Hawad Ngao vs Republic (Criminal Appeal No. 454 of 2021) [2024] TZCA 1195 (4 December 2024)

IN THE GOURT OF APPEAL OF TANZANIA ATIRINGA (CORAM: MKUYE, J. A., MGEYEKWA, J. A. And NGWEMBE, J.A.l CRIMINAL APPEAL NO. 454 OF 2021 HAWAD NGAO ..... ........ .... ........ ........ APPELLANT VERSUS THE REPUBLIC __ ___ ___ __ ___ ___ RESPONDENT [Appeal from the decision of the High Court of Tanzania at Iringa] (Matoaolo, J.') dated 25th day of August, 2021 in Criminal Appeal No. 63 of 2020 JUDGMENT OF THE COURT 26th November &. 4th December, 2024 NGWEMBE, 3.A.: This is a second appeal emanating from the decision of the District Court of Njombe where the appellant was convicted and sentenced to serve thirty (30) years7 imprisonment for the offence of Unlawful Trafficking of Narcotic Drugs contrary to section 15A (1), 2 (c.) of the Drugs Control and Enforcement Act No. 5 of 2015 (DCEA). The charge laid at trial, alleged that on 4th day of December, 2018 at Makambako bust stand, in Njombe Region, the appellant was found in possession of narcotic drugs to wit; 4. 26 kilograms of cannabis sativa (bhang) valued at TZS. 2,700,000.00.

Extracting from the background of the matter, the appellant on 4th December, 2018 was travelling from Songea in Ruvuma Region to Ubaruku in Mbeya Region with a passenger commuter bus known as MASIHI, bearing registration No. T 170 DKU. The Police Officers at Makambako Police station while In their patrol, around 12:50 hours, received an information from an anonymous informer that a passenger in seat No. 06, was in possession of cannabis sativa in his bag transporting from Songea to Ubaruku. At the time they received that information, the commuter bus was estimated to be approaching Makambako Bus Station. Upon arrival of the commuter bus, the police officers went straight to seat number 6, It happened that a passenger on that seat was the appellant herein. Those police officers ordered him to identify his luggage which was on the bus carrier. The bus conductor also confirmed that it was the bag of the appellant and was parked on the carrier of that commuter bus. Upon inspecting inside that bag, they retrieved substances suspected to be bhang leaves. The appellant was also searched and found with a bus ticket, which bore his names and seat number among other particulars. The search warrant was in form No. DCEA 003, where the police officers and bus conductor signed. The retrieved substances were

taken to the Chief Government Chemist who confirmed that those leaves contained cannabis sativa. During preliminary hearing, the appellant disputed all facts save for his particulars. However, after closure of the prosecution case and found to have a case to answer, the appellant defended under oath, but after swearing in he said: "/ have nothing to say in this case, "thus, he closed his defence case. Having been so convicted and accordingly sentenced as alluded to above, he preferred an appeal to the High Court challenging the trial court's finding on propriety and admissibility of exhibits; weight of the prosecution evidence and height of proof. However, the High Court found those grounds were meritless to shift the scale, consequently the appeal was dismissed entirely. Still undaunted, the appellant has preferred this second appeal. Before us, two memoranda of appeal were received. The first memorandum consisted of five (5) grounds and the supplementary memorandum registered four (4) grounds, constituting a total of nine (9) grievances which can be paraphrased as follows: one, the lower courts misdirected themselves on the issue of ownership of the bag purported to have been carrying bang therein, the appellant was neither the owner nor possessor of that bag; two, the first appellate court erred

to uphold the conviction and sentence passed by the trial court; three, the first appellate court erred to uphold the conviction and sentence based on hearsay evidence on circumstantial evidence; four, the sentence of thirty years imprisonment was excessive, harsh, injustice and unfair; five, the prosecution failed to prove the offence to the standard required by law. In the supplementary memorandum of appeal, raised the following grounds: first, exhibit P2 (bus ticket) was not read over; second, possession of cannabis sativa was not proved; three, chain of custody of the cannabis sativa was not established; and four, no reason was assigned for the case file being tried by two different magistrates contrary to section 231 of the Criminal Procedure Act, Cap 20 R.E. 2022. When the hearing was scheduled before us, the appellant entered appearance unrepresented, while Mr. Shaban Mwegole, learned Principal State Attorney, represented the respondent Republic. When we invited the appellant to elaborate his grounds of appeal, he preferred to rejoin after the respondent Republic has responded to his grounds of appeal. Therefore, Mr. Mwegole commenced his submission by first, examining the contents of the grounds alluded to above and observed that, five grounds of appeal are new as they were not raised and argued at the first appellate court. He thus, urged the Court to discard those new

grounds of appeal as we did in the case of Masalu Ipiringa v. Republic, (Criminal Appeal No. 263 of 2019) [2023] TZCA 17401 (11 July 2023). At the onsets we commend for the significant observation made by Mr. Mwegole and we agree that, it is the law that, new grounds not raised at the first appeal cannot be raised in the second appeal, unless the same falls under the exceptional circumstances recognized by the law. We have sacredly insisted in many decisions that the rationale for the rule is to avoid the possibility of this Court faulting the lower court decisions on a matter which was never raised and determined before it. As a general rule therefore, the Court lacks jurisdiction as we decided in numerous decisions, including the cases of Masalu Ipiringa v. Republic (supra); Abdul Athuman v. Republic [2004] T.L.R 151; Samweli Sawe v. Republic, Criminal Appeal No. 135 of 2004 (unreported); Juma Manjano v. The Director of Public Prosecution, (Criminal Appeal 211 of 2009) [2012] TZCA 195 (2 March 2012); and Omary Kassimu Mbonde v. Republic, (Criminal Appeal No. 175 of 2016) [2019] TZCA 294 (17 July 2019).

It is therefore settled that new grounds cannot be entertained by this Court in the second appeal save only when they raise significant points of law. In the instant appeal, we have reviewed both memoranda of appeal and found that the first and fourth grounds in the supplementary memorandum of appeal raise the question of law. Other grounds, correctly as the learned Principal State Attorney condemned them, are new and some are mere repetitions. Therefore, ground 3 in the original memorandum and ground 3 of the supplementary memorandum are hereby disregarded, while ground 2 of the supplementary memorandum is repetition or at least synonymous to ground 1, 2 and 5 of the original memorandum. Having cleared on the grounds of appeal, Mr. Mwegole started to address the Court on ground five of the supplementary memorandum where the appellant lamented that, the case file was presided over by two different magistrates without assigning any reason. The learned Principal State Attorney conceded that the record of appeal reflect the fact, but he was quick to resolve this query by submitting that, at pages 34 and 36 of the record of appeal clearly indicate that the reason for the case file to proceed before another magistrate was disclosed, that the

original trial magistrate was transferred to another station so the case file was assigned to another magistrate, the fact which was addressed to the appellant in compliance of section 214 of the CPA and the appellant consented the second magistrate to proceed with the case. He proceeded to concede to the first ground of supplementary memorandum of appeal in respect of failure to read the contents of the ticket (exhibit P2) after being admitted and he prayed that the same be expunged from the record. He extended the same holding in respect to exhibit P3 which is related to search warrant that it was not read after being admitted as an exhibit. The learned counsel proceeded to address the Court on ground 2 of the original memorandum and supported the finding of the High Court that the contradictions in respect of the bag colour was minor discrepancies curable under section 388 of the CPA. Then went to submit on ground 4 of the original memorandum in respect of excessive sentence of 30 years imprisonment as provided for under section ISA of the DCEA. He conceded that the sentence was excessive considering that the appellant was the first offender. Lastly, the learned Principal State Attorney argued on ground 5 of the original memorandum regarding proof of the offence. He maintained

that the appellant had confessed to have committed the offence. However, after being prompt by the Court on propriety and admissibility of exhibit P5, he admitted that the exhibit was wrongly procured and admitted contrary to the law. Thus, he changed his previous stance and conceded that, in the absence of exhibit P5, obvious the case remained unproved beyond reasonable. At the end, he prayed the appeal be allowed. Having heard the submission by the learned Principal State Attorney, in rejoinder, the appellant argued strongly against the report of the Government Chief Chemist that, was tendered by a wrong person without any clear foundation. He referred the Court to page 78 where PW3 had given the testimony and tendered the report without laying proper foundation for tendering that exhibit. Thus, he implored the Court to expunge the report of the Chief Government Chemist. On that basis, he urged the Court to allow the appeal and release him from jail. We have considered the rival arguments of both parties. Although some grounds were new and others were repetitions and those which have been addressed by the parties had diverse significance of priority, for smooth and logical flow for determination of the appeal, we are determined to consider the appeal in the following sequence: first -

propriety of succession of magistrates at the trial court; second - admissibility and reliability of exhibit P2, P3 and P5; third- proof of the offence and, fourth - propriety of the sentence. To us, the arrangement is convenient for smooth flow in determination of this appeal. Considering the first ground, we find the relevant section is 214 of the CPA which is quoted that: "214.-(1) Where any magistrate, after having heard and recorded the whole or any part o f the evidence in any triai or conducted in whoie or part any committal proceedings is for any reason unable to complete the trial or the committal proceedings or he is unable to complete the trial or committal proceedings within a reasonable time, another magistrate who has and who exercises jurisdiction may take over and continue the triai or committal proceedings, as the case may be, and the magistrate so taking over may act on the evidence or proceeding recorded by his predecessor and may, in the case o f a triai and if he considers it necessary, resummon the witnesses and recommence the trial or the committal proceedings. (2) Whenever the provisions of subsection (1) apply the High Court may whether there be an appeal or not, set aside any conviction passed on

evidence not wholly recorded by the magistrate before the conviction was heard\ if it is o f the opinion that the accused has been materially prejudiced thereby and may order a new trial. (3) Nothing in subsection (1) shall be construed as preventing a magistrate who has recorded the whole o f the evidence in any trial and who, before passing the judgment is unable to complete the trial, from writing the judgment and forwarding the record o f the proceedings together with the judgment to the magistrate who has succeeded him for the judgment to be read over and, in the case o f conviction, for the sentence to be passed by that other magistrate." It is noteworthy that, a magistrate can take over the proceedings which were conducted by another magistrate if the latter was unable to proceed with the matter for good reason. The practice has been developed that, where a magistrate is taking over any case file from another magistrate must record the reasons for doing so and he must address the parties on the same. See: Charles Yona v. Republic, (Criminal Appeal No. 79 of 2019) [2021] TZCA 339 (2 August 2021); Priscus Kimario v. Republic, (Criminal Appeal No. 301 of 2013) [2015] TZCA 13 (27 February 2015); Emmanuel Jackson Kamwela v. Republic, (Criminal Appeal No. 482 of 2015) [2016] TZCA 682 (29

July 2016); and John s/o Lukosi v. Republic, (Criminal Appeal No. 340 of 2014) [2016] TZGA 687 (1 August 2016). The rationale for that rule is obvious, to avoid mishandling of the trial and avoid chaos which may occasion miscarriage of justice. Subsection (2) of the section confer jurisdiction to the High Court to set aside the decision if it thinks there was prejudice to either party in the cause of change of case file from one magistrate to another. As such, the appellant's complaint is on failure of the successor magistrate to give reasons for reassignment of the case file to him. However, the record clearly indicates that Hon. J. J. Mhanusi, the first trial magistrate was transferred to another court station, thus Hon. Makube SRM on 4th December, 2019, seemingly as the incharge, reassigned the case file to another magistrate Hon. Ng'welo, RM by stating a reason that, the trial magistrate has been transferred. Thereafter, both parties appeared before the successor magistrate on 10th January, 2020 where both parties were ready for hearing. The appellant had no objection to proceed with the hearing of the trial from where the predecessor magistrate ended and the successor magistrate resolved that the hearing should proceed from where the predecessor had ended.

We find that the reason for successor magistrate to take over the case was clearly demonstrated in the presence of both parties and the appellant signified his readiness to proceed with hearing of the case from where the predecessor ended. Under the circumstances, not only that reasons were given for succession, but also the appellant did not suggest any prejudice on his side. As such the ground lacks merit and we dismiss it. Regarding the propriety of admissibility of exhibits P2 and P3, it is evident from the proceedings that those exhibits were cleared for admission and actually admitted, but being admitted and marked as exhibits, were not read over loudly as required by law. In this point of law, it is settled in our jurisdiction that failure to read the contents of the documentary exhibit, automatically prejudices the adverse party by preventing him to know its contents. It is developed that, exhibits admitted in noncompliance of the requirement to read over is liable to expungement as correctly submitted by the learned Principal State Attorney. We therefore, have no cogent reason to depart from that settled principle of law, accordingly, we allow this ground of appeal and expunge exhibits P2 and P3 which are the bus ticket and search order respectively from the court record.

The following ground is on whether the offence was proved beyond reasonable doubt. In this ground, the learned Principal State Attorney relied on the confession made in the cautioned statement (exhibit P4) claiming that the appellant had confessed to the offence and that the colour of the appellant's bag, whether pink or grey was minor discrepancy curable under section 388 of the CPA. Therefore, the evidence adduced by the prosecution witnesses as well as the confession made by the appellant in exhibit P4 incriminated him squarely. Thus, the High Court was right to uphold the trial court's verdict and sentence, he stressed. On the side of the appellant, dwelt much on the contradictions related to the colour of the bag, which the High Court held that those differences were minor and thus, the bag belonged to the appellant. We find the evidence in respect to ownership of the bag was not shaken. Even the appellant himself identified his bag. PW2 confirmed that the appellant identified his bag when it was placed amongst other luggage. In respect to a colour of the bag we stand to our previous decision in the case of Christian Ugbechi v. Republic, (Criminal Appeal No. 274 of 2019) [2021] TZCA 3539 (23 December 2021), where the appellant was convicted for trafficking in narcotic drugs, the contradictions emerged on the colour of the pellets. This Court having considered the ground, observed as follows:

"Looking at the contradiction stated by the appellant in comparison with the coherence of prosecution evidence in regard to what was retrieved from the appellant which eventually was proved to be narcotic drug, we find that the issue o f colour alone was a minor contradiction which did not go to the root o f the matter. The pellets being white, cream or milky in colour is insignificant over the whole evidence on record. They are pellets, anyway. Moreover, the colours cream, milky and white are closely related, it is different if one witness mentioned that the pellets were red or black." In this case, we understand that PW2 said the bag was pink in colour while PW1 said it was grey. As we did earlier, we restate here that the contradictions in respect of colour are among the minor discrepancies which do not go to the root of the matter except in rare exceptional circumstances, See: Dickson Elia Nsamba Shapwata and Another v. Republic, (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008) and Onesmo Laurent @ Salikoki v. Republic, (Criminal No. Appeal 458 of 2018) [2022] TZCA 594 (30 September 2022). It is evident that the alleged bag had leaves which according to the report from the Chief Government Chemist (exhibit P5), such leaves

were cannabis sativa. However, it is interesting to observe that PW3, one WP 7611 DC Miriam, testified on 15th October, 2019 before the predecessor magistrate stating that she was assigned to record the appellant's cautioned statement and tendered it as exhibit P4. When the successor magistrate presided over the matter, a prayer was made to recall the same witness (PW3) on 27th January, 2020 which prayer was granted- This time she testified that she was the investigator of the case and prayed to tender the Chief Government Chemist report in respect of the leaves found in the bag of the appellant, that those leaves were narcotic drugs, which report was eventually admitted and marked exhibit P5. We think the evidence of that witness was too stained for the trial court to rely in convicting the appellant. To begin with, PW3 did not state whether at any point in time she came into contact with the report and the witness did not lay any foundation for tendering of that exhibit. It is patently evident that when she testified before the predecessor magistrate, she did not assert any statement of her being the investigator of the case, in which exercise the report could have come into her hands. The move to recall her after the successor magistrate presided over with the case, was in any standard an afterthought aimed to devise a rear entry of the evidence which was otherwise inadmissible. We are cognizant of our decision in

the ease of The Director of Public Prosecutions v, Mirza Pirbakhshi Hadji and 3 Others, (Criminal Appeal No. 493 of 2016) [2017] TZCA 946 (4 December 2017) where we observed as follows: "A person who at one point in time possesses anything, a subject matter o f trial, as we said in Kristina Case is not only a competent witness to testify, but he could also tender the same. It is our view that it is not the law that it must always be tendered by a custodian as initially contended by Mr. Johnson. The test for tendering the exhibit therefore is whether the witness has the knowledge and he possessed the thing in question at some point in time, albeit shortly. So, a possessor or a custodian or an actual owner or alike are legally capable o f tendering the intended exhibits in question provided he has the knowledge o f the thing in question." The above is certainly acceptable position of law. However, the question apparent in this appeal is whether PW3 was competent to tender exhibit PS. From the facts already given, she has been changing the position in respect of the role she played during trial, which changes cast more doubt to her credibility. It is doubtful if at all she was an investigator and came across with exhibit P5. According to the record of appeal, unfortunate PW3 absolutely failed to lay concrete foundation prior to tendering exhibit P5. This tells that even if the witness' second

version of facts would be accepted that she was an investigator, yet the exhibit would Jack legitimacy of reliance. But from the facts as traversed, the only available conclusion in the circumstances related to tendering of the report of Chief Government Chemist is that, it was improperly admitted during trial. We are therefore, justified to expunge it from the record of appeal. It follows therefore that, in the absence of the Chief Government Chemist report, even by assumption, there is no concrete documentary evidence capable of connecting the appellant with the leaves alleged to have cannabis sativa. What remains is the oral testimonies of the prosecution witnesses which are not capable of constituting conviction in the absence of scientific report on the type of the alleged leaves. In a way exhibit P4, a cautioned statement of the appellant may support the oral evidence of the prosecution. Yet, that cautioned statement was recorded contrary to section 48 (1) of the DCEA which provides that, a cautioned statement must comply with Form No. 005 under the third schedule of the Act. Form No. 005 put it mandatory when recording the cautioned statement, among other requirements to avail the suspect a right to have the statement be recorded in presence of the persons of his choice, in the manner reproduced hereunder:

"...you have right to make statement in presence o f a lawyer, relative or friend o f your choice to witness i t " Such legal right was not given to the appellant when he recorded the alleged cautioned statement. Although exhibit P4 passed admissibility test during trial, it does not earn any weight as we so decided in the case of Peter Charles Makupiia @ Askofu v. Republic, (Criminal Appeal 21 of 2019) [2021] TZCA 197 (12 May 2021). The case was in respect of the extra judicial statement, but a principle was the same that a statement should contain details of whether the suspect wishes to give his statement and the persons whose presence he wished for. In our case, that part is missing from exhibit P4 in respect of the appellant's willingness to give the statement. We find therefore that exhibit P4 was not fit to be relied upon. This takes us to resolve the last issue that the offence was not proved beyond reasonable doubt because, vital elements of the offence were not established; proof that the leaves were cannabis sativa and the appellant's possession of those leaves were not proved to the standard required by law. The above analysis demonstrates good cause to disturb the concurrent findings of the lower courts, as exhibited, the appellant was wrongly convicted. We need not to address on the propriety of the sentence in the fourth issue which falls redundant

In view of the aforesaid, we find the appeal is merited and we proceed to allow it, quash the conviction and set aside the sentence passed by the trial court and upheld by the first appellate court. Consequently, we order the appellant be released from custody forthwith unless otherwise lawfully held. DATED at IRINGA this 4th day of December, 2024. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 4th day of December, 2024 in the presence of the Appellant in person and Mr. Saimon Nashon, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.