Yohana Hassan @ Mwinyimvua @ Chembe vs Republic (Criminal Appeal No. 781 of 2023) [2025] TZCA 1037 (7 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: NDIKA. 3.A.. KIHWELO, 3.A. And NGWEMBE, J.AJ CRIMINAL APPEAL NO. 781 OF 2023 YOHANA HASSAN @ MWINYIMVUA@CHEMBE ................ APPELLANT VERSUS THE REPUBLIC ......................... ................. .................... ....... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) (Mdemu. 3.) dated the 5th day of 3une, 2023 in DC Criminal Appeal No. 23 of 2022 JUDGMENT OF THE COURT 29th September & 7th October, 2025 KIHWELO. J.A.: The appellant, Yohana Hassan @Mwinyimvua @ Chembe is seeking to overturn the decision of the High Court of Tanzania at Dodoma in CriiTsins! Appeal No, 23 of 2023 in which the High Court upheld the decision of the Court of Resident Magistrate of Singida at Singida (the trial court) which found the appellant and two others who are not part to this appeal guilty of the counts they stood charged and were consequently convicted and

accordingly sentenced. However, the High Court found out that the case against the two co-accused was not proved and therefore, their conviction and sentence was thus quashed and set aside. It is noteworthy that, in accordance with the charge laid at the appellant's door and evidence led by the prosecution at the trial court in Economic Case No. 22 of 2017, the appellant and five others who were later acquitted by the trial court and the High Court was formally arraigned ror six counts all of them involving unlawful possession of government trophy and unlawful dealing in government trophy. The six counts were, respectively predicated on section 86 (1) and (2) (c) (ii), (3) (b) and 111 (1) (a) of the Wildlife Conservation Act, No. 5 of 2009 (WCA) as amended by section 59 (a) and (b) of the Written Laws (Miscellaneous Amendment) Act No. 2 of 2016 read together with paragraph 14 of the First Schedule to and sections 57 (1) and 60 (1) both of the Economic and Organized Crime Control Act, Cap. 200 the (EOCCA) as amended by sections 13 (b) (2) (4) and 16 (a) of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016 arid section 80 (1), 84 (1), 111 (1) (a) of the WCA read together with paragraph 14 of the First Schedule to and sections 57 and (1) and 60 (1) both of the EOCCA 2

as amended by sections 13 (b) (2) (4) and 16 (a) of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016. In a nutshell, the case for the prosecution which was believed by the trial court was to the effect that, on the fateful day in January 2017 the appellant and five others were found in possession of government trophy to wit Elephant Tusks. It was also alleged that the appellant and others were also found unlawfully dealing in government trophy. The appellants refuted the accusations whereupon, the prosecution had to prove the case. The prosecution put together a total of eight witnesses whose evidence was to the effect that, on 11th January, 2017 the appellant and others were unwittingly caught in a trap set by Mrekwa Simon Foka (PW2) a Wildlife Warden working with the Anti-Poaching Unit who was accompanied with other arresting officers namely, police officer No. E. 81 Detective Corporal Masoye (PW3) and police officer No. G. 7670 Police Constable Andrew (PW5) and the trio managed to arrest the appellant and others at the abattoir area where the supposedly sale of government trophy was to take place. They managed to search the vehicle and seize elephant tusks (exhibit P2), a spring weighing scale (exhibit P3), a backpack (exhibit P4), motor vehicle Make Suzuki Vitara in which six elephant tusks were found

and a motorcycle which was used by the then suspects both of which, were later admitted in court and marked collectively (exhibit P5). The search and seizure were conducted in the presence of an independent witness one Cyril Bernard Malya (PW6). Thereafter, the appellant and others were taken to Manyoni Police Station where all the exhibits were handed over to the exhibits keeper one Athumani Bahati (PW1), who entered them in the exhibits register (exhibit PI). Thereafter, the appellant was interrogated by police No F. 6980 Detective Corporal Peter (PW4) who recorded the appellant's cautioned statement (exhibit P8). PW5 recorded the cautioned statement of other suspects Msenga Thadayo (exhibit P9) while police officer No. G. 9803 Detective Corporal Mussa Chacha Marwa (PW7) recorded the cautioned statements of Daniel Malongo and Athanas Magadula (exhibit P10). A' little later, Barakaeli Abdul Ndosi (PW8), a Warden Officer from the Anti-Poaching Unit conducted the valuation of the elephant tusks and duly filled the Valuation Certificate (exhibit PI 1). On the other hand, the appellant and others who elected to defend themselves without calling any other witness or witnesses totally refuted the accusations levelled against them and each one of them disassociated from

the crime they stood charged with and expressed their innocence. They further alleged that the case against them was a mere fabrication and that they were tortured to sign seizure certificates and confessional statements. When the respective cases from either side were closed, the learned trial Magistrate was impressed by the prosecution case, and on the end, she was satisfied that the appellant and two others were found guilty in all counts of possession of government trophy as charged but the rest three were acquitted. The trial court found the appellant and all of others not guilty on all counts of unlawful dealing in government trophy. In consequence, the trial court convicted and sentenced the appellant and two others for the first count to a fine of TZS. 660,000,000.00 each or to serve a prison term of twenty years in default thereof. In the third count the trial court sentenced them to a fine of TZS. 330,000,000.00 or to serve a prison term of twenty years in default thereof, and for the fifth count they were sentenced to a fine of TZS. 330,000,000.00 or to serve a prison term of twenty years in default thereof. The appellant and two others who are not part to this appeal as intimated earlier on appealed to the High Court presided over by Mdemu, J (as he then was), who upon further evaluation of the evidence on record, he

was satisfied that the trial court rightly found the appellant guilty of the offences charged and therefore, he dismissed his appeal and upheld the conviction and sentences. However, the learned Judge allowed the appeal made by the two others and thus, quashed the conviction and set aside their sentences and ordered their immediate release from custody unless held for other lawful cause. The appellant's dissatisfaction with the decision of the High Court is expressed in a memorandum of appeal comprising eighteen grounds of grievances which was lodged in Court on 28. 09. 2023. All in all, the said points of grievance when looked at critically they are essentially, raising evidential and procedural issues. Before the appellant who appeared in person unrepresented started to argue his appeal, he allowed the respondent Republic to argue first, reserving his right of reply at a later stage if need would arise. The respondent Republic enjoyed the services of Ms. Elizabeth Barabara, learned Senior State Attorney who was assisted by Mr. Nehemia John Kilimuhana, learned State Attorney. Mr. Kilimuhana who took first to argue the appeal indicated that the respondent Republic was opposing the appeal In relation to the eighteen

grounds of complaints raised by the appellant, Mr, Kilimuhana was of the view that grounds 6, 8, 9, 14 and 15 were new grounds and factual as such should not be argued citing our previous decision in Elirehema Mjema v. Republic [2025] TZCA 359 in support of his proposition. We wish to predicate our deliberation by restating that, the mandate of this Court in terms of section 6 (1) of the Appellate Jurisdiction Act, Cap 141 R.E. 2023 (the AJA), is limited to matters raised by the parties and adjudicated by the High Court and subordinate courts with extended jurisdiction only. The logic is simple, we cannot therefore, completely render a decision on any issue which was never decided by the High Court except when exercising revisiona! powers under section 6 (2) of the AJA. There is, a considerable body of case law on this aspect. See, for instance, Abdul Athuman v. Republic [2004] T.L.R. 151 and many others which followed thereafter. Therefore, since grounds 6, 8, 9, 14 and 15 are new and factual as they did not feature at the first appellate court, and because the first appellate court did not make any finding on them, this Court lacks the requisite jurisdiction to entertain them and therefore, we desist to determine them.

Addressing us in response to the second ground of appeal, whose complaint is on failure by the trial court to comply with section 192 (3) of the Criminal Procedure Act, Cap 20 R.E. 2019, now section 198 R.E. 2023 (the CPA), in that the memorandum of undisputed facts was not read over to him as required, Mr. Kilimuhana was brief. He contended that the said provision was complied with referring us to page 22 of the record of appeal and argued that this ground has no merit. In the alternative, the learned State Attorney submitted that, even if we assume that the trial magistrate did not comply with the provisions of subsection (3) of section 192 of the CPA the appellant admitted only his personal particulars and the fact that he was charged with possession of Government trophy and unlawfui dealing in Government trophy and also that he was charged on 26th September, 2017. While conceding that reading of the memorandum of matters not in dispute is a requirement of the law, he argued that failure to do so did not vitiate the entire trial, and in this case, it did not prejudice the appellant either. In the instant matter before us, there is no doubt that the provision of subsection (3) of section 192 of the CPA, now section 198 of the R.E. 2023 were not complied with. Put differently, the trial court did not read over and explain to the appellant in a language understood to him matters not in 8

dispute before signing as required by law. However, as rightly argued by the learned State Attorney the omission is not fatal as it did not prejudice the appellant nor vitiate the entire proceedings but rather it merely vitiates the preliminary hearing. We stated this with sufficiency lucidity in the case of MT 7479 SGT, Benjamin Holeia v. Republic [1992] T.L.R. 121, that the provision of subsection (3) of section 192 now section 198 of the R.E 2023 as couched, imposes a mandatory duty upon the trial court to read over and explain to the accused person the contents of the memorandum of matters agreed. However, its omission does not affect the trial but rather it only vitiates the proceedings of the preliminary hearing and which wili be nullity. We took similar position in the case of Joseph Munene anc! Another v Republic [2004] TZCA' 30 TANZLII. The net effect of this is that, ail the evidence which ought to be deemed proven in terms of subsection (4) of section 192. now 198 of the CPA, had to be proved during trial of the matter. See, for instance, Brayson Katawa v Republic [2012] TZCA 31 and John Mohamed v Republic [2024] TZCA 560. In the appeal before us, admittedly records are conspicuously clear at pages 21 and 22 that the memorandum of agreed matters was prepared and signed by the appellant, his advocate and the public prosecutor. What is not

apparently clear on record is whether the memorandum was read out and explained to the appellant as the law requires. This is a clear indication that there was omission. All in all, we find considerable merit in the submission by the learned State Attorney that, this omission did not prejudice the appellant and, in any case the appellant admitted only his persona! particulars, the fact that he was charged for the two counts and brought before the court on 26th September, 2017. The appellant had ample opportunity to listen to witnesses who came to testify during trial, he had an opportunity to cross examine them and had time to defend himself and therefore, this did not occasion any failure of justice on the part of the appellant. We find this ground unmerited. The appellant's complaint in the fifth ground is that the provisions of section 9 (3) of the CPA now, section 10 (3) of the R.E 2023 was not complied with in that the appellant was not supplied with the statement of the complainant. In response, Mr. Kilimuhana admitted with commendable forthrightness in that, the appellant was not furnished with the complainant's statement. However, he was quick to argue that, all in all, this did not occasion any injustice on the part of the appellant who had the opportunity to listen to all witnesses who came to testify before the court and was 10

accorded right to cross examine them. He further contended that, the appellant also defended himself and therefore, in his view, the omission was curable under section 388 of the CPA now section 411 of the R.E 2023. He paid homage to the case of Elirehema Mjema v. Republic (supra) to support his line of argument. Indeed, the provisions of section 10 (3) of the CPA R.t 2023 enjoins the trial maqistrate to cause a copy of the complainant's statement to be furnished to the accused. This is meant to ensure fairness in trials by equipping the accused with all essential information prior to the commencement of the trial and therefore, enable him mount a meaningful defence. We reiterated this in the case of Abdallah Self v. Repubiic [2022] TZCA 196. We therefore, find considerable merit in the submission by the learned State Attorney. On the whole, we must point out that, upon reviewing the record of appeal, we find that, indeed the learned State Attorney was correct that the oversight was trifling and can be cured under section 411 of the CPA R.E 2023. The basis of our reasoning is not far-fetched, we are of the considered opinion that, the lack of the complainant's statement did not hinder the appellant's preparation and ultimate presentation of his defence bearing in li

mind that he was present when all the prosecution witnesses came to testify and had opportunity to cross examine them/ and apart from that, the appellant was able to mount his defence at the trial. There is, in this regard, a litany of authority in this matter. See, for instance, Abdallah Seif (*> upra) and Elirehema Mjema v. Republic (supra) and many others. We therefore, find this ground meritless. In the seventh ground which will be argued conjointly with ground ten the appellant is faulting the probative value of exhibit P8 the cautioned statements of the appellant and Omary Mussa Mwaja @Babu Ngozi who was acquitted by the trial court. The appellant further faulted exhibit P8 in that it offended sections 50 and 51 of the CPA now, sections 51 and 52 of the CPA R.E. 2023. The appellant's basis of the first complaint is that the statements were all recorded by PW4 which to him is irregular and also that the statements were recorded out of the time prescribed by law. Responding to this complaint, Mr. Kilimufiana was brief and to the point. He contended that, it is true that PW4 recorded the two cautioned statements in exhibit PS but that was not irregular and the law does not prohibit it. In support of this proposition he cited to us our earlier decision in Dickson Elia Nsamba Shapwata and Another v. Republic [2008] TZCA 17. In regards to the 12

second complaint Mr. Kilimuhana argued that the complaint was baseless and the statement was recorded within the time available for interviewing suspects as provided by the law. He therefore urged us to dismiss these grounds. These complaints should not detain us, indeed PW4 recorded the cautioned statement of Omary Mussa Mwaja @Babu Ngozi on 11th January, 2017 and on the same day he recorded the cautioned statement of the appellant. The recording of interviews and statements by the police is governed by sections 57 and 58 of the CPA, now sections 58 and 59 of the R.E. 2023. A close scrutiny of the above provisions, reveals to us that, the violation complained of is conspicuously absent and therefore, we are completely at one with Mr. Kilimuhana, that PW4 was enjoined to comply with section 58 of the CPA, now section 59 of the R.E. 2023 and there is no indication that there was any violation which makes the complaint baseless. We took similar stance in the case of Dicksort Elia Nsamba Shapwata (supra). Equally, we are at one with Mr. Kilimuhana that exhibit P8 was recoded within the time prescribed by law and this is evident on the record of the trial proceedings. These grounds are equally without merit. 13

We will next determine the thirteenth ground whose criticism is on the failure to produce Michael and Emanuel the independent witnesses mentioned at page 43 of the record of proceedings, who witnessed the search and seizure of the elephant tusks from the motor vehicle. In response Mr. Kilimuhana argued that, the search and seizure was witnessed by Cyril Bernard Malya (PW6) and therefore, it was unnecessary for the prosecution to have called Michael and Emanuel to testify. He further argued that, the criticism that PW6 did not identify the appellant in court is meritless since there was no prior identification parade which would make it necessary for the witness to identify the accused in the dock to confirm the earlier identification parade. He implored us to dismiss this ground. We wish to reaffirm the settled position that, in terms of section 152 of the Evidence Act, Cap 6 R.E. 2023, it is not the number of witnesses a part calls which is relevant, but the credibility of the evidence of the witnesses called to testify. Indeed, there is a plethora of authorities by this Court to that effect See, for instance, Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Aziz Abdallah v. Republic [1991] T.L.R. 71, just to mention a few. The court can act on the evidence of a single witness if that witness can be believed given all the surrounding circumstances. The truth is not 14

discovered by a majority vote, one solitary credible witness can prove a case beyond reasonable doubt. We are also aware that, where a party fails to summon a material witness to fill the gap or explain an important point, the court is entitled to draw adverse inference. See, for instance, Aziz Abdallah v. Republic (supra). In the case before us, PW6 was an independent witness who testified how he witnessed the search and seizure of the elephant tusks at the crime scene. In our considered opinion, we are unable to see any missing link which was left by the prosecution witnesses in particular PW6 which would require to be filled by the said Michael and Emanuel. For that matter, this ground fails. In relation to the complaint in ground sixteen the appellant faulted the first appellate court for upholding his conviction on the basis of exhibits P6 and P ll which were irregularly admitted in evidence. Mr. Kilimuhana admittedly contended that, the seizure certificate, exhibit P6 as well as the certificate of valuation, exhibit P ll were admitted in evidence without their contents being read over in court as required by law and theiefore, he prayed that they should be discarded from the record. However, he was quick to submit that, even if exhibits P6 and P ll are expunged from the 15

record the remaining oral accounts of PW3 and PW8 suffices to hold the appellant responsible. Reliance was made on the case of Daniel Malongo Makasi and Others v. Republic [2022] TZCA 230 TANZLII to demonstrate his proposition. It is a settled position of the law that, failure to read out the contents of an exhibit after its admission, is a serious omission as it violates the accused's right to a fair trial. We stated this in Robinson Mwanjisi and Others v. Republic [2003] T.LR. 218 and others which followed. Indeed, exhibits P6 the certificate of seizure and P l l the trophy valuation certificate were not read out before their admission which was a serious irregularity as it offended the appellant's right to fair hearing and therefore it was prejudicial. Thus, we accordingly discard exhibits P6 and P ll. All in all, we find considerable merit in the submission by Mr. Kilimuhana that the remaining oral accounts of the prosecution's witnesses who tendered exhibits P6 and P ll remain intact and suffices to prove the contents of those exhibits. In the eighteenth ground the criticism is that the defence case was not considered. Ms. Barabara in response argued that, both the trial and the first appellate court considered the defence case. In her view, it was on the basis 16

of that consideration of the defence case that some of the counts were dropped citing page 365 of the record. She urged us to dismiss this ground. Upon reviewing the trial proceedings, we uphold the argument presented by the learned Senior State Attorney that the defence case was considered and this is evident at pages 364 and 364 where the trial court discussed at considerable length the appellant's defence and found out that it was outweighed by the prosecution's evidence. This ground too has no merit. Ms. Barabara argued in response to the first, third, eleventh and twelfth grounds whose common denominator was the complaint that the case against the appellant was not proved. Arguing, she contended that the prosecution proved the case essentially through the testimony of the prosecution's star witness PW2 who testified in minute detail how the appellant was arraigned in the presence of PW3 and PW5. She further submitted that the appellant was found in possession of elephant tusks (exhibit P2) which were handed over to PW1, the exhibits keeper. According to her, the appellant admitted to PW4 to have committed the offence as indicated in exhibit P8. 17

Indeed, the charge against the appellant was proved to the required standard, we shall explain. The appellant, following a trap set was apprehended in broad day light in possession of elephant tusks (exhibit P2) without permit of the Director of Wildlife. The evidence of PW2, PW3 and PW5 the arresting officers is evident to that. PW6 the independent witness who witnessed the search and seizure equally supported the testimony of PW2, PW3 and PW5. There was further testimony of PW4 and exhibit P8 to the effect that the appellant admitted to have committed the offence. In our view, Ms. Barabara was undeniably right in that the prosecution proved the case to required standard as such we have no reason to fault the two courts below. We therefore, find these grounds unmerited. Finally, we will consider the criticism in ground four that the trial court did not consider the period he was in remand custody awaiting trial in imposing sentence in terms of section 172 of the CPA, Mr. Kilimuhana conceded, with remarkable forthrightness that in imposing sentence the trial magistrate did not consider the period the appellant spent in custody from 11th January 2017 upon his arrest to 19th October 2018 when he was finally convicted and sentenced. 18

Upon our prompting as to the legality of the sentence which was imposed under the WCA instead of the EOCCA, the learned State Attorney readily agreed that it was inappropriate for the appellant to have been punished under the provisions of WCA which provides for fines option while the appellant was charged under the provisions of the WCA read together with the provisions of the EOCCA which made the offence an economic one. Clearly, according to the charge which was laid against the appellant and upon which he was ultimately convicted, it was made under the provisions of the WCA and the EOCCA as an economic offence and therefore punishable under section 60 (2) of the EOCCA and not section 86 (2) of the WCA which was applied by the trial magistrate. Speaking of section 60 (2) it provides as follows: "Notwithstanding provision o f a different penalty under any other law and subject to subsection (7), a person convicted o f corruption or economic o ffe n c e shall be liable to imprisonment for a term o f not less than twenty years but not exceeding thirty years, or to both such imprisonment and any other penal measure provided for under the Act; 19

Provided that, where the law imposes penai measures greater than those provided by this Act, the Court shall impose such sentence." The provision above is unambiguous in that for any person convicted of corruption or economic offence, the minimum penalty is twenty years imprisonment and shall not exceed thirty years. However, the provision is couched in a permissive manner whereby the proviso to that subsection allows the imposition of a punishment provided under any other law as long as such measure is greater than what is provided under the EOCCA. In the circumstances of the case before us, we find considerable merit in the submission by the learned State Attorney in that the appellant having been convicted of the charged economic offence, ought to have been sentenced under section 60 (2) of the EOCCA to a minimum of twenty years imprisonment without any option of fine. There is, in this regard, a considerable body of case law in this matter. See, for instance Thadeo 3ohn Bilunda and Another v. Republic [2023] TZCA 69 TANZLII and many others in which we took similar position. In the upshot of what we have explained above, we invoke revisional powers under section 6 (2) of the AJA R.E 2023 and set aside the sentence of fine or to serve a prison term of twenty years in default thereof for each 20

count. However, before we take leave of this matter and make the appropriate order on sentence we wish to deliberate on the complaint that the trial court did not consider the period the appellant was in remand custody awaiting trial in imposing sentence in terms of section 172 of the CPA now section 178 (2) (c) of the R.E 2023. Mr. Kilimuhana argued and rightly so in our considered opinion that, the trial court ought to have considered the period that the appellant was in remand custody awaiting trial. This is the position of the law in terms of section 178 (2) (c) of the R.E 2023 which provides: "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 fhis 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 taw, shall start to run when such sentence is imposed confirmed, as the case may be, and such sentence shall take 21

into account the period the person spent in remand." [Emphasis added] The reason is not far-fetched, the period of time spent in custody awaiting trial is a result of delays in the administration of justice and therefore it should not be shouldered on the accused person who is not to blame. It is on that account the law has made expressly clear that a trial court should take that into account while sentencing, whether that sentence is under the Minimum Sentences or any other law. In the case of Nyanzala Madaha v. Republic, Criminal Appeal No. 135 of 2005 (unreported) faced with analogous situation we observed that, if it is evident that the trial court did not take that period into account then, the appellate courts should interfere. In the case before us as rightly argued by Mr. Kilimuhana the appellant was arrested on 11th January 2017 and was in custody awaiting trial up to 19th October 2018 when he was finally sentenced. In the circumstances, and considering our deliberation above, we order the appellant to continue serving the twenty years in prison with no option for fines but we direct that the period of one year, ten months and eight days which was spent in custody awaiting trial has to be reduced. 22

Otherwise we find no merit in this appeal save for the reduction of sentence as we have indicated above. We accordingly dismiss it. DATED at DODOMA this 6th day of October, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 7th day of October, 2025 in the presence of the appellant in person, Ms. Rose Ishabakaki, learned State Attorney for the respondent Republic via virtual Court and Mr. John Banene, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 23