Francis Douglatius vs Republic (Criminal Appeal No. 13 of 2023) [2026] TZCA 417 (16 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARIJA. 3.A.. MASHAKA. J.A. And ISSA. J.A.l CRIMINAL APPEAL NO. 13 OF 2023 FRANCIS DOUGLATIUS ............................ ........................... APPELLANT VERSUS THE REPUBLIC..... ............. ....................................... .......... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Corruption and Economic Crimes Division at Dar es Salaam) flsava. J.^ dated the 12th day of December, 2023 in Economic Case No. 12 of 2022 JUDGMENT OF THE COURT 9th October, 2025 & 16th April, 2026 MWARIJA. J.A.: In the High Court of Tanzania, Corruption and Economic Crimes Division, the appellant, Francis Douglatius was charged with the offence of trafficking in narcotic drugs contrary to section 15 (1) (a) of the Drug Control and Enforcement Act, Chapter 95 of the Revised Laws (the DCEA) read together with paragraph 23 of the First Schedule to, and section 57 (1) of the Economic and Organized Crime Control Act, Chapter 200 of the Revised Laws (the EOCCA). It was the prosecution case that on 27/8/2019 at Mailt Moja Shell area within Kibaha District in the Coast Region, the appellant was found trafficking in 165.68 kilograms of cannabis sativa (bhang) using a motor vehicle with registration No. T 855 CYP, Make; Toyota Prado. The appellant denied the charge and in order to prove its case, the prosecution called a total of eight witnesses and relied also on ten exhibits. On his part, apart from his evidence, the appellant called two witnesses who testified in support of his defence. Having considered the evidence of the prosecution and the defence, the trial court was satisfied that the prosecution had proved its case beyond reasonable doubt. It therefore, convicted and sentenced the appellant to the statutory minimum term of thirty years imprisonment. Aggrieved by the decision of the trial court, the appellant has preferred this appeal. The background facts leading to the arrest, and trial of the appellant may be briefly stated as follows: On 27/8/2019 F1654 D/Sgt Kasimu (PW3) was heading a patrol team at the old stand, Maili Moja area, in Kibaha town. He was together with other police officers including G.3446 CpI Ayubu Ally (PW6). While at the patrol, PW3 was informed by the Kibaha District OCCID that, he had received information that a motor vehicle with registration No. T 855 CYP (the motor vehicle) travelling from Morogoro and destined for Dar es Salaam, was carrying bhang. PW3 alerted his patrol team and ordered them to apprehend the motor vehicle upon its arrival. Shortly after that information; PW3 and his colleagues saw the said motor vehicle. Since they had a police car, they started to pursue it but the driver of the motor vehicle turned off the road and drove until he knocked down a kiosk owned by one woman, a "mama lishe" (street food vendor) and stopped. The driver was consequently arrested. When the motor vehicle was searched, it was found to have carried nine bags containing leaves suspect to be bhang. The bags were seized in the presence of one Ally Salum Jonas (PW8). Thereafter, the driver together with the motor vehicle and the seized bags were taken to Kibaha Police Station. The motor vehicle was later admitted in evidence as exhibit P4 while the suspected bags and a seizure certificate were admitted in evidence as exhibits P2 and P5 respectively. Exhibits P2 and P4 shall hereinafter be referred to interchangeable as the bags and the motor vehicle, respectively. The driver was locked up and later charged as stated above. According to the evidence of Eliya Benjamin Kihwelo (PW7), a mechanic, exhibit P4 was at his garage a day prior to the date of the incident, having being taken there by its owner for repairs. He averred that, the same was taken out of the garage without his authority. He added that, on 27/8/2019, he was at the garage until 10:00 a.m. when he left and could not therefore, establish who, among the other five mechanics who remained at the garage, caused the motor vehicle to come into the possession of the person who was found driving it. From the evidence of PW3, PW6 and PW8 the person who was arrested with the motor vehicle was the appellant. They testified that, the evidence to that effect is strengthened by the fact that, he signed the seizure certificate (exhibit P5). At the police station, the bags were handed over to WP 3665 Sgt Mwamvita (PW2), who was at the time, the exhibits keeper, for safe custody. It was her evidence that, on 30/8/2019, she handed over exhibit P2 to PW3 who in turn, handed it to PW4 for him to take it to the Chief Government Chemist's Laboratory for analysis. On their part, both PW3 and PW4 supported the evidence of PW2 on that aspect. PW4 added that, he transported the exhibit to the Chief Government Chemist Laboratory at Dar es Salaam and handed it to Gabriel Jacob Gabriel (PW1), a Chemist. On his part PW1 testified that, after having received the exhibit, he weighed the same and found that, it weighed 165.68 kilograms. He testified further that, he took a sample from each of the nine bags and after having analysed each of the samples, he found that the bags contained narcotic drugs, commonly known as cannabis sativa (bhang). He tendered his report of analysis and the same was admitted in evidence as exhibit PI. In his defence, the appellant pleaded alibi. He testified as follows: On 27/8/2019, he went with his father to their family shamba at Kongowe, Mbweni area. He later went back home at 07:00 hrs. Shortly thereafter, he received a phone call from a girl called Beth Njau inviting him to her residence. He went as invited and had a good time with her. While there with her, four persons, whom he identified to be police officers, lead by one Timbuka, the OCCID Kibaha, entered and found him in the act of having sexual intercourse with the said woman. The said Police Officers arrested him immediately. He identified one of the other three police officers to be PW3. He went on to state that, he was taken to Kibaha Police Station by the three police officer while the OCCID remained with Beth Njau. At the police station, he found PW8 and one Salum Kagembe. On 28/8/2019 he was removed from lockup and taken to another building where he was severely tortured and informed by the police who tortured him that, he made a big mistake of involving himself in a love affair with the girl friend of their boss, the OCCID. The next morning, he was taken before the OCCID who required him to sign a statement. He refused and as a result, was taken to the Regional Police Office, where he was informed that, he was involved in the theft of exhibit P4 and possession of bhang. Upon his denial of the allegation, he was taken to a dark room where he was again tortured to the extent of fainting. It was his defence that, he was not the driver of exhibit P4 at the time when it was apprehended at Kibaha. According to him, the motor vehicle was being driven by PW7 who was with one Salum Kagembe; that, on 14/8/2019 at 3:00 a.m. the said person (PW7), was involved in a traffic offence. He denied PW7's contention that, within the whole period in which exhibit P4 was at the garage for repair, the same had never been taken out except on 27/8/2018. Relying also on exhibit P6, he stated that, exhibit P4, was not the one which was involved in the accident of knocking the mama lishe's kiosk rather, it was motor vehicle registration No. T855 CYB which was involved as reflected in exhibit P6. With regard to the search, the appellant contended that, PW8 did neither see him at the scene nor witnessed a search because in his evidence, he said that, he found the bags on the ground suggesting that, he did not know from which motor vehicle the same were offloaded. He testified further that, while the IR No. in respect of the motor vehicle, the subject mater of the charge, is KBA/IR/3238 of 2019, the tendered motor vehicle had IR No. KBA/IR/3238 of 2019. The defence of the appellant was supported by his father, Deogratius Malima Musomanyoto (DW2). He testified that, on 27/8/2019, he went with the appellant to their family shamba at Kongowe, Mbweni area. They worked in the shamba until at 6:00 p.m. when they went back home. After dinner at about 9:00 p.m., he retired to bed. Before he became asleep however, he heard a sound of a motorcycle and learnt that one Revocatus, a friend of the appellant had arrived. The duo went out and thus decided to lock the door and went to sleep until the next day. Next morning, he found that, the appellant and his friend were not at home, Upon inquiring he was informed by Revocatus that, the appellant was at Kibaha Police Station following accusations of having been involved in theft. In his judgment, the learned trial Judge found, first, that the prosecution had proved, through PW1, that what was contained in exhibit P2 was narcotic drugs, that is; cannabis sativa or bhang. Secondly, the fact that exhibit P2 was found in the motor vehicle, was proved by PW3, PW6 who searched it in an emergency situation. Thirdly, that the search and seizure was made in the presence of the appellant and PW8 as evidenced by exhibit P5, the seizure certificate which the appellant did not dispute that he signed it. Fourthly, the learned trial Judge found further that, the chain of custody of exhibit P2 was established through oral account of the prosecution witnesses. With regard to the appellant's defence of alibi, it was the finding of the learned trial Judge that, since the appellant did not cross- examine the witnesses (PW3, PW6 and PW8) who testified that he was arrested at Kibaha, the allegation that his arrest followed his being found by the OCCID at the residence of one Beth Njau, was a poorly authored defence and did not cast any reasonable doubt against the prosecution case. It was on the basis of the above stated findings that, the appellant was convicted and sentenced as earlier on stated. In this appeal, the appellant has lodged a memorandum of appeal consisting of the following six grounds of appeal: "1. That, the iearned tria l Judge erred in law to convict the appellant in economic case which was tried by the court that had no jurisdiction. 2. That, the learned tria l Judge erred in law and facts to hold that exhibit P2 was found and retrieved from the appellant basing on the prosecution evidence which [ was insufficient]. 3. That, the learned tria l Judge erred in law and facts to convict the appellant basing on the prosecution evidence which was illegally obtained. 4. That, the learned tria l Judge erred in law and facts to convict the appellant basing on cannabis sativa weighing 165.68 kilogram s in absence o f a proper account o f the chain o f custody. 5. That, the learned tria l Judge erred in law to disregard the defence o f a lib i which was legally raised by the appellant without showing how that defence was proved false by the prosecution evidence. 6 . That, the learned tria l Judge erred in law and facts to convict the appellant in a case which was not proved beyond reasonable doubt by the prosecution against the appellant." Together with the memorandum of appeal, the appellant filed his written arguments, which is a permissible practice where an appellant is not represented by an advocate. At the hearing of the appeal, the appellant appeared in person, unrepresented while the respondent Republic was represented by Ms. Fidesta Uisso, learned State Attorney. The appellant adopted his written arguments and opted to let the learned State Attorney submit in reply to his grounds of appeal and would thereafter make a rejoinder, if necessary. In the 1st ground of appeal, the appellant submitted that his trial was a nullity for want of the DPP's consent. He argued that, although there is a consent of the Regional Prosecutions Officer in the record, that consent, which was signed before the committal proceedings had been conducted, is invalid because the record does not show that it was received by the court. Citing the case of Salum Andrew Kamande v. Republic (Criminal Appeal No. 513 of 2020) [2023] TZCA 133, he submitted that, since the record is silent on how that consent document found its way in the record of the case at the High Court, the trial was conducted without a consent hence a nullity. In reply, Ms. Uiso submitted that, the consent document which was signed by the Regional Prosecutions Officer, was for the trial of the appellant and therefore, the trial court had jurisdiction to try the case. He submitted further that, although it is true that the consent was given before the information was filed, having been lodged on 3/8/2022, she insisted that, it was for the trial of the appellant. 10 We need not take much time in disposing this ground of appeal. It was not disputed that the record contains a consent document signed by the Regional Prosecutions Officer of the Coast Region. It states as follows: % MKUNDE MSHANGA, Regional Prosecution O fficer Coast Region, in term s o f section 26 (2) o f the Econom ic and Organized Crime Control A ct [Cap 200 R.E. 2019] read together with Paragraph 13 o f Part III o f the Government Notice No. 496H o f 2021 DO HEREBY CONSENT to the prosecution o f FRANSISI DOUGLATIUS who is charged for contravening the provisions o f section 15 (1) (a) and (3) (iii) o f the Drugs Control and Enforcem ent A ct [Cap 95 R.E. 2019] read together with paragraph 23 o f the First Schedule thereto, and section 57 (1) and 60 (2) o f the Econom ic and Organized Crime Control A ct [Cap 200 R.E. 2019] the particulars which are stated in the charge." It is imperative to state that, the offence with which the appellantwas charged, is triable by the High Court, Corruption and Economic Division, by virtue of the provisions of section 3 (1) of the EOCCA which provides as follows: ii "3 - (1) There is established the Corruption and Econom ic Crim es Division o f the High Court with the Registry and sub-registries as may be determ ined by the Chief Justice, in which proceedings concerning corruption and econom ic cases under the A ct may be instituted . " In this case, the offence would have been tried by the subordinate court which conducted committal proceedings if the DPP or his delegate had transferred it to that court under section 12 (3) of the EOCCA. That was not done and the consent remained to be for the trial of the appellant by the High Court, Corruption and Economic Crimes Division. The argument that the consent document is invalid because it was signed before the proceedings in the High Court had commenced is therefore, a misconception of the law. The second reason given by the appellant that the consent document is invalid because it was not formally lodged in court is also, in our view, misconceived. The document was filed together with the information, both of which were signed on 6/6/2022 and according to the court's official rubber stamp, were received on 3/8/2022. The complaint by the appellant in this ground of appeal is for these reasons unfounded and is thus dismissed. As for the complaint in the 5th ground of appeal, the appellant's argument was that, the trial court ignored his defence as regards the circumstances under which, according to him, was arrested by the OCCID and other police officers. He contended further that, he was charged because he was found having a love affair with the woman whom, he said, was the OCCID's girlfriend. He complained that, his defence evidence was ignored by the trial court without giving reasons as to why his evidence did not raise a reasonable doubt against the prosecution case. Ms. Uiso's response to the arguments on that ground was brief. She submitted that, the trial court considered that defence at page 340 of the record of appeal. According to the learned State Attorney, the presence of the appellant at the scene of crime was proved by the police officers (PW3 and PW6) who stopped and searched the motor vehicle as well as the evidence of PW8 who was an independent witness. The complaint by the appellant in this ground is, in our view, also devoid of merit. As submitted by the learned State Attorney, the trial court considered his defence at page 340 of the record. In rejecting it, the learned trial Judge gave the reason that, from the evidence which was adduced by the witnesses who were at the scene 13 of crime at Kibaha, the person who was arrested with exhibits P2 and P4 was the appellant and that such evidence was not challenged by way of cross-examination. He thus found that the appellant's defence of a lib i was a mere attempt to exonerate himself from the offence. He cited the case of Nyerere Nyague v. Republic (Criminal Appeal No. 67 of 2010) [2012] TZCA 103 in support of his finding. Having considered the evidence of PW3, PW6 and PW8, we respectfully agree with the trial court and find that, the appellant's defence of a lib i was an afterthought. From the evidence, only one person was arrested after the motor vehicle had been apprehended. He was the driver of that motor vehicle and the only suspect who was taken to police station together with the motor vehicle and exhibit P2. In the circumstances, the defence by the appellant that he was arrested elsewhere is indeed a defence which did not raise any reasonable doubt in the prosecution case. This is more so because, his name and signature appears in exhibit P5, the document which was admitted in evidence without objection. This ground is thus also dismissed. On the 2nd, 3rd , 4th and 6th grounds, the appellant challenges the evidence of the prosecution witnesses, that exhibit P2 was retrieved from the motor vehicle. He submitted that, the evidence of PW3, PW6 14 and PW8 was contradictory in that, while PW3 and PW6 testified that the bags were found in the motor vehicle, PW8 said that he found them on the ground and later the police officers loaded them in the motor vehicle. Citing the cases of Shabani Daudi v. Republic, Criminal Appeal No. 20 of 2001, Sahoba Benjuda v. Republic, Criminal Appeal No. 96 of 1989 (both unreported) and Michael Haishi v. Republic [1992] TLR 92, he argued that, such contradiction affected the credibility of the evidence of the said witnesses. He argued further that, the evidence of PW7 was doubtful because neither the person who entrusted him with the motor vehicle nor its owner was called to testify. He aiso challenged the validity of his cautioned statement, arguing that, after the admission in evidence of that statement on 26/7/2023, the witness who tendered it (PW6), appeared for continuation of hearing on 20/9/2023 and read out the contents of the statement while on that subsequent hearing date, the court did not remind him that he was still on oath. The appellant faulted also the trial court for basing his conviction on exhibit P2 while according to him, the chain of custody of that exhibit was not established. He argued that the police officer who seized the exhibit ought to have handed it to the charge room 15 officer whom, he said, according to Police Geneal Orders (PGO) is the one who had the duty of handing it over to the exhibits keeper after recording it in the occurrence book. He argued further that, according to the record at page 63, the exhibit remained at the charge room until the next morning when the exhibits keeper (PW2) arrived and received it from PW3. He questioned the act of PW3 of remaining with the exhibit the whole night without handing it over to the charge room officer. In reply, starting with the complaint that the prosecution evidence was contradictory, the learned State Attorney submitted that, the contradiction on the particular spot at the scene of crime where the witnesses found the bags was minor. As for the complaint that PW6 was not reminded that he was still on oath when he appeared on the subsequent date to continue his evidence by reading the contents of exhibit P10, the learned State Attorney argued that, the complaint was unnecessarily raised because the statement was not acted upon to found the appellant's conviction. On the prosecution's omission to call the owner of motor vehicle or the person who entrusted the same to PW7, it was Ms. Uiso's submission that, from the nature of the offence, the said persons were not material witnesses. 16 Responding further to the complaints on the chain of custody, the learned State Attorney argued that, the oral evidence of the witnesses as well as the documentary exhibits, established the chain of custody. According to her, the oral evidence of the prosecution witnesses established that there was a smooth handing over of the exhibit from the time of its seizure until when it was tendered in court. Citing the case of Shamim Omary Mwasha and Another v. Republic (Consolidated Criminal Appeal No. 173 & 182 of 2021) [2024] TZCA 1105. Ms. Uiso submitted that, the oral evidence on record sufficiently established the chain of custody of exhibit P2. Having duly considered the submissions of the appellant and the learned State Attorney, we could not find merit in the appellant's complaints in the three grounds of appeal. To start with the complaint on the admission of the appellant's cautioned statement, we hasten to agree with the learned State Attorney that the complaint is superfluous because that evidence was not acted upon to convict the appellant. In any case, the fact that the witness (PW6) was not reminded that he was still on oath, did not invalidate his evidence. The appellant did not show how that omission affected the credibility of the said witness. We do not therefore, find merit in that complaint. With regards to the argument that the evidence of PW3 and PW6 was 17 contradictory to that of PW8, we could not find any serious contradiction to that effect. The only complaint by the appellant was that, whereas PW3 and PW6 testified that the bags were found on the motor vehicle, when he was being cross-examined, PW8 said that, when he arrived at the motor vehicle, he found the bags on the ground. It was not in dispute that the search of exhibit P4 was conducted in emergency situation. The evidence of search as tendered by PW3 and PW6, was believed by the trial court. It was, in the circumstances, a sufficient proof that exhibit P2 was found in the motor vehicle. In any case, in our considered view, the evidence of PW8 did not contradict that of PW3 and PW6. In his evidence in-chief, he testified that, while at his place of work (Sheli area), near the place where the motor vehicle was being searched by the police, the bags were on it. He was close to the point at which the motor vehicle had stopped after knocking the kiosk of "mama lishe". He witnessed PW3 and PW6 searching and causing the bags to be offloaded. When he reached at the motor vehicle, the bags were already on the ground. He then witnessed the seizure of the bags by signing the seizure certificate. From the foregoing, we do not find merit in the appellant's complaint. 18 On the chain of custody, we also agree with Ms. Uiso that, the same was not broken. Exhibit P2 was seized by PW3 and PW6 and PW3 transported it straight to Kibaha Police Station. On the next morning, he handed it to PW2, the exhibits keeper. From the custody of PW2, it was taken by PW4 to the Chief Government Chemist’s Laboratory. The same witness took back the exhibit together with the report of the Chemist (exhibit PI) and handed it to PW3 who in turn, handed it to PW2. The exhibit remained in the custody of PW2 until when it was tendered in court by PW1. The appellant has argued that, since exhibit P2 was not handed over to PW2 by the police officer at the Criminal Records Office (CRO) immediately after the same had been taken there, that amounted to a breakdown of the chain of custody. In our considered view, that argument lacks merit. It is clear from the evidence of PW3 that, after having arrived at the police station PW2 was not there and could not therefore, hand the exhibit to her immediately. He reported that fact to the OCCID who ordered PW3 to remain there until he handed over the exhibit to the exhibit's keeper. PW3 remained at the police station and handed the exhibit to PW2 the next morning. From that evidence, which was not contradicted, the appellant's submission that there was a possibility of the exhibit having been tempered, is untenable. 19 Having determined the grounds of appeal in the manner stated above, we find the appeal lacking merit and thus dismiss it in its entirely. DATED at DODOMA this 30th day of March, 2026. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered virtually this 16th day of April, 2026 in the presence of the appellant in person, Mr. Godfrey Odupoy, learned State Attorney for the respondent/Republic and Ms. Christina Mwanandenje, Court Clerk, is hereby certified as a true copy of the original. 20