Aniseth Ibrahim & Another vs Republic (Criminal Appeal 227 of 2018) [2021] TZCA 488 (17 September 2021)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MUGASHA, J.A., GALEBA, J.A And FIKIRINI, J.A.^ CRIMINAL APPEAL NO. 227 OF 2018

1. ANISETH IBRAHIM ................................................................. APPELLANTS
2. KASSIM MUSSA VERSUS THE REPUBLIC................................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Sumbawanga) (Mambi, 3.) dated the 14th day of September, 2018 in Criminal Appeal No. 47 of 2017 JUDGMENT OF THE COURT 14th & 17th September, 2021 MUGASHA, J.A.: Aniseth Ibrahim and Kassim Mussa, the appellants, were arraigned before the Resident Magistrates' Court of Katavi to answer a charge against them consisting two counts. The first count charged the appellants for unlawful possession of government trophies contrary to section 86(l)(2)(b) and 3(a) and (b) and unlawful dealing in trophies contrary to sections 80 and 84 both of the Wildlife Conservation Act, No. 5 of 2009 read together with paragraph 14(d) of the First Schedule to and section 57(1) of the Economic and Organized i

Crime Control Act, Cap 200 RE 2002. It was alleged by the prosecution that, on the 22/1/ 2016 at Magamba village within Mlele District in Katavi Region, the appellants were found in unlawful possession of government trophies to wit four (4) pieces of elephant tusks, valued at USD 15000 the property of the United Republic of Tanzania without any permit from the Director of Wildlife. On the second count, they were charged with accepting and transporting government trophies to wit four (4) pieces of elephant tusk valued at USD 15000 the property of the United Republic of Tanzania, without any permit from the Director of Wildlife. The appellants pleaded not guilty to both counts. In order to prove the charge, the prosecution paraded a total of six (6) witnesses and tendered three documentary exhibits. And, the appellants defended themselves as DW1 and DW2 respectively. From a total of 6 witnesses the prosecution account was as follows: On the fateful day, at around 12 noon while conducting round traffic activities PW1, PW2, and PW6 happened to be at Maghamba road barrier for the purposes of inspecting motorcycles passing by. While there, they stopped a motorcycle with registration number T914 CQQ make SUN LG red in colour which carried two passengers. This made the two passengers to jump off the

motor cycle and they took to their heels. One of them happened to be the second appellant who was carrying a bag which he dropped after being pursued by the police and he was arrested. Upon being required to open the polythene bag was found therein containing four pieces of elephant tusks, and mobile phones. The appellants were then taken to the police station. Richard Maige (PW4), a game warden recalled to have been entrusted by the police with four elephant tusks which he established to weigh 8.4 kg valued at 15000. 00 USD. He filled the certificate of valuation and gave it to the police officer and it was tendered at the trial as Exhibit P6. In their defence, the appellants denied the assertions by the prosecution. After a full trial, the trial Court found that the first count of unlawful possession of government trophies was proved beyond reasonable doubt and thus convicted and sentenced the appellants to serve a jail term of twenty years. However, they were acquitted of the second count of unlawful dealing with government trophies on ground that it was not proved. Being dissatisfied, they unsuccessfully appealed before the High Court of Tanzania at Sumbawanga. Still undaunted, the appellants have preferred the present appeal. Before us, the appeal raises nine grounds of complaint in a joint Memorandum of Appeal challenging the decision of the High Court as hereunder paraphrased:

1. THAT the High Court judge erred in law and fact when he dismissed the appeal of the first appellant without taking into account that there was no any strong and cogent evidence which was implicates the appellant by the said claimed allegation.

2. THAT the first appellant was not arrested while holding the said claimed bag which contained government trophies exhibit PE2. (the elephant tusks).

3. THAT the first appellant at the fateful day was a motorcycle driver and did not escape when stopped by Pw l and Pw2.

4. THAT the said certified of seizure exhibit PW 1 was not signed by the 1s t appellant to ensure that was true and reliance on the said exhibits to convict the first appellant was the violation of the law.

5. THAT the High Court judge erred in law point and fact when he dismissed the appeal of the second appellant without taking into account that the said certificate of seizure exhibit PEI was not signed by any civilian witness such as hamlet chairperson or any person out of the police officers and game reserve wardens.

6. THAT to ensure that the second appellant was not involved in the said claimed allegation the three persons who were with him one among them by the name of Baba Wamwelu was not arrested either there was no any explanation as to how the police officers failed to arrest this person.

7. THAT the high Court judge erred in law point and fact when he mentioned the said appeal being appealed from the judgment of the district court of Mpanda when the said case was heard at the RMS of Court of Katavi at Mpanda look at page 15 of the high court typed proceedings.

8. THAT the said cautioned statement (exhibits PE5) was obtained from the police station illegally due to its preparation which failed to the comply with the procedure.

9. THAT the charge against the appellants was not proved by the prosecution side as required by the law. And the appellants' differences were not resolved by the trial magistrate hence the High Court judge. At the hearing, the appellants adopted the grounds of appeal and opted to initially hear the submission of the respondent, reserving the right to rejoin later if need to do so arises. Mr. Simon Peres, learned Senior State Attorney assisted by Ms. Flavia Shiyo, learned State Attorney, who represented the respondent Republic supported the appeal from the onset. In addressing the

grounds of appeal, he pointed out that grounds no 2, 3, and 6 are new as they were not initially raised and decided by the first appellate Court. In this regard, he argued, given that the grounds of complaint are not based on points of law, this Court lacks jurisdiction to entertain them. To bolster his argument, he referred us to the case of GEORGE MAILI KEMBOGE VS REPUBLIC, Criminal Appeal No. 327 of 2013 (unreported). Advancing reasons in support of the appeal, it was the learned counsel's submission that, the documentary account to wit; the certificate of seizure (exhibit PI), the cautioned statement of the second appellant (exhibit P5) and the valuation certificate of the four elephant tusks (exhibit P6) were not read out to the appellants after being cleared for admission and as such, they were wrongly acted upon by the trial court to convict the appellants. He added that, the essence of reading out the exhibits is to enable the accused person to understand the contents so as to make a meaningful defence which was not the case here as the appellants were denied opportunity to know the contents of the documentary exhibits. To support his argument, he cited to us the case of ROBINSON MWANJISI AND THREE OTHERS VS REPUBLIC [2003] TLR 218. On account of the said omission, the learned Senior State Attorney urged the Court to expunge the three exhibits from the record. Subsequently, it was his submission that, in the absence of the documentary account, the remaining oral evidence of the 6

prosecution witnesses is not sufficient to prove the charge against the appellants. On this, he argued that, since the conviction of the appellants hinged on his conduct as derived from the evidence of PW1 and PW6, such prosecution account is not in harmony with the manner of the arrest of the appellants who are alleged to have tried to escape after being stopped at the barrier. It was also argued that, PW4 the game warden failed to explain as to how he managed to establish that the tusks were of elephants and he failed to identify the exhibit at the trial. Finally, the learned Senior State Attorney concluded that, on account of the stated shortfalls, the charge was not proved to the hilt. In rejoinder, the appellants who are lay persons had nothing useful to add apart from asking the Court to set them at liberty. After a careful consideration of the grounds of appeal, submissions and the record before us, we agree with the learned Senior State Attorney that, grounds 1, 2, 3, and 6 based on factual complaints are new as they were not initially raised by the appellants in the first appellate Court. It is settled law that, an appellate Court will not deal with new grounds of appeal not raised and determined by the first appellate court. (See: GEORGE MAILI KEMBOGE VS REPUBLIC (supra), HASSAN BUNDALA @ SWAGA VS, REPUBLIC Criminal Appeal No. 416 of 2013; JAFARI MOHAMED VS. REPUBLIC Criminal Appeal No. 112 of 2006 and HUSSEIN RAMADHANI VS.

REPUBLIC Criminal Appeal No. 195 of 2015 and DALALI MWALONGO VS THE REPUBLIC, Criminal Appeal No.27 of 2017 (all unreported). In the latter case, the Court stated as follows: 'We subscribe to the above decisions. Having critically scrutinized the appellant’ s complaints in the 5th, 6th and 7th grounds, we are satisfied that as these are matters of fact and not law, we find ourselves to lack jurisdiction to entertain them and at any rate, we cannot gauge as to where the first appellate court went wrong. Thus, we decline to consider those new grounds of complaint." In the same vein, and given that the said grounds of appeal are not based on points of law, this Court lacks jurisdiction to entertain them and we decline to consider them. In respect of the 7th ground of appeal, it is the complaint of the appellants that the High Court wrongly indicated that the appeal originated from the District Court of Mpanda instead of the RMs court of Katavi at Mpanda. This need not detain us as it was a slip of the pen and besides, the appellants have not been prejudiced in any manner. Ultimately, we have conveniently condensed the remaining grounds into mainly the following: One, that the

charge against the appellants was not proved beyond reasonable doubt and two, on account of procedural irregularities relating to admission of documents in the evidence, the exhibits PI, P5 and P6 were wrongly acted upon to convict the appellants. We begin with the appellants' complaint faulting the two courts below in relying on exhibit PEI (certificate of seizure) and exhibit P5 (the caution statement) to ground the conviction. As earlier stated, this was conceded to by the learned Senior State Attorney. It is settled law that whenever it is intended to introduce any document in evidence, it should first be cleared for admission, and be actually admitted in evidence, before it can be read out in court (See: ROBINSON MWANJISI AND THREE OTHERS (supra) and WALII ABDALLAH KIBUTA AND TWO OTHERS V. THE REPUBLIC, Criminal Appeal No. 181 of 2006 and JOHN MGHANDI @ NDOVO V. THE REPUBLIC, Criminal Appeal No. 352 of 2018 (both unreported). In the latter case the Court emphasized the objective behind the requirement to read over the admitted documentary exhibits to the accused person having said as follows: "We think we should use this opportunity to reiterate that whenever a documentary exhibit is introduced and

admitted into evidence , it is imperative upon a presiding officer to read and explain its contents so that the accused is kept posted on its details to enable him/her give a focused defence. That was not done in the matter at hand and we agree with Mr. Mbogoro that, on account of the omission, we are left with no other option than to expunge the document from the record o f the evidence." In the present matter, it is glaring at pages 50 and 56 of the record of appeal that, after the certificate of seizure (exhibit PEI), the cautioned statement of the second appellant (exhibit P5) and the certificate of valuation of government trophies (exhibit PE6) were admitted in the evidence without being objected. However, the trial court omitted to read over the contents of the exhibits to enable the appellants to understand and make a meaningful defence including cross-examining the witnesses on the said documentary evidence. The omission was fatal as it occasioned a miscarriage of justice to the appellants who though were present throughout the trial, they were convicted on the basis of the documentary account they were not made aware of which is irregular. Consequently, exhibits PEI, P5 and P6 cannot be spared as they lack evidential value and we accordingly expunge them from the 10

record. See the case of EMMANUEL LYABONGA VERSUS THE REPUBLIC, Criminal Appeal No. 257 of 2019, KINGOLO LIMBU VS THE REPUBLIC, Criminal Appeal No. 255 of 2017 and EVARIST NYAMTEMBA VS REPUBLIC, Criminal Appeal No. 196 of 2020 (all unreported). Having expunged the certificate of seizure, the trophy valuation certificate and the caution statement there is no need of resolving as to whether or not they were signed by the appellants and the independent witness or not. In the premises, in the absence of the three documentary exhibits, the follow up question is whether the remaining oral account can sustain the prosecution case. As correctly, submitted by the learned Senior State Attorney, the charge is rendered not proved to the hilt. We are fortified in that regard because, although PW4 a game warden is not a wildlife officer within the meaning ascribed to the provisions of sections 3 and 86 (4) of the Wildlife Conservation Act, his knowledge and experience if any, could have enabled him to verify if the substances were trophies. However, there was no such demonstration on the part of PW4 and as such, from his account it cannot be ascertained if he possesses requisite expertise to make the valuation of the government trophies. Besides, which is unfortunate, at the trial he could not differentiate the alleged tusks from the horns of other animals and failed to identify the alleged elephant tusks. In the circumstances, the charge against the appellants li

was not proved to the hilt in the absence of verified account that what was found in possession of the appellants were four elephant tusks. Similarly, since the expunged certificate of seizure and the cautioned statements lack the evidential value, the remaining oral account of prosecution witnesses on what was seized from the appellants remains unsubstantiated and as such, the charge was not proved against the appellants to the hilt. Finally, we find the appeal merited and proceed to allow it. We thus order the immediate release of the appellants unless if they are held for another lawful cause. DATED at MBEYA this 17th day of September, 2021. S. E. A. MUGASHA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL This judgment delivered this 17th day of September, 2021 in the presence of the Appellants in person unrepresented and Mr. Hebei Kihaka, learned Senior State Attorney for the Respondent / Republic, is hereby certified as a true copy