Ejiofor Henry Ohagwu vs Republic (Criminal Appeal No. 835 of 2023) [2025] TZCA 1146 (17 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LEVIRA. J.A.. MGONYA. J.A And MDEMU, 3.A.1 CRIMNAL APPEAL NO. 835 OF 2023 EJIOFOR HENRY OHAGWU.......................................................APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Dar es Salaam) fBweqoqe, JO dated the 8th day of December, 2022 in Criminal Sessions Case No. 18 of 2017 JUDGMENT OF THE COURT 30th September & 17th October, 2025 MDEMU. 3.A.: The High Court of Tanzania at Dar es Salaam convicted and * sentenced the appellant to life imprisonment for the offence of trafficking in narcotic drugs contrary to section 15 (1) (b) of the Drugs Control and Enforcement Act, No. 5 of 2015. It is in the particulars of the offence that on 2n d January, 2016 at Julius Nyerere International Airport (JNIA), the appellant was found trafficking in narcotic drugs, to wit, heroin hydrochloride weighing 4197.42 grams. We note in the record of appeal that, on the fateful day, the appellant, a citizen of Nigeria, was at the JNIA baggage scanner in the

international departure lounge heading to Nigeria. It was alleged that, in the course of scanning, some suspicious items were detected in the appellant's bags by the scanner operator one Steven Masala (PW7). Thereafter, one Stephano Kagosi instructed Lamu Salum (PW5) to search the two bags in which, three packets containing powdery substances were seized in each bag. It was alleged further that, the appellant tried to escape, but luckily, was arrested by PW5 and PW7. According to ASP Duncan (PW4), a search was witnessed by the appellant, Akida Faraji (PW8) and six other persons. Other items seized during that search comprised of the appellant's travel documents, mobile phones, 475 USD, 2050 Nigerian Naira and TZS 7,000.00. The record reveals further that later, PW4 repacked the seized contrabands in envelopes being witnessed and signed by the appellant and handled it to SSP Neema (PW3) for safe custody. The latter, Sargent Erick and Detective Constable Emmanuel thereafter handled over the contrabands to the Chief Government Chemist where it was received by Elias Mulima (PW1) whose forensic examination concluded that, the said contraband was heroine hydrochloride (exhibit PI). The confirmatory report was also tendered along with exhibit PI as exhibit P2. As stated above, the appellant was arrested and following interrogation, it is alleged, he confessed in his caution statement of his

involvement in drug trafficking. It is in the testimony of ASP Monica Erasto Mwanache (PW6) that, the appellant retracted his confession, that notwithstanding, the trial court was satisfied of being legally procured, thus admitted it as exhibit P6. Much as the appellant admitted to have been arrested at JNIA, he distanced himself to possess the bags in which the alleged contrabands were seized. That besides, and basing on that evidence, the trial court found the prosecution case proven, thus convicted and sentenced the appellant to serve life imprisonment. Unhappy with the trial court's outcome, the appellant is before the Court fronting 10 grounds of appeal in a memorandum of appeal filed on 25th September, 2023 and a further supplementary memorandum of appeal filed on 11th February, 2025 adding other 4 grounds of appeal. For reasons to follow in earnest, all the 14 grounds of appeal in the two memoranda, will not be reproduced verbatim, and instead, we find the following areas of concern to have covered the appellant's complaints as canvased in the memoranda: one, that, heroine hydrochloride (exhibit PI) was not listed during committal proceedings. Two, that, the procedure to tender exhibit PI was flouted. Three, the chain of custody was broken. Four, the appellant was not the owner of bags in which exhibit PI was seized. Five, the evidence relied on to base conviction was 3

unreliable and endowed with contradictions and inconsistencies and six, the defence case was not considered. Hearing of the appeal was placed before us on 30th September, 2025. The respondent/Republic was ably represented by Mses. Daisy Makakala and Edith Mauya, both learned Senior State Attorneys. The appellant, on the other hand, fended for himself. The appellant commenced his submission by readily standing by the contents of the written submissions which, to him, have amplified the raised grounds of appeal. He thereafter opted to hear from the respondent's reply while promising to re-join, should the need to do so arises. We will take into account the appellant's written submissions in the course of resolving the raised grounds of complaint. On the respondent's side, Ms. Mauya resisted the appeal and submitted that, heroine hydrochloride (exhibit PI) was not specifically listed during committal proceedings. She however argued that, the infraction is not fatal in twofold. One, it is indicated in the committal record that exhibit PI, being real evidence, is a physical exhibit to be tendered at the trial and two, it is named in other documentary evidence. This, to her, was sufficient to make the appellant aware of the existence of the said heroine hydrochloride. On that account, the learned Senior State Attorney implored us to consider the decision of the Court in Edwin 4

Cheleh Swen v. Republic (Criminal Appeal No. 649 of 2021) [2024] TZCA 272 (17thApril 2024; TanzLII) where it was sufficient for a physical exhibit to be named in the Government Analysis Report, so was in the case of Shamim Omary Mwasha & Another v. Republic (Consolidated Criminal Appeals No.173 and 182 of 2021) [2024] TZCA 1105 (14th November 2024; TanzLII). She thus ended by submitting that, the letters of section 263 (2) of the CPA were not violated in any manner. Regarding the procedure to tender exhibits PI and P2, it was the turn of Ms. Makakala to submit. To her, it was proper for PW1 to open exhibit PI before he tendered it. Again, unlike the appellant's complaint, the confirmatory report (exhibit P2) was read out in the trial court following its being admitted in evidence. Regarding the chain of custody, it was Ms. Mauya who conceded that the chain was broken because the record is silent as to who handed over exhibit PI to PW1 for tendering it in the trial court. She had that assertion because, according to the record, PW1 returned the exhibit to PW3 after forensic analysis and it is not shown if, PW3, being the exhibit keeper, at one point in time, gave PW1 the said exhibit before it was tendered. She however added that, breakage of the chain of custody did not water-down the evidence that the appellant was arrested at JNIA with the alleged contrabands. 5

As to who was the owner of the bags in which the alleged contrabands were seized, Ms. Mauya conceded that, the bags do not form part of the evidence because they were not tendered. She nonetheless submitted that, even in absence of those bags, the evidence shows that the said bags belonged to the appellant and it is in those bags the alleged narcotic drugs were retrieved and seized. Replying on contradictions and inconsistencies in the prosecution case, the learned Senior State Attorney did not find any and instead, she submitted that, the prosecution case was proved by both oral and documentary evidence such that the appellant was arrested, his bags were searched and seized and it is in those bags the narcotic drugs were found. She added that, according to PW1, the said contrabands was certified to be heroine hydrochloride. Taking the totality of that evidence together with the appellants confession, it was her argument that, there is no any contradiction and instead, the prosecution case was proved beyond reasonable doubt. Submitting on the complained non consideration of the appellant's defence by the trial court, Ms. Makakala refuted the argument on account that, the evidence of the appellant was considered but the trial court attached no weight to it. She thus found this ground of complaint and the entire appeal is without substance, thus urged for its dismissal. 6

The appellant's time for a rejoinder came. He reiterated the contents of his written submissions by drawing our attention to the case of Kristina Biskasevskaja v. Republic (Criminal Appeal No. 65 of 2018) [2023] TZCA 17434 (20 July 2023; TanzLII) elaborating that, in the absence of evidence that exhibit PI was listed during committal proceedings, the offence of trafficking in heroine hydrochloride remains unproven. He thus implored us to find the appeal to have merits, allow it and ultimately, release him for he has been behind the bars for more than ten years. Now that we have heard from the appellant and the learned Senior State Attorneys and duly considered the written submissions of the appellant and the entire record of appeal, we find it clear that, the appellant was arrested at JNIA on that fateful date. The question which calls for our determination is whether, in the course of that arrest, the appellant was found trafficking in heroine hydrochloride. For that matter, our prudence dictates to begin with the ground of complaint that, it was wrong to base conviction on exhibit PI (heroine hydrochloride) which was not listed during committal proceedings. In his written submissions, the appellant argued that failure to list contrabands (exhibit PI) contravened section 246 (2) of the CPA. The said section which now is section 263 in the 2023 Revised Edition, reads as hereunder: 7

"Upon appearance o f the accused person before it, the subordinate court shall read and explain or cause to be read to the accused person the information brought against him as well as the statements or documents containing the substance o f the evidence o f witnesses who the Director o f Public Prosecutions intends to call at the tria l" As we stated in Kristina Biskasevskaja (supra), the role of the committing court is to read and explain the substance of the evidence, including real evidence, to be relied upon when the accused's trial is at stake. The rationale rests on fair trial and afford the accused with an opportunity to prepare his defence. It was held in Kristina's case that: "Although thisprovision does not mention physical exhibits, we do not think that the legislature intended to exclude them from being mentioned at that stage. It cannot be overemphasized that the intention o f listing the exhibits, statements or documents containing the substance o f the evidence o f intended witnesses during the stage o f committalproceedings is to afford the accused an opportunity to know what evidence is intended against him so that he can properly prepare his defence." The question now is whether the said real evidence (heroine hydrochloride) was listed during committed proceedings as alleged by the 8

prosecution. On this one/ better the record of appeal speaks by itself as hereunder: "Court; The substance o f the following documents has been read over and shown to the accusedperson.

1. Caution statement o f the accusedperson.
2. Report from Government Chemists.
3. Certificate o fseizure.
4. Passport No. A0472933 issued by the Federal Republic o f Nigeria issued to Ejiofor Henry.
5. There will be physical exhibits [to be] tendered during the trial. Sgd. Hon, RespiciusE. Mwijage PRM 12/6/2017" [emphasis supplied] According to the record of the committal proceedings we have just reproduced above, no any physical exhibits were listed. What we note is the sentence in the list that there will be physical exhibits to be tendered during trial. Ms. Makakala was of the argument that, those words were sufficiently enough to convey information to the appellant that physical exhibits meant and included the contrabands tendered as exhibit PI. She convinced us to hold so on account that, the appellant was aware of the charges of trafficking in narcotic drugs and further that, the said exhibit was also mentioned in other documentary evidence such us a Report from the Government Chemist. In the latter, she banked her argument in the 9

case of Shamim Omary Mwasha & Another (supra). On our part, we ventured in that case for that purpose, particularly at pages 42 and 43 of the judgment, of which, for ease of reference we are mindful to quote as follows: "The issue we have raised above need not detain us much. It is dear on the record o f appeal that, the envelopes containing narcotic drugs were among the physical exhibits listed and explained to the appellants in compliance with Rule 8 (2) o f the Economic and Organized Crimes (The Corruption and Economic Crimes Division) (Procedure) Rules, 2016 which is the same as section 246 (2) o f the CPA. Apart from physical exhibits, the documentary exhibits were read and explained to the appellants during committal including the Government Chemist Report which explained clearly the narcotic drugs which the appellants were found in possession to be heroine hydrochloride. The said drugs were keptin the envelopes, listed as physical exhibit eventually tendered during trial. In the circumstances, we do not agree with the appellants' contention that they were not made aware o f the contents and type o f exhibitprior to its tendering." [emphasis supplied] 10

We stated two positions in that case. First, the envelopes in which the contrabands were, were listed in the committal record and second, in the Government Chemist Report, the said narcotic drugs were mentioned. After this, we ended by saying that, with the envelopes and the Government Chemist Report, the appellant was made aware that, at his trial, the narcotic drugs forming the contents of his charges will be tendered. With respect to the learned Senior State Attorney, we are of the view that Shamim's case is distinguishable because, there, envelopes were list, unlike in the instant case which simply mentions physical exhibits. Again, in Shamimu's case, the evidence of listing the packets containing the contrabands and that of naming the contrabands in the Government Chemist Report at the committal proceedings was considered together and not in silos. It if from that account the Court ruled out that, the appellant was made aware. The instant case portrays a different scenario. It was only in the Government Chemist Report, which, in it, exhibit PI was named. Neither the envelopes as was in the Shamimu's case nor the contrabands (PI) were listed therein. As we noted above, the words "physical exhibits", without any specification, may lead to multiple connotation and interpretation and the question which physical exhibits? Certainly, the appellant would not have known.

On the other hand, the learned trial Judge considered, admitted the said exhibit and deployed it in evidence because the appellant's counsel did not object it when it was about to be tendered. It is stated at page 309 of the record of appeal regarding the Judge's stance that: "Lastly, it was contented by the defence counsel that the substance o f evidence pertaining to the alleged narcotic (heroin chloride) was not mentioned and read out during the committal proceedings. Hence, it was asserted by the counsel, the accusedperson was taken by surprise in court. It is obvious, the argument herein is an afterthought, as the defence counsel didn't object to the admission in evidence o f the impugned key exhibit in this case." [emphasis supplied] However, that passage does not reflect the true account of what transpired that day at the trial court. In fact, the appellant objected the reception of the contrabands in evidence, though on a different ground, as the record of appeal depicts at page 55 as follows: "Mr. Anyosisye - Defence Counsel, I object the admission o f the exhibit based on originality o f the content. PW1 deponed the powdery substance was off-white in colour. However, I apprehended that the powdery substance is brownish in colour. The witness has failed to state clearly which kind 12

o f chemical process the powdery substance has went through which resulted into change o f colour. On this ground, I object its admission in evidence." We are now confident to demonstrate that, exhibit PI was not listed during the committal proceedings. What the prosecution mentioned during the preliminary hearing as packets of narcotic drugs, is indeed uncertain if are the physical exhibits mentioned in the committal proceedings. Our position in Metawasi Lomayan Meshulai @Leyoo v. Republic (Criminal Appeal No. 682 of 2021) [2024] TZCA 719 (13 August 2024; TanzLII), for that matter, still a good law regarding naming of real evidence in other documents or during preliminary hearing instead of complying with the requirement of section 263 (2) of the CPA by listing and explaining such real evidence. At page 15 in Metawasi's case, we held: "It is dear as a pikestaff that the confiscated elephant tusks are not mentioned in any way in the transcript o f the committalproceedings, which spans pages 62 through 70 o f the record o f appeal. Ms. Mbwana cited the DPP's transmittal letter, which stated that "physical exhibits shall be produced during trial" and that the tusks were explicitly mentioned during the preliminary hearing. This Court will not be influenced by these 13

facts in its decision to enforce the prohibition under section 289 (1) o f the CPA against the admission o f evidence that did not satisfy the requirements o fsection 246 (2) o f the CPA or rule 8 (2) o fthe CDECRules. In fact, the Court deemed the physical or tangible exhibit cited at the preliminary hearing to be irrelevant in both Remina Omary Abdul (supra) and Wolfgang SylvesterLwamtonga (supra)." As we demonstrated above, exhibit PI found its way in evidence without being mentioned or listed during the committal of the appellant. Again, to the conclusion of trial, there is nowhere the record suggests that the provision of section 289 (1) of the CPA (now section 308 (1) in the Revised Edition 2023) was complied with. Another point to add regarding exhibit PI is that, even the bags through which the said contrabands were alleged to be found, did not find their way in evidence. The ground for rejecting them in evidence was that the said bags were not mentioned or listed during the committal proceedings. Page 85 through 86 of the record of appeal is a revelation in relevant parts of the ruling refusing to admit the bags as hereunder: 'The defence counsel has objected the admission o f the two (2) bags belonging to the accused in evidence. The ground advancedbeing the fact that the exhibits intended to be tendered were not mentioned or enlisted during 14

committal proceedings...Having reproduced the above principle applicable to this case, without much ado, this court finds the objection advanced by the defence counsel meritorious and uphold the same." The learned Senior State Attorney nonetheless submitted that, even in absence of those bags, the evidence shows that the said bags belonged to the appellant and it is in those bags the alleged narcotic drugs were retrieved and seized. We are unable to agree with this assertion, save where the bags constitute part of the evidence on record. Therefore, without proof of the existence of the real evidence, we stated in Metawasi (supra) that, the charge remains unproven and we do not hesitate to hold so. Regarding the chain of custody, needless to state its rationale in evidence, the learned Senior State Attorney conceded in her submission that, there is breakage of it. Indeed, we are with her in that position. As we demonstrated above, exhibit PI which was under the custody of PW3 was tendered in Court by PW1. We note that, PW3 is the one who took exhibit PI to PW1 for forensic investigation. We note further and it is not disputed that, after the conclusion of that investigation, exhibit PI was returned to PW3 for custody. All through in the evidence of PW3, there is no indication who handed over exhibit PI to PW1 before it was tendered in evidence. In this fact, PW3 is silent. On his part, PW1 stated during 15

cross examination at page 62 of the record of appeal that the exhibit PI was brought in court by the prosecution much as they were not the custodian. It reads this way: Y have not brought the register used to record exhibits neither the fetter from the poiice which required me to conduct analysis o f the exhibit. The exhibit herein has been brought in court by the prosecution. Prosecution is not the custodian o f the same." With the foregoing evidence of the prosecution, it becomes obvious to us that, the exhibit keeper (PW3) was not the one who handed over exhibit PI to PW1 for purposes of tendering it in the appellant's trial. It is to say, it is uncertain and not proved by way of evidence if the contrabands entrusted to PW3 for safe custody is the same which PW1 made forensic examination and returned it to PW3 and thereafter is the same which was tendered by PW1 in evidence as exhibit PI. In the circumstances, the appellant alleged in his written submissions, which we are unable to fault him that, the possibility of tempering and falsifying that evidence is highly probable. As we stated in The Director of Public Prosecutions v. Stephen Gerard Sipuka (Criminal Appeal No. 373 of 2019 [2021] TZCA 330 (20 July 2021; TanzUI) even the oral evidence in the instant case is incredible to prove the chain of custody, thus making the prosecution case unproven. 16

Therefore, it is our considered view that the grounds determined above suffice to resolve the entire appeal, as such, a need to deliberate on other grounds of appeal does not arise any more. In the light of the foregoing, we are constrained to allow this appeal. The conviction is accordingly quashed and the life sentence is thus set aside. The appellant should be released from custody, else, there are some lawful reasons for his continued incarceration. DATED at DAR ES SALAAM this 17th day of October, 2025. M. C. LEVIRA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered this 17th day of October, 2025 in presence of Appellant in person via virtual court from Ukonga Central Prison, Mr. Titus Aron, learned State Attorney for the Respondent and Mr. Magesa Fabiane Mgeta, Court Clerk; is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 17