Mohamed Bakari Fundisha vs Republic (Criminal Appeal No. 851 of 2023) [2026] TZCA 399 (10 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL. 3.A.. MGONYA. J.A.. AND KHAMIS, J.A.) CRIMINAL APPEAL NO. 851 OF 2023 MOHAMED BAKARI FUNDISHA ................................................ APPELLANT VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania, Corruption and Economic Crimes Division at Dar es Salaam) (Ismail, J.l dated the 26th day of September, 2023 in Economic Case No. 20 of 2022 JUDGMENT OF THE COURT 12th February & 10th April, 2026 SEHEL. J.A.: The appellant, Mohamed Bakari Fundisha, was charged before the High Court of Tanzania, Corruption and Economic Crimes Division (the trial court), with one count of trafficking in narcotic drugs contrary to section 15 (1) (a) of the Drug Control and Enforcement Act (the DCEA), read together with paragraph 23 of the First Schedule to, and section 57(1) of, the Economic and Organized Crime Control Act (the EOCCA). The particulars of the offence alleged that, on 16th September 2021, at Matope area in Kimanzichana Ward within Mkuranga District in the Coast Region, the appellant was found trafficking in narcotic drugs, namely cannabis sativa (commonly known as bhang), weighing 85.11 kilograms. The appellant pleaded not guilty to the charged offence. In order to prove its case, the prosecution paraded a total of eight witnesses who tendered five exhibits. After the close of the prosecution case, the trial court found that the appellant had a case to answer and placed him on his defence. The appellant testified on oath and did not call any additional witnesses, though he tendered one exhibit, being the proceedings of the previously withdrawn case at the Mkuranga District Court (Exhibit Dl). At the conclusion of trial, the trial court was satisfied that the prosecution had proved its case beyond reasonable doubt. Consequently, the appellant was convicted as charged and sentenced to life imprisonment. It is against that decision that the appellant has now appealed to this Court. The factual background to this appeal, as garnered from the record of appeal, is relatively straightforward that, on 16th September, 2021, SP Lwitiko Adam Mwasandube (PW2), who was then the Officer in Charge of the Criminal Investigation Department (OC-CID) for Mkuranga Police Station, received an information from an informer that the appellant was dealing in narcotic drugs at his residence in Kimanzichana village. Acting on this tip-off, PW2 instructed Detective Constable Ndaki (PW7) to proceed to the scene. PW7 was accompanied by Ally Salehe Mateleza (PW4), the hamlet chairperson of Kimanzichana village, who was called to serve as an independent witness. Upon arrival at the appellant's residence, the team found the appellant at home, sitting under the tree. After introducing themselves and explaining their purpose of the visit, they conducted a search on the premises in the presence of the appellant, PW4, and Hemed Fundisha, a relative of the appellant. During the search, PW7 retrieved four sulphate bags full of dried leaves, one half-filled sulphate bag of dried leaves, and a canvas bag containing 19 bundles of dried leaves. The leaves were suspected to be cannabis sativa. PW2 prepared a certificate of seizure, which was admitted as Exhibit P3, and this was duly signed by himself, the appellant, PW4, and Hemed Fundisha. The appellant and the seized items were then conveyed to Mkuranga Police Station. At the station, PW7 handed the exhibits to A/Insp. Revocatus Nkwera (PW3), In the following day, PW3 handed the exhibits to Sgt. Abdul (PW5), the exhibit keeper, for safe custody. On 7th October 2021, PW7 retrieved the exhibits from PW5 and transported them to the Government Chemist Laboratory Agency (the GCLAS) in Dar es Salaam for analysis. At the laboratory, Kaijunga Triphon Brasy (PW1), the Government Chemist officer, received PW7 who came with the consignment, Form DCEA No.001 and a letter from OC-CID - Mkuranga that requested him to identify the type of the suspected drugs, weigh and give his opinion on the effect to human beings, if consumed. He first assigned the consignment with the Lab. No. 2893/2021 and weighed the substances. He established the weight to be 85.11 kilograms. After conducting both preliminary and confirmatory tests, PW1 confirmed that the substances were cannabis sativa. He prepared an examination report (Exhibit P2) and returned the exhibits to PW7, who in return took them back to Mkuranga Police Station and handed over to PW5 for continued storage. The exhibits were subsequently tendered in Criminal Case No. 209 of 2021 at Mkuranga District Court, but that case was later withdrawn. Upon withdrawal, the exhibits were returned to PW5 by Esther Said Nauki (PW8), who was the court clerk and exhibit keeper at Mkuranga District Court. PW5 retained custody until 1st June, 2023, when he brought the exhibits to the High Court for trial. In his defence, the appellant denied any involvement in the offence. He claimed that he had a political grudge against PW4 arising from a disputed village chairmanship election in 2019. According to the appellant, PW4 had vowed to "teach him a lesson." He further raised a defence of dUbi, asserting that he was not arrested on 16th September 2021, as alleged, but rather on 15th September 2021, and that his house was never searched. He maintained that the narcotic drugs were never in his possession. Still protesting his innocence, the appellant has filed the present appeal. Initially, he lodged a memorandum of appeal comprised of six grounds of appeal. He later on filed a supplementary memorandum of appeal raising one ground of appeal, and followed with another supplementary memorandum of appeal raising two grounds of appeal. At the hearing, the appellant abandoned the first supplementary memorandum of appeal, and the first, second and fourth grounds in the substantive memorandum of appeal. He thus remained with five grounds of appeal on which his submissions focused. These were: the third, fifth, and sixth grounds in the memorandum of appeal, and the first and second grounds in the second supplementary memorandum of appeal. For clarity, we reproduce the grounds of appeal as they were framed. For the memorandum of appeal were: 3. That the learned trial judge erred in law and facts to convict the appellant without considering that a search which led to the seizure o f Exhibit PI was illegal search. 5. That the teamed trial judge erred in law and facts by wrongly convicting the appellant without considering the principles which have to be taken into account in respect to chain o f custody and preservation o f the exhibits. 6. That the learned trial judge erred in law to convict the appellant in a case which was not proved beyond reasonable doubt by the prosecution against an appellant For the second supplementary memorandum of appeal, the grounds were: 1. That the learned trial judge erred in law and facts to base the appellant's conviction on Exhibit P I whose handling by the Police officers and its forensic examination by the Government Chemist was a mystery, doubtful and conducted in total disregard o f the law , thus devoid o f any evidential value. 2, That the learned trial judge erred in law and fact to reiy on the evidence o f PW8 to convict the appellant without noting that the evidence o f this witness was received in contravention o f the law as she was not listed a t the com m ittal and no reasonable notice was served to the appellant or his advocate. At the hearing of the appeal before us, the appellant appeared in person, unrepresented. The respondent Republic was represented by Ms. Uisso, learned Senior State Attorney. When the appellant was given an opportunity to amplify his grounds of appeal, he first adopted his written submissions and restated the cardinal principle in criminal proceedings that the burden of proof rests squarely on the prosecution side to prove the charged offence against an accused person. In support of his submission, he referred us to the cases of Abdulazizi Omary v. The Republic, [2022] TZCA 726; Anthony Kinanila & Another v. The Republic [2022] TZCA 356; Nkanga Daudi Nkanga v. The Republic [2014] TZCA 213; and DPP v. Ngusa Keleja @ Mtangi & Another v. The Republic [2020] TZCA 288. Further, relying on the authorities in the cases of Mohamed Seleman Kidari @ Ndata v. The Republic [2024] TZCA 13 and Method Leodiga Komba @ Todi & Another v. Republic [2024] TZCA 117, he added that such evidence must be credible and reliable to found a conviction. Submitting on the third ground in the memorandum of appeal, the appellant submitted that the search conducted by PW2 and PW7 was illegal. Elaborating, he argued that PW2 admitted during cross- examination that he did not have a search warrant, and that the search was conducted after sunset without any justification, violating section 39 of the Criminal Procedure Act (the CPA) and the Police 8 General Orders (the P.G.O.). He added that the claimed emergency search was not reported to the nearest Magistrate as required by the P.G.O. No. 224 (4) (c). He pointed out that the officer in charge did not report to the authority about what was seized. To solidify his argument, he referred us to the case of Shabani Said Kindamba v. Republic [2021] TZCA 221, for the preposition that a search conducted between sunrise and sunset can only be done with the leave of the court, and that the aim of obtaining permission from a magistrate before effecting a search was to prevent abuse of powers of search and arrest. He attacked the evidence of PW4, stating that he was not a credible witness to witness the search due to the political rivalry that existed between them. He further argued that an independent witness must be a respectable person in the locality, and his/her credibility is critical. He stressed that PW4 was not a witness of truth as he lied about whether he could read or write, hence not a credible witness. Given the incredibility of PW4, coupled with the failure of the prosecution to call Hemed Fundisha who was an independent witness, and the fact that he raised a defence of alibi, the appellant implored the Court to hold that the search was not conducted at all and if 9 conducted it was conducted contrary to the dictates of the taw, thus, entitling for the expungement of Exhibit PI from the record of appeal. On the fifth ground in the memorandum of appeal and the first ground in the second memorandum of appeal, the appellant argued that the chain of custody was broken in several occasions. First, the exhibit was not labelled immediately upon seizure as required by the P.G.O. No. 229 paragraph 8 and Regulation 16 (a) of the Drug Control and Enforcement (General) Regulations, 2016 (the Regulations). SecondlY/ the weight of the exhibit was not determined at the time of seizure as required by Regulation 16 (c) of the Regulations. Thirdly, the sealing of the exhibit by PW7 was done in his absence which was contrary to Regulation 16 (5) of the Regulations. Fourthly, the transfer of the exhibit from one officer to another was not documented and witnessed by independent witness as required by the P.G.O. No. 229 paragraph 15, as testified by PW8. And fifthly, the exhibit remained unsealed for over three weeks in uncertain circumstances, inviting the possibility of tampering. He relied on the cases of Director of Public Prosecutions v. Mussa Hatibu Sembe [2022] TZCA 238; Mshamu Omary Tindwa v. Republic [2025] TZCA 1159; Slahi Maulid Jumanne v. Republic [2018] 10 TZCA 772; and Ejiofor Henry Ohagwu v. Republic [2025] TZCA 1146, for the preposition that the unexplained delays in transmitting exhibits to the Government Chemist and failure to label exhibits break the chain of custody and created doubts which must be resolved in the accused's favour. Regarding the forensic examination, the appellant submitted that PW1 failed to comply with Regulations 17 and 18 of the Regulations. He argued that PW1 was required to draw samples of not less than 5 grams from each package, to draw one duplicate sample from each package, and to mix the exhibit to make it homogeneous before drawing samples. He contended that P W l’s testimony was silent on whether he complied with these requirements, and that Exhibit P2 suggested that the samples from the 19 bundles were examined together rather than separately. To fortify his submission, he referred us to the cases of Omary Said @ Athumani v. The Republic [2022] TZCA 270 and Erick Said @ Kinuma v. The Republic [2023] TZCA 17710, for the preposition that failure to comply with the dictates of the Regulations vitiated the report of the chemical analysis and rendered such evidence doubtful. On the second ground in the second supplementary memorandum, the appellant submitted that the evidence of PW8 was received in contravention of the law as the witness was not among the list stated at the committal proceedings and that there was no reasonable notice served on the appellant. He argued that the notice which was filed on 4th July, 2023, was served on him and his advocate on the very day when the witness stand to testify, that was on 23rd August, 2023, which contravened the spirit against surprise embodied in section 308 (3) of the CPA. To amplify his submission, he cited the case of Mussa Daniel @ Mwita @ Mariba @ Steve Matongo & Another v. The Republic [2024] TZCA 1292, where the Court held that insufficient notice deprives an accused person time to digest and understand the contents of the witnesses' evidence for him to mount a meaningful defence. Finally, on the sixth ground in the substantive memorandum of appeal, the appellant submitted that the cumulative effect of the above irregularities meant that the prosecution failed to prove the charged offence against the appellant beyond reasonable doubt. He therefore implored the Court to allow his appeal and set him free. 12 In reply, Ms. Uisso, learned Senior State Attorney, opposed the appeal. Addressing on the complaint regarding the search, she submitted that the search was properly conducted. She argued that the police officers were on patrol and acted on a tip-off, making it an emergency search. She referred us to section 51 (2) (c) (vii) of the DCEA, which allows for searches without a warrant in exigent circumstances. She also referred us to page 69 of the record of appeal, where PW2 explained the reasons for not obtaining a search warrant in time. Relying on section 2 of the DCEA, which defines "authorized officers" to include police officers, she argued that PW2 who was a police officer was clothed with all necessary authorities in conducting search on the appellant. She further submitted that the search was conducted in the presence of the independent witnesses, namely PW4 and Hemed Fundisha, and a certificate of seizure was duly prepared and signed by all present, including the appellant himself. Regarding the chain of custody, Ms. Uisso submitted that the chain was intact from the moment the exhibit was seized from the appellant up to its tendering before the trial court, as proved through both oral accounts and documentary exhibits. She traced the 13 movement of the exhibits from PW2 who seized the exhibit, to PW7 who transported the exhibit, to PW3, to PW5 who stored the exhibit, back to PW7 for transmission to PW1, and then back through the same chain, including temporary custody with PW8 during the Mkuranga proceedings. Referring us to the case of Marceline Koivogui v. The Republic [2020] TZCA 311, the learned Senior State Attorney stressed that the oral account was sufficient to establish the chain of custody. On the complaint that the evidence of PW8 was received in contravention of the law, Ms. Uisso conceded that PW8 was not listed during the committal proceedings. Nonetheless, she argued that the prosecution issued a notice to call an additional witness in terms of section 308 (3) of the CPA, and the statement of that witness was availed to the appellant and his advocate. She added that the counsel for the appellant had no objection for the witness to testify when she was called to do so and that he proceeded with the hearing by cross- examining the witness. It was therefore, Ms. Uisso's preposition that the witness gave evidence in accordance with the law. Finally, on the complaint that the case was not proved beyond reasonable doubt, Ms. Uisso submitted that the prosecution proved all 14 ingredients of the charged offence, namely: possession of the narcotic drugs, their nature as prohibited substances, and the weight which exceeded 50 kilograms thus clothing the trial court with the jurisdiction to hear and determine the case. To fortify her submission, she referred us to the report of the Government Chemist, Exhibit P2, which established that the substance found in possession of the appellant was cannabis sativa weighing 85.11 kilograms, and according to the evidence of PW2, PW4, and PW7, the appellant was placed in possession of the exhibits. In his brief rejoinder, the appellant had nothing to add apart from urging the Court to consider his grounds of appeal. On our part, we have carefully considered the grounds of appeal, the submissions of the parties, and the entire record of appeal. This being a first appeal from the High Court, we are mindful of our duty to re-evaluate the evidence and arrive at our own conclusions, while bearing in mind that the trial court had the advantage of observing the demeanour of witnesses- see the case of Firmon Mlowe v. The Republic [2022] TZCA 694. 15 We propose to start with the fifth ground of appeal which is also connected with the third ground of appeal, which challenge the chain of custody and the legality of the search. By chain of custody, we mean the chronological documentation and or paper trail, showing the seizure, custody, control, transfer, analysis and disposition of evidence be it physical or electronic. Now and then, we have stressed on the importance of a proper chain of custody to ensure that the physical evidence forming the subject of the charge has not been tampered with, substituted or contaminated and that, it is authentic and admissible in evidence. For instance, in the case of Paulo Maduka & 4 Others v. The Republic [2009] TZCA 69, the Court echoed that: "The id e a b e h in d re co rd in g th e ch a in o f cu sto d y is to e sta b lish th a t th e a lle g e d evid en ce is in fa c t re la te d to th e a lle g e d crim e ra th e r th an fo r in stan cef h a vin g been p la n te d fra u d u le n tly to m ake som eone g u ilty . The chain o f custody requires that from the moment the evidence is collected, its very transfer from one person to another must be documented and that it be 16 provable that nobody else could have accessed it... "[Emphasis added]. Yet again, in the case of Chacha Jeremiah Murimi & 3 Others v. The Republic [2019] TZCA 52, the Court stated the following: "In order to have a solid chain o f custody, it is im portant to follow carefully the handling o f what is seized from the suspect up to the time the exhibit is received in court as evidence . The movement o f exhibit from one person to another should be handled with great care to eliminate any possibility that there m ay have been tampering with that e xh ib it..." Furthermore, in the case of Magesa Chacha Nyakibali & Another v. The Republic [2014] TZCA 298, this Court made pertinent observation which is also relevant to the appeal at present that: "...the evidence is not dear as to how the shotgun, subject o f this case, found its way to PW2 who eventually tendered it in court. A s it is, by sequence o f events there was a broken 'chain o f custody' in the handling o f the shotgun which raises doubts as to whether the 17 gun exhibited in court was the same one as the one which was said to have been recovered at Rubana River." In the present appeal, PW2 conducted the search and found four sulphate bags full of dried leaves, a half-filled sulphate bag with dried leaves and a canvas bag containing 19 bundles of dried leaves. Having retrieved the suspected bags, he filled a search warrant, Exhibit P3, which was signed by himself as a searching officer, the appellant, PW4 and Hemed Fundisha. He then took the appellant and the seized suspected drugs to Mkuranga Police Station and handed over to the in-charge of the Criminal Records of Office (the CRO), PW3. On the other hand, the testimony of PW3 revealed that the seized suspected drugs were handed over to him by PW7 and not PW2. At page 71 of the record of appeal, PW3 recounted that: "In th e e ven in g o f l& h Septem ber, 2021, I was a t my work station. I was in-charge o f CRO. A t a ro u n d 07:00 p.m ., cam e D /C N d a k i w ho w as w ith a su sp e ct c a lle d M oham ed B a k a ri Fundisha. H e h a d 4 V* su lp h a te b ag s a n d a can vas b ag a ii o f w hich h a d le a v e s th o u g h t to b e bhang. 18 He said that the bags were recovered from the suspect. H e re q u e ste d m e to p u t th e a ccu se d in cu sto d y a n d keep th e e x h ib it I d e ta in e d th e accu se d a n d k e p t the e x h ib it and opened up an inquiry file.... I k e p t th e e x h ib it a t CRO a n d th e cu sto d ia n w as n o t around. I h a d th e d u ty o f ke e p in g an eye on th e e x h ib it a s I a w a ite d th e a rriv a l o f th e cu sto d ian . On 17th Septem ber, 2021, in th e m orning, I h an d e d th e e x h ib it to Cpi. A b d u i fo r sa fe cu sto d y . "[Emphasis added]. From the above narration, there is no doubt that it was PW7 who handed over the seized suspected drugs to PW3 and not PW2. The record of appeal is silent at what point in time they changed hands from PW2 to PW7 who then handed them to PW3. Furthermore, the record is silent as to where did PW2 stored the unsealed suspected drugs on that night. Given that it was notclear where the suspected drugs were stored on the night of 16th September, 2021, and they were unsealed, we cannot be assured of their integrity and that the drugs were not tampered with, substituted or contaminated by anybody. 19 Worst still, the alleged suspected drugs spent several days unsealed in the storage room. Only to be sealed after a lapse of almost one month since its seizure and in absence of the appellant. This is gathered from the evidence of PW7 who, at page 100 of the record of appeal, said that: "On 7th October, 2021,1 was instructed by OC- CID to take the sample to the Government I p u t a police seal, filled the form. We sent the samples to the GCLA." From the sequence of events, we are of the strong view that there was a broken 'chain of custody' in the handling of the suspected drugs which raises doubts as to whether the alleged seized suspected drugs were the same one analysed by PW1 on 7th October, 2021 and later exhibited in court as Exhibit PI. In the circumstances, we are satisfied that it cannot be safely vouched that Exhibit PI was one and the same suspected drugs allegedly seized from the appellant by PW2 and PW7. On that account, we find that the charge of unlawful possession of narcotic drugs was not proved to the hilt against the appellant. Given that this ground of appeal disposes the entire appeal, we see no need determining the remaining grounds of appeal. 20 In the end, we allow the appeal, quash the conviction, set aside the sentence and order for the immediate release of the appellant, Mohamed Bakari Fundisha, from prison unless otherwise lawfully held. DATED at DODOMA this 8th day of April, 2026. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered virtually this 10th day of April, 2026 in the presence of the appellant in person - unrepresented, Ms. Grace Kibaki, learned State Attorney for the Respondent/Republic and Ms. Christina Mwanandenje, Court Clerk is hereby certified as a true copy of the original. 21