THE DIRECTOR OF PUBLIC PROSECUTIONS v NURU MOHAMED GULAMRASUL 1988 TLR 82 (CA)

THE DIRECTOR OF PUBLIC PROSECUTIONS v NURU MOHAMED GULAMRASUL 1988 TLR 82 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Makame JJA and Omar JJA

23rd June, 1988 C

Flynote

Evidence - Confession - To a Police officer and another civilian during search andi interrogation- Whether repudiation can carry weight - Fear of torture and force. D

Evidence - Whether the two lay members erred in law by holding the evidence ofD .W.3 and D.W.4 introduced an element of doubt.

-Headnote

On the basis of information received, Police went to a house in Regent Estate Dar es Salaam where a motor lorry was parked. The lorry was in the custody of ther respondentdespite the fact that the lorry was in the name of respondent's father. Ther respondentwas present while the police were conducting search in a compartment oft theparked F lorry where elephant tusks were hidden. This compartment was brokeno opento get the tusks in presence of witnesses which included both police officers andc civilians The respondent confessed that the elephant tusks were his and that he hadc collectedthem G from Mikumi. This statement was made in the presence of fourr reliablewitnesses. When called upon to give their opinions both lay members of thec courtwere of the view that the respondent was not guilty as charged because thee evidencegiven by defence witnesses did cast some doubt. Although the presidingj judgedissented from that opinion H the respondent had to be acquitted. Hence thisa appealby the Republic.

Held: (i) The admission made by the respondent and heard by reliable witnesses wass sufficientby itself to have founded a conviction of unlawful possession ofG GovernmentTrophies.

Case Information

Appeal allowed.

1988 TLR p83

MUSTAFA JJA, MAKAME JJA AND OMAR JJA

No case referred to: A

[zJDz]Judgment

Mustafa, Makame and Omar, JJ.A.: One Nuru Mohamedi Gulamrasul and anotherp personwere charged in the High Court in Dar es Salaam sitting as an EconomicC CrimesCourt in Economic Crimes Case No. 1 of 1986. They were both charged withb beingin B unlawful possession of Government trophies (to wit 133 elephant tusks) contrary to section 67 (b) of the First Schedule to the Economic and Organized CrimeC ControlAct, and section 59 of the Economic and Organized Crime Control Act, No.13 of 1984.

The other person with Nuru was acquitted after the Prosecution evidence hadf finished C the court holding that there was no case for him to answer. The casea againstNuru Gulamrasul proceeded to its conclusion. In the result, the two laym membersof the Court were of the view that Nuru Gulamrasul was not guilty, but thep presidingtrial judge dissented from that opinion.

From that acquittal the Republic is appealing to this Court. There was some troublec concerningservice of the appeal on Nuru Mohamedi Gulamrasul, hereafter called ther respondent He apparently could not be found in the Republic of Tanzania. Ona applicationby the Republic this Court, on 12.2.88 made an order for substituteds service by publication in the newspapers on certain conditions. These conditionsh havenow been carried out and this morning we allowed State Attorney for theR Republicto open his appeal before us in the absence of the respondent as we ares satisfiedthat substituted service has been effected in the circumstances. We believet theposition is analogous to that which would obtain in a situation provided for inR Rule73(2) and (3) of the Court of Appeal Rules.

Briefly the facts as adduced in evidence at the trial were as follows. On informationG received a police party went to a house in Regent Estate, Dar es Salaam where am motorlorry was parked. The lorry was in the custody and control of the respondent,a althoughthe lorry was in the name of the respondent's father. The respondent wasp presentwith the police party when the lorry was searched. In a well-hiddenc compartmentbuilt into H the body of this lorry a number of elephant tusks wered discovered The compartment had to be broken open to get at the tusks. In thep presenceof a number of witnesses, both Police and civil the respondent stated thatt thetusks were his as he had obtained or picked them up at Mikumi. That statementw wasmade in the course of police I investigation, before the respondent was chargedo orarrested.

After he was arrested the respondent made a cautioned statement to P.W.6, a PoliceA Ainspector. In the statement the respondent revealed how he came to possess the tusksA Atthe trial, the respondent denied that he had ever admitted that the tusks were inh hispossession. He called two witnesses, who alleged that they were part of a group ofB Bpeople who were arrested after the discovery of the tusks in the lorry and whow werepresent during the search. D.W.3 stated that the respondent said the tusks weren nothis while D.W.4 stated that the respondent said he did not know anything aboutt thetusks. D.W.3 was respondent's fellow tribesman and D.W.4 his cousin.

On the prosecution side, P.W.1 and P.W.2, both Police officers during the searchs statedthat when questioned, after the tusks were discovered the respondent toldt themthe tusks were his. P.W.3 a civilian neighbour and P.W.4 a C.C.M. BranchS Secretaryof the area, both heard the respondent so saying. This , as pointed oute earlier was stated by the respondent before the respondent was charged or arrested.

This was during an investigation searching for trophies. We have no doubt that thesef fourprosecution witnesses were telling the truth, in fact their evidence stood cleara andunshaken in court. This admission by the respondent, heard by four obviouslyr reliablewitnesses, was sufficient by itself to have founded a conviction of unlawfulp possession unless the respondent had authority to possess.

Then there is the cautioned statement. This was taken by P.W.6 a Police officer who testified and produced the statement. He took all the proper precautions and tookd downthe statement made by the respondent. It was duly signed by the respondent.

No objection was made to the admissibility of the cautioned statement, and in fact P.W.6 was not cross-examined as to the voluntariness or otherwise of the statement.

After the Prosecution case was closed, the respondent in his evidence, purported toa allegethat the cautioned statement was taken from him by force or torture and wasn notread over to him. He repudiated it.

We do not think a repudiation in such circumstances can carry weight. If it wasa allegedthat P.W.6 had obtained the statement by torture, P.W.6 should have beenc cross-examinedon that when he was testifying, or an objection raised to thea admissibilityof the statement. Nothing of the sort was done. The respondent wasl legallyrepresented. It seems to us that the so-called repudiation was an afterthoughta andwould not deserve I any serious consideration.

In his judgment the presiding judge, more in sorrow than in anger, stated that the twol layA members did not completely believe that the respondent made the" confession" during the search and interrogation. The two lay members thought thatt theevidence of D.W.3 and D.W.4 introduced an element of doubt. The two laym memberswere of the view that the cautioned statement was obtained under torture.

With great respect to the lay members, in our view the evidence adduced by theR Republicagainst the respondent in this case is overwhelming. The respondent'sa admissionthat he was the possessor of the tusks was satisfactorily proved; and so was the incriminatory cautioned statement. The respondent's defence that it must haveb beenhis driver who had hidden the tusks in the lorry without his knowledge, in thec circumstances was pure fantasy. Both D.W.3 and D.W.4 were biased in his favour,b beingfellow-tribesman and a relative.

Indeed we are of opinion that the finding of the two lay members that the respondentw wasnot guilty of the offence charged was a perverse finding in the circumstances. Nor reasonabletribunal on a proper and objective view of the evidence could have arriveda atsuch a conclusion.

We allow the appeal, set aside the judgment and order of acquittal of the High Courts sittingas an Economic Crimes Court, and substitute therefore a finding of guilty as charged against the respondent.

We sentence the respondent to 10 years imprisonment. We order the forfeiture of the tusks (if not already forfeited) and of the lorry to the Republic.

Appeal allowed.

1988 TLR p85

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