Mwinyi Jamal Kitalamba @ Igonza & Others vs Republic (Criminal Appeal 348 of 2018) [2020] TZCA 307 (16 June 2020)

Key Facts

Issues

• The court evaluated whether the cautioned statements were recorded outside the four-hour window permitted by section 50 (1) of the Criminal Procedure Act. The prosecution justified the delay by citing logistical challenges, including transporting appellants to the police station and ongoing investigations. The court found the delay was justified under similar precedents (e.g., Yusuph Masalu @ Jiduvi v. Republic) and upheld the statements' admissibility despite the time violation.
• The court examined whether the charge sheet for unlawful possession of government trophies was defective due to incorrect legal citations and typographical errors in the date of the alleged offense. The appellants argued that the charge sheet improperly cited section 86 (2) (c) (ii) of the Wildlife Conservation Act and incorrectly referenced Paragraph 14 (d) of the EOCCA for an economic offense. The court found that the error in citing the legal provision was curable under section 388 of the Criminal Procedure Act and that the reference to the EOCCA was valid under transitional provisions of the Wildlife Conservation Act. Additionally, the court dismissed the argument that defects in other counts invalidated the third count.
• The court assessed whether the prosecution met the burden of proof for unlawful possession. Key evidence included independent witness testimony (PW2) confirming the tusks were retrieved from the fourth appellant's farm in the presence of the other appellants, as well as retracted confessional statements deemed voluntary by the trial court. The court concluded that the evidence established the appellants' control over the tusks, noting that the fourth appellant's farm was the concealment site and that all appellants were aware of the tusks' presence. The court also dismissed the appellants' alibi claims and typographical error in the charge's date as immaterial.
• The court addressed the admissibility of the seizure certificate, which was not read out at trial despite being admitted in evidence. The respondent conceded this defect, and the court ruled that the omission violated the appellants' right to a fair trial by denying them knowledge of the evidence. The certificate was expunged, but the court noted that the physical evidence (elephant tusks) and independent witness testimony sufficiently supported the prosecution's case without relying on the certificate.

Holdings

• The court upheld the appellants' convictions for unlawful possession of government trophies, finding sufficient evidence to support the charges despite their defenses.
• The court corrected the sentence, noting that the punishment was incorrectly based on section 86(2)(c)(ii) instead of section 86(2)(b), requiring a fine of TZS 2,288,250,000.00 or 20 years' imprisonment.

Remedies

• The Court corrected the legal basis for sentencing, stating the offence should have been charged under section 86(2)(b) of the Wildlife Conservation Act. Each appellant was ordered to pay a fine of TZS 2,288,250,000.00 (equivalent to ten times the value of the seized tusks) or, in default, serve 20 years' imprisonment.
• The Court of Appeal upheld the appellants' convictions for unlawful possession of government trophies but adjusted the sentences. The original 20 years' imprisonment was to be served in default of payment of a fine of TZS 2,288,250,000.00 (ten times the value of the seized tusks). The appeal was otherwise dismissed as lacking merit.

Monetary Damages

Legal Principles

• The Court held that while the charge was technically defective for citing the wrong section of the WCA, the error was curable under section 388 of the CPA. This allowed the conviction to proceed as the appellants were not prejudiced by the procedural misstatement.
• The Court applied the principle that possession requires awareness and control over the goods. All five appellants were found to have exercised control over the tusks by retrieving, concealing, and directing authorities to their location, satisfying the actus reus for the offence of unlawful possession.
• The Court emphasized that the prosecution met the standard of proof beyond reasonable doubt. Independent witness PW2's testimony, combined with a well-documented chain of custody for the tusks, provided sufficient evidence to sustain the appellants' convictions for unlawful possession of government trophies.
• The Court determined that the appellants' confessions and coordinated efforts to conceal the tusks demonstrated knowledge of their unlawful actions. This fulfilled the mens rea requirement, as their conduct indicated intent to possess government property without authorization.
• The Court of Appeal ruled that the seizure certificate (Exhibit P.3) was inadmissible due to non-compliance with the right to know evidence, as it was not read after admission. However, the cautioned statements were admissible under section 50(2) of the CPA due to justified delays in recording them. This highlights the importance of procedural compliance in admissibility standards.

Precedent Name

• Anania Clavery Betela v. Republic
• Simon Ndikulyaka v. Republic
• Robinson Mwanjisi & Three Others v. Republic
• David Athanas @ Makasi and Joseph Masima @ Shandoo v. Republic
• Issa Hassan Uki v. Republic
• Moses Charles Deo v. Republic
• Yusuph Masalu @ Jiduvi & Three Others v. Republic
• Rashid Amir Jaba & Another v. Republic
• Vuyo Jack v. Director of Public Prosecutions
• Song Lei v. Director of Public Prosecutions

Cited Statute

• Criminal Procedure Act, Cap. 20
• Written Laws (Miscellaneous Amendments) Act No. 3 of 2016
• Wildlife Conservation Act, No. 5 of 2009
• Economic and Organised Crime Control Act, Cap. 200 R.E. 2002

Judge Name

• Ndika, J.A.
• Levira, J.A.
• Mugasha, J.A.

Passage Text

• All told, we sustain the appellants' respective convictions as we are satisfied that the charge on the third count against each of them was sufficiently proven. Their defences of mere denial and alibi were duly considered by the trial court and the first appellate court but they could not prevail over the positive evidence for the prosecution.
• PW2 testified that the first, second, third and fifth appellants took the police officers and game rangers to the spot where they had hidden the tusks. Her evidence in particular, being that of an independent witness, is unblemished and reliable. It is a single piece of evidence confirming that the tusks were retrieved from the fourth appellant's farm in the presence of the other four appellants who had led the police officers and game rangers to that spot.
• "...for a person to be found to have possession, actual or constructive of goods, it must be proved either that he was aware of their presence and that he exercised control over them, or that the goods came, albeit in his absence, at his invitation and arrangement. But it is also true that mere possession denotes knowledge and control."