Kartipu Motaja

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA CORRUPTION AND ECONOMIC CRIMES DIVISION (ARUSHA SUB- REGISTRY) ECONOMIC CASE NO 11 OF 2020 (Originated from Economic Case No. 48 of 2019 o f Resident Magistrate's Court o f Arusha at Arusha) REPUBLIC......................................................................... COMPLAINANT VERSUS KARTIPU S/O MOTAJA @ KILANGI.................................ACCUSED PERSON JUDGMENT 12th & I4 h November, 2024 I.C. MUGETA, J. The issue for my determination is whether the accused person was arrested at Mdori porini, Babati District with two elephant tusks which were tendered as exhibit P3. According to the prosecution witness, one Yohana Mtegeki Mgalula (PW4), he arrested the accused with the trophies while in the company of Goodluck Nnko. Consequently, he is charged with unlawful possession of government c/s 86 (1) and (2) (b) of the Wildlife Conservation Act, 2009 read together with paragraph 14 of the 1st schedule to, and section 57 (1) and 60 (2) both of the Economic and Organised Crimes Control Act Page 1 of 8 [Cap 200 R.E. 2019] as amended by section 16 (a) and 13 (b) respectively of the Written Laws (Miscelleneous Amendment) Act No. 03 of 2016. It is alleged in the particulars of the offence that on 11/05/2019 at Mdori area in Babati District he was found in unlawful possession of 2 pieces of elephant tusks worth USD 15,000. Hereunder, are the abridged material facts of the case. According to PW4 the accused was arrested on 11/05/2019 at about 22:00 hours at Mdori area, Babati District. Thereafter, they travelled to Arusha and arrived at around 01:30 hours on 12/5/2019. They handed the exhibit and the suspect over to F.7335 Sgt Evance (PW2) at the Arusha Central Police station. Later, PW2 handed exhibit P3 over to James Kugusa (PW3). PW3 handed it over to Emmanuel Joseph Mtaturu (PW1) who tendered it in Court. The accused person gave evidence in defence as DW1. He did not call any other witness to support his case. He admits to have been arrested at Mdori but not at Mdori porini. That upon his arrest he was not told the reasons for his arrest and his demands to be taken to the village administration failed. He said he is not sure if the arresting officers understood him because he did not speak Kiswahili by then. He relied on the order of this court dated 23/02/2021 that an interpreter be employed Page 2 of 8 to facilitate his trial to prove this fact. I start with determining if the chain of custody of exhibit P3 is intact. I have examined the evidence on record, I am satisfied that the chain of custody in handing of exhibit P3 from when it was given to Sgt Evance on 12/05/2019 to when it was tendered in this court on 11/11/2024 is intact. The handling of this exhibit paper trail was meticulously document through exhibits P2, P2, P4, P5, P6 and P7. Those exhibits constitute either record of handing over in exhibit registers or handing over forms. The two types of documents were duly filled in by PW1, PW2, PW3 and Emmanuel Daniel Pius (PW5) who evaluated the trophy and confirmed it is worth USD 15,000. The foregoing being the position regarding the chain of custody, the issue which cries for an answer is the one I posed at the beginning of this judgment. That is whether the accused person was arrested with the two elephant tusks (exhibit P3). The relevant evidence is that of PW4 against that of the accused person (DW1). PW4 testified that the mission to arrest the accused started with a tip to him by an informer on 11/05/2019 at around 10:00 hours. The informer told him that at Mdori area, there is a person who sells elephant tusks. Page 3 of 8 They agreed to camouflage as buyers and the deal would be concluded at 19:00 hours. As at that time, PW4 testified, it rained heavily. The appointment time was pushed ahead to when the rain stopped. It stopped at 21:30 hours where the informer said the seller had arrived at the appointed area. PW4 and Goodluck went to meet him leaving colleagues in the car and that is when the accused was arrested with the exhibit P3. The foregoing facts are disputed by the accused person who maintains that he was arrested with nothing. It follows, therefore, that this case's determination lies on credibility of witnesses. The principle is settled that each witness is entitled to credence unless there is good reason to disbelieve him/her. This was the holding in Goodluck Kyango v R [2006] T.L.R 363. PW4 testified that upon arresting the accused person they prepared a seizure report. The witness to the seizure certificate which was tendered as exhibit P8 is Goodluck Nnko who was one of the arresting officers. In practice witnesses to seizure certificate ought to be independent persons except where the seizure is of emergency nature and getting independent witnesses is practically impossible. In this case, the arret and the subsequent seizure of exhibit P3 was premeditated. To give credence to exhibit P8, it ought to have been signed Page 4 of 8 by an independent witness. Goodluck Nnko being one of the arresting officers had interest to serve. On cross examination, PW4 explained why they did not involve civilians in the process. He testified that arresting poachers may involve exchange of firearms so it was dangerous to involve civilians. This is true, but exchange of firearms was unlikely in the circumstances of this case. They were dealing with a seller not an armed poacher. There is no evidence suggesting that the dealer was likely to be armed. Notwithstanding, PW4 testified that part of his search team remained in the car when himself and Nnko went into the bush to meet the dealer. Reasonably, therefore, if they were minded to have an independent witness, he would have stayed in the car. I, therefore, disregard the evidence in the seizure certificate for want of credence. Further, as obiter dictum, I am of the view that after arresting the suspect, there was no reason why they failed to inform the village authority about their presence in that village and the arrest of the accused person. In my considered judgment, good law enforcement practice requires involvement of the grass-root people's leadership to give credence to law enforcement agencies activities except where circumstances do not permit. When law enforcement agencies go to residences, arrest people Page 5 of 8 and take them away without involving the areas' government leadership they not only cause unnecessary anxiety among the suspect's family members but also raises suspicion about the credence and reliability of the prosecution's evidence during trial. In this case, the accused complained that none of his family members has visited him since 2019 when he was arrested from his village and brought to Arusha! Having disregarded the seizure certificate, the remaining material evidence is that of PW4 against that of the accused person. The prosecution carries the burden to prove the case beyond reasonable doubts. The duty of the accused is to raise a reasonable doubt in the prosecution's case. He has no duty to prove his innocence. In the circumstances where PW4 and his team had ample time to get an independent witness in their mission but failed, it becomes hard to believe PW4. The evidence on record being considered as a whole, the defence of the accused that he was arrested without the trophies becomes probable. In the event, I hold that the prosecution has not proved its case to the hilt. 1 find the accused person not guilty. I, accordingly, acquit and discharge him of his charges as charged under the above stated section and laws. Page 6 of 8 Dated at ARUSHA ZONE this 14th of November 2024. Court: Judgment delivered in chambers in the presence of Godfrey Nugu, State Attorney for the Republic and Judith Akinyi Reuben holding brief for Kapimpiti Mgalula, Advocate for the accused person. Sgd: I.C. MUGETA JUDGE 14/ 11/2024 Page 7 of 8