IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

(CORAM: MUGASHA, J.A.. LEVIRA. J.A.. And MAKUNGU. J.A.^

CRIMINAL APPEAL NO. 152 OF 2021

PARYUMBAI KEDOKI KISHANDO............................................... APPELLANT

VERSUS
THE REPUBLIC........................................................................ RESPONDENT

(Appeal from the Decision of the High Court of Tanzania at Arusha)

(Banzi. 3.^
dated 17th day of February, 2021
in
Economic Case No. 06 of 2020

JUDGMENT OF THE COURT

2nd & 15thJuly, 2024

MAKUNGU. J.A:

In the High Court of Tanzania, Corruption and Economic Crimes

Division, Arusha Sub Registry (the trial court), the appellant was

prosecuted and convicted of two offences 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 and sections 57(1) and 60(2) of the Economic and

Organized Crime Control Act, Cap 200 ("the EOCCA"). Upon conviction,

he was sentenced to twenty (20) years imprisonment.

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 The facts that led to the appellant's conviction are such that: It

was alleged in the particulars of the first and second counts respectively

that, on 24th October, 2016 at Mhoro Village within Ngorongoro District

in Arusha Region, the appellant was found in possession of government

trophies namely; four (4) whole elephant tusks and two (2) pieces of

elephant tusks and one leopard skin valued respectively at USD 60,000

which is equivalent to Tanzania Shillings one hundred and thirty one

million one hundred sixty thousand (TZS 131, 160,000.00) and USD

3500 which is equivalent to TZS 7,651,000.00 all being the property of

the Government of the United Republic of Tanzania without permit from

the Director of Wildlife. After the information was read to the appellant,

he pleaded not guilty. Therefore, a full trial ensued.

To prove its case, the prosecution called a total of four (4)

witnesses and tendered seven (7) exhibits whereas the appellant fended

for himself. According to the evidence of Aloyce Melkiori Mtui (PW2), a

park ranger at Ngorongoro Conservation Area, on 24th October, 2016 he

received a tip from an informant that there were some people at Mhoro

area who were dealing in elephant tusks and they were looking for a

buyer, thus he was linked with the suspects. PW2 along with other

officers arranged a trap purporting to be the potential buyers. They

agreed to meet the dealers at the scene around 7.00 pm. On arrival,

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they agreed on the deal, thus the appellant and his co-dealers who are

not parties in this appeal retrieved from the bush two bags which had

four whole elephant tusks and two pieces of elephant tusks together

with one leopard skin (exhibit P3 and P4). The trophies were packed in

two separate bags. The deal had to be conducted in the car and once

the suspects got into the vehicle they were arrested. There and then,

PW2 seized the trophies and filled in a certificate of seizure, exhibit P5,

which was signed by him and the suspects including the appellant. He

took the retrieved items, the suspects and the appellant to Ngorongoro

Police Station. At the Police Station, he prepared and filled in a chain of

custody form, exhibit PI, and handed over the exhibits (P3 and P4) to a

police officer with force number D. 7033/D/SSGT Yohana (PW1), the

exhibit keeper. On the same date, PW1 labelled exhibits P3 and P4 as

case file number NGOR/IR/150/2016. Later on, he handed over the

exhibits to Solomon Jeremia (PW4), a Wildlife Officer of Anti-Poaching

Unit North Zone Arusha for valuation.

According to the evidence of PW4, on 25th October, 2016, he was

at Ngorongoro Police Station in order to examine and value the

government trophies. At the police station he met PW1 who handed

him two different bags. The first one was a sulphate bag cream in

colour and second one was a cement bag of Simba Company. After he

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had opened the bags, he was able to identify the items by their colour,

feature and shape and confirmed that, those items were elephant tusks

and one leopard skin. He further observed that the exhibits were

marked NGOR/IR/150/2016. Thereafter, he weighed and found out that

a total weight of tusks was 21.5 kg valued at TZS. 131,160,000.00 (USD

60.000). He recorded his findings in the trophy valuation certificate,

exhibit P7 and returned the exhibits to PW1 who stored them up to

when tendered before the trial court on 9th February, 2021. ASP James

Kilosa (PW1) recorded the appellant's cautioned statement (exhibit P6)

in which he admitted the offences.

In his defence, the appellant (DW1) denied to have committed the

charged offences. He recounted how he was arrested and said that, on

22nd October, 2016 he was at Ololosokwan, Loliondo. He was arrested

at the auction in the course of selling cattle. He was arrested by police

for allegation of cattle theft. They took and drove him to Ngorongoro

Police Station where he found two persons who were strangers. They

stayed there from 22nd October, 2016 to 7th November, 2016, they were

beaten and forced to sign the certificate of seizure, exhibit P5 and the

cautioned statement, exhibit P6.

Nevertheless, at the conclusion of the trial, the learned trial High

Court judge was fully satisfied that the appellant was properly and
legally arrested for being found in possession of government trophies.

She, therefore, believed the prosecution evidence and found that the

appellant's defence had not raised meaningful doubt to discredit the

prosecution account. In the end, the appellant was found guilty,

convicted and sentenced as stated earlier.

As it were, the appellant was seriously aggrieved, hence the

instant appeal. Initially, the appellant through the services of his

advocate lodged a memorandum of appeal comprising five grounds.

However, at the hearing, Mr. Fridolin Bwemelo assisted by Mr. Nerius

Rugakingira, learned advocates, who appeared for the appellant

abandoned the third ground of appeal. In this regard, and as it was

argued by the parties, we think that the remaining grounds can be

conveniently paraphrased as follows:

"1. That, the trial court proceedings are tainted

with gross incurable procedural irregularities
which render the whole decision thereof null
and void.

2. That, the trial court erred in law and in fact

when it dealt solely with the prosecution
evidence without considering the defence
evidence.
 3. That, the trial court failed to evaluate evidence
properly to wit the Exhibits PI and P5 and
thus the chain o f custody was broken.

4. That, the prosecution case was not proved

beyond reasonable doubt".

Submitting in support of the first ground of appeal, Mr. Bwemelo's

thrust of argument was to the effect that there was no consent of the

Director of Public Prosecutions issued after the charge was amended

and substituted. He contended that after amendment on 9th February,

2021 of the original charge sheet which had a consent and certificate

conferring two accused persons to be tried by the trial court leaving out

the 2nd accused person, there was no new consent to try the appellant

and the matter proceeded for trial without such new consent. In his

view, failure to do so was a fatal irregularity which vitiated the whole

trial. Reference was made to the cases of Dilipkumar Maganbai

Patel v. Republic, Criminal Appeal No. 270 of 2019, Hashim Nassoro

@Almas v. Director of Public Prosecutions, Criminal Appeal No. 312

of 2019 and Peter Msimbe and Another v. The Republic, Criminal

Appeal No. 168 of 2020 (all unreported). He prayed the ground to be

allowed.

In response to this complaint, Ms. Lilian Kowero, learned Senior

State Attorney assisted by Ms. Grace Medikenya and Mr. Godfrey Nugu,
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both learned State Attorneys, who appeared for the respondent

Republic, in the first place conceded that the charge was substituted.

Ms. Kowero strongly resisted the contention that the omission is fatal.

She said, the consent at page 77 of the record of appeal was valid to

cloth the Court with Jurisdiction to entertain the charged offence. She

was of the view that the substitution of the charge after removing the

former 2nd accused did not oust the court's jurisdiction. She referred us

to the case of Peter Kabi and Another v. Republic, Criminal Appeal

No. 5 of 2020 (unreported). She said, there is no need of filling a new

consent therefore, the ground has no merit.

On our part, we agree that the initial charge sheet involving two

accused persons that was filed on 25th November, 2016 had its consent

conferring the trial court with jurisdiction to try the economic offence. It

is equally without question that on 9th February, 2021 the charge sheet

was substituted where the former 2nd accused was removed and the

charge remained with the appellant only.

Nevertheless, we are of the considered view that, the omission to

re-issue such consent after having removed the 2nd accused in the

charge did not oust the trial court's jurisdiction in respect of the

appellant. We say so because, we think, as was argued by Ms. Kowero

there was no need of filling a new consent as the appellant was already

7
covered in the said consent. Thus, we find that cases cited above by the

appellant's counsel with regard to this offence are distinguishable to this

case because unlike in this case where the consent for offences under

paragraph 14(d) of the First Schedule to, and sections 57(1) and 60(2)

of the EOCCA was in place, in the former cases the trial of the appellants

was conducted without a consent and a certificate confering jurisdiction

on the trial court.

In this regard, considering the circumstances of this case and

guided by the decision of Peter Kabi and Another (Supra), we are of

the settled view that failure to issue a new consent after having

substituted the charge by removing the 2nd accused, did not vitiate the

former consent as the jurisdiction which was conferred to the trial court

remained undisturbed. That apart, there was no additional count to

necessitate new consent. Besides, the charge was not withdrawn so as

to require new consent on the subsequent charge. Therefore, we find

that this ground of appeal is devoid of merit and dismiss it.

Another appellant's complaint, which is in ground two, is that his

defence was not considered by the trial court. The appellant's counsel

contended that there is contradiction on the prosecution evidence in

respect of the location where the appellant was arrested that is Mhoro,

Muhuro or Mholo Village. He pointed out that, the appellant in his

8
defence stated clearly that he was arrested at Ololosokwan Village and

not Mhoro Village. He faulted the trial judge that he came with a new

version which was not stated in the evidence, which is wrong. He prayed

the ground be allowed.

On her part, Ms. Kowero did not agree that the defence evidence

was not considered by the trial court. She said, Muhoro and Digodigo

was not in the defence of the appellant but the issue was raised in the

submissions of the advocate. She pointed out that the trial Judge

evaluated and considered the appellant's defence as shown at pages

280 - 282 of the record of appeal. She added that the trial Judge gave

explanation to clarify on the location in the judgment. She urged us to

disregard this ground.

It is settled that, failure to take into account any defence put by

an accused person, will vitiate the ultimate conviction. See Venance

Nuba and Another v. Republic, Criminal Appeal No. 425 of 2013

(unreported). In the instant case, the trial court when analysing and

evaluating the evidence of both sides, as seen on pages 279, 281 and

282 of the record of appeal, did consider the appellants defence.

However, the trial court rejected the defence case on the ground that it

did not cast doubt on the prosecution's evidence. Thus, the appellant's

conviction was meted out of the unshaken prosecution's evidence.

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Therefore, we are satisfied that his evidence did not raise any

reasonable doubt to shake the prosecution case. (See Issa Said vs.

Republic, Criminal Appeal No. 109 of 2014 (unreported)). This ground

therefore is devoid of merit.

We now turn to consider whether the chain of custody concerning

exhibits P3 and P4 was broken. The appellant's counsel argued that the

chain of custody of the seized elephant tusks and leopard skin was not

established. He claimed that there were two bags which contained the

exhibits but PW2 tendered only one bag and the other bag was not

explained. Thus, he added that the exhibits were tampered with and

therefore the chain of custody was broken. He referred to us the case of

Paulo Maduka and 3 others v. The Republic, Criminal Appeal No.

110 of 2007 (unreported). He prayed that the appeal be allowed.

On her part, Ms. Kowero dismissed the appellant's counsel

argument contending that it has no basis. She submitted that there was

no probability for the chain of custody to be compromised. She pointed

out that, PW2 explained in detail on how he retrieved the elephant tusks

and the leopard skin from the appellant, guarded them until in the

morning before taking them to Ngorongoro Police Station where they

were handed over to PW1. She, was of the view that the trial court

found that the witnesses were credible. She thus, concluded that the

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exhibits seized from the appellant, later examined by PW4 and finally

tendered in the trial court by PW1 was one and the same. Therefore,

she urged us to dismiss the complaint.

It has been repeatedly stressed that in cases involving arrest,

seizure, custody and later production in court of a seized item as exhibit,

there must be a proper explanation of who and how the property was

handled from where it was found and seized up to the point when it is

tendered in court. See Paulo Maduka and 3 others (supra) and Jibril

Okash Ahmed v. The Republic, (Criminal Case No. 331 of 2017)

[2021] TALA 13 (11 February, 2021, TANZLII).

Our appraisal of the evidence on the record reveals that there is

an oral account on the chronology of events showing the retrieval of

exhibits PI and P5 by PW2, their safe custody and control at

Ngorongoro Police Station by PW1 and then tendering before the trial

court by PW1. Besides, the entire trail was documented in exhibit P.l.

Accordingly, we agree with Ms. Kowero that the chain of custody was

not compromised from the moment the exhibits were seized from the

appellant until when they were tendered before the trial court.

Moreover, given the credible account of PW1, PW2, PW3 and PW4 that

upon seizure of the elephant tusks, they were labelled as case file

number NGOR/IR/150/2016 and kept in safe custody up to when they

ii
were tendered at the trial and positively identified, failure to tender the

empty cement bag did not at any stretch of imagination compromise the

chain of custody. We thus find this ground of appeal to have no merit.

We dismiss it.

Lastly, there was a complaint whether the prosecution managed to

prove the case beyond reasonable doubts. Mr. Bwemelo argued that the

prosecution failed to prove the offences beyond reasonable doubt

because, one; that, oral testimonies of the prosecution witnesses were

insufficient to establish the chain of custody; two, that there are

variance between the charge sheet and evidence, three, the

contradictory prosecution evidence on the name of the location where

the arrest was effected. He therefore prayed the impugned judgment to

be quashed and set aside and the appellant be set free.

On her part, Ms. Kowero briefly submitted that the evidence of

PW1, PW2, PW3 and PW4 comulatively, proved beyond reasonable

doubt the offences which the appellant was facing. She, therefore,

implored the Court to dismiss the appeal in its entirety.

On our part, we agree with Ms. Kowero that the offences were

proved beyond reasonable doubt. Undeniably, the evidence connecting

the appellant with the offences comes from PW2 who effected the

arrest, seized the trophies as per certificate of seizure which was signed
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by the appellant to acknowledge that he was found with exhibits P3 and

P4, PW3 who examined the trophies and skin and established that were

elephant tusks and leopard skin. In addition, the appellant himself did

not dispute the tendering in evidence of exhibits PI and P5. With that

evidence in the record of appeal, we are satisfied that the offences were

proven beyond reasonable doubt against the appellant. We therefore

dismiss this ground of appeal as it lacks merit.

In the final analysis, we find the appeal unmerited. We

accordingly, dismiss it in its entirely.

DATED at ARUSHA this day of 13th day of July, 2024.

S. E. A. MUGASHA
JUSTICE OF APPEAL

M. C. LEVIRA
JUSTICE OF APPEAL

0. 0. MAKUNGU
JUSTICE OF APPEAL

The Judgment delivered this 15th day of July, 2024 in the presence

of Mr. Nerius N. Rugakingira, learned counsel for the Appellant and Mr.

Stanslaus Halawe, learned State Attorney for the Respondent/Republic,

is hereby certified as a true copy of the original.