Yela Nsalampo vs Republic (Criminal Appeal No. 611 of 2022) [2026] TZCA 311 (13 March 2026)

IN THE COURT OF APPEAL OF TANZANIA ATMBEYA (CORAM: MKUYE. 3.A.. RUMANYIKA. 3.A. And AGATHO. J.A.l CRIMINAL APPEAL NO. 611 OF 2022 YELA NSALAMPO ........................ . ............................................ APPELLANT VERSUS THE REPUBLIC .... . ................... -.......................................... . RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) f Ebrahim, J.) dated the 23rd day of September, 2022 in Criminal Appeal No. 79 of 2022 JUDGMENT OF THE COURT 24th February & 13th March, 2026. MKUYE, J.A.: Before the District Court of Mbeya at Mbeya, the appellant, YELA NSALAMPO was charged, convicted and sentenced for the offence of being found in cultivation of narcotic drugs contrary to section 11 (1) (a) and 12 (1) (a) (i) of the Drugs Control and Enforcement Act, No. 5 of 2015. It was alleged in the particulars of offence that on 23r d day of February, 2017 at Jojo area (Santilya) within Mbeya Rural District and the Region of Mbeya, the appellant was found in cultivation of narcotic drugs, to wit, 270 plants of cannabis sativa. He pleaded not guilty to the charge which culminated to a full trial and, at the end, he was convicted and sentenced, as hinted earlier on, to imprisonment for a term of 30 years. Before embarking on the merit of appeal, we find appropriate to narrate, albeit, a brief background of the matter as follows: On 17th February, 2017, the appellant was arrested for allegations of cultivating bhang. His arrest was effected through a good Samaritan who informed the Ward Executive Officer (WEO) (PW3) about the appellants' alleged cultivation of cannabis sativa (bhang) in a farm combined with maize plants. The matter was reported to the police and the District Commissioner. On 23rd February, 2017, the appellant allegedly led the police officers (PW1 and PW2) together with the Village Chairman (PW4), the WEO (PW3) and other villagers to the farm where the alleged bhang was cultivated. It is alleged that, the appellant confessed orally to cultivate the plants for personal use, claiming they provided him energy for farming. A total of 270 plants of bhang were uprooted, photographed and destroyed in his presence, with the authority of a certificate of destruction signed before a magistrate and tendered as evidence as Exhibit PE2. The Government Chemist (PW5) confirmed the plants were cannabis sativa by virtue of a Report (Exhibit PE3). Aggrieved, the appellant appealed to the High Court (Criminal Appeal No. 79 of 2022) but was unsuccessful. Still undaunted, he has preferred this appeal to this Court raising two memoranda of appeal comprising a total of five (5) grounds of appeal which for a reason to be apparent shortly, we do not reproduce them. When the appeal was called on for hearing, the appellant appeared in person without representation whereas the respondent Republic, had the services of Mr. Alex Mwita, learned Senior State Attorney teaming up with Ms. Veneranda Masai, learned State Attorney. The appellant sought the indulgence of the Court to adopt his two memoranda of appeal and consider them. He then prayed for the learned State Attorney to respond first to his grounds of appeal and reserved his right to rejoin later, if need would arise. For the respondent, it was Ms. Masai who presented her arguments. She declared their stance that they were supporting the appeal on the 1s t ground in the original memorandum of appeal that: "The High Court Judge erred in law when she dismissed the appellant's appeal without evaluating deeply the petition filed by the appellant". She prefaced her submission by arguing that when looking at the grounds of appeal which were lodged at the High Court, there was ground no. 4 that the prosecution failed to prove its case beyond reasonable doubt. Having pointed out the said ground, the learned State Attorney conceded that the prosecution failed to prove the case beyond reasonable doubt citing four areas in support of her stance. Firstly, the prosecution did not establish a chain of custody of bhang alleged to have been found in appellant's farm. She argued that, much as PW1 said that the bhang was kept in the store, he did not state who received and kept it in the store. She added that, though PW2 said he took the bhang "thereto" it was not shown where he took it and where he sent it. Apart from that, she argued, PW5 who said he examined the bhang (Exhibit PE3) did not explain where the said exhibit was taken after examination. She was of the view that, absence of a witness who received the exhibit in the store and the witness to whom the exhibit was taken for tendering in court, makes the chain of custody to be broken. Emphasizing the importance of proving the chain of custody unbroken, she referred us to the case of Juma Iddi Dude v. Republic [2022] TZCA 236 page 11- 15, in which the Court referred to the case of Paulo Maduka and Others v. Republic, [2009] TZCA 69, to show that the possibility of such exhibit to be tampered with cannot be ruled out. In this regard, she was of the view that, since the chain of custody was broken, it was unsafe to rely on such evidence. Secondly, Ms. Masai's contention was that, that there was a contradiction in prosecution evidence as to where the bhang was allegedly found whether it was in the Vi acre or another acre as was testified by PW1 taking into account that, at another stage, PW1 said the 270 plants were found in IV 2 acres. Yet, when PW3 was under cross-examination, he said, the appellant cultivated bhang in the forest which brings confusion as to whether the bhang was found in the farm or forest. This, in her view, was a contradiction which the trial court ought to resolve whether it was minor or went to the root of the matter. To support her argument, she referred us to the case of Mohamed Said Matula v. Republic, [1995] TLR3. Thirdly, that the documentary exhibits, such as the Certificate of Seizure (Exhibit PEI) and the Government Chemist Report (Exhibit PE3) were not read over after being admitted in evidence. She contended that, failure to read over the exhibits was an irregularity with a remedy to be expunged. Fourthly, it was Ms. Masai's argument that PW1, PW2, PW3 and PW4 failed to identify the exhibit which was taken at the scene of crime. That, though the evidence shows that 270 plants were uprooted on 23r d February, 2017 and 6 plants were taken as an exhibit and some of them sent to the Government Chemist, and PW4 tendered exhibit PE4 in court, PW1, PW2 and PW3 failed to identify it as having been taken from the scene of crime. The learned State Attorney reasoned that failure to identify such exhibit rendered their evidence to remain a hearsay. For those reasons, Ms. Masai concluded that, the prosecution failed to prove its case beyond reasonable doubt. She, therefore, beseeched the Court to allow the appeal, quash the conviction, set aside the sentence and order for immediate release of the appellant from custody unless otherwise held for some other lawful causes. In rejoinder, the appellant supported what the learned State Attorney submitted and implored the Court to set him free. We have examined the ground of appeal and the arguments from both sides. The issue is whether the prosecution discharged its duty of proving the case beyond reasonable doubt. In terms of sections 110 (1) and (2) of the Evidence Act, Cap 6 R.E. 2022 now section 117 of R.E. 2023, the burden of proving the existence 6 of a certain fact lies on the person who wishes the court to give judgment on it. The standard of proof is beyond reasonable doubt. In relation to criminal matters the Court discussed the burden and standard of proof in the case of Nathanael Alphonce Mapunda and Another v. Republic, [2006] TLR 395 and observed as follows: "As is well known, in a criminal trial the burden o f proof always lies on the prosecution. Indeed, in the case o f Mohamed Said vs. Republic this Court reiterated that in murder charge the burden o f proof is always on the prosecution and the proofhas to be beyond reasonable doubt". It is also important to note that, the accused cannot or will not be convicted on the basis of weakness of the evidence or defence but on the strength of the prosecution evidence See: Mohamed Haruna@Mtupeni and Another v. Republic, [2010] TZCA 250. The appellant was charged with an economic offence for allegedly being found in cultivation of narcotic drugs (bhang). It was the prosecution evidence that 270 plants were uprooted and destroyed while leaving six (6) plants for investigations to which a certificate of seizure was issued and signed by police officers, independent witnesses including the appellant. The same were taken to the store for safe custody and then to the Government Chemist in which Government Chemist report was prepared. Then it was brought to court where it was tendered. However, having scanned the record of appeal, as was submitted by Ms. Masai, we were unable to glean as to whom such exhibit was handled to the store and who collected it for tendering them in court and eventually where it was taken from there. Besides that, PW5 in his testimony said that he examined and valuated the leaves suspected to be drugs and after the examination the report and envelop were taken to the OC-CID Mbalizi. However, it is not known when the same were taken to OC-CID, where was it taken as the OC-CID did not testify to that effect. Yet PW2, who alleged to have taken the bhang leaves to the Government Chemist on 2/3/2017, testified to have received the report showing that it was bhang, but he did not explain as to where he collected them. He does not show that he picked them from a store or somewhere else and from whom. It is also not known as to where he took it thereafter. This is so because he said "on 02.03.20171 took the bhang theretd' (see: page 14 of the record of appeal). This statement is vague/ambiguous as it does not give a clear picture as to what the word " theretd' meant whether the store or somewhere else. 8 As regards PW5, much as he testified to have examined the alleged bhang, he did not give explanation as to where the said exhibit (Exhibit P3) was taken after his investigation. As was rightly submitted by the learned State Attorney, absence of the evidence showing the person who received the exhibit to the store and the witness to whom the exhibit was taken for tendering it in court by PW5 renders the chain of custody to be broken. In the case of Juma Iddi Dude (supra), the Court in emphasizing the possibilities of the exhibits to be tampered with, stated among others as follows: " ... to show to a reasonable possibility that the item that is finally exhibited in court as evidence has not been tampered with along its way to the court". [Emphasis added] The other aspect to which the respondent based her stance of supporting the appeal is on the contradiction of the prosecution evidence regarding where the alleged bhang was cultivated. It was Ms. Masai's argument while referring us to page 11 of the record of appeal that, it was not clearly shown as to where the alleged bhang was found. We agree with Mr. Masai that the record is quite clear. Our perusal of the record of appeal has revealed that at one stage PW1 testified that the bhang was found in half (1/2) acre farm. At another stage he said 270 plants were found in one and half (IV 2 ) acres farm. So, it is not clear as to which farm the said bhang was found. Yet, PW3 testified that the appellant cultivated bhang in the forest as also shown when he was cross-examined by the appellant. This also created a confusion if the said bhang was found in the said Vi acre, one and half (IV 2 acres) farm or in the forest. In our view, the contradiction was not minor as it went to the root of the matter specifically on where the said bhang was found. As the learned State Attorney, argued, the court ought to have resolved the contradiction if it was minor or went to the root of the matter. See: Mohamed Said Matula v. Republic [1995] T.L.R. 3. and Dickson Elia Nsamba Shapwata and Another v. Republic, [2008] TZCA 17. We are of the view that, the contradictions pointed out by the learned State Attorney in the evidence of PW1 and PW5 regarding the place where the alleged bhang was found do raise doubt in linking the appellant with the alleged contraband. We thus, agree with her that it went to the root of the matter. The other shortcoming in this case was on failure to read out in court the certificate of seizure (Exhibit PEI) and Report from the Government Chemist (Exhibit PE3) after being admitted in evidence. Ms. Masai argued that, looking at page 22 of the record of appeal, after PW5 10 tendered the report and admitted in evidence as Exhibit PE3, the same was not read over in court and thus its admission was irregular. Equally, after the certificate of seizure was admitted having been tendered by PW1, it was not read over in court. She, thus, implored the Court to expunge them from the record. It is cardinal law that, whenever a document is admitted in evidence after being cleared by a person against whom it is tendered, it has to be read over to such person. This stance was taken in the case of Robinson Mwanjisi and Others v. Republic, [2003] TLR 218; Erick Said @Kimima v. Republic, [2023] TZCA 17710; and Jumanne Mohamed and 2 Others v. Republic, Criminal Appeal No. 524 of 2015 (unreported). The main purpose of reading the contents of the exhibit is to ensure that the accused and other parties get to know the contents of the said exhibit. The importance of reading out the contents of the exhibit was emphasized in the case of Rabinson Mwanjisi and 3 others (supra) as follows: "Whenever, it is intended to introduce any document in evidence, it should first be cleared for admission and be actually admitted, before it can be read out". [Emphasis added] li Times without number we have taken a stance that the omission or failure to read out the exhibits after their admission is fatal. It is a settled law that whenever an exhibit is cleared for admission and admitted in evidence, it has to be read out in evidence. If the same is not read out, it amounts to a fatal irregularity as it would have the effect of depriving the accused to know its contents which will constitute unfair trial to him. [See: Issa Hassan Uki v. Republic, [2018] TZCA 361]. A part from that, the remedy for the exhibit which has not been read out after its admission is to be expunged. See: Masanyiwa Msolwa v. Republic, [2022] TZCA 456, Huang Win and Xu Fujie v. Republic, [2021] TZCA 210. In this case, the documents said to have not been read out after their admission were the certificate of seizure and Report from the Government Chemist. Those documents related to the impounding of the seized bhang and confirmation that the seized substance was bhang. This was crucial evidence in the case. This means that, failure to read the contents of Exhibit PEI and PE3 deprived the appellant to understand such evidence which was adduced in court. This was fatal irregularity which amounted to unfair trial. We, thus, expunge them from record. The other concern was on failure by PW1, PW2, PW3 and PW4 to identify Exhibit PI which was recovered from the scene of crime. Ms. Masai took us to page 11 of the record of appeal to show us that while the evidence shows that on 23/2/2017, 270 plants of bhang were uprooted; 6 plants were taken as exhibits and others were taken to the Government Chemist and tendered by PW5 in Court (Exhibit P4), none of PW1, PW2 and PW3 identified it to have been taken from the scene of crime (page 22-23 of the record of appeal). For that matter, it was Ms. Masai's view that PW1, PW2, PW3 and PW4 gave a hearsay evidence which was not supported at all. We have carefully examined the learned State Attorney's argument as well as the record of appeal. Indeed, we have observed that PW5 testified regarding his receiving an envelop in a plastic bag and his scientific analysis upon examining the leaves suspected to be drugs. He also explained in court on how he discovered that it was cannabis sativa and thereupon the envelop in nylon bag with a seal and the report were taken back to the OC-CID Mbalizi area. However, as was stated by the learned State Attorney, there is nowhere in the record of appeal where PW1 was availed with Exhibit D4 for identification, more so, when he stated that the 6 plants and others were taken to Government Chemist. 13 The same applied to PW2 (see pages 13 to 14). Much as PW2 acknowledged uprooting of 270 plants of bhang; and taking them to Government Chemist and receiving the report thereof, he did not identify the said contraband which he took to the Government Chemist. In relation to PW3, the WEO who witnessed the uprooting of 270 plants of bhang he did not identify them. Also PW4, Adson Mwasenga, the village chairman, testified to have visited the farm on 22/2/2017 so as to confirm if the appellant cultivated bhang and some samples being taken for examination. However, despite his evidence regarding bhang which was taken, he never identified it in court so as to confirm whether or not was the same. In this regard, there remains the evidence of PW1 that bhang was taken to the Government Chemist that linked the appellant with an offence. His evidence was not corroborated at all. This, in our view, raises doubts if the substance taken by PW1 was the same as the one sent to PW5 for examination. In the absence of such evidence, we find that, it created doubts. In the final analysis, given the circumstances of the case, we agree with the learned State Attorney that the prosecution failed to prove the case against the appellant beyond reasonable doubt. 14 We, therefore, allow the appeal, quash the judgment and set aside the sentence meted out against the appellant. We further order for his immediate release from custodial sentence unless otherwise held for other lawful cause(s). DATED at MBEYA this 11th day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The Judgment delivered this 13th day of March, 2026 in the presence of the Appellant in person, Ms. Imelda Aluko, learned State Attorney representing the respondent/Republic and Ms. Jasmin Kazi, Court Clerk, is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 15