IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA

(CORAM: MBAROUK, J.A., MZIRAY, J.A., And MWAMBEGELE, J.A.)

CRIMU:J:J\L APPEAL NO. 163 OF 2017

1. YUSUPH MASALU @ JIDUVI 1 ST APPELLANT

2. ELIAS JOHN @ SPILIANO 2ND APPELLANT
3. SALUM MOHAMED @ NGASA 3Ro APPELLANT
4. VONA STANLEY@ YOHANA 4TH APPELLANT

VERSUS
THE REPUBLIC RESPONDENT
(Appeal from the decision of the High Court of Tanzania
at Dodoma)

(Mansoor, J.)

dated U1e 24th day of March, 2017

in
Criminal Appeal No. 57 of 2016

JUDGMENT OF THE COURT

6th & 13th March, 2018

MZIRAY, J.A.:

The appellants along with three other persons namely Ramadhan

Salum @ Hatibu, Kulwa S~:id @ Salum and Buhoro Salehe Yubaha Yokonie

@ Buhoro appeared in the Resident Magistrates' Court of Singida at Singida

on a charge sheet containing twelve counts. All counts were in relation to

three offences which are; First, Leading Organized Crime Contrary to

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paragraph 4(1) (a) of the } :,t Schedule to, read together with sections 57(1)

and 60(2) of the Economic and Organized Crimes Control Act Cap. 200 R.E.

2002; second, Unlawful Possession of Government Trophy contrary to

section 86(1) and (2) (c)(ii) of the Wildlife Conservation Act No. 5 of 2009

read together with paragraph 14(d) of the pt Schedule to, and section 57(1)

of the Economic and Organized Crimes Control Act Cap. 200 R.E. 2002; and

third, Unlawful possession of firearm contrary to section 4(1) and 34(1) and

(2) of the Arms and Ammunition Act, Cap 223 R.E. 2002.

At the end of the trial, the appellants were all convicted and sentenced

to serve a custodian sentence of fitteen years imprisonment for the 1st

count. As for the second count, each appellant was convicted and fined to

pay Tshs. 341,440,000/= in default to serve a custodian sentence of twenty

years imprisonment. On the third count, the appellants were all convicted

and fined to pay Tshs. 1,920,000,000/= and to serve a custodian sentence

of twenty years imprisonment. On the fourth count, they were all convicted

and fined to pay Tshs. 78,000,000/= each and to serve a custodian sentence

of twenty years imprisonment. On the fifth count, they were all convicted

and fined to pay Tshs. 35,200,000 and to serve a custodian sentence of

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twenty years imprisonment. On the sixth count, they were all convicted and

fined to pay Tshs. 475,008,000/= and to serve a custodian sentence of five

years imprisonments in default. On the seventh count, they were all

convicted and fined to pay of Tshs.3,000,000/= and to serve a custodian

sentence of fifteen years imprisonment. On the eighth count, all of them

were convicted and fined to pay Tshs. 3,000,000/= each and to serve a

custodian sentence of fifteen years imprisonment. On the ninth count, the

1st Appellant, Yusuph Masalu @ Jiduvi was convicted and fined to pay Tshs.

78,400,000/= and to serve a custodian sentence of twenty years

imprisonment. On the tenth count, they were all convicted and fined to pay

Tshs. 3,000,000/= each and to serve a custodian sentence of fifteen years

imprisonment. On the eleventh count, all of them were convicted and fined

to pay Tshs.3,000,000/= each and to serve a custodian sentence of fifteen

years imprisonment and on the twelveth count, the fifth appellant,

Ramadhani salum @ Hatibu and the sixth Appellant Kulwa Said @ Salum

were both convicted and fined to pay Tshs. 27,200,000/= and to serve a

custodian sentence of twenty years imprisonment.

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 Dissatisfied with the conviction and sentences, they appealed to

the High Court of Tanzania at Dodoma in which after a full hearing

Ramadhan Salum @ Hatib«. Kulwa Said @ Salum and Buhoro Salehe Yubaha

Yokonie@ Buhoro were acquitted. The first appellate court however upheld

the conviction of the appellants in all counts except for the first count in

which they were all acquitted.

Still aggrieved, the appellants through the services of Mr. Godfrey

Wasonga, learned counsel, have lodged this appeal to this Court raising four

grounds in the Memorandcm of Appeal as hereunder reproduced:

1. That, both trial court and Appellate court erred in law and in fact by

convicting the appellants without considering that search were

conducted during night time and not between hours of sunshine and

sunset. The search during night was conducted without application

and permit from the court.

2. That, all the exhibits· tendered in court were illegally obtained which

makes the whole trial nullity.

3. That, the prosecution side failed to prove their case beyond

reasonable doubt.

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 4. That, the whole prcceedinqs was marred by procedural irregularities.

Before discussing these grounds of appeal and the respondent Republic's

response thereto, it will be refreshing to state briefly the facts which

prompted the prosecution of the appellants.

On 8/9/2014, Assistant Superitendent of Police (ASP) Babu(PWl), by

then, the QC-CID for Manyoni District, received information from an

informer to the effect that the appellants are illegally dealing with

government trophies. Following the information, a trap to net them was

planned and carried out. The appellants were spotted and arrested at Nkwida

Grocery in Singida Municipality at around 20:00 hrs. The 1st appellant's room

was searched and 28 elephant tusks, lion skin, great kudu skin, 4 lion nails,

eland meat and tail were found therein and later seized. The search was

witnessed by Mohamed r<:;ssa ( PW4) and Hamis Rajab Alute (PWS); the

ten cell leader who also signed the seizure note. The seizure note was

produced in the trial court and admitted as Exh. P2. The 1st and 3rd

appellants were further interrogated and readily admitted to have been in

possession of firearms and ammunitions. They cooporated and took the

police to Malampaka village where a firearm (make SMG), ammunitions and

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a jar with 4 lion nails were found and later impounded. The police were also

taken to Mto Mgumoo in Malampaka village where a 2nd firearm and

ammunations were retrieved. The 1st appellant also mentioned Ramadhan

Salum @ Hatibu and Buhoro Salehe Yubaha Yokonie @ Buhoro as their

accomplices. Acting on this information, on 9/7/2014 at around 04:00 hrs,

Ramadhan Salum was arrested and when his house was searched, eland

meat in decomposition stage and a motor cycle allegedly used in

transportation of the government trophies from Malampaka to Manyoni

were seized. The seizure notes issued to that effect and the inventory were

tendered in the trial court and admitted as Exh. P4, PS, P6 and P7

respectively. Three months later, that is, on 10/11/2014, Buhoro Salehe

Yubaha Yokonie@ Buhoro was also arrested in connection with the offence.

It should also be noted that all the exhibits tendered in the trial court were

under the custody of PW3, the Game Warden Officer from Anti-Poarching

Unit "KOU".

In their respective defences the appellants denied the commission of the

offences. They also retracted the cautioned statements saying that they

were not made voluntarily and that the same were taken out of the four

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hours time prescribed by the law. However, the trial court admitted them

after conducting a trial within trial and satisfied itself that they were

voluntarily made and prope: ty recorded, All the same, as already hinted, the

trial court was satisfied that the prosecution evidence was sufficient to

sustain the convictions and imposed the sentences as aforesaid. The High

Court upheld the conviction of the appellants in all counts except for the first

count in which they were all acquitted.

When the appeal came up for hearing the appellants were represented

by Mr. Godfrey Wasonga, !(:arned advocate, while the respondent Republic

was represented by Ms. Chivanenda Luwongo, learned State Attorney.

Mr. Wasonga, learned counsel submitted generally to the effect that the

prosecution did not prove its case to the standard required; that is, beyond

reasonable doubt. First, he said the appellants' cautioned statements were

not recorded within four hours from the time of the arrest contrary to section

50 and 51 of the Crimina' -rocedure Act, Cap. 20 R.E 2002,( the CPA). He

stated that the appellants were arrested on 8.7.2014, but the cautioned

statements were recorded on the following day. He however pointed out that

the argument by the High Court judge at page 496 of the record of appeal

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that the police did not record the appellants' cautioned statements in time

on the pretext that investigations were still in progress should not be

accepted as an exception to section 50(2) of the CPA, because such

argument is misconceived on account of the fact that there was no evidence

on record to that effect. As such, he urged the Court to expunge all the

cautioned statements of the appellants. Second, he said by expunging the

appellants' cautioned statements, the remaining vital evidence is that of

chain of custody which also is problematic. He stressed that the evidence in

relation to chain of custody and that in connection with transfer of exhibits

was not consistent and firm to ground a conviction. He further stressed that

the requirements and test established in the case of Paulo Maduka and

Four others V. Republic, Criminal Appeal No. 110 of 2007 (unreported)

were not met. He submitted further that search in terms of section 40 of the

CPA is ordinarily conducted during the day, not at night and that, should one

decide to search at night, he must obtain a court order. Additionally, he

submitted that in the case at hand search was done during the night and

there was no court order to that effect. He went on to submit that the seizure

certificates issued were defectve and worse, had no serial numbers in

compliance with PF 91 of the Police General Orders (the PGO). Since the

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issued certificates were defective then, the search and seizure exercises

were in contravention of section 38(3) of the CPA, thus irregular, he argued.

On that basis, he urged the Court to expunge from the record the

documentary evidence of search and seizure.

Having completed arguing the grounds of appeal, Mr. Wasonga sought

leave of this Court to address us on the issue partaining to the jurisdiction

of the trial court. Since the issue of jurisdiction can be raised at any point in

time even at the appellate stage, we granted him leave to argue the same.

On this point, he argued that in this case as reflected at page 16 of the

record of appeal, it appears that the proceedings were conducted in the

District court of Singida contrary to the DPP' s consent which directed the

case to be tried by the RM'S court of Singida. He stated further that apart

from the charge sheet being lodged in the RM'S Court of Singida, the notices

of appeal at page 377-390 are against the decision of the District Court of

Singida. For those reasons, he was of the view that the District Court of

Singida entertained the case without having jurisdiction.

For the foregoing suomlssions, Mr. Wasonga urged us to allow the

appeal, quash the convictions and set aside the sentences.

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 On her part, Ms. Luwongo, learned State Attorney out-rightly did not

support the appeal. She stated that the case against the appellants was

proved beyond reasonable doubt. While supporting the assertion that the

appellants' cautioned statements were taken and recorded outside the

prescribed time, she was of the view that it was impracticable in the

circumstance of the case to record the appellants' cautioned statements

within four hours while investigation was still in progress . The nature of the

case, the long investigation in the case, the complexity and the fact that the

appellants sometimes wer0 to move from one place to another, were the

reasons which impeded the statements not to be taken in time. On that

basis, she adamantly argued that it was for the prevailing conditions that is,

the nature of crime and the complications in the investigations that made

the appellants' cautioned statements be taken and recorded outside the four

hours under the provision of section 50(2)(a) of the CPA.

As to the issue of chain of custody, she submitted citing the Maduka's

case (supra) as authority that the purpose of chain of custody is to remove

the possibility of tampering with the exhibits. She stated that in the case at

hand, the requirements in Maduka's case (supra) were complied with. The

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exhibits had the identification marks lebelled MAN/IR/001/2014. Also, PW3

explained in detail on how he kept the exhibits since 9/7/2014 until when

the same were produced in court. On the foregoing, she mantained that the

chain of custody was not broken.

On the point of search and seizure, she submitted that section 40 of

the CPA cannot be read in isolation. The provision of section 42(1)(b)(ii) of

the Act gives an exception and explains how and when search can be

conducted in an emergency situation. She submitted that the circumstances

of the case at hand necessitated application of the exception. Nevertheless,

this was not an issue at the trial court nor was it one on appeal, she argued.

In the premises, she urged the Court to disregard the same making reference

to the case of DPP V. Nuru Mohamed Gulamrasul [1988] TLR.82. She

went on stating that the seizure certificates issued were proper. They

captured the gists and the contents of the form; that is, PF 91. After all, the

same were not objected at the trial court, she argued.

As to the issue of jurisdiction, she submitted that though it is true that

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the DPP's consent was given to RM s court of Singida, that will not vitiate

the proceedings because at page 407 and 459, the record shows that the

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case originated from the RM's court of Singida. It is however in record that

the case was tried by Senior Resident Magistrate. The reference to" District

Court of Singida in the notice of appeal" was therefore a typying error, she

argued. On that basis, she urged the Court to disregard the jurisdiction point

raised as the case was trlc'..i by the RM's court and not the District court as

alleged.

In rejoinder submission, Mr. Wasonga reiterated his submissions in

chief and added that since there was no evidence on record suggesting that

investigation was going on to justify the statements being taken out of time,

then, he was of the view that the statements should be expunged. On chain

of custody, he rejoined th;::"C there was no documentary evidence showing

how the exhibits were kept. There are mere words that the same were kept

by "KDU" up to the time when they were produced in court. On that basis

therefore, he urged us to find that the chain of custody was not consistent.

On the search and seizure certificates, he insisted that the search done

during night and without court order and there being no evidence to show

that circumstances allowec invoking the provision of section 42(b )(ii) of the

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CPA, was improperly conducted. The same ought to be expunged, he

argued.

We have thoroughly gone through the record of appeal and the

submissions made by the respective parties in this appeal. As the question

of jurisdiction is fundamental, we shall begin with that issue.

It is on record that the DPP's consent and certificate were addressed to

the RM's court of Singida and the case was tried by a Senior Resident

Magistrate. Indeed, the record at page 407 and 459 shows that the case

originated from the RM's court of Singida. At this juncture, we were

compelled to call for the original record to satisfy ourselves as to whether

the case was filed in the District Court of Singida or the Resident Magistrates'

Court of Singida and on perusal of the said original record, we were satisfied

that the case originated from the Resident Magistrates Court of Singida. With

great respect, taking all of these into account and the fact that the DPP's

consent was addressed to RM's Court of Singida and the case being tried in

the RM's Court of Singida by Senior Resident Magistrate as the record reflect

at page 407 and 459, we are convinced that the reference to" District Court

of Singida" was therefore a typying error and it was not intended that the

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case should be tried by the District Court of Singida. We find the issue of

jurisdiction raised to have no merit at all.

As for the issue of cautioned statements, we wish to be guided by the

provisions of sections of 50 and 51 of the CPA which state as follows:-

"{l) For the purpose of this Act, the period available

for interviewing a person who is in restraint in

respect of an ottence is -
a) Subject to paragraph (b), the basic period available for

interviewing the person, that is to say, the period of

four hours commencing at the time when he was taken

under restraint of the offence;

b) if the basic period available for interviewing the person

is extended ender section 51, the basic period as so

extended.

(2) In calculating a period available for interviewing a person

who is under restraint in respect of an offence, there shall not be

reckoned as part of that period any time while the police officer

investigating the offence refrains from interviewing the person, or

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causing the person to do any act connected with the investigation

of the offence-

(a) while the person is, after being taken under

restraint, being conveyed to a police station or other place

for any purpose connected with the investigation;

(b) for the purpose of-

(i) enabling the person to arrange, or attempt

to arrange, for the attendance of a lawyer;

(ii) enabling the police officer to communicate,

or attempt to communicate with any person whom he is

required by sect/en 54 to communicate in connection with

the investigation of the offence;

(iii) enabling the person to communicate, or

attempt to communicate, with any person with whom he

is, under this Act, entitled to communicate; or

(iv) arranging, or attempting to arrange, for the

attendance of a oerson who, under the provisions of this

Act is required to be present during an interview with the

person under restraint or while the person under restraint

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 is doing an act in connection with the investigation; (c)

while awaiting the arrival of a person referred to in

subparagraph (ivj of paragraph (b); or

(d) while the person under restraint is consulting with

a lawyer".

In this case, the appellants were arrested on 8.7.2014, but the cautioned

statements were recorded on the following day. The reasons for failure to

record the statement within time was stated to be the nature of crime and

the complications in the investigations. The fact that the appellants

sometimes were to move from one place to another as explained by PWl

and PW6 cannot be ignored. This shows that investigation was in progress.

That being the case, the delay was with plausible explanation and in the

circumstances, we find justification in recording the same outside the four

hours prescribed under the provision of section 50(2)(a) of the CPA which

provides an exception to tr.e four hours period prescribed by the law.

As to the issue of chain of custody, we make reference to the case

of Iluminatus Mkoka v. Republic [2003] TLR 245, which observed that

establishing a chain of custody is necessary to afford reasonable assurance

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that these exhibits tendered at the trial are the same as the ones recovered.

The purpose of it was to make sure that exhibits tendered are not tampered

with. See also, Paulo Maduka and Others vs. R., (supra) in which this

Court underscored the importance of proper chain of custody of exhibits and

that there should be:-

11•••••• chronological documentation and/or paper

trail showing the seizure/ custody, control
transfer analysis and disposition of evidence/ be
it physical or electronic. The idea behind
recording the chain of custody, is to establish
that the alleged evidence is in fact related to the
alleged crime rr

In the case at hand, it was testified that on 9/7/2014, the date when the

exhibits were found, the same were handed over to PW3 and that it is PW3

who lebelled them and took care of them up to the point were produced

and tendered in court by PW1. This being the circumstance, we are of the

firm view that the chain of custody was not broken.

The issue of search and seizure certificates cannot detain us. As

rightly pointed out by Ms. Luwongo, learned State Attorney, this ground was

never at all raised and canvassed in both the trial court and the first appellate

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court. We have keenly scanned the record in order to satisfy ourselves on

whether or not it was at any given time raised and discussed in the two lower

courts. We have found that it was never raised and/or discussed by those

courts. This cannot be condoned at this stage of the case.

In the case of Samwel Sawe v. Republic, Criminal Appeal No. 135

of 2004, which was cited in Juma Manjano v. Republic, Criminal Appeal

No.211 of 2009. (both unreported), the Court said:-

''.As a second appellate court, we cannot adjudicate on a matter which

was not raised as a ground of appeal in the first appellate court. The

record of appeal at page 21 to 23 shows that this ground of appeal by

the appellant was not among the appellants ten grounds of appeal

which he filed in the High Court. In the case of Abdul Athumani v.

R. [2004J TLR 151 the issue on whether the Court ofAppeal may decide

on a matter not raised in and decided by the High Court on the first

appeal was raised. The Court held that the Court ofAppeal has no such

jurisdiction. The ground of appeal therefore is struck out. //

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 Having analyzed the grounds of appeal, the submissions and given the

findings of the Court on the said grounds, we are satisfied that the appeal

has no merit and we dismiss it in its entirety.

DATED at DODOMA this 12th day of March, 2018.

M.S. MBAROUK
JUSTICE OF APPEAL

R.E.S. MZIRAY
JUSTICE OF APPEAL

J.C.M. MWAMBEGELE
JUSTICE OF APPEAL

I certify that this is a true cop of the Original.

E. F.
DEPUTY R ISTRAR
COURT O \ PPEAL

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