IN THE HIGH COURT OF TANZANIA

TABORA DISTRICT REGISTRY

AT TABORA

DC CRIMINAL APPEAL NO. 160 OF 2018

(Arising from Criminal Appeal No. 2 of 2012 of the District Court of
Tanga)

MAGANGA DOTTO MASHISHANGA............................. APPELLANT

VERSUS

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

JUDGMENT

Date of Last Order: 28/05/2021

Date of Delivery: 19/07/2021

AMOUR S. KHAMIS, J:

In Economic Case No. 7 of 2015 lodged in the Resident

Magistrate Court of Tabora, Maganga Dotto Mashishanga,
Said Ndege Nzumbi and Cosmas Joachim Yakoloka were
arraigned for two counts of unlawful possession of
Government trophies contrary to Section 86 ^1) and (2) (b)

and 3 (b) of the Wildlife Conservation Act No. 5 of 2009 read

together with Paragraph 14 (d) of the First Schedule to, and
Section 57 910 and 60 (2) of the Economic and Organized
Crime Control Act, Cap 200, R.E 2009 and two counts on
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leading organized crime contrary to Paragraph 4 (1) (d) of

the First Schedule to and Section 57 (1) and 60 (2) of the
Economic and Organized Crime Control Act, Cap 200, R.E
2002.
In the first count, it was alleged that on 1st March
2015 during evening hours at Ndala Village, Uyui District,
Tabora Region, the accused jointly and together were found
in unlawful possession of Government trophies to wit 2
Elephant Tusks weighing 6.8 Kgs valued at Tanzania
Shillings 27,495,000/= only the property of the United
Republic without a permit from the Director of Wildlife
Division.
In the second count, the particulars were that on 1st
March 2015 during evening hours at Ndala Village, Uyui
District, Tabora Region, the accused jointly and together
were found in unlawful possession of Government Trophies
to wit: 2 pieces of Hippopotamus teeth valued at Tanzania
Shillings 3,482,700/= only the property of the United
Republic of Tanzania without a permit from the Director of
Wildlife Division.
In the third count, the prosecution alleged that on 1st
March 2015 during evening hours at Ndala Village, Uyui
District, Tabora Region, jointly and together, the accused
intentionally promoted and furthered the objectives of a
criminal racket by acquiring and possessing Government
trophies to wit: 2 Elephant Tusks weighing 6.8 Kgs valued
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at Tanzanian Shillings 27,495,000/= only the property of

the United Republic of Tanzania without a permit from the
Director of Wildlife Division.
In the fourth count, the prosecution particularized
that on same date, time and location, the accused jointly
and together, intentionally promoted and furthered the
objectives of a criminal racket by acquiring and possessing
Government Trophies to wit 2 pieces of Hippopotamus teeth
valued at Tanzania Shillings 3,482,700/= only the property
of the United Republic of Tanzania without a permit from
the Director of Wildlife Division.
The accused denied the charges and the matter
proceeded to trial whereupon the trial Court convicted
Maganga Dotto Mashishanga on the first and second
counts.
All accused were acquitted in respect of the third and
fourth counts. On mitigation, Maganga Dotto Mashishanga
was sentenced to twenty (20) years imprisonment.
Aggrieved by the conviction and sentence, Maganga
Dotto Mashishanga approached this Court fronting four
grounds of appeal, namely:
1. That the recovery and seizure of the alleged
trophies was done against the law and it was danger
for the trial magistrate to admit the same in evidence
without any proof showing the seizure of the same.
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2. That the trial magistrate erred to convict the

appellant despite the failure by the prosecution to
establish the chain of custody of the trophies in issue
since there was no an iota evidence going to prove
beyond reasonable doubt that the trophies tendered in
evidence were the very ones which PW 5 Japhary had
analysed and or evaluated.
3. That the trial magistrate erred when passed an
omnibus sentence of twenty (20) years in prison
despite the appellant being convicted of two counts.
4. That the trial magistrate erred for acting on the
layman’s view that the items were tendered in evidence
were the elephant tusks and hippo teeth despite the
same being not confirmed by any scientific method
that they were elephant tusks and hippo teeth as
particularized in the charge sheet.
At the time of hearing this appeal, the Republic was
represented by Mr. Tumaini Pius, learned advocate. The
appellant appeared in person by way of video conference.
The appellant chose to respond to the submissions by
the learned state attorney.
Mr. Tumaini Pius resisted the appeal and submitted
that the trial Court properly convicted the appellant.
The learned state attorney was of the view that the
first, second and fourth grounds of appeal were interrelated
and thus consolidated.
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In support of the three grounds of appeal, Mr. Pius

asserted that the appellant was arrested in possession of
Government trophies; elephant tusks and pieces of
hippopotamus teeth and was about to sale them.
Further, the learned counsel asserted that the
appellant’s cautioned statement and his testimony in Court
proved that he was caught in possession of the trophies.
On further address, Mr. Pius contended it was not
disputed that the elephant tusks were in sole custody of the
appellant.
As regards to chain of custody, Mr. Pius contended
that the trophies were analysed and valued by PW 5 who
received them from the game warden. The game warden was
involved in arresting the appellant and testified as PW 2.
Further Mr. Pius submitted that at the time of
arresting the appellant, PW 2 was in the company of one
Mr. Christopher who testified as PW 1.
Capping his submissions on that aspect, Mr. Pius
asserted that immediately after seizure the tusks were in
custody of the game rangers or wardens and thus chain of
custody was not interrupted.
On omnibus sentence, Mr. Pius contended that the
appellant’s contention was not true because the sentence
passed was in accordance to Section 60(2) of the Economic
and Organised Crimes Control Act.
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On scientific identity of the trophies, Mr. Pius strongly

submitted that PW 2 and PW 5 were game wardens with
expertise in recognition of trophies and testified on how
they arrested the appellant, identified and valued the seized
trophies.
On failure to prepare and sign a certificate of seizure,
Mr. Pius contended that the omission was cured by the
appellant’s own testimony and cautioned statement which
admitted his possession of the trophies.
The appellant adopted contents of the Petition of
Appeal to form his submissions and added that the
testimony of PW 1 was wrongly entertained because his
evidence was not read during committal proceedings.
He contended that PW l’s evidence was heard for the
first time during this appeal.
Further, the appellant asserted that the charge was
fabricated on him allegedly because:
...... at the time of arrest, I held a bag containing
shirts, two pairs of trousers, knives and sweet potatoes
but the policemen who arrested me changed the bag
and replaced it with elephant tusks and pieces of
hippopotamus teeth that were subsequently alleged to
have been found in my possession which was not true.”
The appellant equally addressed the Court on how he
was arrested and kept in a vehicle that was subsequently
changed and driven to the wildlife office.
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Thereafter he was driven to Katavi Region where

stayed in remand for nine (9) days before transported back
to Tabora and arraigned in the trial Court.
To wind up, the appellant moved this Court to allow
the appeal and acquit him on the charges.
This is the first appeal that requires this Court to
make a fresh assessment of factual issues raised during
trial and before this Court.
In so doing, I will scrutinize the grounds of appeal
succesionally in line with the evidence on record.
In the first ground of appeal, the appellant faulted the
trial magistrate for relying on seizure of the trophies
whereas there was no proof of seizure.
Section 38 (3) of THE CRIMINAL PROCEDURE ACT,
CAP 20, R.E 2019 provides that where anything is being

seized, the seizing officer must issue a receipt

acknowledging the seizure of that thing, being the signature
of the owner or occupier of the premises or his near relative
or other person for the time being in possession or control
of the premises, and signature of witnesses to the search, if
any.
In MUSTAFA DARAJANI V REPUBLIC, CRIMINAL
APPEAL NO. 277 OF 2008 (unreported) the Court of

Appeal held that:

“The whole purpose of issuing receipt to the seized
items and obtaining signature of the witnesses is to
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make sure that the property seized came from no place

other than the one shown therein. If the procedure is
observed or followed, the complaints normally
expressed by suspects that evidence arising from such
search is fabricated will to great extent be minimized. ”
In the said case, the Court of Appeal further held that
failure to comply with Section 38(3) of the Criminal
Procedure Act was a fatal omission.
Five witness testified in support of the prosecution
case and three were involved in arresting the appellant.
PW 1 CHRISTOPHER BAHATI NZIGOTA was a game
ranger who had information that some people were selling
elephant tusks at Ndala Village.
He was accompanied by Edward Mlela, Abdul
Mnyamza and Nshinje Nyanda in arresting the accused and
posed as buyers of the trophies.
According to him, Said Ndege (second accused) was in
touch with an informer and directed them to “Uwanja wa
Ndege” area where he was picked in their vehicle.
Said Ndege led game rangers to a distant place where
the appellant (first accused) and Cosmas Joachim Yakoloka
(third accused) were waiting with the elephant tusks.
Immediately after boarding the vehicle, the appellant
and Cosmas Joachim Yakoloka were arrested and driven to
Tabora where their bag was opened and found to contain
elephant tusks and 2 hippo teeth, from the bush further of
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The two elephant tusks and two (2) hippo teeth were
collectively admitted as Exhibit P 1.
PW 2 EDWARD MLELA was a game warden at
Ngolongolo Reserve and involved in a special patrol carried
in Tabora.
Acting on the prior information that three people were
selling ivory tusks, he was connected to the second accused
(Said Ndege) and posed as a buyer.
His team met Said Ndege on their way to Ndala from
Tabora who led them to a distant place where the appellant
and Cosmas Joachim surfaced with a plastic bag containing
trophies.
According to him, the three accused were arrested
immediately after boarding their green vehicle and drove
them to Tabora.
Explaining what transpired at the time of seizure, PW
2 said that:
“While at Ndala we did not open that plastic bag
because security wise the place not good, and that
route from Ndala to Tabora no one dropped from (the)
car. When we reached at our office Tabora we opened
that bag and found two (2) ivory tusks and two (2)
hippopotamus teeth. We reached at our office around
18.00 pm. And when we opened that we were with
those accused. Then we decided to interrogate where
they got those tusks.... ”
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PW 4 ABEL JORAM MANYANZA, a game warden at the

Anti - Poaching Office Dar es Salaam was involved in the
special patrol in Tabora.
He was a driver of a green vehicle in which the
accused were arrested. According to him, the arresting and
seizure team was under leadership of PW 2 Edward Mlela.
He testified in the same lines as PW 1 and PW 2.
Respecting seizure, PW 4 said that:
“....They entered in our carl turned car by telling
the place was not conducive for business then we left
that place and they were told that they are under
arrest. I drove the car back to Tabora, our aim was to
arrest them. On the way from Ndala we did not stop
anywhere up to Tabora office and we did not search on
that bag until when we reached at the office. In car
office when we searched we found two (2) ivory tusks
and two (2) hippo teeth. That is all. ”
The prosecution relied on the appellant’s cautioned
statement in a bid to show that he confessed to possess the
trophies. The cautioned statement was admitted as Exhibit
P 2.
However, the trial Court proceedings of 13/07/2015
showed that when PW 3 F 6526 D/C VICENT MALE prayed
to tender the cautioned statement, the trial magistrate did
not afford the accused a right to respond to the prayer.
Relevant proceedings from page 23 - 24 reads:
 “PW 3 F 6526 D/C VICENT MALE, POLICE
OFFICER AT RCO OFFICE TABORA, 35 YEARS OLD,
CHRISTIAN, SWORN AND STATED:
......................... Wrote statement which has my
signature. I pray to tender that as exhibit.
(signed)
RESIDENT MAGISTRATE
COURT:
Caution Statement of 1st accused is hereby
received in Court as Exhibit P 2.
(signed)
RESIDENT MAGISTRATE”
Proceedings of that day (13/07/2015) indicates that
the three accused were present and it is not clear as to why
were not afforded a chance to oppose or concede on the
prayer to have the cautioned statement admitted.
In MUSSA MWAIKUNDA V REPUBLIC (2006) TLR
387, the Court of Appeal listed down minimum standards

to ensure a fair trial, thus:

“The minimum standards which must be complied
with for an accused person to undergo a fair trial are:
he must understand the nature of the charge and this
can be achieved if the charge discloses the essential
elements of the offence charged, he must plead to the
charge and exercise the right to challenge it, he must
understand the nature of the proceedings to be an
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inquiry into whether or not he committed the alleged

offence, he must follow the course of proceedings, he
must understand the substantial effect of any evidence
that may be given against him, and he must make a
defence or answer to the charge. ”
In KABULA D/O LUHENDE V REPUBLIC, CRIMINAL
APPEAL NO. 281 OF 2014 (unreported), the Court of

Appeal underscored among others, that a fair trial, first and

foremost, encompasses strict adherence to the rules of
natural justice, whose breach would lead to the nullification
of the proceedings.
In the present case, as earlier on stated, the accused
persons were not accorded a right to comment on the
introduction of a cautioned statement it into evidence which
was a clear breach of rules of natural justice.
Exhibit P 2 suffered another omission. It was not read
over in to the accused to enable them understand the
nature and substance of its contents.
The requirement to read over contents of admitted
exhibits was restated by the Court of Appeal in IDDI
ABDALLAH @ ADAM V THE REPUBLIC, CRIMINAL

APPEAL NO. 202 OF 2014 (unreported) thus:

“Apart from what we have just said above, the

record does not show that the said document was read
over to the appellant after it was tendered as evidence
to afford him chance to know its contents. In view of
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these defects, and because that statement was heavily

relied upon in founding the appellant's guilty, it cannot
be said that he was fairly tried. ”
Furthermore, the Court of Appeal in the above stated
case of IDDI ABDALLAH @ ADAM held that:
“In all instances where the Court had occasion to
hold that such an error was established, and because it
has consistently held it as a fundamental irregularity, it
had no hesitation in expunging such evidence from the
record......”
On that authority and for the forestated reasons,
Exhibit P 2 is hereby expunged from the record.
The next issue is related to the effect of expunging
Exhibit P 2 from the record and finding that the appellant
was not accorded a fair trial.
Under Section 178 of THE EVIDENCE ACT, CAP 6,
R.E 2019, the improper admission or rejection of evidence

shall not, of itself, constitute grounds for a new trial or

reversal of any decision in any case if it appears to the
Court that independently of the evidence objected to and
admitted, there was sufficient evidence to justify the
decision, or that the rejected evidence, had it been received,
the Court would not have varied the decision.
The trial magistrate relied on testimony of the
appellant in concluding that he did not contest being found
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in possession of the trophies. However, the evidence of DW

1 varied sharply from that of PW 1, PW 2 and PW 4.
Whereas PW 1, PW 2 and PW 4 said that the appellant
was arrested in possession of the plastic bag after boarding
the green patrol vehicle, DW 1 MAGANGA DOTTO
MASHISHANGA said that he was arrested at home.
It is clear from the evidence on record that no receipt
(seizure certificate) was recorded and or issued at the time
of seizure. Such certificate was neither mentioned nor
produced in evidence.
The unanswered question therefore remains whether
the trophies were recovered at the appellant’s home or in
the green patrol vehicle driven by PW 4.
PW 1, PW 2 and PW 4 said despite of arresting the
accused and seizing the bag in Ndala Village, Nzega District,
the bag was not opened and inspected until their arrival in
Tabora Urban, many miles away.
The proceedings are silent as to who had custody of
the disputed plastic bag while on safari from Ndala Village
to Tabora.
Another anomaly was the prosecution’s failure to
describe the seized trophies. Apart from generally referring
them as two pieces of elephant tusks and two
hippopotamus teeth, the arresting officers did not describe
the trophies by stating their special identification marks or
description.
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Drawing inspiration from the case of MUSTAFA

DARAJANI V REPUBLIC (supra) in which the Court of

Appeal held that failure to comply with Section 38 (3) of the

Criminal Procedure Act was fatal, I am inclined to find this
ground of appeal sufficiently disposed of the entire appeal
with merits.
Consequently the appellant’s conviction is quashed
and a sentence meted on him is set aside. In the result, I
order his immediate release from prison unless lawfully
held for other lawful causes. It is so ordered.
Dated at Tabora this 19th day of July 2021.

AMOUR S. KHAMIS
JUDGE
19/7/2021

Judgment delivered in chambers in presence of Ms.

Juliana Moka, Senior State Attorney and the appellant in
person (under custody). Right of Appeal explained.

19/7/2021