Director of Public Prosecutions vs Salum Mohamed Salum & Others (Criminal Appeal No. 237 of 2018) [2019] TZCA 223 (29 July 2019)

IN THE COURT OF APPEAT OF TANZANIA . ,.or, .rTT.**nor=r=. r.o.'' CRIMINAL APPEAL NO. 237 OF 2018 THE DIRECTOR OF PUBLIC PROSECUTIONS .....,......... .. APPELLANT VERSUS

1. SALUM MOHAMEDSALUM
2. MASHAKAJUMAWAZIRI
3. BENEDICTO ATOYCE SHIO
4. JAFARI ATHUMAN HAMADI
5. DANFORD ROMAN KANIKI
6. BISEKO MAKARANGA BISEKO
7. AZ.IZI SALUM PUME (Appeal from the Judgment of the High Court of Tanzania at Mtwara) (Mlacha, J.) dated the 46 day of Juln 2018 in Consolidated Criminal ADDeals No. 31, 36, 97 and 69 of 2OL7 and 14, 26 and 27 of 2018 JUDGMENT OF THE COURT 19s June & 29s Juiy, 2019 NDIKA, J.A.: This is a second appeal by which the Director of Public Prosecutions (the DPP), the appellant herein, seeks reversal of the judgment of the High Court (Mlacha, J.) sitting at Mtwara dated 4th July, 2018 in Consolidated Criminal Appeals No. 31, 36,97 and 69 of 2017 and 74,26 and 27 of 20t8. The aforesaid decision affirmed the judgments of the Resident Magistrate's Court of Mtwara at Mtwara (the trial court) in Criminal Cases No. 104, I05, 1 I t- RESPONDENTS

106, 107, 108, 110 and 131 of 2014 by which the respondents were separately acquitted of charges that included unlawful possession of forest produce contrary to section 88 of the Forest Act, No. 14 of 2002 (the Act) read together with Regulations 10 and 57 of the Forest Regulations, G.N. No. 153 of 2004 (G.N. No. 153 of 2004). In the trial court, the first to sixth respondents were individually tried on a charge containing three counts. While on the first count each of them was charged with forgery contrary to sections 333, 335 (a) and 337 of the the offence of uttering false documents contrary to section 342 of the Code. The offence of unlawful possession of forest produce as particularized above was charged on the third count as against each of them. The seventh respondent, on his paft, faced that charge as the sole count. As it turned out, the trial court was unconvinced in all the seven trials that the prosecution had proven the charges beyond peradventure. In consequence, all respondents were acquitted of the offences charged. Being dissatisfied by the respondents' acquittals, the DPP separately appealed to the High Court sitting at Mtwara. The seven appeals, arising from a similar factual setting and raising common issues, were duly consolidated and hence heard and determined as a single appeal. Before the 2 Penal Code, Cap. 16 RE 2002 (the Code), on the second count each faced

High Court, the appellant chose not to contest the acquittal of the first to sixth respondents in respect of the first and second counts. Hence, the thrust of the consolidated appeal was a challenge of the respondents' acquittals in respect of the offence of unlawful possession of forest produce. The essential facts of the case as regards the common charge of unlawful possession of forest produce were as follows: the respondents were, at different times between 1* January, 2013 and 20th March, 2013, separately found in possession of timber at Mtambaswala area within Nanyumbu District in Mtwara Region. It was alleged that the said possession was not backed up by any licence or certificate issued by the Director of Forests. The quantity and value of the seized timber for each respondent were as follows: the first respondent had 820 pieces valued at TZS. 26,240,000.00; the second respondent 3,600 pieces worth IZS 115,200,000.00; the third respondent

2,650 pieces valued at TZS. 84,800,000.00; the fourth respondent 2,327 pieces worth 1ZS. 74,464,000.00; the fifth respondent

2,52L pieces estimated at the value of US. 82,272,000.00; the sixth respondent

1,300 pieces wofth TZS. 41,600,000.00; and the seventh respondent

1,040 pieces valued at TZS. 33,280,000.00. 3

Relying on the evidence adduced at the trials by Mr. Anyimike Gideon Mwakalinga, Head of the Forest Surueillance Unit of the Tanzania Forest Services Agency (TFS), it was alleged further that the documentation the respondents produced as authorization for the importation was invalid; it was issued by District or Regional Forest Officers who had no authority to issue any permits or certificates or licences. It was claimed that the requisite licences or certificates could only be issued by the Director of Forestry at the headquafters in Dar es Salaam. In their respective defences, the respondents admitted being found in possession of the timber imported from Mozambique via Mtambaswala, Nanyumbu District. They also averred in common that they were regular buslnesspersons based in Dar es Salaam and that they had requisite certificates of registration for dealing in timber business. They further averred that they used to import timber on the strength of documents issued by the District and Regional Forest functionaries in Dar es Salaam and Mtwara. Recalling about the practice and procedure on their past imports, the respondents testified in unison that they were issued with import certificates while the timber so imported was already at the port of entry, in the customs controlled area. That after the import documentation and timber were 4

inspected by the forest and customs officials, they would, upon clearance, pay an inspection service charge and chargeable taxes before being issued with a transit pass and an impoft certificate. To evidence this practice, each respondent tendered in evidence several import ceftificates in respect of past impofts. Furthermore, each respondent produced one Mr. Augustino Enock Mwangosi, the Acting Mtwara Regional Forestry Officer at the material time, as a witness. Apart from Mr. Mwangosi acknowledging that a certificate of registration of a timber dealer was a prerequisite for importation of timber into the country, he averred that such ceftificate could be issued at District and Regional Forest Offices countrywide, not just at the headquafters in Dar es Salaam. He also told the trial court that after a consignment of impofted timber was received at the port of entry, it would then be inspected and hammer marked by forest officials. The importer would then pay an inspection service charge and chargeable impoft taxes. Finally, the impofter would be issued with a transit pass and an impoft certificate as authorization for transpoftation of the consignment to its final destination subject to verification at various check points along the way. What is more, Mr. Mwangosi tendered a Directive dated 21* January, 2008 signed by the then Director of Forestry, Dr. Felician Kilahama, on behalf 5

of the Permanent Secretary, the Ministry of Natural Resources and Tourism, bearing the title "Nyaraka Zinazotakiwa Kuonyeshwa na Wafanyabiashara Wanaotoa Mbao Msumbijl'. The Directive, in essence, provided a list of all necessary documents required for authorization of timber impofts into the country from Mozambique as well as the corresponding procedure for importation. Mr. Mwangosi said that the Directive also permitted local forestry officials to issue transit passes and import certificates to timber impofters once all import documentation (including the ceftificate of origin and phytosanitary certificate) has been cleared, the timber consignment paid. unimpressed that the charge of unlawful possession of forest produce as against each respondent was proven beyond reasonable doubt. In consequence, he dismissed the consolidated appeal in its entirety and ordered the seized timber to be restored to the respondents subject to payment of taxes as they stood at the time of arrival of the consignments in 2013. In his reasoning, the first appellate Judge made four germane findings: first, having reviewed sections 3 (on the objectives of the Act), 64 (on 6 inspected and marked, and inspection service charge and import taxes fully As already hinted, the learned High Court Judge was likewise

prohibition of importation into Tanzania of forest produce) and 88 along with Regulations 4 to 10 (on management of forest resources) and 10 and 57 of G.N. No. 153 of 2004, the learned High Court Judge concluded as follows: 'Apaft from sedion 64 of the Ad which gives the Minister [responsible for forestsJ power to restrid impoftation of forest producq there is no clear provision on importation of timben It is obvious that there is a lacuna in law but that is the law. Until such time when it can be amended it will remain to be the law. And I don't think that this gap can be filled by subsidiary legislation."[Emphasis addedl Secondly, citing an earlier decision of the High Couft (Twaib, J.) in Director of Public Prosecutions v. Jamila Salum Mtali & Another, Criminal Appeal No. 34 of 2017 (unreported) on the same offence, the learned High Court Judge took the view that G.N. No. 153 of 2004 does not govern any aspect of importation of timber. In the premises, he took the view that: "... the legal provisions suppofting the charge had nothing to do with importation of timber creating a variance between the charge sheet and the evidence on record. No conviction can arise out of that arrangement." 7

Thirdly, in dealing with a hotly contested issue whether the documents the respondents tendered in court as proof of lawful authority to import timber were authentic, the learned High Court Judge held that: "By dropping the appeals in respect of the first and second counb, it meant that they had no problem with the finding of the trial magistrates on the documents. Challenging them at this stage cannot be allowed." Finally, the learned first appellate Judge considered the disputation between the evidence of Mr. Anyimike Gideon Mwakalinga and that of Mr. respectively. He took the view that the contradictions between the two witnesses on the procedure for importation of timber, both of them being government officials from the same Ministry responsible for the administration and management of forests, "injected serious doubts to the prosecution case." In this appeal, the DPP seeks the reversal of the High Court's judgment on four grounds of complaint as follows:

1. That the High Court Judge erred grossly both in law and fact by holding that the charge sheet preferred does not cover the facts of the case on the grounds that the Forest Act is designated only for 8 i Augustino Enock Mwangosi, the prosecution and defence witnesses

local forest produce and that it does not cover imported forest produce. 2. That the High Court judge erred grossly both in law and fact by holding that the respondents herein gave better explanation as to the possession of the alleged timber by submitting in couft the sample documents without taking into consideration the fact that the said sample documents are not concerned with the matter at hand. 3. That the High Court Judge erred grossly both in law and fact by holding that the Republic cannot challenge the legality of the licences and permits which were part of the First and Second counts in the Charge Sheet on the ground that the said First and Second counts were not preferred in the first appeal. 4. That the High Court Judge erred grossly both in law and fact by holding that the testimonies of the two government officials namely Mr. Anyimike Gideon Mwakalinga for the Republic and Mr. Augustino Enock Mwangosi for the defence caused contradictions to the At the hearing of the appeal before us, Messrs. Ladislaus Komanya, Paul Kimweri and Theophil Mutakyawa, all learned Senior State Attorneys, 9 prosecution case.

teamed up to represent the appellant DPP. On the other hand, Mr. Wilson Ogunde, learned counsel, appeared for the respondents. It was Mr. Kimweri who argued the appeal for the DPP. Beginning with the first ground of appeal, he contended that section 88 of the Act, which, read together with Regulations 10 and 57 of G.N. No. 153 of 2004, create the offence of unlawful possession of forest produce, imposes on the accused person the onus to prove that his possession of forest produce was lawful or that he came by it innocently. Mentioning an objective of the Act as spelt out by section 3 (i) of that Act for providing a framework for taking measures to protect and enhance global diversity as well as section 64 (1) of the Act providing for regulation of foreign produce, the learned Senior State Attorney urged us to hold, on a purposeful and contextual reading of the scheme of the Act, that section 88 covered possession of any forest produce imported into the country. He pafticularly disputed that the Act had a gap in respect of importation of forest produce. Mr. Kimweri then disputed the finding on the breadth of the charging provisions. He contended that the said provisions covered possession of any kind of forest produce, be it local or imported. He added that it was unnecessary for Regulation 2 (a) and (b) of G.N. No. 181 of 2007 to be cited in the statement of offence bearing in mind that the said provisions create no 10

offence even though they prohibit importation of forest produce without the requisite ceftiflcate of registration and import certificate. As to whether there was a variance between the evidence on record and the charge, the learned Senior State Attorney contended that there was none. On this issue, he cited the testimony of one prosecution witness

Setti Paulo, a retired police officer

that the respondents were found in possession of the timber without any proper documentation constituting lawful authorization. possession of the seized timber. He firmly argued that the documents that they tendered in evidence were used for clearance of their past timber imports. That the said documents were unconcerned with the legality of possession of the seized timber and that they ought to have been disregarded. As regards the third ground, the learned Senior State Attorney questioned the High Court's finding that the DPP could not challenge the legality of the documentation the respondents had tendered as proof of their authorization to possess the seized timber. He argued that the DPP did not seek to challenge the authenticity of all the documents that the respondents had submitted as proof that the timber had been inspected, verified and 11 Moving to the second ground, Mr. Kimweri faulted the High Court's finding that the respondents sufficiently accounted for their respective

authorised by the relevant authorities in Mozambique. These documents were the subject matter of the charges on the first and second counts. In no way by not assailing the acquittals on the first and second counts should the DPP be taken to have conceded to the authenticity of the respondents' documentation purporting to establish the legality of possession of the seized Finally, Mr. Kimweri bemoaned the High Courtt characterization of the defence evidence adduced by Mr. Mwangosi as having contradicted the testimony of Mr. Mwakalinga for the prosecution as regards the procedure for issuance of requisite certificates for importation of forest produce. While conceding that the two witnesses were government officials involved in administration of the Act, the learned Senior State Attorney contended that the High Court erroneously held that the two opposing witnesses contradicted each other and that such contradiction bolstered the respondent's case. It was his submission that a contradiction would only arise where the testimonies of a party's witnesses contradict each other; that testimonial accounts of witnesses from two opposing parties cannot be said to be contradictory. The learned Senior State Attorney concluded his submissions urging us to allow the appeal thereby quashing and setting aside the respondents' 12 timber.

acquittals and then proceed to convict each of them of unlawful possession of forest produce. Court's decision. On the first ground of appeal, he urged us to appraise and interpret the Act as a whole, contending that the Act was essentially enacted to administer local forest produce and so the charge in issue does not cover imported forest produce. He supported his view by examining sections 3 (i), 58 to 63 (governing exportation of forest produce with no corresponding provisions on impoftation of such produce) and 84 to 100 (the offences sections), insisting that the Act does not govern imported forest produce. In the premises, it was his submission that section 88 of the Act does not cover the timber in issue which was without a doubt imported from Mozambique. Mr. Ogunde added that since the timber in issue was impofted, the charge in issue should have cited Regulation 2 (a) and (b) of G.N. No. 181 of 2007, which governs such impoftation even though it creates no offence. The omission to do so, he argued, resulted in the said charge being at variance with the evidence on record, which was that the importation of forest produce into the country was without a requisite import certiflcate. As regards the second ground, Mr. Ogunde denied that the documents used in the past importation of timber by the respondents were introduced 13 On the part of the respondents, Mr. Ogunde wholly supported the High

into evidence as proof of the legality of their respective possession of the procedure that import certificate was to be issued at the end of the clearance process once the imported timber is inspected, the corresponding documentation verified and inspection service charge and import taxes paid. The documents, therefore, effectively negated Mr. Mwakalinga's claim that import certificate had to be issued in advance of the importation. Mr. Ogunde, then, conceded to the fourth ground of appeal that the High Court wrongly held that Mr. Mwakalinga's evidence had been contradicted by that of Mr. Mwangosi. He based his concession on his affirmation of the rule that a contradiction of a witness testimony can only arise from the evidence of another witness produced by the same party. The learned counsel, too, acknowledged, in respect of the third ground, that the trial court's determination that there was no proof that the documents allegedly obtained from the Mozambican authorities that were forged did not banish the appellant's contention that the other documents tendered by the respondents were unauthentic. Nonetheless, the learned counsel was quick to contend that the third and fourth grounds of appeal had no bearing on the determination of the appeal. 1,4 timber in issue. Instead, they were intended as proof of the practice or

Having summarized the contending learned submissions, it bears restating that this being a second appeal we shall be guided rn our determination of the matter by the principle that the Court is only entitled to interfere with the concurrent findings of fact made by the courts below if there is a misdirection or non-direction made by the courts below on the evidence: see, for example, Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149 and Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 (unrepofted). We begin with the first ground of appeal, which calls upon us to determine the breadth of the offence under section 88 of the Act read together with Regulations 10 and 57 of G.N. No. 153 of 2004. We flnd it imperative to reproduce the essential part of the charge in issue as against the first respondent, which, in all material aspects, mirrors the respective charges against the rest of the respondents: "STATEMENT OF OFFENCE UNLAWFUL POSSESSION OF FOREST PRODUCE contrary to section BB of the Forest Act, No. 14 of 2002 read together with Regulations 10 and 57 of the Forest Regulations G.N. No. 153 of 2004. PARTICULARS OF OFFENCE SALUM MOHAMED SALUM on 20h March, 2013 at Mtambaswala area within Nanyumbu District in Mtwara Region was 15

found in possession of 820 pieces of timber valued at Tanzania Shillings Twenty-Six Million Two Hundred and Forty Thousand only (US. 26,240,000.00) without a licence issued by the Director of Forests," As shown above, one of the charging provisions is section 88 of the Act. It states as follows: 'Any person, who without lavvful authority or excuse, the burden of proof which shall be upon him, takes, receives or is found in possession of forest produce with resped to which an offence against this Act has been committed, unless he can account for such possession or can show that he came by such produce innocently shall be guilty of an offence and upon convidion shall be liable to a fine of not exceeding one million shillings or to imprisonment for a period not exceeding two years or to both such fine and imprisonmenl "IEmphasis added] Regulation 10 of G.N. No. 153 of 2004, which is charged together with the aforesaid section 88, stipulates that: "It shall not be lawful to acquire or keep in possession any forest produce unless such produce is obtained by a licence issued under these Regulations and duly marked by the registered 16

mark of the Director and the registered property mark of the licensee."[Emphasis added] The last provision is Regulation 57 of G.N. No. 153 of 2004 stating that: 'Any percon or persons who contravene the provisions of these Regulations shall be guilty of an offence and shall on convidion, be liable to such penalty as prescribed under the Act and any materials found with him/her while committing the offence shall be confiscated by the Government."[Emphasis added] At this point, we wish to recall the approach we took most recently in the Director of Public Prosecutions v. Seleman Aziz Ally, Criminal Appeal No. 235 of 2018 (unreported), which was a case involving the same offence of unlawful possession of forest produce raising similar issues. In our decision in that case, we faulted the High Courtt construction of the same charging provisions to the effect that possession of imported timber did not fall within the purview of the charged offence. That construction was premised on a wrong approach, which involved construing the charging provisions in the light of the legislative scheme, the alleged object and purpose of the Act and the effect of adopting one interpretation over the other as if the said provisions were unclear or ambiguous. Citing our earlier decision in Republic v. Mwesige Geofrey & Another, Criminal Appeal No. 355 of 2014 (unreported) and a commentary by the learned authors, Sir 1,7

peter Benson Maxwell et al, in Maxwell on the Interpretation of Statutes, 12th Edition, London: Sweet and Maxwell Limited, 1969, at page 29, we held in DPP v. Seleman Aziz Ally (supra) that the said charging provisions should have been construed literally, in their natural and ordinary meaning, because the language used was clear and unequivocal. In the end, we construed the charging provisions thus: "It is our considered view that on a plain and ordinary grammatical meaning of the words used in the charging provisions, the offence of unlawful possession of forest produce, so far as is relevant to this case, is consummated if one is found in possession of forest produce with resped to which an offence against the Act has been committed. As such, mere possession of such produce without the proper documentation, be it a licence, a permit or a ceftificate, consummates the crime. The onus, then, lies on the person in such possession to account for it (by producing proper documentation for the forest produce concerned) or to establish that he came by such possession in nocently. "IEmphasis added] Specifically regarding Regulations 10 and 57, we took the view that: "Regulation 10 adds to the above is a specific prohibition against possession of any forest 18

produce without a licence issued under G.N. No. 153 of 2004. It occurs to us that the term "licence" here must be broadly applied to mean any document of authority to possess forest produce such as a ceftificate or permit issued under G.N. No. 153 of 2004. While this regulation does not in itself create an offence, its contravention is criminalized by the general offence created under Regulation 57 as shown above." IEmphasis added] It is necessary to take into account that in both section 88 and Regulation 10 quoted above, the subject matter of the offence is "forest produce", which is defined by section 2 of the Act to mean: "anything which is produced by or from trees or grows in a forest or is naturally found in a forest and includes bamboos, bark, bast, branchwood, canes, charcoal, earth, fibres, firewood, fruits, galls, gumq honey, latex, laths, leaveg litter, natural varnish, peat, plants., poleg reads, resin, roots, rushes, sap, sawdust, seeds, slabs, timber, trees, thatch, wattles, wax, wild silk, withies, wood ashes, wood oil, and any other living or inanimate object declared by notice in the Gazette to be forest produce for purposes of this Act. "[Emphasis added] 19

Again, in DPP v. Seleman Aziz Ally (supra) we considered the part of the above description in bold text as providing a broad, generic definition of the term "forest produce" as anything produced by or from trees or grows in a forest or is naturally found in a forest. Construed literally, this definition, in the first paft, sets out no territorial limitation or origin on the term forest produce. It was also our view that the same position holds true as regards the meaning of "forest", which, under the same section 2 of the Act, is defined as: "an area of land with at least 7O o/o tree crown cover, naturally grown or planted and or 5O o/o or more shrub and tree regeneration cover and includes all forest reserues of whatever kind declared or gazetted under this Act and all plantations." [Emphasis addedl As we did in DPP v. Seleman Aziz Ally (supra), we think that it was improper for the High Couft to go behind the said words in the charging provisions and take other factors into consideration so as to read into them the territorial limitation that is literally not expressed in the law. In the premises, it is our firm view that the term "forest produce" in section 88 of the Act is applied in broad terms irrespective of whether the produce concerned was obtained from local forests or abroad. We thus agree with the 20

DPP, with respect, that the High Court wrongly held that the charge in issue did not, on the face of it, cover imported forest produce. As regards the ancillary issue whether the charge at hand ought to have cited Regulation 2 (a) and (b) of G.N. No. 181 of 2007 in the statement of offence, we take view that the aforesaid regulation did not have to be importation of any forest produce into the country unless the importer is a registered forest produce dealer having an import ceftiflcate. For ease of reference, we reproduce the said regulation thus: "2. A person shall not impoft any forest produce unless- (a) he is registered forest produce dealer; (b) he has an Impoft Certificate as prescribed in the First Schedule to this Order (sic)." Even though Regulation 2 above constitutes a prohibition against the impoftation of any forest produce without a certificate of registration and an impoft ceftificate, it does not create any specific offence. In terms of section 135 (a) (ii) of the Criminal Procedure Act, Cap. 20 RE 2002, what is required to be contained in any statement of offence is the reference to the section of the enactment creating the charged offence. Thus, the reference to section 2T cited because it creates no offence. As is evident, the said regulation forbids

88 of the Act as read together with Regulations 10 and 57 of G.N. No. 153 of 2007, which create the charged offence, was sufficient in the matter at hand. We now turn to the second ground of appeal faulting the High Court for holding on the basis of "sample documents" tendered by the respondents that the possession of the timber was duly accounted for while the said documents were irrelevant to the matter at hand. It is noteworthy here that the so-called "sample documents" included past import certificates issued to the respondents authorizing their previous consignments of timber imported With respect/ we are inclined to agree with Mr. Ogunde that the documents used in the past importations of timber by the respondents were not introduced into evidence as proof of the legality of their respective possession of the timber in issue. They only serued as proof of the procedure or practice that an import certificate was to be issued at the end of the clearance process once the consignment of imported timber is inspected, the corresponding documentation verified and inspection service charge and taxes paid. Besides complementing oral evidence adduced by the respondents, the said documents supported Mr. Mwangosi's account. The overall effect of that documentary evidence, as rightly held by the courts below, was to negate Mr. Mwakalinga's testimony that an import certificate 22 from Mozambique.

that the first appellate Judge's view in his judgment at page 205 of the record "The respondents brought sample documents and brought the Mtwara District Forest Officer to prove [their caseJ. They had a better explanation than the prosecution." We are also alert that the respondents' account of their respective possession of the timber did not solely rely on the impugned past import ceftificates. The second ground of appeal is, in the premises, devoid of merit and we reject it. The third ground of appeal should not detain us. We recall that Mr. Ogunde conceded to this ground as it dawned on him that the first appellate Judge must have wrongly held that the appellant, having abandoned its utterance of forged documents, could not legally challenge the authenticity and cogency of the documents relied upon by the respondents as proof of their possession of the seized timber. To be exact, the aforesaid verdict of the trial court related to the documents allegedly obtained from the Mozambican authorities, that the prosecution witnesses tendered in evidence against the respondents as proof of forgery and utterance of forged had to be issued in advance of the importation. On that basis, we endorse appeal against the trial court's verdict on the charges of forgery and

documents. This bundle of documents is certainly different from the sample documentation the respondents tendered in evidence, to account for their respective possession of the timber, which included import ceftificates and transit passes for previous impoftations besides their respective ceftificates of registration as timber dealers and TIN certificates. In this sense, it is plain that the appellant's abandonment of their appeal against the verdict on forgery and use of forged documents did not signify an acknowledgement of the authenticity of the respondents' documentary evidence. Notwithstanding the foregoing, we agree with Mr. Ogunde that the result on the complaint under consideration has no bearing on the outcome of the appeal. For it is our firm view that the past import certificates, transit passes and certificates of registration as timber dealers that the respondents produced at the trials were not effectively controverted. What we saw on authenticity of some of the documents, was a mere word of mouth, which weighty that the said courts found it uncontested that the aforesaid documents were all issued and stamped by government officials (in Mtwara and or Dar es Salaam) and that the respondents cannot be blamed if certain procedures, if at all, were not followed to the letter. 24 record from the prosecution witnesses especially Mr. Mwakalinga, against the found no purchase from the courts below. More tellingly, we view it as

We now deal with the final ground of appeal, which, as stated earlier, is a complaint that the High Couft wrongly held that the contradictions between testimonies of Mr. Mwakalinga and Mr. Mwangosi caused contradictions to the prosecution case. For clarity, we reproduce hereunder the relevant part of the decision of the High Court: "The evidence of Mr. Anyimike Gidan Mwakalinga who came from TFS Headquarters, Dar es Salaam was attacked by the evidence of Mr. Augustino Enock Mwangosi from Mtwara District. Mr. Mwangosi gave the same evidence in all the cases coming from a government office. This was unusual. But the battle injected serious doubts to the evidence of Mr. Anyimike because TF$ formed in 2011, was rather new in the field than Mr. Mwangosi who was in the field for many years. These government officials were not supposed to contradict each other. Things could be different if Mr. Mwangosi came from the streets. Receiving such evidence from the forest department in Mtwara demolished the evidence of Mr. Anyimike [Mwakalingal and injected serious doubB to the prosecution case." IEmphasis added] As stated earlier, Mr. Ogunde, once again, conceded to yet another error having been made by the learned flrst appellate Judge this time in 25

finding, as excerpted above, that the contradictions in the testimonies injected serious doubts to the prosecution case. We agree that it is settled that witness accounts can only be said to be contradictory if they were given by witnesses of the same party. We are, therefore, of the view that the High Court's characterisation of the testimonies of Mr. Mwakalinga and Mr. Mwangosi as being contradictory simply because both of them were government officials from the same Ministry was plainly inaccurate. To that extent, there is merit in the appellant's complaint in the fourth ground of appeal. Neveftheless, we think in its proper context the impugned holding above suggests that the learned first appellate Judge found, as did the trial court, that Mr. Mwangosi's evidence was credible and that, in effect, it negated Mr. Mwakalinga's account that an import certificate had to be obtained from the headquarters in Dar es Salaam ahead of importation of timber from Mozambique. The appellant having not established that the courts below materially misapprehended the evidence on record or that there was any serious misdirection or non-direction on the evidence, we find no grounds to disturb the concurrent finding on the timing and procedure for issuance of impoft certificates. In view of that we hold that even though 26

there is some merit in the fourth ground of appeal the complaint therein is not decisive on the appeal. At this point, we think, for the sake of completeness, it is necessary that we express our flrm mind that the thrust of the present appeal leaves the respondents' acquittals unshaken. In the first place, it is common ground that the respondents were found in possession, be it actual or constructive, of the timber in issue which they imported into the country from Mozambique. The timber was lying in the customs controlled area at Mtambaswala in Nanyumbu District at the time it was seized. To account for their respective possession of the timber, the first, second, fifth and seventh respondents averred that they were each holding a valid ceftificate of registration as a forest produce dealer issued pursuant to Regulation 2 (a) of G.N. No. 181 of 2007 read together with Regulation 54 (1) and (2) of G.N. No. 153 of 2004. The said certificates were duly tendered in evidence. On the part of the third, fourth and sixth respondents, each of them claimed to be running a duly registered timber business as a sole proprietorship or in paftnership with another person. They tendered in evidence a respective ceftificate of registration as a forest produce dealer issued in their respective business name or their partner's name.

While all the respondents acknowledged that at the time the timber was seized from them none of them had any import certificate, they claimed in unison that each of them was to be issued with a transit pass and an import certificate after payment of applicable inspection service charge and import taxes once their respective consignment and its corresponding documentation had been verified and cleared. This evidence was obviously disputed by Mr. Mwakalinga who claimed that an import certificate ought to have been issued well in advance of any importation of timber. But as we have already indicated, the courts below marshalled capable arguments to suppoft their rejection of Mr. Mwakalinga's claim and we found no good cause to disturb that finding. Furthermore, the Directive from the Ministry signed by the then Director of Forestry, Dr. Felician Kilahama, which was not contested by the prosecution, lends credence to Mr. Mwangosi's evidence. This Directive is without doubt an authoritative communication that enumerated the requisite documentation for importing timber from Mozambique according to the law and summarized the corresponding legal procedure for such imports. What is germane to our deliberation now is the content of Paragraph 2 (iii) of the said Directive. We find it instructive to reproduce paragraphs

2 (ii), (iii) and (iv) thus: 28

"(ii) Mbao lazima zigongwe nyundo (FD Na. 148) na Afisa Misitu wa Wilaya ya Mtwara zikiwa bandarini na kisha kutoa kibali cha kuziafirisha (TP). (iii) Mfanya biashara ni lazima alipie gharama za huduma itakayotolewa kwake ('Seruice Charye) ili apewe'fmport Certificate.' At this point, we find it apposite to cast our mind back to our decision in DPP v. Seleman Aziz Ally (supra) in which we took the view that Paragraph 2 (iii) above instructs that an import ceftificate would only be issued by the local forest officials upon payment of an inspection service charge after the timber consignment has been inspected and marked. For avoidance of doubt, the said Directive suggests that the said officials had powers to do so in terms of section 6 (2) and (3) of the Act, which permits delegation of such powers by the Director of Forestry. Again, as we held in DPP v. Seleman Aziz Ally (supra), it is our view an impoft certificate finds suppoft from two further considerations: first and foremost, even though the term "impoft ceftificate" is not defined under the Act or the regulations, on its plain and ordinary meaning, a certificate is "a 29 (iv) Baada ya kukamilisha nyaraka zinazohitajika mfanya biashara aende Ofisiya TRA kulipia ushuru wa forodha na kupatiwa sta kabadhi. "[Emphasis added] that the concurrent finding of both courts below on the timing of issuance of

document in which a fact is formally attested" - see Black's Law Dictionary, Eight Edition at page 239. In this sense, an import certificate, being a document giving an ex postaftestation of a fact as to importation, is a record that gives key details of a particular consignment that has actually been imported. Secondly, the unequivocal wording in the prescribed format of the import certificate in the First Schedule to G.N. No. 181 of 2007 leaves no doubt that such document provides an ex post fado declaration of what has already been impofted. For clarity, we reproduce the prescribed format as hereunder: "TANZANIA THE FORESTACT(NO. L42OO2) FORM NO. FD.38 IMPORT CERTIFTCATE Permission is hereby granted to to to impoft through an import entry The forest produce/products described herein is consigned to such at forest produce/products have been inspected 30 i at

By an authorized inspector (name and signature) 5. Valid until 6. Signed Director of Forestry 7. Place issue of B. Date of issue 9. Remarks Type of product can be logs, boards, planks, sleepers, carvings, handcrafts, timber, poles, firewood, tannin, charcoal, sandalwood, etc." IEmphasis added] The emboldened text above emphasises our point that an import certificate, being an attestation that the impofted forest produce "has been inspeded" by an authorized inspector in the country, presents an ex post attestation of impoftation. It is, accordingly, a written assurance or olficial representation that a ceftain consignment of forest produce as pafticularized therein has been duly imported into the country

see DPP v. Seleman Aziz Ally (supra). This reasoning matches up with Mr. Mwangosi's evidence and 3L

1. Type of product
2. Country of origin
3. Property marks .............

Quantity (M3)

negates Mr. Mwakalinga's testimony on the timing of issuance of the impoft ceftificate. The upshot of the matter is that we agree with the courts below that the respondents fully accounted for their possession of the timber in issue; for apaft from producing their respective documentation that they themselves or their registered businesses were authorized dealers in forest produce, each of them was on course of being issued with, inter alia, an Based on the foregoing analysis, this appeal cannot succeed. We dismiss it in its entirety. DATED at DAR ES SALAAM this 26h day of July,2019 s. A. ul-A JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL I certify that this is a true copy of the original. B. A. MPEPO DEPUTY REGISTRAR COURT OF APPEAL \ a\ , tY 32 import certificate for the timber in issue that was seized from them.