangunu submitted that, the same were raised out of misconception because the conviction was based on the 4thappellant's plea of guilty. We have duly considered the appellant's grounds of appeal and submissions and the reply thereto by the learned State Attorney. We wish to begin by agreeing with the learned State Attorney that, from our finding that the consent of the DPP was lacking in respect of all counts except the first and the second counts and upon our further finding that the charge in the second count was fatally defective, the conviction of the 4th appellant on those counts was not properly founded. As a consequence, we quash his conviction on the second, third, fourth, fifth and sixth counts and set aside the sentences of fine and imprisonment meted out against him on the said counts. We shall thus consider his appeal on the remaining first count. With regard to his grounds of appeal, in challenging his conviction on a plea of guilty which covered all the counts charged including the first counts, we agree with the learned State Attorney that, the second and seventh grounds were raised out of misconception. The same challenge the propriety of the procedure at the hearing of the case, the stage at which the 4th appellant was not involved because his case ended up at the plea taking 19 stage. For that reason, we do not find merit in the two grounds and thus dismiss them. Concerning the complaints by the appellant on the first, fourth, fifth and sixth grounds of appeal, we also agree with the learned State Attorney that, the same are devoid of merit. From the record, on 13/7/2020 after the charge had been read and explained to him, the 4th appellant pleaded guilty and admitted the facts as being correct after the same had been read out to him. See pages 38-56 of the record. On 14/7/2020, the facts were read over to him for the second time and maintained his plea of guilty. His admission at page 71 of the record was in the following words: "Yes, I have heard the facts, I have no objection. I admit to have been found in possession o f 8 elephant [tusks], 19 pieces o f eiephant tusks, ammunition, 4 buiiets, a gun riffle 458. I admit a seizure certificate in respect o f 8 tusks, 19 pieces o f elephant tusks, 8 ammunition, 4 buiiets, riffle 458.1 admit a valuation certificate for the 8 tusks and 19 pieces o f elephant tusks." In the light of the above, we are certain that, the learned trial Judge afforded the said appellant the opportunity of understanding the nature of the offences charged including the offence in the first count and in both occasions the 4th appellant pleaded guilty unequivocable. He cannot now be heard to complain that his plea was equivocal or that it was ambiguous, imperfect or incomplete or that, he did not understand the charge. We find further that, the facts in respect of the first count, as admitted by him, disclosed the offence charged. Having so found, we also dismiss the first, fourth, fifth and sixth grounds of appeal for want of merit. In the event, the 4th appellant's appeal against his conviction on the first count is hereby dismissed. DATED at DAR ES SALAAM this day of 21st November, 2024. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL The Judgment delivered this 3rd day of January, 2025 in the presence of Ms. Judith Mboya, learned Counsel holding brief for Ms. Lilian Mushemba, learned Counsel for the 1st, 2nd and 3rd Appellants, 4th appellant in person, unrepresented and Mr. Makore Maheri, learned State Attorney for the Respondent/Republic connected through video conference from High Court