Mseti Daniel Mseti vs Republic (Criminal Appeal No. 539 of 2022) [2025] TZCA 1069 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: KEREFU. J.A.. MWAMPASHI. 3.A. And AGATHO. J.A.l CRIMINAL APPEAL NO 539 OF 2022 MSETI DANIEL MSETI .................................................................. APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) fMahimbali, J/) dated the 31st day of October, 2022 in Criminal Appeal No. 137 of 2021 JUDGMENT OF THE COURT 3rd & 13th October, 2025 AGATHO, J.A.: The appellant was arraigned before the District Court of Tarime at Tarime facing a charge of unlawful possession of Government Trophies Contrary to section 86 (1) and (2) (b) of the Wildlife Conservation Act No. 5 of 2009 read together with paragraph 14 of the first schedule to, and section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap 200 R.E. 2019] as amended by the Written Laws (Miscellaneous Amendments) Act No.3 of 2016. He was convicted and sentenced to 20’ years imprisonment in jail. His first appeal before the High Court was dismissed for want of merit. At the trial court it was alleged that on 18/07/2019 at Ng'ereng'ere Village within Tarime District in Mara Region

the appellant was found in unlawful possession of the said elephant tusks to w it five pieces weighing 24.550 Kgs, worth TZS 170,700,000.00 the property of the Government of the United Republic of Tanzania. The appellant denied the allegations levelled against him prompting the prosecution to parade ten witnesses and tendered 11 exhibits. On the defence side, the appellant had fended for himself and tendered a PF3. Briefly, the evidence of the prosecution as adduced by ten witnesses was that Inspector Abdallah M. Iddi (PW2) who was tipped by an informer that the appellant who was at Sirari had elephant tusks and was about to sell them and was thus looking for a prospective buyer. PW2 informed his superiors: the RPC Tarime/Rorya and then the OC - CID Sirari. Then, PW2 while in undercover operations, pretended to be the buyer of the elephant tusks together with other police officers led by OC-CID one Mwamafupa made communication with the appellant and planned to meet at Sirari where they organised and met. They negotiated and agreed that one Kg. would be purchased at a price of TZS 150,000.00. Believing that he was going to sell the said tusks to PW2, the appellant then boarded the motor vehicle driven by PW2 and led them to Mti Mrabu. They thus went up to Ng'ereng'ere Village where they stopped. The appellant then got off, took a bodaboda (PW1) to Mti Mrabu Village. 2

He collected his cargo and returned with the bodaboda at the point he had left PW2 and his team. No sooner had they arrived there than they were arrested. Upon being searched, he was found with five elephant tusks which were then seized. By that time the bodaboda rider had escaped leaving his motorcycle with Registration No. T.MC 815 BQG SANLG (which was marked N7 and admitted as exhibit P6). When search was done in the said sulphate bag, five elephant tusks were recovered (marked as N, Nl, N2, N3, N4), which were admitted in the trial court as exhibit P2. The said search and seizure were witnessed by PW3, an independent witness. Still pictures were taken at the scene during the said search and seizure. The appellant was then arrested and taken to Police Station at Sirari where the exhibits were handed over to D. 9759 SGT John (PW8) who later handed over the same to WP. 2038 SSGT Veronica (PW5), the exhibit keeper who kept the same until its production in court on 21/10/2020. Just after three hours of his arrest, the appellant on 19/07/2019, while at Sirari Police Station, was interrogated by E. 4279 DCPL Nicholaus (PW6) who recorded his caution statement in which he admitted having committed the said offence of being found in unlawful possession of the government trophies. When the said elephant tusks were sent to the Weight and Measurement Agency, they were weighed to be 24.55Kgs. 3

On whether what was seized was really government trophies in law, the testimony of John Sospeter Msirikale (PW4), the Wiidiife Officer, established and dully certified that the marked items N, Nl, N2, N3 and N4 upon examining them professionally they were elephant tusks and as per their nature they belonged to five different elephants. The elephant tusks were thus admitted in court as exhibit P2 collectively. Considering the value of one elephant is equivalent to USD 75,000, the value of five elephants was equivalent to TZS 170,700,000.00 as the exchange rate stood at 1USD equivalent to TZS 2,276.00 by then. In his defence, the appellant admitted having been arrested by police on the night of 18/7/2019 but on his way from the farm. He thus disputed to have been arrested in connection with this charge but on personal grudges by one police officer named Bahati as he was accusing him of having some extra marital affairs with his wife. Therefore, this was a cooked case against him maliciously perpetuated by the said police officer Bahati of Sirari Police Station. That, even the purported cautioned statement was not his, but falsely obtained after having been exposed to high torture by the said Bahati and Deogratias, police officers. He tendered the PF3 which was admitted in evidence as exhibit DI in support of his claims that he was tortured. 4

Having evaluated the evidence of both parties, the trial court was satisfied that the prosecution proved the case beyond reasonable doubt. It found the appellant guilty, convicted and sentenced him to 20 years imprisonment. Dissatisfied, the appellant appealed to the High Court. He contended the case was fabricated, alleged torture, challenged admissibility of the cautioned statement taken at night, disputed witness credibility and attacked procedural aspects including ownership of a motorcycle and absence of local leaders at the scene. The High Court reviewed the record, found the cautioned statement taken within the four-hour statutory period and properly admitted after inquiry, accepted the independent witness and forensic evidence, and concluded the prosecution's case was water tight. The court discredited defence assertions as afterthoughts and ruled that search, seizure and handling of exhibits were lawful. The appeal was dismissed and the conviction and sentence upheld. Aggrieved by the dismissal of his appeal by the first appellate court, the appellant is now seeking indulgence of this Court in his second appeal on 8 grounds of appeal as contained in the memorandum of appeal which were condensed into three.

1. That, the prosecution did not prove the case beyond reasonable doubt 2 . That, the prosecution witnesses were incredible and unreliable .
2. That, the courts below failed to evaluate the appellant's defence especially the PF3, exhibit D l. In prosecuting the appeal Ms. Shose Naiman and Mr. Charles Kagirwa, learned Senior State Attorneys, represented the respondent Republic. On his side, the appellant appeared via video conference from prison in Mbeya and had the services of Mr. Leonard Elias Magwayega, learned advocate who appeared physically before the Court. To begin with credibility of prosecution witnesses, it was Mr. Magwayega's submission that PW1 on page 26 of the record of appeal, testified that the witness saw the appellant carrying a green sulphate bag which was said to contain trophy/tusks. PW2 to the contrary, on page 34 of the record of appeal referred the sulphate bag as a sandbag and after opening it they found another yellow bag inside. Credibility of PW1 and PW2 raised doubt where at page 28 of the record of appeal, PW1 testified that he met the appellant at 20:00 hours at New Stand, Ng'ereng'ere Village and took him with bodaboda to Mti Mrabu Village and back to Ng'ereng'ere Village and they stopped on arrival at a junction of Ng'ereng'ere Primary School. PW1 said as seen on page 26 of the record

of appeal that after getting off the bodaboda, the appellant took 15 minutes to come back. In contrast, PW2 at page 33 of the record of appeal, said it took the appellant 50 minutes. If it took him 50 minutes then, adding that to PWl's 15 minutes, it would have been at 21:05 hours. But PW2 said that the appellant returned at about 23:50 hours. In regard, credibility of PW1 and PW2 is doubtful. Another issue is visual identification. PW1 met the appellant at the bus stop, but he failed to testify on the source of light. He also did not explain how the light was on the road from Ng'ereng'ere Village to Mti Mrabu Village. PW1 testified that he claimed that he saw that car which was black in colour. He had not elaborated the source of light that helped him to see the car. PW1 testified that when they got there the appellant took the sulphate bag and put it in the car boot. PW2 said that the appellant and PW1 got off the motorcycle while the sulphate bag was tied on it. Mr. Magwayega argued that the above contradictions means* that the witnesses are incredible. To discredit PW3, the independent witness, Mr. Magwayega argued that it is unclear how he identified that the five elephant tusks. He contended that, on page 38 of the record of appeal, the witness did not state the source of light in his examination in chief. Instead, he testified 7

about the source of light during cross examination. Moreover, PW3 testified that the sulphate bag was yellow, and the other bag was khaki colour, that is vivid on page 48 of the record of appeal. The learned advocate went on submitting that, on page 34 of the record of appeal, there were photos taken by F. 7326 DC Twalib who was not called to testify. Therefore, he did not explain the source of light that enabled him to identify what was being photographed. Mr. Magwayega contended that even though the appellant did not object tendering of the photos, they do not show the location and date taken. The photos were taken at night. He wondered, how did PW3 identify the appellant when it was dark. Besides there is contradiction of the colour of sulphate bag. PW3 and PW1 contradicted themselves. It was his submission that the contradiction should be in favour of the appellant. On the third ground of appeal, Mr. Magwayega submitted that, the appellant's defence was not properly considered and evaluated. The appellant complained that he was tortured. His statement was thus involuntarily given. The appellant objected to its admission and after inquiry it was admitted but the appellant disclosed during the inquiry that he forgot his PF3 in prison. Despite that and as seen on page 75 of the 8

record of appeal, the trial court concluded that the appellant failed to prove that he was tortured. It was Mr. Magwayega submission that, the appellant being a layman and unrepresented did not know if there will be inquiry on that date, and the court could have adjourned the proceedings to enable him to bring the said PF3 as criminal justice requires. Nevertheless, the PF3 was admitted during his defence as exhibit Dl. He lamented that the trial court could have reconsidered the fact that the appellant was tortured and that the cautioned statement was extracted by torture. When probed on the dates, Mr Magwayega submitted that the cautioned statement was taken on 19/07/2019 while PF3 is dated 26/07/2019. It states that the appellant was ok. It was his view that it was prudent for the trial court to order adjournment. He eventually invited the Court to find merit in the appeal, allow it and set the appellant free. Resisting the appeal, Mr. Kagirwa disputed the first ground on credibility of PW1 and PW2 regarding the colour of the sulphate bag. However, although he admitted that the witnesses contradicted themselves on the colours, he was of the view that the contradiction is minor and does not go to the root of the matter. 9

Moreover, and in contrast to the appellant's counsel on the witnesses' contradiction regarding the time when the appellant went to fetch the sulphate bag and returned, whether it was around 20:00 or 23:50 hours, PW1 said 15 minutes while PW2 said 50 minutes, the learned Senior State Attorney submitted that this is also a minor contradiction. Regarding the issue of light which PW1 and PW2 contradicted themselves on where the bag was kept. But that inconsistency is minor does not go to the root of the matter. On page 1 of the record of appeal, the charge sheet shows that/ on 18/07/2019 the appellant was arrested, the trial commenced on 09/09/2020 when PW1 testified which is a year later. He thus suggested that there is lapse of memory. And the witness is not expected to remember everything without having minor discrepancies. He bolstered his submission with the case of Giteba Giyaya v. Republic [2022] TZCA 830. Mr. Kagirwa submitted further that, although elephant tusks cannot change hands easily, however, on page 34 of the record of appeal, PW2 said he labelled the exhibits. The exhibit keeper who testified as PW5 also labelled the exhibits. He added the case number in the exhibits. PW8 gave exhibits to Mustafa. The latter took them to weigh officer. The issue here is that the appellant was caught with elephant tusks without permit. PW2 10

testified that they filled in the seizure certificate on page 107 of the record of appeal in which the appellant signed by hand and by thumb. He supported his submission with the point of law articulated in Song Lei v. Director of Public Prosecutions [2019] TZCA 265 (supra) that, the signing of seizure certificate confirmed the appellant was caught with the exhibit. He rebutted the complaint that the prosecution witnesses were incredible. On that, he cited the case of Goodluck Kyando v. Republic [2006] TLR 363 which held that witnesses are entitled to credence unless they are reasons for disbelieving them. On the light, which the appellant complained about, that PW2 did not testify on the light how he identified the appellant, PW3 did not testify how he knew the exhibits were elephant tusks. Nor did he explain the source of light when the photos were taken by F. 7326 DC Twalib. Mr Kagirwa responded that PW2 as seen on pages 32 of the record of appeal i explained how he met the appellant, and they went to Ng'ereng'ere where the appellant was arrested red handed. In the circumstances, he viewed the issue of identification to be immaterial as held in Gitabeka Giyaya (supra). As for a complaint that the photographer who took the photos was not called to testify, he conceded that fact, but suggested that, it does

not discredit the prosecution case. Besides, the photos (exhibit P10) were tendered without any objection. The failure to object tendering of the exhibit amounts to admission of the fact as held in Nyerere Nyague v. Republic [2012] TZCA 103. On the last point, on the failure to consider the appellant's defence, it was Mr. Kagirwa's submission that when the case was heard at trial court, when the cautioned statement was objected the court conducted an inquiry and ruled out that the statement was taken voluntarily, and it was admitted as exhibit P8. The court did what was guided in Nyerere Nyague (supra). Again, on page 131 of the record of appeal, the trial court considered the appellant's defence. Moreover, on page 70 of the record of appeal the appellant during the inquiry did not ask for adjournment so that he can bring his PF3. As for the High Court, Mr. Kagirwa while referring to page 134 of the record of appeal, he conceded that it did not consider the appellant's defence because it was not one of the grounds of appeal. He thus invited the Court to step into the shoes of the High Court and consider the defence. Protesting the appellant's complaint that the case was not proved beyond reasonable doubt, Mr. Kagirwa contended that, the ingredients of the offence the appellant was charged with, were proved. One, possession 12

was proved through the evidence of PW1, PW2 and PW3 because they signed the seizure certificate. The appellant too signed it. That proved that he was found in possession of elephant tusks as held in Song Lei case (supra). Even in his cautioned statement that fact is plain. Another ingredient according to the learned Senior State Attorney was the permit. He referred to PW2's evidence at page 34 of the record of appeal showing that after arresting the appellant he asked him if he had the permit whereof, the appellant replied he did not have. The last ingredient is whether the appellant was caught with government trophy, on which Mr. Kagirwa submitted that it was proved by PW4 (wildlife officer) who testified that the tusks were from five different elephants. Therefore, the charge was proved beyond reasonable doubt. He added that the chain of custody was intact. On page 108-118 of the record of appeal the chain of custody is seen from testimony of PW2 and handed the appellant to CRO after arrest him, then the exhibit is given to PW5 (exhibit keeper) who then handed them over to PW10 the investigator and then handed them to weighing officer (PW9) then he returned to the investigator (PW10) who returned to PW5 who later handed them to PW10 and he handed to PW4 (wildlife officer) who identified them and valued them and then returned to PW10 who returned

to PW5 who in turn gave to PW2 who tendered in court and was admitted as exhibit. Apart from the exhibits the oral testimonies prove the case. The exhibits cannot change hands easily and are not easily tempered with. In the case of Gitabeka Giyaya (supra) the above position was confirmed because the tusks cannot easily be tempered with. It was his submission that, the prosecution witnesses were credible, and the case was proved beyond reasonable doubt. He prayed for the appeal to be dismissed. Rejoining Mr. Magwayega reiterated his submission in chief. He rejoined by insisting that the contradictions in prosecution evidence goes to the root of the matter. He also reiterated that, PW1 and PW3 did not explain about the light. He protested that the appellant was caught red handed. He rejoined further that whereas PW1 said the sulphate bag was kept on the boot PW3 testified that he saw it on the motorcycle. He decried that the photographer who was a material witness was not called to testify. On the trial court's failure to consider the defence, he referred to page 131 of the record of appeal, which is the trial court's judgment, and contended that it does not touch upon the PF3 at all. 14

He also rejoined on the chain of custody and argued that the chain of custody can be of assistance had the appellant been caught with the sulphate bag. However, in his view the appellant was not caught with the sulphate bag. PW1 said they were two, the appellant and another person. But even the caution statement was extracted by torture. He in the end urged the Court to allow the appeal and set the appellant free. We have thoroughly scrutinized the entire record of appeal and the submissions advanced by the learned counsel for the parties and concluded that the case was proved beyond reasonable doubt for the following reasons: Firstly, the appellant was caught red handed. The issue of mistaken identity therefore does not arise as rightly held in Gitabeka Giyaya (supra). It was not disputed that there was a plan between the police investigator (PW2) who was a decoy and the appellant for purchase of the elephant tusks. That, the appellant brought the tusks and was arrested in the process. The evidence of PW1, PW2 and PW3 confirms this finding. It follows therefore that the complaint regarding identification of the appellant weathers away. Amplifying, and negating the appellant's allegation of mistaken identity was the seizure certificate (exhibit PI) which the appellant himself signed. 15

Secondly, along with the above, we find that the contradictions in the prosecution witnesses on the colour of sulphate bag containing elephant tusks (exhibit P2) which the appellant complained about, is not only superfluous but also minor and does not go to the root of the matter. Understandably, identifying colours may be difficult especially if done at night as some people are colour blind. Again, here the allegation of colour discrepancies is mediated by the fact that the appellant was caught red handed. We are fortified in our stand with the soundness of the buy-bust apprehension of a culprit as held in Metwii Pusindawa Lasilasi v. Republic [2024] TZCA 139, because the appellant was caught red handed. After an entrapment being set, the appellant was caught red handed by PW2 and other police of officers. Consequently, the complaints on contradictions in the colour of the sulphate bag is dismissed. Thirdly, the complaint that the defence of the appellant was not considered lacks substance as the record of appeal bears witness that it was considered by the trial court. Nonetheless, we find that the issue of PF3 and the cautioned statement not being well evaluated and properly reasoned by the courts below to be sensible. We thus stepped into the shoes of the first appellate court and evaluated this piece of evidence and 16

found it to be lacking substance. We are of the settled view that even if the decision of the trial court which was upheld by the High Court was based among other things on the cautioned statement, there was no miscarriage of justice because the same was admitted after the inquiry being conducted. Besides, in the PF3 (exhibit Dl), the doctor stated that the appellant was in good condition mentally and physically. The said PF3 was taken on 26/07/2019 a week after the appellant's cautioned statement was recorded on 19/07/2019. In Thadeo John Bilunda and Another v. Republic [2023] TZCA 69; and in Metwii Pusindawa Lasilasi (supra), the Court rejected a complaint that the appellant defence was not considered because he was caught red handed. A kin situation exists here, it is our settled view that, apart from the appellant being caught red handed, the record contains credible evidence from prosecution witnesses including the police investigator (PW2), the bodaboda rider (PW1), and the independent witness (PW3). We thus dismiss the third ground of appeal. Before closing, we find it just to address the question of failure to call a material witness, F. 7326 DC Twalib, the photographer, a point which Mr. Magwayega extended considerable energy in protesting. Much as he is indeed a material witness, looking at the evidence on record, we

have no doubt whatsoever that the prosecution proved the case beyond reasonable doubt even in the absence of the said photographer. Consistent with the principle in section 152 of the Evidence Act [Cap. 6 R.E. 2023] that no specific number of witnesses is required to prove a fact, the prosecution had several material witnesses, such as PW1, PW2, and PW3 who were called to testify to prove the charge and not forgetting that the appellant was caught red handed as alluded to earlier. Hence, we discard this allegation. For the foregoing reasons, we dismiss the appeal in its entirety. DATED at M USOM A this 11thday of October, 2025. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 13thday of October, 2025 in the presence of Mr. Leonard Elias Magwayega, learned counsel for the Appellant and Mr. Jonas Samwel Kivuyo, learned State Attorney for the Respondent/Republic via Virtual Court and Stella Mlaponi, Court Clerk; is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL