IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA

( CORAM: JUMA. C.3., MUGASHA, J.A. And LEVIRA. J.A.)

CRIMINAL APPEAL NO 358 OF 2018

1. BONIFACE MATHEW MALYANGO

@SHETANI HANA HURUMA
2. LUCAS MATHAYO MALYANGO ........................................ APPELLANTS
@RUKAS MPONZE @ SHIMIE ^

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

(Appeal from the Judgment of the High Court of Tanzania

at Dodoma)

f Kalombola. J.)

dated the 10th day of October, 2018

in
DC Criminal Case No 61 of 2017

JUDGMENT OF THE COURT

11th & 18th June, 2020

JUMA, C.J.:

This appeal was brought by BONIFACE MATHEW MALYANGO @

SHETANI HANA HURUMA (first appellant) and LUCAS MATHAYO

MALYANGO @ RUCAS MPONZIE (second appellant). The appeal is against

the decision of the High Court at Dodoma, delivered on 10th day of October

2018 which affirmed the Judgment of the Resident Magistrate's Court of

Dodoma (J.E. Fovo-RM) which convicted the two appellants, on two counts

of: (1) Leading Organized Crime—contrary to Paragraph 14 (1) (a) o f the

First Schedule to and section 57 (1) and 60 (2) o f the Econom ic and

Organized Crime Control Act, Cap. 200); and (2) Unlawful Dealing in

Trophies— contrary to section 80 (1) and 84 (1) o f the W ildlife

Conservation A ct No. 5 o f2009 read together with paragraph 14 (b) o f the

First Schedule to and section 57 (1) o f the Econom ic and Organized Crime

Control Act, Cap. 200).

Following their convictions, each appellant was sentenced to serve ten

years in prison for the first count, and two years in prison in the second

count. The trial magistrate ordered the sentences in the two counts to run

concurrently.

The particulars of Leading Organized Crime alleged that on diverse

dates between 1st January, 2009 and 23rd October, 2015 at diverse places

within Dodoma and Dar es Salaam Regions, the appellants jointly and

wilfully organized and managed a criminal racket. This involved collecting,

transporting and selling Government Trophies, that is, 118 elephant tusks,

valued Tshs. 1,929,300,000/=. It was further alleged that they did not

have any permit from the Director of Wildlife.

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 The particulars of Unlawful Dealing in Trophies levelled against the

appellants jointly and together, were that at the same places and dates as

in the first count, they wilfully organised and managed a criminal racket.

This was by collecting, transporting and selling Government Trophies, that

is, 118 elephant tusks, valued Tshs. 1,929,300,000/=. It was further

alleged that they neither had a trophy dealers license nor a permit from the

Director of Wildlife.

The background leading to the arrests of the appellants is as follows.

D7846, Detective Sgt Beatus (PW2), testified how, on 23rd October 2015,

Inspector Bony Mbange (PW10) informed him about confidential

information that the first appellant, who was a suspect; was at a witch­

doctor's house and was planning to return back to his house at Kimara

Bonyokwa in Dar es Salaam. PW2 was amongst the police officers who

paid a visit at appellant's house at Kimara Bonyokwa that same day.

Inspector Bony (PW10) and Sgt Aliko (PW11) were the other police

officers.

No sooner than the police vehicle arrived, the first appellant began to

run away towards a nearby valley. The police gave chase and caught up

with their suspect. He was taken back to his house where, upon search,

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the police found vehicle registration cards and other documents. According

to PW2, the first appellant showed the police where his vehicle, HONDA

CRV with Registration No. T674 ARL had been parked.

The police conducted a search inside the car, and saw what appeared

as whitish particles. The first appellant then led the police to a house of a

traditional healer who he regularly consulted.

After searching the traditional healer's house, the police together

with the first appellant, went back to their base at Mikocheni where the

Assistant Inspector Aliko L. Mwakalindile (PW11) was waiting. PW11

supervised the search of the vehicle (HONDA CRV) in presence of the first

appellant. D7312 Detective Sgt Jumanne (PW3), was asked by PW10 to be

present when the police sniffer dog was guided by its handler (WP Jamila

Ramadhani—PW6) around and inside the first appellant's vehicle.

It was during the course of the search that the sniffing dog, made a

barking sound before stopping suddenly to signify a discovery of some

suspicious substances. PW3 and PW11 were directed to collect samples.

PW3 put on his surgical gloves and used an envelope to collect samples of

small particles from the vehicle. The police officers seized the whitish
particles and PW11 prepared a certificate of seizure (exhibit P15), which

was signed by PW11, the first appellant and PW3.

The samples were later taken to the Chief Government Chemist for

analysis. Fidelis S. Segumba (PW9), a Manager for Forensic Biology and

DNA Services at the office of the Chief Government Chemist, analyzed the

samples to determine whether they were from an animal, and if so, which

animal. PW9 prepared a report dated 5th September 2016 (Exhibit P10)

which confirmed that the samples originated from an elephant tusk

(uchunguzi um edhihirisha kuwa vielelezo hivyo n i vya sehemu ya jin o la

Tembo).

Earlier on 30th November 2015, a Game Warden attached at the Anti-

Poaching Unit, Mrekwa Simon Foka (PW7), had evaluated the value of 118

elephant tusks and compiled a valuation report. Although not a single piece

of ivory was found in possession of the first appellant, PW7 used the

information from the first appellant's caution statement to arrive at the

value of 118 pieces of elephant tusks.

The prosecution had also relied on the caution statement of the first

appellant (exhibit P9), which was recorded on 29th November, 2015 by

E.9295 D/CPL Juma Koroto (PW8). In the first appellant's caution

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statement, PW8 testified, confessed his role in illegal ivory business

activities, and how he used special compartments modified in his vehicles

to transport pieces of ivory. But the first appellate court expunged the

caution statement because the trial court failed to determine its

voluntariness before it was exhibited as evidence.

According to PW2, it was from what they learnt from the first

appellant, the Police went to Vingunguti area of Dar es Salaam, where they

searched Omary Hussein's house. They also travelled to Singida, Tabora

and Katavi where they found properties which were part of the two

appellants' ivory business. It was the prosecution's evidence that

information they obtained from the first appellant, led to the arrests of the

second appellant, Abdalah Ali Chaoga (DW1) and other suspects as well.

An Assistant Superintendent of Police, Alinanuswe Reuben Mwakyembe

(PW4), testified how the first appellant led him and other police officers, to

various places outside Dar es Salaam in search of witnesses and evidence.

They travelled to Dodoma, Manyoni, Kiomboi, Sikonge in Tabora and

Mpanda in Katavi; where they impounded vehicles suspected to be part of

appellant's illegal ivory business.

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 The two appellants and their co-accused, a registered traditional

healer, Abdalah Ali Chaoga (DW1) testified in their own defences. DW1

highlighted on his traditional expertise to heal those possessed by spirits or

ghosts. He knew the first appellant as one of his patients, who visited his

home clinic seeking treatment for his sexual dysfunctions manifested by his

failure to sustain sexual erections. He also wanted DW1 to make his

business successful. The first appellant and DW1 were so close, that DW1

borrowed the first appellant's car to travel to his farm where the police

traced him. During one of the encounters, he linked the first appellant up

with the mechanic Omary Hussein (PW5). But he did not know the nature

of transactions between the two.

In his defence, the first appellant (DW2) said that he is first and

foremost, a businessman operating a shop and keep livestock in Dar es

Salaam. He has farms in Handeni in Tanga, and Mpanda in Katavi. He

confirmed that he knew the traditional healer (DW1), who not only cured

his erectile dysfunction, but prescribed herbs which enabled his shop

business to attract more customers. He also knew the second appellant,

who is his relative. The second appellant would occasionally hire his vehicle
(Canter T765 DAC) to transport maize flour. His business is legitimate, he

asserted. He denied dealing in illegal ivory trade.

In his defence, the second appellant (DW3) denied having any

dealing with any illegal ivory trade. He described his business as operating

paddy rice milling machines, from his base at Mpanda in Katavi. He also

kept a register, he called " Godown la Lucas" where his paddy business

transactions (exhibit D13) are evident. He added that his milling business is

facilitated by vehicles, including a Canter make (T.765 DAC) which is

registered in the name of his brother, the first appellant.

o

In his decision, the learned trial magistrate underscored the

significance of the oral confession which the first appellant made to police

officers who had visited his home at Kimara Bonyokwa, and his oral

confessions confirmed the first appellant's involvement in illegal ivory

trade. This oral confession, the trial magistrate reckoned, set in motion a

chain of events which led to the search of the Honda car, and ultimate

discovery and seizure of whitish substances lifted from this car.

The trial court also highlighted the significance of the caution

statement, which the first appellant made, as leading to all the vehicles

suspected to be involved in illegal dealing in ivory business and to the

8
arrest of the second appellant. Although the first and second appellants

were found guilty and convicted, the traditional healer, DW1, was

acquitted.

On appeal to the High Court, the first appellate Judge (Kalombola, J.)

expunged the first appellant's caution statement (exhibit P9) on the ground

that the trial magistrate had failed to determine first its voluntariness

before its exhibition. The learned Judge was, however, quick to agree with

the trial court on other evidences which proved the prosecution case

against the appellants beyond reasonable doubt.

At the hearing of this appeal the first and second appellants were not

in Court physically. They appeared remotely by video link from Isanga

Central Prison in Dodoma where they are serving their prison sentence of

ten years for the first count, and two years in the second count. Mr.

Godfrey Wasonga learned counsel argued the appeal for the first appellant.

In a magnanimous gesture, Mr. Wasonga volunteered to also represent the

second appellant who was unrepresented. The second appellant readily

took the offer as he and the first appellant, followed the proceedings by

video link.

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 In his Memorandum of Appeal which he filed on 1st June 2020;

the first appellant raised five grounds of appeal. The first complaint

contends that the prosecution case was not proved beyond reasonable

doubt. Secondly, he complains that he was convicted on the basis of a

defective charge sheet. In his third complaint, the first appellant raises the

issue with jurisdiction, contending that the two courts below failed to

consider whether the trial court had jurisdiction under section 29(1) of the

Economic and Organised Crimes Control Act, Cap. 200 R.E. 2002. In his

fourth ground, the first appellant faults the contradiction in evaluation of

evidence; contending that while their charge was concerned with offence

of Leading Organized Crime, the evidence on record showed possible

offence of unlawful possession of government trophy. The fifth ground of

complaint faults the trial and first appellate courts, for failing to resolve the

issue of certificate of seizure.

The second appellant's memorandum of appeal contained the four (4)

grounds, which can be paraphrased as follows. Firstly, he complains that

his conviction was based on the oral confession by his co-accused; and

there was no other corroborating evidence sufficient to sustain his

conviction, and the trial and first appellate courts also failed to consider his

10
defence. His second complaint centres on the way his conviction was based

on weak, insufficient, fabricated and contradictory evidence which cannot

sustain his conviction beyond reasonable doubt.

The second appellant's third complaint faults the two courts below for

convicting him without considering the issue of jurisdiction under section

29(1) of the Economic and Organised Crimes Control Act, Cap. 200 R.E.

2002. Lastly, he faults the charge sheet, which he described to be so

defective that it cannot base any conviction.

The Principal State Attorney Mr. Faraja Nchimbi, Ms Chivanenda

Luwongo, learned Senior State Attorney, and Mr. Salim Msemo, learned

State Attorney appeared for the respondent Republic.

Mr. Nchimbi raised a jurisdictional issue challenging the competence

of the first appeal to the High Court which he urged us to address first. We

allowed him to present his submissions on the issue of law he had,

however we directed Mr. Wasonga to reply the jurisdictional issue while

submitting on the grounds of appeal. We informed the learned counsel that

in case we sustain Mr. Nchimbi's issue of law, we will not consider their

submissions on grounds of appeal.

ii
 As regards the jurisdictional issue, Mr. Nchimbi contended that the first

appeal to the High Court (DC Criminal Appeal No. 61 of 2017) is defective

because the two notices of intention of the appellants to appeal to the High

Court are defective because they were not lodged at the trial court as the

law requires, but were instead lodged in the High Court at Dodoma. By

filing their notices of intention to appeal in the High Court which was not

the trial court, he submitted, is contrary to the mandatory provisions of

section 361 (1) (a) of the Criminal Procedure Act, Cap 20 (the CPA) as

amended by the decision of this Court in R. V. MWESIGE GEOFREY &

TITO BUSHAHU, CRIMINAL APPEAL NO. 355 OF 2014 (unreported).

For better perspective, Mr. Nchimbi submitted that before the decision

of the Court in MWESIGE GEOFREY & TITO BUSHAHU (supra), section

361(l)(a) of the CPA did not specify where a person aggrieved with a

decision of a subordinate court, would file his notice of intention to appeal

to the High Court. Section 361(l)(a) of the CPA simply stated:

361 (1) Subject to subsection (2), no appeal from

any findingsentence or order referred to in section
359 sh all be entertained unless the appellant-
(a) has given notice o f his intention to appeal
within ten days from the date o f the finding,
sentence or order or, in the case o f a sentence o f
12
 corporal punishm ent only, within three days o f the
date o f such sentence;

Mr. Nchimbi submitted that the Court in MWESIGE GEOFREY &

TITO BUSHAHU (supra) intervened and specified that such notices should

be filed in the same subordinate court which made the decision the

appellant wants to appeal against. Following the intervention, the words

"to the trial subordinate court" were added into paragraph (a) of

section 361 (1) (a):

361 (1) Subject to subsection (2), no appeal from

any finding, sentence or order referred to in section
359 sh all be entertained unless the appellant-
(a) has given notice o f his intention to appeal to
the t r ia l su b o rd in a te c o u rt within ten days from
the date o f the finding, sentence or order or, in the
case o f a sentence o f corporal punishm ent only,
within three days o f the date o f such sentence;

In essence, Mr. Nchimbi argued that because the two appellants failed

to file the notices of their intention to appeal in the trial Resident

Magistrate's Court of Dodoma as guided by the Court in MWESIGE

GEOFREY & TITO BUSHAHU (supra), the notices of intention they

13
wrongly filed in the registry of the High Court at Dodoma were null and

void. Subsequently, Mr. Nchimbi added, there was no appeal in the High

Court, and by extension this appeal before us is a nullity and should be

struck out.

Unfortunately, when the Court resumed the hearing to 11th June 2020,

Mr. Wasonga did not address the jurisdictional issue. We shall as a result

miss the advantage of his learned perspectives.

In accordance with established practice of the Court, we begun with

the determination of jurisdictional issue over notice of intention to appeal

to the High Court. We must point out that the appellants' notices

substantially complied with section 361(l)(a) of the CPA as it stood before

its "amendment" by the Court in MWESIGE GEOFREY & TITO

BUSHAHU (supra). The record of appeal shows that after their conviction

and sentence on 3rd March 2017, the Officer in-Charge of Isanga Central

Prison in Dodoma filed the appellants' notices of appeal at the High Court

Registry Dodoma on 6th March 2017, which was within the ten days

prescribed by section 361(l)(a) of the CPA.

We considered whether to uphold Mr. Nchimbi's urging that because

the appellants filed their intention to appeal in the High Court instead of

14
the trial court, their subsequent appeal to the High Court was incompetent

and should be struck out.

Following the introduction of the principle of Overriding Objective into

the Appellate Jurisdiction Act CAP 141 (the AJA), this Court is now obliged

to take into account the overriding objective principles before hastening to

strike out matters on procedural grounds. In that respect, section 3A of the

AJA is instructive that the main role (overriding) of this Court is to facilitate

the just, expeditious, proportionate and affordable resolution o f a ll m atters

governed by the, AJA. We shall as a result weigh the principles of overriding

objective into our decision on jurisdictional issue.

Taking persuasive cue from the decision of Court of Appeal of Kenya in

SALAMA BEACH HOTEL LIMITED & 4 OTHERS V KENYARIRI &

ASSOCIATES ADVOCATES & 4 OTHERS [2016] eKLR, we shall "...

breathe life into an appeal notwithstanding technical lapses o f procedure."

For our present purpose, the appellants timeously filed their Notices of

Intention of Appeal in the High Court Registry Dodoma. We also note that

our decision in MWESIGE GEOFREY & TITO BUSHAHU (supra) was

delivered on 19th February 2015 well before Parliament introduced the

overriding objective principle through Written Laws (Miscellaneous

15
Amendments) (No. 3) Act No. 8 of 2018. We further took note of the fact

that, the root of the jurisdiction of the High Court to hear criminal appeals

from subordinate courts is anchored where notices of intention are filed

within ten days prescribed by section 361(l)(a) of the CPA. In light of the

overriding objective, the High Court is seized with jurisdiction when a

notice of intention to appeal is filed within ten days. To use the words of

the Court of Appeal of Kenya in SALAMA BEACH HOTEL LIMITED

(supra), by filing their notices of appeal in the High Court instead of the

subordinate court, was a "deviation and lapse in formalities" which in our

reckoning does not go to the root of the jurisdiction of the High Court as

anchored in ten days within which to lodge the intention to appeal.

The aspect of "just, expeditious, proportionate is an important

consideration. After they had appended their thumb-prints on their notices

and the officer in-charge of Isanga Central Prison took over; the appellants

had no further control over where between High Court registry Dodoma

and Resident Magistrates' Court registry, their notices were to be filed by

prison officers. Interests of just, expeditious, proportionate and affordable

resolution of this appeal oblige us to determine that the notices of intention

to appeal to the High Court which was filed in the High Court registry had

properly moved the first appellate court to hear the appeal.

In the premises we overrule the jurisdictional objection which Mr.

Nchimbi raised. We accordingly ordered the appeal to be heard on its

merits.

In his submissions on the appellants' grounds of appeal, Mr. Wasonga

collapsed the grounds of appeal into two, namely; illegality of the charge

sheet, and insufficiency of evidence to prove the charge against the two

appellants beyond reasonable doubt.

It is readily apparent from Mr. Wasonga's submissions, Mr. Wasonga

did not submit on the issue of jurisdiction of the trial court under section

29(1) of the Economic and Organised Crimes Control Act, Cap. 200 R.E.

2002. Inevitably this ground must be deemed abandoned, and we shall not

consider it.

On the other hand, during the course of his submissions on the two

grounds, one contending that the charge sheet is defective, and another

ground alleging that the two counts facing the appellants were not proved

beyond reasonable doubt; both learned counsel in addition submitted on

the other grounds which the two appellants had raised. We think, grounds

17
complaining over contradictions in evaluation of evidence, oral confession,

and fabrication of evidence which the learned counsel for parties addressed

during their submissions fall under the issue whether the prosecution

proved its case beyond reasonable doubt.

Beginning with the ground on defective charge sheet, Mr. Wasonga

submitted the particulars of the two counts of Leading Organized Crime

and Unlawful Dealing in Trophies were so general that they prevented the

appellants from properly defending themselves. These counts mention such

important ingredients as organized and managed a criminal racket, or

collection, transporting and selling 118 elephant tusks without any

specificity to enable the appellants to prepare their respective defences.

To support his position that the two counts are defective for want of

specificity, the learned counsel referred us to our decision in DAVID

ATHANAS @ MAKASI & JOSEPH MASIMA @ SHANDOO VS. R.,

CRIMINAL APPEAL NO. 168 OF 2017 (unreported) where appellants, just

like appellants before us, faced a count on Unlawful Dealing in Trophies

contrary to section 80 (1) and 84(1) of the Wildlife Conservation Act No. 5

of 2009. Before allowing the appeal, the Court in DAVID ATHANAS @

MAKASI & JOSEPH MASIMA @ SHANDOO VS. R (supra) had

18
concluded that by laying at the doors, a defective charge, the appellants

were embarrassed and did not get a fair trial. Mr. Wasonga would like us

to follow this decision and allow this appeal.

Moving on to the complaint that there was insufficient evidence on

record, Mr. Wasonga submitted that there is no evidence to support any of

what is alleged in the particulars of the two counts. In so far as he is

concerned, two evidential questions beg for answers. First, he referred us

to the Wildlife Conservation (Valuation of Trophies) Regulations, 2012 GN

207 of 2012 where the elephant as a Government Trophy is described as

"African elephant". He submitted that there is no evidence that the 118

elephant tusks the appellants were charged for, belonged to "African

elephant".

Secondly, the learned counsel for the appellants identified evidences

which were anticipated from the charge sheet, but were missing out. He

submitted that there is no evidence on the nature of criminal racket which

linked the two appellants with anything to do with 118 pieces of elephant

tusk. There is no evidence on the nature of "collection" of the elephant

tusks, he submitted. Similarly, he submitted, there is no evidence on the

nature of "transporting" or "selling" of the 118 pieces of elephant tusks.

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 Mr. Wasonga submitted that, when the first appellate court expunged

the first appellant's caution statement (exhibit P9), no evidence remained

on how the two appellants were linked to the 118 pieces of elephant tusks

as alleged in the two counts of the charge sheet. He referred us to page

265 of the record of appeal where the learned trial magistrate explained

the evidential basis of convicting the appellants. He argued that the 118

pieces of elephant tusks mentioned in the charge sheet was not supported

by any prosecution evidence.

The learned counsel for the appellant also submitted that after the

expungement of the first appellant's caution statement (exhibit P9), no

evidence remained to convict the two appellants. Even the evidence of

police officers who moved around seizing vehicles, did not prove the

essential ingredients of the offences.

Mr. Wasonga faulted the first appellate Judge for relying on the oral

confession the first appellant allegedly made to PW10. Poking holes in the

prosecution's evidence, the learned counsel raised the issue of chain of

custody of the small particles of whitish substances which were lifted from

the first appellant's HONDA CRV car on 23/10/2015 at 16:45 hrs.

 The learned counsel submitted that after scrutinizing the Certificate of

Seizure (exhibit P15) which seized the first appellant's Honda car, he had

his own doubts about the probity of evidence of whitish substances

allegedly collected by the police from this vehicle at Mikocheni Dar es

Salaam. He referred to the evidence of witnesses that the first appellant

was arrested at Kimara Bonyokwa between 09:00 and 10:00. That it took

six hours for the search of the vehicle to be carried out at Mikocheni. He

submitted that from place of arrest at Kimara Bonyokwa to Mikocheni, the

impounded car was being driven by a police officer assigned by PW10. Mr.

Wasonga further submitted that although PW10 had maintained that the

vehicle was not searched while it was at Kimara and he did not know what

was in the car, yet, SGT Beatus (PW2) who was amongst the police officers

who went to arrest the first appellant, stated that the police searched the

car at Kimara and they saw "pieces of white things". He submitted that

PW2 stated that the police had opened the HONDA in front of the first

appellant at Kimara. He cited the decision of the Court in MATHEW

STEPHEN @ LAWRENCE VS R., CRIMINAL APPEAL NO. 19 OF 2007

(unreported) to support his submission that because the police had

contaminated the car, the first appellant should not be taken to have been

21
in possession of whitish substances the police later collected from the

seized HONDA car at Mikocheni.

Mr. Wasonga concluded by urging us to allow the two appellants'

grounds of appeal.

On behalf of the respondent, Senior State Attorney, Ms. Chivanenda

Luwongo opposed the appeal. She informed us that she will address the

Court along the same two issues of defective charge and lack of proof

addressed earlier by Mr Wasonga.

With regard to lack of proof, learned Senior State Attorney submitted

that prosecution brought 11 witnesses and relied on 15 exhibits. Amongst

the witnesses, there were police officers, independent witnesses as well as

such experts as officers from the Government Chemist. She also listed the

evidence of vehicles which were used to commit the offences, and

certificates of seizures which were all presented as prosecution evidence.

There were also oral confessions by the appellants, she submitted. In so

far as the prosecution's case is concerned, the learned Senior State

Attorney submitted, there was more than sufficient evidence to prove the

case against the two appellants beyond reasonable doubt.

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 Ms. Luwongo nest gave the specific incidents of oral confessions

received from the appellants. Narrating how the appellants confessed to

DSGT Beatus (PW2), she referred to page 36, where PW2 testified how the

appellant confessed that a car he bought for the traditional healer was to

thank him for smoothing out and facilitation of ivory business. The

appellants orally confessed to PW2 that Honda (exhibit P3), Toyota RAV 4

(exhibit P5) and Mitsubishi Canter (exhibit P4) were all bought out of ivory

business and were used to facilitate that trade.

Ms. Luwongo submitted that similar oral confession was also made to

ASP Alinanuswe Reuben Mwakyembe (PW4). She referred us to the

testimony of PW4 on page 82 where he said that the first appellant had

confessed that he owned a vehicle, Mitsubishi Canter, which he had

handed over to his brother to facilitate ivory business. That it was from

information which the first appellant provided to police which took PW4

and fellow police officers to Ilangali, Dodoma, Manyoni, Kiomboi, Sikonge,

Tabora and Mpanda in Katavi. It was the appellants, she submitted, who

led them to the vehicles which they seized as exhibits.

Inspector Bony Mbange (PW10) is another police witness who, was

referred to us as having received oral confession. PW10 was amongst the

23
officer who visited the first appellant house at Kimara on 23rd October

2015. PW10 stated that he took part in chasing down the first appellant

when he saw the approaching team of policemen.

To support her submission that the overwhelming evidence of oral

confession was not contradicted by the appellants, the learned Senior State

Attorney referred to the case of PATRICK SANGA VS R., CRIMINAL

APPEAL NO. 213 OF 2008 (unreported) which stated that oral confession is

admissible evidence and can sustain a conviction. Ms. Luwongo also

submitted that the oral confession is corroborated by the evidence of

information given by the appellants, which led to the discovery of exhibits

which are part of the prosecution evidence. This information led to

discovery of how their ivory business was organized, with whom and by

whom. She pointed out that it was the information from the first appellant

which led the police to arrest the second appellant. She urged us to give

the evidence of information leading to discovery the weight it deserves

under section 31 of the Evidence Act, Cap 6. She cemented her submission

by referring us to the decision of the Court in TUMAINI DAUD IKERA V.

R., CRIMINAL APPEAL NO. 158 OF 2009 and DIRECTOR OF PUBLIC

24
PROSECUTIONS VS. MIKULA MANDUGU, CRIMINAL APPEAL NO. 47

OF 1989 (both unreported).

Ms. Luwongo submitted that the evidence she has outlined in support

of prosecution case is corroborated by the two appellants' respective

defence evidences. The first appellant, she submitted, confirmed how he

frequently moved from one region to another before returning back to Dar

es Salaam. The finding of Mitsubishi Canter at the second appellant's

premises, and seizure of Toyota RAV4 (exhibit 5) prove the ivory business

connecting the two appellants and others. To support her submission that

there is sufficient corroboration of some material particulars which

implicate the two appellants, she cited the case of MASUMBUKO

MADIRISHA V. R., CRIMINAL APPEAL NO. 59 OF 2009 (unreported).

When we asked why Honda (exhibit P3) was not searched by a sniffer

dog at Kimara-Bonyokwa where it was seized, but had to be searched

several hours later at Mikocheni, Ms. Luwongo insisted that the chain of

custody had not been broken and there was no possibility of contamination

by implanting evidence while this vehicle was being moved from Kimara to

Mikocheni. She referred to the evidence of PW10 who did not know what

was inside this vehicle. Although she conceded that there is no

25
documentation on who drove the vehicle from Kimara to Mikocheni, she

submitted that there is oral evidence that a police officer who drove the

vehicle sat at the driver's seat, and other vehicles were so close by that no

implanting of evidence could possibly take place. Citing the case of

ANANIA CLAVERY BETELA V. R., CRIMINAL APPEAL NO. 355 OF 2017

(unreported), she insisted that the chain of custody of HONDA vehicle was

not broken during its movement from Kimara to Mikocheni.

in response to the questions asked by the Court, Ms. Luwongo

conceded that the contents of oral submissions were same as what the first

appellant had stated in his caution statement which was expunged by the

first appellate. When asked why the charge sheet mentions 118 elephant

tusks whilst no evidence was presented to support collection,

transportation and selling of 118 elephant tusks, she conceded that the

charge sheet was prepared with the hope that the evidence of caution

statement would prove the transactions involving the 118 elephant tusks.

Learned Stated Attorney Mr. Salim Msemo took over from Ms.

Luwongo to respond to the ground of defective charge. He insisted that the

charge sheet is not defective and has sufficiently disclosed the two counts

of Leading Organised Crime and Unlawful Dealing in Trophies.

26
 In support of his submission that the charge sheet is not defective,

and the prosecution's case was proved to the required standard; the

learned State Attorney took us through the provisions of the Economic and

Organised Crime Control Act, Cap 200 relevant to the counts of Leading

Organised Crime and Unlawful Dealing in Trophies. He referred us to the

case of MEHBOOB AKBER HAJI AND TWO OTHERS V. R [1991] T.L.R.

179 at page 190, where the Court considered a count of Leading Organised

Crime, where, the particulars of this count of importing dangerous drugs

were drafted in the same way as the second count has been drafted in the

instant appeal.

Mr. Msemo rounded up his submissions by reiterating that all the

essential elements constituting offences in the two counts were proved by

evidence. He added that the case of DAVID ATHANAS @ MAKASI &

JOSEPH MASIMA @ SHANDOO VS. R. (supra) which Mr. Wasonga

relied on, is distinguishable in two ways. Firstly, its first count was based

on possession. Secondly, its second count of unlawful dealing in

Government Trophy has not specified the nature of dealing, whereas in our

case it has specified as "jointly and together w illfully organised and

27
managed a crim inal racket o f collecting, transporting and selling

Government Trophy to wit, 118 Elephant Tusks..."

Learned State Attorney Mr. Salim Msemo rejected Mr. Wasonga's

argument that the charge sheet is defective. He submitted that the Court

had correctly found the charge sheet in DAVID ATHANAS @ MAKASI &

JOSEPH MASIMA @ SHANDOO (supra) defective because the

particulars of the offence of unlawful dealing in Government trophies were

not specified. But in the instant appeal the charge sheet is not defective

because the particulars of both counts were specified.

Mr. Nchimbi then rose to conclude the respondent's submissions. Like

Mr. Msemo before him, Mr. Nchimbi took us through the provisions

relevant to the first count of Leading Organised Crime and when an offence

becomes 'an organized crime" and "criminal racket". He submitted that

failure of evidence to establish the 118 elephant tusks does not diminish

criminal racket. He submitted that in case we found that 118 elephant

tusks in charge sheet was material, it should only affect the sentence but

not the conviction of the two appellants. He concluded by reiterating that

the prosecution had proved its case beyond reasonable doubt.

 In his rejoinder, Mr. Godfrey Wasonga referred to the charge sheet

which indicate the offences were committed between January 2009 and

23rd October 2015 at various areas of Dodoma and Dar es Salaam and

submitted that not a single witness mentioned these dates. In addition,

although the charge sheet identifies Dodoma and Dar es Salaam to be

areas where the offences were committed, witnesses spoke of areas like

Manyoni, Kiomboi, Sikonge Tabora, and Mpanda Katavi, which were not in

the charge sheet.

The learned counsel for the appellants reiterated that none of the

words "jointly and together," or "willfully," or "organized and managed a

criminal racket," or "collecting," or "transporting," or" selling" appearing in

the charge sheet were touched on by any prosecution witness. No witness

testified or elaborated how the appellants collected or transported or

bought or sold 118 elephant tusks or took part in the organization of any

criminal racket involving 118 elephant tusks.

Mr. Wasonga urged us not to ignore the significance of 118 elephant

tusks which are integral part of the two counts. He submitted that

prosecution witnesses who were visiting various places collecting vehicles

as exhibits did not give testimony on how the two appellants, were

29
involved with 118 elephant tusks. Even the much hyped "tool box" which

was suggested to have been specially designed under the chassis of

Mitsubishi Canter, was not found. He submitted that there is no evidence

about how this vehicle was used either to collect or transport 118 elephant

tusks. Mr. Wasonga pointed out that the case of MEHBOOB AKBER HAJI

AND TWO OTHERS (supra) which Mr. Msemo cited, is not helpful to the

prosecution's case. He submitted that while the appellants in that appeal

were linked by circumstantial evidence to container number 2222-0 which

landed in Dar es Salaam port with a cargo of drugs, cannabis sativa resin,

the prosecution in the instant appeal have failed to link the appellants with

non-existent 118 elephant tusks.

Mr. Wasonga next submitted that the first appellant cannot be linked

to the particles of elephant tusks allegedly found in the Honda car (exhibit

P3) which the police seized in Kimara Bonyokwa and drove it on their own

to their Mikocheni offices. He argued that the chain of custody was broken

and by the time exhibit P3 reached Mikocheni it had already been

tampered with. On importance of ensuring chain of custody is not broken,

the learned counsel submitted that the case of ANANIA CLAVERY

BETELA V. R., CRIMINAL APPEAL NO. 355 (unreported) offers useful

30
guidance. He argued further, even if it is assumed that the chain of

custody was not broken, and whitish substances were found in the first

appellant's car, the proper charge should have been possession contrary to

section 86 of the Wildlife Conservation Act, 2009, instead of counts of

Leading Organised Crime and Unlawful Dealing in Trophies which were not

linked to the appellants even by circumstantial evidence.

Reacting to the way the learned counsel for the respondent had placed

much reliance on oral confession, Mr. Wasonga submitted that because the

first appellate High Court had expunged the caution statement of the first

appellant, this Court should reject the backdoor way respondent is bringing

back expunged confession under the cover of oral confessions. He

submitted that the need for great caution before relying on oral confession

was sounded in the case of TUMAINI DAUD IKERA V. R., CRIMINAL

APPEAL NO. 158 OF 2009 (unreported).

In his submissions on defective charge Mr. Wasonga contended that

the particulars of the two counts, Leading Organized Crime and Unlawful

Dealing in Trophies, were so general to the extent that they prevented the

appellants from properly defending themselves. In urging us to allow the

31
appeal on account of defective charge, he relied on DAVID ATHANAS @

MAKASI & JOSEPH MASIMA @ SHANDOO (supra).

After hearing submissions of the learned counsel on the grounds of

appeal, we shall begin with the issue of charge sheet, which Mr. Wasonga

considered defective. With due respect, Mr. Msemo is correct to assert that

the particulars of the offence of Leading Organised Crime in the case of

MEHBOOB AKBER HAJI AND TWO OTHERS V. R (supra) bear

semblance to the particulars of same offence in this appeal. In MEHBOOB

AKBER HAJI the particulars of the offence of Leading Organised Crime

are in the following way:

"Mehboob Akber H aji and Norman Francisco Toscano

between the months o f June and October, 1991 within
the city o f Dar es Salaam knowingly and intentionally
financed a crim inal racket, to wit, dealing in and
im porting dangerous drugs illegally, namely, 5.3 tons o f
cannabis sativa resin."

Our earlier decision in DAVID ATHANAS (supra) where we declared

charge sheet to be defective is distinguishable from this appeal before us.

There is marked difference between the particulars of the offence in

DAVID ATHANAS (supra) and the particulars of the two counts in the
32
instant appeal before us. Mr. Msemo is with due respect correct to submit

that the particulars of unlawful dealing with Government trophy were not

clearly specified to the appellants in DAVID ATHANAS (supra) while in

the instant appeal the particulars of the nature of unlawful dealing with

Government trophy were clearly specified: "...jo in tly a n d to g e th e r

w illfu lly o rg a n ize d a n d m anaged a c rim in a l ra ck e t: o f co lle ctin g f

tra n sp o rtin g a n d s e llin g G overnm ent T rop h ies to w it: 11 8

E le p h a n t T u s k s .... [Emphasis is added]

In the premises we agree with Mr. Msemo that the ground of appeal

complaining that the charge sheet is defective has no merit at all which we

accordingly dismiss.

The next ground of appeal which learned counsel for opposing parties

spent much of their submissions on, is with regard to the threshold issue

whether the prosecution proved the two counts against the appellants

beyond reasonable doubt.

Ms. Luwongo opposed the claim that the case was not proved, and

demonstrated to us how 11 witnesses and 15 exhibits which the appellant

presented; sufficiently proved the prosecution case beyond reasonable

doubt. She further demonstrated how oral confessions by the appellants,

33
and evidence of information which the first appellant provided to police;

added much weight to the prosecution case.

On his part, Mr. Wasonga forcefully pointed out that apart from

narrating incidents of travelling to several places, seizing vehicles as

exhibits and arresting the second appellant, the prosecution did not do

discharge its burden of proof. He submitted after the first appellate court

had expunged the caution statement (exhibit P9), no concrete evidence

remained to prove the two counts against the appellants. He submitted

that the prosecution brought no evidence on nature of criminal racket, how

the two appellants participated in that criminal racket. He argued that

there is no evidence which linked the two appellants with the 118 pieces of

elephant tusk shown in the two counts. He submitted that because the two

counts accuse the two appellants of collection, transporting and selling of

188 elephant tusks, the respondent was obliged to prove all or any of

these, but did not.

We considered two issues of law call for our determination. First is

whether the prosecution brought evidence sufficient to prove the

ingredients of the two counts of leading organized crime and unlawful

dealing in trophies. Secondly, if there is such evidence, whether it proves

34
beyond reasonable doubt that the two appellants were the perpetrators of

the offences in the two counts.

Looking at the particulars of the first count of leading organised crime

as a guide, the prosecution is required to prove the ingredients of

organizing and managing of a criminal racket, which the charge sheet

specified as collecting, transporting and selling 118 elephant tusks

which are government trophies. In the second count of unlawful dealing in

trophies, the particulars of the offence specified ingredients requiring proof

beyond reasonable doubt to be: collecting, transporting and selling

118 elephant tusks which are government trophies.

While Ms. Luwongo was very sure in her submission that the

substances which were lifted from the first appellant's HONDA CRV car

which the Government Chemist determined to be remains of an elephant

tusk directly linked the first appellant to the offence, Mr. Wasonga

submitted that for six hours the car remained under the control of the

police before it searched at Mikocheni thereby breaking any link between

the first appellant and his impounded car.

In our determination, although in both counts, of leading organized

crime and unlawful dealing in trophies, the prosecution was expected to

35
prove the ingredients of collection, transportation and selling of 118

elephant tusks; no prosecution witness testified to prove how the

appellants collected or transported or sold 118 elephant tusks. Even the

Game Reserve Officer Mrekwa Simon Foka (PW7) who prepared the

Valuation Report (exhibit P8) for 118 elephant tusks, conceded before the

trial court, that the caution statement of the first appellant (exhibit P9) was

the source of his information about 118 pieces of elephant tusks. With

expungement of exhibit P9, the 118 elephant tusks and the evaluation

report (exhibit P8) lack any evidential basis. Looking back, it seems to us

apparent the Particulars of the two counts (Leading Organised Crime and

Unlawful Dealing in Trophies) were so much based on caution statement of

the first appellant (exhibit P9) that when this confession was much later

expunged by the High Court, prosecution was forced to make do with oral

confession.

Ms. Luwongo robustly submitted that in the case at hand, the

prosecution relied on oral confession in proving the guilt of the appellants.

She referred to the testimony of the first appellant confessing orally to

DSGT Beatus (PW2) in the following instances:

"Accused told us that he bought a car for the witch doctor for the
smooth facilitation o f ivory business, "-page 36
36
 "Accused person m entioned other guys named Omary Hussein who
owned a M itsubishi Canter which used to carry elephant tusks.
That Omary constructed extra tank for hiding the tusks. A Canter
No. T765 DAC. ... accused told us that a Canter used to carry the
tusks from a ll over the region"-page 36

'W e arrived a t Mpanda where a car was stated to be there. We

arrived a t the house o f Lucas Malyango. We found Lucas and he
told us that he had inform ation that Boniface had been arrested.
He told a driver to run away before we arrived. But [Lucas] took us
to a godown o f Mpunga where a car was hidden. We were told
that an extra tank was rem oved before we arrived... "—page 37

'Accused told us that he bought a car Toyota RAV 4 T922 ATZ for
smooth facilitation o f tusk business, —page 37

"Accused told us that his house a t Kimara Bonyokwa was a fru it o f

the business o f elephant tusks. The cars HONDA and CANTER were
also product o f that business..." page 37

With due respect, the supposedly oral confession which the first

appellant made to PW2 does not in our view prove ingredients of

collection, transportation and selling of 118 elephant tusks shown

37
in the particulars of the two counts. It is also clear to us that PW2 did not

caution the first appellant that he was not obliged to say anything and if he

chose to say anything, it would be recorded and used in evidence later

against him. The trial and first appellate courts did not consider

voluntariness of the first appellant's oral confession to PW2. Failure by the

police to warn the first appellant who they suspected prior to his making an

oral confession took much weight away from this evidence.

Ms. Luwongo also made much capital out of the oral confession the

appellant made to ASP Alinanuswe Reuben Mwakyembe (PW4):

"Boniface told us that he owned that car [M itsubishi Canter] but

handed it over to his brother for ta k in g ca re o f th e iv o rv
b u sin e ss."

"...He started to run ...but got stuck in the bushes and we

arrested him ... we took him back a t his place. I explained the
entire allegation which he faced. He stated to know that before
and that was a reason he tried to escape after seeing us. H e
a d m itte d th e o ffe n ce s to m e a n d trie d fb rib e ! m e n o t to
a rre s t h im b u t I re fu se d h is o ffe r on th e so o t. I dem anded
him to sh o w m e a c a r w hich w as u se d in ille g a l h u n tin g .
We were to id there were more than three cars involved."
[Emphasis added].

38
 PW10, a very senior police officer, had the best opportunity to caution

the first appellant before receiving oral confession, he did not issue that

warning.

In her submissions, Ms. Luwongo made no efforts to show how the

first appellant's oral confession to PW2, PW4 and PW10 proved the

ingredients of collection, transportation and selling of 118 elephant

tusks appearing in the offences of leading organized crime (first count)

and unlawful dealing in trophies (second count).

But, with due respect, we agree with Mr Wasonga that in TUMAINI

DAUD IKERA V. R (supra) we reiterated that oral confessions of guilt are

admissible and can be acted upon, but we also emphasized that great

caution is required before courts rely on oral confession to convict.

Admissibility of oral confession does not automatically mean this genre of

evidence carries sufficient weight to convict. Even where the court is

satisfied that an accused person made an oral confession, the court must

take an extra distance to determine whether the oral confession is

voluntary. What amounts to an involuntary confession is provided for under

subsection (3) of section 27 of the Evidence Act, Cap 6 which states:

(3) A confession sh all be held to be involuntary if the court

believes that it was induced by any threat; prom ise or other
39
 prejudice held out by the police officer to whom it was made
or by any member o f the Police Force or by any other person
in authority.

Neither the trial court, nor the first appellate court considered the

question whether the first appellant was a free agent to give voluntary

confession when he orally confessed to PW2 at Kimara Bonyokwa when he

was arrested on 23rd October 2015, and when he orally confessed to PW4

and PW10 while he was being transported to various places outside Dar es

Salaam to search for evidence.

Ms. Luwongo also placed much reliance on the evidence of information

which police received from the first appellant while he was in police

custody, which the learned Senior State Attorney asserts supports the

prosecution's case. This information is relevant under section 31 of the

Evidence Act, Cap. 6 which provides:

31. When any fact is deposed to as discovered in

consequence o f inform ation received from a person accused o f
any offence in the custody o f a police officer, so much o f such
inform ation, whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered, is relevant.

40
 While Ms. Luwongo is correct that the information which the first

appellant gave to the police, led to the discovery of the vehicles which the

police seized is relevant and was properly admitted, however, the

outstanding issue which the learned Senior State Attorney did not address,

is whether that evidence of information leading to the discoveries proved

the ingredients of collection, transportation and selling of 118

elephant tusks salient in the offences of leading organized crime (first

count) and unlawful dealing in trophies (second count). The prosecution in

our view failed to show how the vehicles which police seized, were used by

the two appellants to collect, transport or sell 118 elephant tusks as part of

criminal racket.

The whitish particles which were collected from first appellant's

HONDA (exhibit P13), were sent to Government Chemist for analysis. After

the analysis, the Manager of Forensic Biology and D.N.A. of the office of

Government Chemist, Fidelis Segumba (PW9) determined that it was the

remains of a piece of elephant tusk. Again here, the prosecution evidence

has not shown how these whitish remains were part of collection,

transportation and selling of 118 elephant tusks involving the two

appellants. The evidence of PW2 bear out Mr. Wasonga's assertion that the

41
police had broken the chain of custody when they searched the HONDA

CRV Reg. T674 ARL at Kimara Bonyokwa well before it was driven by a

police officer to their base at Mikocheni Dar es Salaam, where a formal

search was conducted with assistance of sniffing dog. In his testimony on

page 36 of the record PW2 confirms what Mr. Wasonga submitted on:

'W e demanded to see the car and he took us where a car

was parked. He sent a child to go and come with the car

keys. A fter a while a c h ild cam e w ith a k e v a n d w e

op en ed a c a r fo r search . We se a rch e d a car. From

th e b a ck p la ce o f a c a r th e re w ere p ie ce s o f w h ite

th in g s. .... "[Emphasis added].

It is clear to us that the interlude between 10:00 hrs., when police

searched and seized the vehicle at Kimara Bonyokwa, and between 16:00

to 17:00 hrs., when samples were finally collected from the car at

Mikocheni; the police officers had exclusive custody of the vehicle. The

possibility or potential danger of the Honda vehicle having been polluted,

or in any way tampered before the sniffer dog was employed, cannot be

42
completely excluded. The first appellant is entitled to the benefit of doubt

created.

On our part, we can reiterate here that chain of custody can be

regarded as broken where circumstances of the case concerned show the

possibility or potential danger of the item being destroyed or polluted,

and/or in any way tampered with: See MOSES MWAKASINDILE VS R.,

CRIMINAL APPEAL NO. 15 OF 2017 referring to JOSEPH LEONARD

MANYOTA V. R., CRIMINAL APPEAL NO. 485 OF 2015 (both unreported).

We agree with Mr. Wasonga that the chain of custody of the samples

which were taken to the Government Chemist after being uplifted from the

first appellant's HONDA car at Mikocheni, had been broken earlier when the

police officers entered the vehicle at Kimara Bonyokwa and conducted

search.

The only pieces of evidence lined up against the second appellant were

the first appellant's oral confession, and finding in his possession a vehicle

Canter make T.765 DAC (exhibit P4) which is registered in the name of the

first appellant. These pieces of evidence did not, in our view, prove as

against the second appellant, the ingredients of the two counts he was

charged and convicted for.

43
 In the upshot, we find the appeal has merit and it is hereby allowed.

The conviction against the two appellants is quashed, and their respective

sentences are set aside and unless they are otherwise lawfully held, they

shall be set at liberty forthwith.

DATED at DODOMA this 18th day of June, 2020.

I. H. JUMA
CHIEF JUSTICE

S.E.A. MUGASHA
JUSTICE OF APPEAL

M. C. LEVIRA
JUSTICE OF APPEAL

The Judgment delivered on 18th day of June, 2020 in the presence of

Mr. Godfrey Wasonga, learned Counsel for Appellants and Mr. Tumaini

Kweka, learned Principal State Attorney, and Mr. Pius Hilla, learned Senior

State Attorney for the respondent/ Republic, is hereby certified as a true

copy of the original.

K. D. MHIINTA
REGISTRAR
COURT OF APPEAL