WILSON NDEKIRWA

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO.000040780 OF 2023 WILSON NDEKIRWA NNKO COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC RESPONDENT / DEFENDANT JUDGMENT BADE,J 26/08/2024 & 25/10/2024. BADE,J. The Appellant herein together with two other accused persons who are not part to this Appeal were arraigned at the Resident Magistrate’s Court of Arusha and charged with two counts. The 1st count which was for the 1st and 2nd accused persons was about unlawful possession of Government Trophy, contrary to sections 86(1) and 2(b) of the Wildlife Conservation Act, No. 5 of 2009 read together with paragraph 14 of the 1st schedule and section 57 (1) and 60(2) both of the Economic and Organized Crimes Control Act,[Cap 200 R.E 2002] as amended by section 16 (a) and 13 (b) respectively of the Written Laws (Miscellaneous Amendment) Act No. 3 2016. The 2nd count was about the Isl and 3rd accused, which is unlawful dealing in Government Trophies, contrary to section 86 (1) (2)(b) of the Wildlife Conservation Act, No. 5 of 2009 read together with paragraph 14 of the 1st Schedule to, and section 57 (1) and 60 (2) both of the Economic and Organized Crimes Control Act, [Cap 200 R.E 2002] as amended by section 16 (a) and 13 (b) respectively of the Written Laws (Miscellaneous Amendment) Act No. 3 of 2016. According to the particulars of offences in the charge sheet which were presented to the trial court, on the 15th day of July 2019 at Mianzini Area within the City and District of Arusha, the 1st and 2nd accused persons were found in unlawful possession of government trophies that is fifty six (56) Lion Claws which is equivalent to four killed lions each valued at USD 4,900 all of which were valued at USD 19,000 equivalent to Tanzanian Shillings Forty Five Million Eighty Thousand Eight Hundred Forty Two and Two cents (TZS 45,080,842.2) only, the property of the Government of the United Republic of Tanzania without a permit from the Director of Wildlife. On the 2nd count it was alleged that the 1st and 3rd accused persons on diverse dates between March, 2019 and 15th day of July 2019 at various places within City and District of Arusha in Arusha Region,jointly and together they did engage in selling Government Trophies that is fifty six (56) Lion claws which is equivalent to four killed lions each valued at USD 4, 900 all of which were valued at USD 19,600 which is equivalent to Tanzanian Shillings Forty Five Million Eighty Thousand Eight Hundred Forty Two and Two cents(TZS 45,080,842.2) only the property of the Government of the United Republic of Tanzania without Trophy Dealer’s License. After hearing the evidence of both sides, the trial court acquitted the 2nd and 3rd accused persons. The Appellant was acquitted on the 2nd count but found guilty on the 1st count and he was convicted and sentenced to 20 years in prison. Aggrieved by the aforesaid conviction and sentence, he lodged this Appeal on five grounds in his Petition of Appeal as follows: That the trial court erred in law and in fact in not finding that the convicting section does not match with the particulars of offence. 2. That the trial court erred in law and in fact in not finding that there was violation of section 38 (3) as there is no receipt issued evidencing the seized trophy. 3. That the trial court erred in law and in fact in not finding that the Appellant was convicted on the basis of exhibit P5 (the 3rd accused caution Statement) who was acquitted. 4. That the trial court erred in law and in fact in not finding that the Appellant was kept under police custody contrai7 to section 29(1) of Economic Organized Crime Control Act. 5. That, the case against Appellant was not proved to the standard of the law. The brief facts giving rise to the present Appeal may be summarized as follows in the context of the prosecution and defense case. It was alleged by prosecution that on 12/07/2019 while on patrol,PW4 together with other police officers at about 18:30 hours received infonnation from an infonner and managed to arrest the Appellant and the 2nd accused person who is not part of this Appeal. They were informed that they were dealing with Government Trophies. After the arrest they conducted a search and found the Appellant with a brown bag inside the sweater he was wearing. Inside the bag they found 56 items suspected to be lion claws. They marked the said lion claws Ml to M56, and then filed a seizure certificate. They both signed on it in the presence of PW5 one Said Hamisi Mkungi, who is claimed to have been in the area where the Appellant was arrested and called by the police to witness a search as an independent witness. They took the suspected lion claws to PW2,whose work is to conduct identification and valuation of the Government Trophies. She identified the said trophy and confirmed that they were Hon claws with total value of USD 19,600 which is equivalent to TZS 45,080,842.2. After identification and valuation, the said exhibit was sent to PWl who was the exhibit keeper for him to store it. On the other side, all the accused persons adduced similar defense, though they stated that they were arrested on different dates. They denied any commission of offence and testified on how they were arrested, tortured and forced to sign some documents which they did not write or understand. This Appeal is disposed of by way of written submission. The Appellant appeared in person unrepresented. The Respondent did not file any reply to the Appellant’s submission as it was ordered by this court. Hence, this Appeal proceeded ex-parte against the Respondent. The Appellant submitted that the case against him was not proved beyond reasonable doubt on the reason that trial magistrate relied on exhibit P5, a caution statement to convict him. He argued that the trial magistrate did not expunge exhibit P5 from the court as the said exhibit varied with the charge as it shows the Appellant was found in possession of 84 lion’s claws while the charge sheet shows that the Appellant was found with 56 lion’s claws. It is further argument by the Appellant that regardless the fact that the 3rd accused was acquitted, the caution statement procured from the 3rd accused shows different numbers of claws found in his possession. He added that tlie chain of custody was broken, and referred to this court on page 25 of the trial court’s proceedings. He also argued that exhibit P2 does not state the handing over between PWl and PW2, the valuation report and the seized trophy was handed to PW2 from PWI without handing over paper trail. The Appellant contended that PW4 stated they had interrogated the accused persons and they admitted to commit the said offences together but, in his surprise, its only the Appellant who was charged and convicted, adding that in the absence of the brown bag alleged to be carrying the said lion’s claws as exhibit, it has rendered the chain of custody hanging because its unknown how they were brought before the court without its carrier. The Appellant further contended that the independent witness was not involved during his arrest but after his arrest, referring this court to page 64 of the trial court’s proceedings, wondering under these circumstances, how could the court be made to believe that the police officer did not plant the said lion claws for their own interest. The Appellant further argues that he was arrested on 15/07/2019 but brought in court out of the timeframe which is contraiy to section 29 (1) of the Economic Organized Crime Control Act (the “EOCCA”) stating the time frame between arresting the accused persons and taking them to court. He argues that the prosecution is silent on the reason which made the Appellant be in police custody 15 days after being airested, and it denied the Appellant the right to be heard as provided for under article 13(6)(a) of the Constitution of United Republic of Tanzania. Having read the Appellant’s submission, the pleadings, as well as the record of this Appeal, the issue before me is to determine whether the prosecution managed to prove the case against the Appellant beyond reasonable doubt. The Appellant faulted the decision of the trial court on the allegation that the trial court relied on exhibit P5 which is contradictory to the charge sheet to convict him. Going through the judgment of the trial court I find it to be untrue that the trial court relied on exhibit P5 to convict the Appellant. The trial court only mentioned exhibit P5 when dealing with the 2nd count in which the 1st accused, who is the Appellant, and the 3rd accused were acquitted on the said count. See page 11 last paragraph and page 12 of the trial court’s judgment. The trial court relied on the evidence of PW4, a police officer who arrested and searched the Appellant and found him with 56 lion’s claws. The trial court also relied on the evidence of PW5 an independent witness who testified to have witnessed the search which found the Appellant with the said lion’s claws, exhibit P6, which was a seizure certificate signed by the Appellant acknowledging that he was found with 56 lion’s claws. This is without overemphasizing that the same was tendered and admitted in court without any objection from the Appellant or his advocate, exhibit P3, a lion’s claw which was tendered and admitted in court without objection from the Appellant or his advocate, as well as the evidence ofPW2 who identified the suspected lion’s claw and confirmed that it was indeed a lion’s claw. See pages 8, all the way to page 11 of the trial court’s judgment. 1 find this ground without any merits. Another complaint by the Appellant is that the chain of custody was broken. The Appellant claimed that there was no handing over paper trail between PWl and PW2. This argument is meritless. This is due to the fact that PWl testified how he was handed over the exhibit from PW4 and they both signed and filed the handing over certificate. PW2 also explained how he handed over the said exhibit to PW2 through a chain of custody form and they both signed it, after which PW2 returned the exhibit on the same date. The handing over certificate was tendered and admitted in court as exhibit PI without any objection from the Appellant or his advocate. The chain of custody font! was also tendered and admitted in court as exhibit P2 without objection from the Appellant or his advocate. His allegation at this stage is an afterthought and without any merit. Turning to another complaint where the Appellant argues that the independent witness PW5) was called to witness the search after his arrest and not before his arrest. This allegation is equally meritless on the reason that an independent witness is normally required to be present before the search is conducted and not before arrest as alleged by the Appellant. The Appellant also faulted the delay in arraignment on 01/08/2019 which is almost 18 days after his arrest on 12/07/2029. The Appellant contended that there was no legitimate explanation for the delay in his arraignment in court as such his right to be heard as provided for under Article 13 (6)(a) of the Constitution was violated. The period in which an accused must be arraigned before the court after being arrested for Economic Offences is regulated by the provisions of section 29 (1) of the EOCCA. It requires a person who is arrested in respect of the commission of Economic Offence to be arraigned before the court within forty-eight hours or as soon as practicable. In the case at hand, it is on record that the Appellant was arrested on 12/07/2019. However, he was arraigned 18 days later, that is on 01/08/2019. Whereas the Appellant remained behind bars for a period outside the time prescribed by law which is unreasonable and without explanation being availed for such delay. Granted that it is irregular since a delay in the accused arraignment may raise serious speedy trial concerns. It is a settled position of law that unexplained delay to arraign a suspect can cast doubt on the veracity of the witnesses. See the case of Wambura Marwa Wambura vs Republic, Criminal Appeal No. 115 of 2019. In the instant case, the Appellant did not explain how he was prejudiced by the said delay where actual prejudice resulting from the said defect should be shown. His argument that he was denied his right to be heard does not hold water on the fact that after he was brought to court, he was given a chance and he adduced his defense. It is my view that the doubt raised by the delay in arraignment is not enough to impeach the prosecution’s strong evidence that the Appellant was found in possession of 56 lion claws without a permit from the Director of Wildlife. Having said so this Appeal is dismissed for want of merits. DATED at ARUSHA this 25th day of October 2024 Dated at ARUSHA this 25th of October 2024 . A. Z BADE JUDGE OF THE HIGH COURT