Dominick George Pwazi vs Republic (Criminal Appeal No. 21210 of 2025) [2026] TZCA 217 (4 March 2026)

ZN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: GALEBA. 3.A.. MASOUD- J.A. And FELESHI, J.A.) CRIMINAL APPEAL NO. 21210 OF 2025 DOMINICK GEORGE PWAZI........................................................ APPELLANT VERSUS REPUBLIC ................. ............................................. ..... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) (Musokwa, J.) dated the 11th day of April, 2024 in DC. Criminal Appeal No. 18934 of 2024 JUDGMENT OF THE COURT 16th February, & 4th March, 2026 FELESHI. J.A.: The appellant, Dominick George Pwazi, challenges the decision of the High Court of Tanzania sitting at Dodoma (the first appellate court), which affirmed both his conviction and the sentence of twenty years' imprisonment imposed by the District Court of Manyoni (the trial court) for the offence of unlawful possession of government trophy, contrary to sections 86 (1) and (2) (c) (ii), 3 (b), 111 (1) (a) and 113 (2) of the Wildlife Conservation Act, Chapter, 283 read together with Paragraph 14 of

the First Schedule to and sections 57 (1) and 60 (2) of the Economic and Organized Crimes Control Act, Chapter 200 (the EOCCA). It was alleged that, on 9th September, 2023, at Kalekwa Area, Mitundu Ward, Manyoni District, Singida Region, the appellant was found in possession of four pieces of elephant tusks, being government trophies, valued at USD 40,000 (equivalent to TZS 97,800,000), without a permit issued by the Director of Wildlife. He pleaded not guilty. In support of its case, the prosecution called six witnesses, namely, G 6012 CPL- Isaya (PW1), PF21961 A/Inspector Tigana (PW2), F.9878 D/C Fredrick (PW3), Jonathan Musiba (PW4), Fumbuka Athanas Anthony (PW5) and Gideon Kilaga Bernard (PW6). It also tendered eight exhibits to wit, elephant tusks (exhibit PE2), chain of custody records (exhibit PEI and PE5), the appellant's cautioned statement (extibit P6), trophy evaluation certificate (exhibit P7) and the appellant's extrajudicial confession (exhibit PE8). In summary, the prosecution evidence established that on 9th September, 2023 at about 20:00 hours, PW2 received information from an informer that the appellant intended to sell elephant tusks at his residence in Mitundu, Itigi Division, Manyoni District. PW2 informed the Officer Commanding Criminal Investigation Department (OC-CID) in Manyoni

District, who directed him to act upon the information. A search warrant was subsequently obtained from the Officer in Charge of Manyoni Police Station (OCS). At about 22:00 hours, PW2, accompanied by other officers, including PW3, proceeded to Mitundu and, with the assistance of the hamlet chairperson (PW5) and a ten-cell leader, located the appellant's residence. At about 23:00 hours, they entered the premises through an unlocked gate. Several persons fled the scene, but the appellant was apprehended while attempting to scale the perimeter wall. Upon his arrest, the appellant was found in possession of a sulphate bag. When directed to open it, four pieces suspected to be elephant tusks were discovered. The items were marked MIT-01 to MIT-04. The appellant allegedly admitted that the items were elephant tusks intended for sale. The tusks were later examined and scientifically confirmed to be elephant tusks by PW4, an officer from the Tanzania Wildlife Management Authority (TAWA). The exhibits were recorded and entered in the exhibit register by PW1, an exhibit keeper. A certificate of seizure was prepared and admitted in evidence as exhibit PE4. The chain of custody documentation was also tendered as exhibit PEI.

On the other hand, the appellant fended for himself as DW1 and distanced himself from the commission of the offence, claiming that the person involved in that business is his young brother, whom the police did not arrest. According to him, he signed the cautioned statement after being tortured, and that the extra-judicial statement was different from the one he authored to the justice of peace. At the end of the trial, the trial court convicted the Appellant and sentenced him to 20 years' imprisonment. Dissatisfied, he unsuccessfully appealed to the first appellate court, which upheld the decision of the trial court. Still aggrieved, the appellant now appeals to this Court, raising 14 grounds. Most of the grounds were abandoned at the hearing, leaving four grounds which comprised grounds 1, 3, 8 and 12 in the following sequences:

1. The trial and the 1st appellate court erred In law and fact when convicted the appellant while the prosecution failed to prove the case against the appellant beyond all reasonable doubt
2. Both the trial and the 1st appellate court erred in law and fact by failing to evaluate and appraise the evidence adduced by the prosecution witnesses hence arriving at the wrong verdict against the appellant
3. Both the trial and the 1st appellate court erred in law and fact when convicted the appellant without considering the principle which have

to be taken into account in respect to the chain o f custody and preservation o f exhibit 4, Both the trial and the 1st appellate court erred in law and fact when they improperly admitted and relied on extrajudicial statement exhibit P8 while the same did not comply with the Chief Justice guidelines forjustice o fpeace. At the hearing of the appeal, Mr. Ezekiel Amon, learned advocate, represented the appellant on one side, while on the other were Ms. Miyango Kezilahabi, learned Senior State Attorney, assisted by Messrs Nehemia Kilimuhana and Frank Chonja, both learned State Attorneys, who appeared for the respondent, Republic. Arguing in support of the appeal, Mr. Amon combined and argued together grounds 1, 3 and 8 (1st, 2n d and 3r d of improvised grounds), whereas the 12th (the 4th ) ground was argued separately. He started with the 4th ground. He submitted that, exhibit P8, the extrajudicial statement was improperly admitted and the trial and ^appellate courts ought not to have relied on it in convicting the appellant. According to the counsel, among the requirements that a justice of peace has to fulfil in recording the extrajudicial statement, is to indicate the date and time of the suspect/accused's arrest. In this matter, according to Mr. Amon, exhibit P8 does not show date and time the appellant was arrested, the effect of

which rendered the exhibit inadmissible for contravening the Chief Justice Guidelines. To reinforce his argument, he relied on the case of Petro Teophan v. Republic, Criminal Appeal No. 58 of 2012 (unreported). As to grounds 1, 2 and 3, Mr. Amon argued them together that the case was not proved to the hilt because there was a broken chain of custody about the identification of the alleged government trophy. He submitted that, it was alleged on the fateful date that the appellant was found with the trophy, which they seized and marked from MIT1 to MIT4. They were taken to Manyoni police station and handed to Samra, who on the next morning handed them to PW1, exhibit keeper. However, PW1 in his testimony identified the said exhibits by marks MIT1, MIT2, MIT3 and MIT4 from 1s t piece to the last piece. Mr. Amon added, arguing that, when PW2 appeared before the trial court to testify, he identified the exhibits by the marks MIT01-MIT04. Further that, even when they were shown to him, PW1 still identified them by the same numbers. It was Mr. Amon's submission that, the evidence of PW1 and PW2 on the way of identifying the exhibits mismatched. Counsel held the view that, it was expected that if PW2 mistakenly mentioned the marks, he would have corrected after they were handed to him for identification but he maintained the position even post-given to him. He urged this Court to find the contradiction very serious and fatal, which made the chain of custody doubtful.

Moreover, Mr. Amon argued that, since the evidence showed that the alleged trophy and the sulphate bag in which the alleged elephant tusks were found, seized and marked in the presence of an independent witnesses, including PW5, it was commonplace that PW5 could also identify the exhibits by the same marks. However, PW5 said he identified the exhibits because they were in Kakhi sulphate and did not identify them by the said marks, M r. Amon forcefully contended that, the exhibits raised doubt as to whether they were the same as those that were seized from the appellant or any others. He prayed this Court find that the case was not proved and allow the appeal, quash the conviction and set aside sentence then the appellant be released from prison. In reply, Mr. Kilimuhana opposed the appeal. Submitting to the 12th ground about extrajudicial statement, he conceded that the format, according to the authority given and the Chief Justice Guidelines for Justice of Peace, indicating date and time of the arrest was important, but he was quick to add that, in the matter at hand, though exhibit PE8 did not expressly indicate the time of arrest, the omission was cured by the contents of the statement itself, where the appellant stated that he was arrested on the night of 9th September, 2023 at his home.

As regards to the ground that the case was not proved since the chain of custody was broken, Mr. Kilimuhana conceded again, that PW1 identified and tendered exhibit P2 with identifying marks MIT1 to MIT4. Also, that PW2 and PW4 identified them by the marks MIT01 to MIT04. He, however, contended that these numbers, when they have 01 on the left in articulating, one just mentioned it as "1". Mr. Kilimuhana went on arguing that to prove that they were the same, PW1 said he gave them to PW4 who at page 34 lines 17-18 of the record of appeal confirmed to be elephant tusks and evaluated them and he still identified them in court with the marks MIT01 to MIT04. According to M r. Kilimuhana, the omission of digit "0" by PW1 was just an articulation. Regarding the contention that PW5 did not say anything about the marks, Mr. Kilimuhana was quick to argue that, it was not mandatory for the witnesses to have the same memory and retain the same mark, as there was no dispute that the tusks were seized in PW5's presence. He maintained that the exhibits after being tendered and admitted in the trial court, they remained there until PW2 and PW4 came to testify. Their integrity, therefore, had never been compromised. To sum up, he urged the Court to find that the case against the appellant was proved to the hilt by PW2, PW1, PW5 and the cautioned statement which was intact. That the appeal be dismissed. 8

In rejoinder submission, Mr. Amoni reiterated the earlier submission insisting that, the Chief Justice guidelines and the authority given do not require showing any prejudice for them to be found fatal, thus ground 12 should be upheld. On the issue of chain of custody, he added that, it was mandatory for witnesses to describe the exhibits uniformly by the same marks. That when uniformity is lacking in identifying, should lead to doubt and holding that the prosecution did not prove the case. We have given due consideration to the contending arguments by the counsel for the parties, and we have carefully scanned the record. We are tasked to decide whether the appeal has merit, and we shall go by the grounds as they have been argued. This Court has been insistently indorsing following the Chief Justice Guidelines in recording extrajudicial statements by the justices of peace. In Japhet Thadei Msigwa v. Republic [2011] TZCA 108, we observed that: "So, when Justices o f the Peace are recording confessions o fpersons in the custody o f the police, they must follow the Chief Justice’ s Instructions to the letter. The section is couched in mandatory terms. Before the Justice o f the Peace records the confession o f such person , he must make sure that all eight steps enumerated therein are observed.

The Justice o f the Peace ought to observe , inter alia, the foiiowing (i) The time and date o f his arrest (ii) The piace he was arrested (Hi) The piace he siept before the date he was brought to him (iv) Whether any person by threat or promise or violence has persuaded him to give the statement (v) Whether he reaiiy wishes to make the statement on his own free wtii. (vi) That if he makes a statement, the same may be used as evidence against him. "[Emphasis supplied] In the same decision, we articulated the rationality of following them with these words: "We think the need to observe the Chief Justice's Instructions are two-fold. One, if the suspect decided to give such statement, he should be aware o f the implications involved. Two, it will enable the trial court to know the surrounding circumstances under which the statement was taken and decide whether or not it was given voluntarily/' We further held, as correctly argued by Mr. Amon, with whom we entirely agree, that noncompliance with the Chief Justice Guidelines renders confession cum the extrajudicial statement inadmissible. Also, see- Zawadi Sprian v. Republic [2026] TZCA 125, Hamsi Chacha Wisare 10

v. Republic [2023] TZCA 17590 and Petro Teophan v. Republic (supra). It is thus correct that one of the requirements of the justice of peace guidelines is to ask and record the answer to what date and at what time the suspect was arrested by the police. In this matter, indeed, exhibit PE8 did not indicate the date and time of the appellant's arrest. It only shows that he was arrested in his home and taken to the police. However, in the main context, the appellant stated that, he was arrested on 9.9.2023 at night while at his home. Luckily, the context was brief and can be partly reproduced hereunder: "Nakumbuka tarehe 9 . 9.2023 siku hiyo nifikuwa tu nyumbani kwangu kitongoji cha Kulekwa Mitundu. Sikuweza kutoka kwani nMkuwa nina homa. Majira ya usiku siku hiyo ndipo nifikamatwa na askari nikiwa na meno ya tembo vipande vinne ambavyo viiikuwa ndani ya mifuko..." [Emphasis supplied] We think, since the rationale of recording extra-judicial statements in strictly compliance of the Chief Justice's Guide is to safeguard the voluntariness of the statement and ensures transparency of the circumstances under which it was recorded, the fact that in this matter the appellant himself said he was arrested during night of 9th September, 2023 ii

without saying the statement was involuntarily recorded, that cured the omission of failure to indicate the date and time in the questions which a justice of peace filled in before recording the statement. Under the circumstance we find no reason to expunge exhibit PE8 from the record. Turning to the issue of whether the chain of custody was broken. Counsel for the appellant argues that, the chain of custody was broken due to the contradiction in identifying the marks on exhibit PE2. The contending line being that, while other witnesses identified the alleged elephant tusks with Mark MIT01-MIT04, PW1, who tendered it, identified the same as MIT1-MIT4 without the number "zoro" preceding "1" That, it is possible that those tusks retrieved from the appellant's home were different from those tendered in court. In this issue, we undertake the general principle that where a chain of custody is broken, a prosecution case is in shambles, see Paul Maduka and Others v. Republic [2009] T7CA 69. We should, however, state at the outset that, in this matter, the underlining of exhibit PE2 started from seizure, marking, signing of seizure certificate, transferring from the appellant's home to Manyoni Police Station, entry in the exhibit register, keeping by CPL Samra on 9th September, 2023 to PW1 on 10th September, 2023, handling to PW4 for identification and valuation, and later on to the 12

trial court as an exhibit. This chain of recording seems not to bother the appellant. Again, it is worth noting at this very outset that even the appellant did not refute retrieving the tusks from his home, but was only attributing the possession to his young brother, one Gilbert Underson and his friend Amosi. The disturbing issue, according to M r. Amon for the appellant, rests on the identifying marks concerns the alleged discrepancy in the identification marks of the exhibits, It was argued that whereas PW2 and PW4 identified the tusks as marked MIT01-MIT04, PW1 referred to them as MIT1-MIT4, thereby omitting the zero. Counsel submitted that this discrepancy was fatal and broke the chain of custody. We have carefully scrutinised the record. PW2, who seized and marked the exhibits, identified them as MIT01-MIT04. PW4, who examined and valued them, identified them by the same markings. PW1, the exhibit keeper, referred to them as MIT1-MIT4. The only difference is the omission of the digit "0" in articulation. Conversely, the exhibits were tendered in court by PW1 and remained in court custody. When shown to PW2 and PW4, they identified them without hesitation as the same exhibits seized from the appellant. 13

In our considered view, the omission of the digit "0" in trial court's record is a minor variance in articulation and does not constitute a material contradiction. The numerical sequence remained consistent and identifiable. No evidence was presented to suggest substitution, tampering, or contamination of the exhibits. The integrity of the chain of custody was preserved from seizure to production in court. We therefore find that the alleged discrepancy does not go to the root of the prosecution's case and does not create reasonable doubt. The chain of custody was thus coherent and unbroken. Additionally, in the totality of the above discussion in relation to the evidence on record, even assuming, for the sake of argument, that the extra-judicial statement was to be expunged from the record for non- compliance, the prayer we declined, we are satisfied that the remaining evidence would have remained cogent, credible and sufficient to sustain the conviction of the appellant. First, PW2's evidence on the arrest and seizure was direct, consistent and unwavering. He personally apprehended the appellant at the scene while in actual possession of the sulphate bag containing the tusks. He marked the exhibits at the point of seizure and prepared a seizure certificate exhibit PE4. His testimony was corroborated by the presence of 14

independent local leaders, including PW5, and by the documentary exhibits. Second, PW3's evidence regarding the cautioned statement was not shaken. The statement was recorded in accordance with established procedure and bears the appellant's signature. It contains admissions consistent with the circumstances of arrest. Third, PW4's expert evidence conclusively established that the recovered items were elephant tusks, that is, government trophies within the meaning of the law. His testimony remained unchallenged on the material aspects of identification and valuation. When the totality of the above evidence is considered cumulatively, as we have endeavoured to demonstrate above, we are satisfied that the testimonies of PW2, PW3 and PW4, together with the documentary exhibits analyzed herein, form a cogent and watertight body of proof establishing the prosecution's case against the appellant beyond reasonable doubt. Ihe defence advanced by the appellant was therefore rightly rejected by the two courts below as a mere afterthought, lacking evidential support. 15

In the result, we are satisfied that the appellant's conviction and sentence were sound and firmly grounded in law. The appeal lacks merit and is hereby dismissed in its entirety. DATED at DODOMA this 3rd day of March, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. S, MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 4th day of March, 2026 in the presence of the appellant in person, Ms. Caren Rwebangila, learned State Attorney for the respondent Republic and Mr. Oscar Msaki, Court Clerk via virtual Court; is herebyjcefSfiec^as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL 16