By FAUSTINE KAPAMA-Judiciary
THE Court of Appeal has dismissed the appeal lodged by two Poachers, who were sentences to either pay 172m/- or go to jail for 20 years for unlawful possession of two pieces of elephant tusks, which are government trophies.
Justices Shaban Lila, Lugano Mwandambo and Patricia Fikirini ruled against Matata Nassoro and Robert Thomas, alias Horondi, the appellants, after holding that the two courts below, the Babati District Court and High Court, made concurrent findings of facts and considered the prosecution witnesses credible.
“We find no reason to interfere with their findings in the absence of any indication that such concurrent findings resulted from mis-directions or non-directions on the evidence occasioning miscarriage of justice. All said and done we find the appeal without merit and we dismiss it in its entirety,” they said.
During hearing of the appeal, the appellants had complained, among others, that there was variance between the charge and the evidence of the place where the arrest occurred, there was wrong admission of some exhibits and the case was not proved beyond reasonable doubt due to contradiction.
In their judgment delivered in Arusha Court Registry recently, the justices noted that there was no dispute that there was variance between the charge and the evidence of the place where the arrest occurred.
However, they agreed with the prosecution’s submissions that the appellants were not prejudiced and that they were able to prepare their defence.
This is because, according to the justices, the appellants knew the charges against them and that they were arrested in Magugu ward on the Babati-Arusha road at the junction of Mamire village.
Moreover, they said, there was overwhelming evidence that the appellants were caught read-handed, searched and found in possession of two elephant tusks.
“A certificate of seizure was prepared followed by counter-signing by the appellants (and some prosecution witnesses). The very night, the appellants were taken to Babati Police Station. In the upshot, we find no merit in this ground and dismiss it,” the justices said.
As regard to the complaint on irregular admission into exhibit the seizure certificate for failure by the trial magistrate to conduct an inquiry, they held that there was no such need because an inquiry could only be conducted where there is an objection to tendering and admission of a cautioned statement.
On non-compliance with section 38 (3) of the Criminal Procedure Act (CPA) for failure to issue a receipt after search and seizure, they pointed out that it was sufficient under the circumstances in view of the fact that the appellants counter-signed the certificate containing a list of items seized from them.
The justices agreed with the appellants on the complaint regarding the other exhibits whose contents were not read aloud in court as required by law before being admitted and proceeded to expunge them from the records.
They were, however, quick to point out that the expunging of the exhibits has no material effect on the prosecution case because the oral evidence given could still suffice to prove the case in the absence of documentary evidence and sustain conviction.
“From our examination of the record, there was still the evidence of (the first prosecution witness) whose oral evidence clearly explains how the appellants were arrested, searched and (seizure certificate) generated after retrieving the tusks,” the justices said.
Similarly, they said, another witness described how he carried out the valuation process resulting in valuation certificate and there was also sufficient oral account explaining the movement of the exhibits from the day they were entrusted to him up to the time those tusks were tendered in court.
“The two courts below made concurrent findings of facts and considered the prosecution witnesses credible. We find no reason to interfere with their findings,” the justices said.
On November 5, 2017, at about 17:00 hours, one police officer received information from two Park rangers, that there was a person selling elephant tusks. Acting on the information, the police set a trap and agreed to meet appellants at Mamire village, pretending to be prospective buyers.
Such officers acting as buyers, arrived at around 20.00 hours, carrying a weighing scale. The appellants came in a motorcycle and parked about 20-30 meters from where the buyers parked their vehicle. The appellants approached them, each carrying a piece of luggage.
Pretending to measure the weight, such officers checked the luggage to satisfy themselves that it contained elephant tusks. Satisfied, they proceeded to arrest the appellants and the motorcycle that brought them left in the process.