June 2, 2020
Faustine Kapama, Tanzania Daily News
The Court of Appeal has dismissed the appeal lodged by a taxi driver, Anania Betela, who was sentenced to 20 years imprisonment for being found in unlawful possession of 28 pieces of elephant tusks, which are government trophies, worth 198m/-.
Justices Stella Mugasha, Gerald Ndika and Winfrida Korosso ruled against Betela, the appellant, after upholding his conviction of the offence. They, however, made changes on sentence imposed after noting a minor error made by the trial court, the Resident Magistrate's Court of Coast Region at Kibaha.
The trial court had initially ordered the appellant to serve the 20-year-jail term and pay 1.98bn/-as fine.
In their judgment, however, the justices of the appeal court changed such a sentence and directed the appellant to serve the custodian sentence in default of paying the fine in question.
"We conclude that the appeal lacks merit save for our finding on propriety of the sentence.
We uphold the appellant's conviction and order that the 20 years' imprisonment be served in default of payment of the 1.98bn/-fine.
Except for the adjustment of the sentence, the appeal stands dismissed," they ruled.
During hearing of the appeal, the appellant had complained, among others, that the chain of possession of the tusks was broken and were illegally admitted in court as evidence.
He also charged that some of documentary exhibits were admitted in evidence without being read out in court.
In their judgment, the justices of the appeals court noted that there was no chronological documentation or paper trail showing the seizure, custody, control, transfer, analysis and disposition of the tusks.
Nonetheless, they said, the testimonial accounts of prosecution witnesses sufficiently explained the handling of the tusks from their seizure to exhibition at the trial.
Referring to different decided cases, the justices were of the views that elephant tusks constitute an item that cannot change hands easily and thus it cannot be easily altered, swapped or tampered with.
"Accordingly, we find no substance in the grounds of appeal as we are satisfied that the prosecution sufficiently proved that the tusks exhibited at the trial were the ones seized from the car at the petrol station at Vigwaza," they ruled.
It was alleged before the trial court that on May 23, 2014 at Vigwaza Village within Bagamoyo District in Coast Region, the appellant was found possessing 28 pieces of elephant tusks, which are government trophies, weighing 33.6kg valued at 198m/-, the property of the government, without a permit.
Facts show that Veneranda Njokantala, a nurse working at Rwembe Village in Kilosa, engaged the appellant to drive and operate her saloon car, as a taxicab. The arrangement was that the appellant would only ply within Kilosa and that he would need her permission for trips outside Kilosa.
On May 22, 2014, Njokantala expected the appellant to remit to her weekly collection from the business, but the latter did not do so. On the following day, his phone was unreachable and he was nowhere to be seen.
Without her knowledge, the appellant had left Kilosa and was driving the taxicab on his way to Dar es Salaam. As fate would have it, the car was involved in an accident on May 23, 2014 at Vigwaza village located between Mlandizi and Chalinze along the Tanzania-Zambia highway.
According to a security guard at a nearby TSN petrol station, the accident rendered the car immobilized. The appellant, then, pushed the car from the highway and parked it at the petrol station where he remained there until when police officers got there.
A senior police officer in charge of investigation at the Head Office in Dar es Salaam travelled along with two junior police officers from the city to the petrol station the same day following a tip by a whistleblower that the appellant's car had some illegal consignment.
On arriving, they found the car but the appellant fled the scene upon noticing the police officers. The appellant was apprehended and brought back a short while later. There and then, the car was searched and a red-black bag was retrieved from the boot, its contents being 28 pieces of elephant tusks.
The certificate of seizure of the tusks was signed by four persons including the appellant. According to the police officer, the appellant along with the tusks were conveyed on May 24, 2014 to the supposed Task Force Offices at Mikocheni in Dar es Salaam.
Later that day at the said offices, a detective sergeant of police interrogated the appellant and recorded his cautioned statement by which he confessed to have been found in possession of the seized tusks. The appellant was subsequently tried and convicted accordingly.