By FAUSTINE KAPAMA, Judiciary
THE Court of Appeal has
dismissed the appeal lodged by two poachers, Jamali Msombe and Nicholaus Bilali,
alias Myovela who were each sentenced to 20 years imprisonment for unlawful
possession of four piece of elephant tusk, which are government trophies.
Justices Shaban Lila,
Ignas Kitusi and Abrahaman Mwampashi ruled
against the poachers, the appellants, after holding that the case against them
was proved to the hilt by the prosecution during the trial. “We find that the
appeal lacks merit and we accordingly dismiss it in its entirety,” they
declared.
According to them,
Msombe admitted in his defence evidence before the trial court that he is the
one who took the four pieces of elephant tusks to a room in a certain guest
house where the same were retrieved by a game officer and his team during the
search that was conducted therein.
“In his admission,
(Msombe) also named (Bilali) as his partner, the evidence which was
corroborated by the evidence from (two other prosecution witnesses),” the
justices said.
During hearing of
appeal, the appellants had complained, among others, that the room where the
trophies were found was searched without a warrant. Indeed, the justices could
not find anything suggesting that the searching team was equipped by a search
warrant.
However, having
carefully examined the evidence on record, they were of a considered view that
under the circumstances of the case the fact that the room was searched without
a search warrant could not vitiate the conviction of the appellants.
“The reason pushing us
to (such) conclusion is that, under the circumstances of this case, the
procedural flaws in searching (the) room without a search warrant is not fatal
(due to) the fact that the search was done in the presence (of Msombe),” they
said.
Besides that, the
justices said, Msombe admitted that the four pieces of elephant tusks in
question were taken therein by him and that they were found in the room.
“We are of a settled
view that such a procedural flaw is rendered irrelevant when it is not disputed
by (Msombe) that the tusks were taken into (the) room by him before being found
therein in his presence,” they said.
As to the complaint that
the burden of proof was shifted to the appellants, the justices could not agree
with them and the prosecution that there was any part in the trial court's
judgment, where it could even be inferred that the burden was shifted to the
appellants.
They revisited a part
of the trial court judgment referred to by the prosecution and the appellants
to support their position and observed no any indication that the burden was
shifted to the appellants.
“At that part of the
trial court judgment, the trial magistrate evaluated the defence evidence and
disagreed with (Msombe) that he took the bag to (the) room not knowing what was
in the bag. The trial court found it illogical (he) could have carried the bag
therein without knowing its content,” they said.
Likewise, the justices
noted, the defence by Bilali disassociating himself from the offence, was
rejected by the trial court basing on the evidence given by Msombe and other
two prosecution witnesses that linked him to the offence.
They also found with no
merit the complaint that there was no enough evidence to connect Bilali with
the offence. The justices found that the evidence tendered by one prosecution
witness, who is a brother with Msombe was not only straight and not shaken, but
was also well corroborated by Msombe.
In his defence evidence,
Msombe had told the trial court that he called his brother and asked him to
take the bag containing the tusks from Bilali to the Guest House.
“It is our observation
that from the evidence on record the mere fact that (Bilali)was not arrested in
actual possession of the tusks as it was for (Msombe), does not save him from
the crime in question,” the justices said.
They further noted that
there was sufficient evidence from prosecution witnesses and Msombe tightly
connecting Bilali to the offence.
The justices recalled
from the evidence of a motor cycle hire business rider, commonly known as
"Bodaboda", who told the trial court how on January 19, 2017 gave the
appellants a ride to Kidamali. He also testified that the two had in their
possession a bag though he did not know its contents.
There was also evidence
from the brother with Msombe that on the same day, Bilali handed to him the bag
at Transformer Semtema so that he takes it to Msombe who was at the guest house
waiting for the bag in question.
“The most disastrous
evidence against (Bilali) came from (Msombe who) did not only admit to have
been found in possession of the tusks but named (Bilali) as his partner. The
admission by (Msombe) which was made on oath was best evidence not only against
him but against Bilali too,” the justices said.
It was alleged by
prosecution that on January 19, 2017 at Frelimo area within the District and
Region of Iringa, the appellants were found in possession of four pieces of elephant tusks valued at
33,435,000/-, the property of the government of the United Republic of
Tanzania, without any permit or license.
Hakuna maoni:
Chapisha Maoni