Jonas Ng'olida vs Republic (Criminal Appeal No. 780 of 2023) [2025] TZCA 1036 (7 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: NPIKA, J.A., KIHWELO. J.A., And NGWEMBE, J.A.^ CRIMINAL APPEAL NO. 780 OF 2023 JONAS NG'OLIDA ......................... .......................................... APPELLANT VERSUS REPUBLIC...................................... ....................... .................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) (MasabQtJ.) dated the 18th day of August, 2023 in DC. Criminal Appeal No. 13 of 2023 JUDGMENT OF THE COURT 29th September & 7th October, 2025 NPIKA. 3.A.: On 18th August, 2023, the High Court of Tanzania at Dodoma dismissed the appeal of Jonas Ng'olida, the appellant herein, regarding his conviction for the unlawful possession of a government trophy, as well as the twenty- year prison sentence handed down by the Resident Magistrate's Court of Singida. The appellant was charged with the unlawful possession of a government trophy, specifically three pieces of elephant tusks, weighing 9.8 kilogrammes and valued at USD 30,000.00, equivalent to TZS 60,000,000.00, belonging to the Government of the United Republic of Tanzania, without the

necessary permit. The alleged incident occurred on 12th February, 2016, in Ikolo village, Mkalama District, Singida Region. Since he was convicted solely of the first offence and acquitted of the second offence of illicit dealing in a government trophy, we need not provide any specifics concerning the second count. The prosecution's narrative was essentially that, on 12th February, 2016 PW3 Athuman Bahati, a wildlife officer, teamed up with his two colleagues (Japhet Maro and Paulo Mwizarubi) from the Anti-Poaching Unit at Manyoni, also known as Kikosi Dhidi ya Ujangili(KDU), to set up a buy-bust operation to entrap two individuals who were offering elephant tusks for sale. They did so based on a tip they had received from a confidential informant. After some communication with the informant on the phone, they drove to Mwangeza village where they met the appellant who then led them to Ikolo village where his associate, Gilamalega Nefunya, was. The said Nefunya held a polythene bag containing what they later examined and confirmed to be three elephant tusks, which PW3 and his team promptly seized. At that point, they disclosed their identities and apprehended the appellant and Nefunya. PW3 filled out and signed a certificate of seizure (exhibit P8) to verify the confiscation of the tusks and a motorcycle with

registration plate number MC248AHE, which the appellant was riding, Apart from the appellant having appended his thumbprint to exhibit P8, the said Nefunya also countersigned it in the presence of Japhet Maro and Paulo Mwizarubi. Then, the appellant and his associate along with the confiscated property were transported to Nduguti Police Station that evening. Following learning on the next day that Nefunya had fled from the custody, PW3 took the appellant to the KDU Office at Manyoni and later surrendered him to police custody at Manyoni Police Station. On the same day, PW3 handed over the seized tusks (exhibit PI) and the motorcycle to the exhibits keeper at the KDU Office, Mosongo Meigweri (PW1), as evidenced by the handing over book (exhibit P3). Having received the tusks, PW1 labelled and stored them at the office. On 14th February, 2016, PW1 allowed Angelo Lunimba (PW2), a wildlife officer, access to the tusks for examination and valuation. PW2 examined them and confirmed that they were rough elephant tusks, weighing 9.8 kilogrammes, valued at USD. 30,000.00, which was equivalent to TZS. 30,000,000.00. He tendered in evidence a certificate of trophy valuation (exhibit P7) dated 14th February, 2016.

PW1 adduced further that on 12th May, 2016 he took the tusks to Manyoni District Court for tendering at a triai against the appellant As it turned out that the appellant had allegedly pleaded guilty to the charge and, accordingly, convicted on that plea in a proceeding that was subsequently nullified by this Court on appeal, the tusks were not tendered but transported to the Ivory Room in Dar es Salaam where they were handed over to Wilfred Olomy for safe custody. The said Wilfred Olomi brought the tusks back to Singida for tendering at the appellant's subsequent trial on 22n d November, 2022 . The appellant categorically refuted the allegation made against him. He claimed that while herding his cattle on 12th February, 2016, at approximately 08:45 a.m. in Mnunguna, he was seized by three individuals who forced him into a waiting vehicle. Initially, they took him to Mkalama Police Station. Then on the next day they drove him to Manyoni Police Station before they ferried him to the KDU Office at Manyoni where he was seduced with a promise to be let free to confess to being possessed of illicit government trophy. Essentially, his argument constituted a broad denial of the allegations, accompanied by an assertion that the charges were fabricated.

As previously stated, the trial court acquitted the appellant on the second count but convicted him on the first count and issued the jail sentence mentioned before. His first appeal to the High Court was unsuccessful, so he now appeals to this Court on nineteen grounds. The thrust of the said grounds is that the conviction is not oniy untenable due to many procedural errors, but it is also not supported by the evidence on record. Regarding the sentencing, it is claimed that none of the appellant's pretrial custody term was reduced. At the hearing, the appellant pursued the appeal as a self-represented litigant, pressing us to allow the appeal, without further explanation. For the respondent, Ms. Elizabeth Barabara, learned Senior State Attorney, and Mr. Nehemia John Kilimuhana, learned State Attorney, strongly opposed the appeal. We propose to begin with the alleged procedural infractions, the first of which is the claim that the appellant's trial violated section 9 (3) of the Criminal Procedure Act, Cap. 20 RE 2019 ("the CPA RE 2019"), now section 10 (3) of the Criminal Procedure Act, Cap. 20 RE 2023 ("the CPA RE 2023"). The core of this complaint is that the trial court did not provide the appellant with a copy of any information or statement made by the complainant in the

matter upon which the criminal proceedings against him were launched. Quite openly, Mr. Kilimuhana admitted that the trial record is silent on whether the statement was provided. However, he claimed that the omission was harmless because it did not affect the appellant's defence. Citing Jovin Daud v. Republic [2024] TZCA 97, he implored that the irregularity be found curable under section 388 of the CPA RE 2019 (now section 411 of the CPA RE 2023). Section 10 (3) of the CPA RE 2023 clearly stipulates that in criminal proceedings before a magistrate's court, the trial magistrate must make the complainant's statement available to the accused. As we stated in Abdallah Seif v. Republic [2022] TZCA 196, the overarching purpose of this requirement is to promote trial fairness by providing the accused with all necessary information before the trial begins, allowing him to mount a meaningful defence. Mr. Kilimuhana properly pointed out that the trial record is silent on whether this requirement was met, thus we must conclude that it was not. Nonetheless, we have considered that the appellant's grievance is merely that the requirement was not met without any explanation as to whether he was thereby prejudiced. Since we are satisfied, as per the record 6

before us, that he was not prejudiced in preparing and presenting his defence by cross-examining the prosecution witnesses and testifying at the trial, we uphold the learned State Attorney's submission that the omission complained of is inoffensive and curable under section 411 of the CPA RE 2023. To be sure, we took the same viewpoint in Jovin Daud {supra), Abdallah Seif {supra), and Daniel Kivati Monyalu v. Republic [2021] TZCA 561. The appellant's next complaint is that the preliminary hearing was not conducted in accordance with the requirements of section 192 (3) of the CPA RE 2019 (section 198 (3) of the CPA RE 2023) on accelerated trials. Certainly, this provision demands that, following a preliminary hearing, the trial court prepare a memorandum of undisputed matters and explain its contents to the accused before it is signed by the accused, his counsel, if any, and the prosecutor. There is no doubting that the current grievance contradicts the trial record. Mr. Kilimuhana referenced to page 10 of the record of appeal, demonstrating that the trial magistrate read over and explained the memorandum to the parties before having them sign it. Finally, the trial magistrate certified that section 192 (3) of the CPA RE 2019 had been met. It is obviously unavoidable that the complaint in question is without basis.

Equally baseless is the claim that exhibits P2 through P8 were improperly relied upon without having their contents read aloud at the trial after being admitted into evidence, in violation of the instruction issued by the Court in Robinson Mwanjisi & 3 Others v. Republic [2002] T.L.R. 218. We agree with Mr. Kilimuhana that the record of appeal shows on pages 15 and 21 that the documents were read out in accordance with the procedure. It signifies that the appellant was fully informed of the contents thereof. The appellant also questioned the legitimacy and veracity of the tusk seizure, as demonstrated by the certificate of seizure (exhibit P8). He maintained that, aside from the fact that he did not sign it, it was unreliable since it was not attested by any independent witness, contrary to the stipulation under section 38 (3) of the CPA RE 2019 (section 39 (3) of the CPA RE 2023). Indeed, this provision requires the officer who seizes anything during a search to issue a receipt acknowledging the seizure of that thing, signed by the owner or occupier of the premises or his near relative or other person who is currently in possession or control of the premises, as well as the signatures of any witnesses to the search. 8

In our opinion, Mr. Kilimuhana responded to us quite correctly about the veracity of exhibit P8. We completely agree with him that the tusks were seized following an emergency search conducted at an outlying location in Ikolo village distant from human habitation. This was consistent with section 42 of the CPA RE 2019 (currently section 43 of the CPA RE 2023) which provides for emergency searches. In these circumstances, the absence of an independent witness (other than the two rangers, Japhet Maro and Paulo Mwizarubi) is immaterial. Furthermore, the appellant's claim that he did not sign the exhibit is blatantly false. The document clearly shows that he affixed his thumbprint, indicating that he acknowledged that the tusks were impounded from him and his associate (Nefunya) who also signed the document. What remains to be addressed regarding the alleged procedural infractions is that the appellant was denied the opportunity to plead his mitigating circumstances before sentencing and that none of his pretrial prison term was considered in the jail term imposed on him. We believe it is appropriate to address these grievances after reviewing and assessing whether the appellant's conviction is sustainable. On this basis, we now examine the evidential concerns the appellant raised, the crux of which is whether his conviction is justifiable. 9

The appellant's major contention was that the charged offence was not established beyond a reasonable doubt. In elaboration, he said that because the prosecution did not provide any chemical analysis report to determine whether the seized substance was elephant tusks, it could not be shown that the contraband was government trophy. He further claimed that PW1 and PW3 failed to identify him throughout the trial and did not associate him with the tusks (exhibit PI). His further claim was that the motorcycle reportedly seized from him should have been presented during the trial, but it was not. Finally, he questioned the chain of custody of the tusks, alleging that it had been tampered with. Ms. Barabara and Mr. Kilimuhana took turns responding to the appellant's argument. They claimed that, while PW2 did not identify the tusks during the trial, PW1 and PW3 did. Moreover, PW1 and PW3 also identified the handing over book showing that PW1 received the tusks from PW3 for safe custody. They insisted that, based on the oral and documentary evidence on the record, the chain of custody for the tusks was unassailable. In the absence of a chemical analyst's report, they maintained that PW2, as a wildlife officer, was legally qualified to determine whether the seized substance was government trophy.

We considered the complete record in light of the parties' differing claims. Beginning with the integrity of the tusks, we uphold the respondent's submission that based on the testimonies of the three prosecution witnesses supported by the certificate of seizure (exhibit P8), the handing over book (exhibit P3), the ivory consignment note (exhibit P4), the issue voucher of the tusks (exhibit P5), gate pass (exhibit P6), and the trophy valuation certificate (exhibit P7), the movement of the tusks from seizure to exhibition at the trial was fully explained and its integrity assured. We are aware that the appellant made a generic claim that the tusks were interfered with without specifying where the alleged interference happened. We would emphasise that elephant tusks are not typically a property that can be easily tampered with. We also agree with the learned state counsel that, as a wildlife officer, PW2 was competent under section 86 (4) of the Wildlife Conservation Act, Cap. 283 RE 2022 ("the WCA") to verify the genus of the substance in question and assess its value for the purpose of a trial under section 86 of the WCA. This provision stipulates that: "(4) In any proceedings for an offence under this section, a certificate signed by the Director or wildlife officers from the rank o f wildlife officer, stating the li

value o f any trophy involved in the proceedings shall be admissible in evidence and shall be prima facie evidence o f the matters stated therein including the fact that the signature thereon is that o f the person holding the office specified therein." As previously stated, PW2 signed and issued the trophy valuation certificate (exhibit P7). In it, he acknowledged that the impounded substance was elephant tusks worth TZS. 60,000,000.00. The appellant's argument that PW2 did not identify the tusks throughout the trial is immaterial. It did not change the prosecution's argument that the appellant had the tusks when he was arrested by PW3 and his colleagues. It is crucial that PW1 and PW3 identified the tusks and the handing over book, via which the former received the tusks from the latter for safekeeping. PW3 also identified the appellant during the trial as one of the two people he arrested in Ikolo village. Finally, the appellant signed the certificate of seizure (exhibit P8) to acknowledge that the trophy in question was taken from him. Based on all this evidence, we are certain that the appellant possessed the tusks when he was apprehended alongside his accomplice. 12

The assertion that the motorcycle seized from the appellant was not presented as evidence is irrelevant. The first appellate court determined that it was sold after the appellant's conviction, which later turned out to be flawed. When the new trial began, it was not available for tendering; however, the pertinent proof of sale, in the form of a receipt, was accepted as exhibit P2. The most crucial aspect was that the elephant tusks, which constituted the corpus delicti of the charge, were presented and accepted as evidence. Given that the prosecution had proven that the appellant had possession of the trophy, the burden lay on him to prove, among others, that such possession was lawful in terms of section 100 (3) of the WCA. For clarity, we extract the said provision as follows: "(3) In any proceedings for an offence under section 86 the burden o f proof that- (a) the possession o f the Government trophy was lawful; (b) the sale , purchase or other transaction relating to the Government trophy was lawful; (c) the accused had assumed possession o f the trophy in order to comply with the requirements o f sections 85 and 86; 13

(d) the trophy is not a Government trophy, shall He on the person charged." In this case, the appellant did not have the Director of Wildlife's permit to establish the legality of his possession of the trophy. He also made no attempt to show that the trophy was not a government trophy. As a result, we hold that the appellant's conviction was firmly based on flawless evidence. We conclude with the appellant's complaint that he was denied the opportunity to explain his mitigating circumstances before sentence and that none of his pretrial remand term was reflected in the twenty-year imprisonment imposed at the conclusion of the trial. Initially, the claim that the appellant was denied a mitigating opportunity is obviously untrue. As Mr. Kilimuhana correctly said, page 28 of the record of appeal leaves no doubt that he addressed the trial court, requesting that the court consider his time in jail and the fact that he had a family that relied on him. However, as conceded by the learned State Attorney, the trial court erred in imposing the twenty-year jail term on 18th January, 2023 without discounting the period of his incarceration in remand from 12th February, 14

2016. That approach violated section 172 (2) (c) of the CPA RE 2019 (section 178 (2) (c) of the CPA RE 2023), which stipulates thus: "(2) Where- (a) a person is committed in custody for sentence by the High Court; (b) a person is remanded in custody awaiting the confirmation o f his sentence by a higher court; or (c) a person has been in remand custody for a period awaiting his trial, his sentence whether it is under the Minimum Sentences Act, or any other law, shall start to run when such sentence is imposed [or] confirmed, and such sentence shaii take into account the period the person spent in remand. " [Emphasis added] There is no doubt that if the courts below had considered the above provisions, they would have reduced from the statutory twenty-year jail term the appellant's remand period from 12th February, 2016 to 18th January, 2023 when he was sentenced by the trial court - see also Sano Sadiki & Another v. Republic [2023] TZCA 17476 and Godbless Simon v. Republic [2025] TZCA 355. As a result, we find merit in the complaint and proceed to order that the appellant's remand period from 12th February, 2016 to 18th January, 15

2023 (a total of 2,532 days) be reduced from the twenty-year sentence imposed on him on 18th January, 2023. The appeal is dismissed, except for the sentence reduction described above. DATED at DODOMA this 3r d day of October, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 7th day of October, 2025 in the presence of the appellant in person unrepresented and Ms. Rose Ishabakaki, learned State Attorney for the respondent/Republic connected via video conference and Mr. John Banene, Court Clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 16