Elipidi Erasti Laswai vs Republic (Criminal Appeal No. 444 of 2021) [2024] TZCA 1140 (22 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI f CORAM: MWARDA. J.A.. KEREFU. 3.A. And KAIRO, J.A.Y CRIMINAL APPEAL NO. 444 OF 2021 ELIPIDI ERASTI LASWAI............................................. APPELLANT VERSUS THE REPUBLIC.......................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Mutungi, J.) Dated the 28th day of July 2021 In Criminal Appeal No. 09 of 2021 JUDGMENT OF THE COURT 25th October & 22n d November, 2024 MWARIJA. 3.A.: This appeal arises from the decision of the High Court of Tanzania at Moshi in Criminal Appeal No. 9 of 2021, originating from the District Court of Moshi, Criminal Case No. 321 of 2018. In that case, the appellant, Elipidi Erasti Laswai was charged with the offence of trafficking in narcotic drugs contrary to section 15 A (1) and (2) (c) of the Drug and Enforcement Act, as amended by section 9 of the Drug Control and Enforcement

(Amendment) Act, No.15 of 2017. It was alleged that, on 8/7/2018 at Kiyungi area within Moshi Rural District in Kilimanjaro Region, the appellant was found trafficking 150 grams of cannabis sativa, commonly known as bhang. When he was arraigned before the District Court, the appellant denied the charge. As a result, the prosecution called five witnesses to testify in support of the charge. Before the trial had commenced, the appellant jumped bail and thus the case proceeded in his absence. Having heard and considered the evidence of the five witnesses; G.1548 D/C Adeide (PW1), Mayunga Mathayo Malisa (PW2), WP 4146 D/CPL Angela (PW3), Andrea Mhidini Msangi (PW4) and Tupeligwe Reuben Mwaisaka (PW5), the trial court found that the case against the appellant had been proved beyond reasonable doubt. It thus convicted and sentenced him to thirty (30) years imprisonment. Aggrieved, the appellant appealed to the High Court. His appeal was unsuccessful hence this second appeal. The background facts giving rise to the appeal are not complicated. On 8/7/2018 at night, PW2's wife went out of the house for a short call. While outside, PW2 heard her shouting that a person suspected to be a

bandit had entered in one of the rooms of their house. PW2 rushed and locked from outside, the door of the room in which the said suspect had entered. Having done so, PW2 called and informed the area Chairman (PW4) and the police about the incident. When PW4 and PW1 arrived at the scene, after they had been informed of the incident by PW2, the room was opened and the suspect was identified to be the appellant who was found to be drunk. It was found further that, he entered PW2's house by a mistake because he was under the influence of alcohol. He was taken to Central Police Station, Moshi and was thereafter charged in court on allegation of trafficking in narcotic drugs, having allegedly been found to have entered into PW2's house with a bag containing 150 grams of the substance suspected to be bhang. It was the testimonies of PW1, PW2 and PW4 that, when the room in which the suspect had entered was opened, the appellant was found with a black plastic bag and when he was taken to the sitting room where the bag was searched, 74 rolls of what was suspected to be bhang (the rolls) were found. PW1 tendered a search warrant and the rolls as exhibits. The same were admitted in evidence as exhibits PI and P2 respectively.

On her part, PW3 testified that, she investigated the case and in the course of doing so, she took the sample of the rolls to the Chief Government Chemist (the CGC) for analysis. Her evidence was supported by PW5, the chemist at the CGC's office, Mwanza who stated that, on 16/10/2019 he analysed 10 out of the 74 rolls sent to him by the Regional Crimes Office, Moshi vide a letter Ref. No. MOS/IR/50/51/2018 and found that the same contained cannabis sativa. He tendered the report of his findings and the same was admitted in evidence as exhibit P3. In its decision, the trial court relied on the fart that the appellant was arrested at the scene and that after the sample from the rolls was analysed by PW5, the same was found to be Cannabis Sativa. That decision was challenged before the High Court on three grounds, mainly on the contention that, the case was not proved beyond reasonable doubt. The learned first appellant Judge upheld the decision of the trial court. She was of the view, inter alia that, the appellant was found in possession of the rolls tendered by PW1. She found further that, the chain of custody of exhibit P2 was established.

In the appeal before us, the appellant has raised a total of 11 grounds of complaint against the decision of the High Court; Seven grounds in his memorandum of appeal filed on 8/11/2021 and four grounds in the supplementary memorandum filed on 5/6/2023. For reasons which will be apparent herein, we do not find it necessary to reproduce or state the substance of all grounds of appeal. At the hearing of the appeal, the appellant appeared in person, unrepresented. On its part, the respondent Republic was represented by Ms. Rose Sulle, learned Senior State Attorney assisted by Mr. Isack Mangunu, learned State Attorney. When he was called upon to argue his grounds of appeal, the appellant opted to hear the respondent's reply submissions to his grounds of appeal, reserving his right to make a rejoinder if the need to do so would arise. At the outset, Ms. Sulle informed the Court that, the respondent was supporting the appeal basically on the 4th and 5th grounds of appeal contained in the memorandum of appeal filed on 8/11/2021. In the said grounds, the appellant challenges the decision of the High Court contending as follows:

"3. That, the learned first appellate Judge erred both in law and fact in failing to note that the search warrant and 74 ro lls o f bhang were im properly and wrongly tendered and adm itted in evidence as exhibits as PW1 never described [them ] before he identified and tendered them in evidence. 4. That ; the learned first appellate Judge erred both in law and fact in upholding the appellant's conviction despite the chain o f custody and preservation o f the seized 74 ro lls o f the bhang being not certain." Conceding to the two grounds of appeal above, the learned Senior State Attorney submitted that, whereas the admission of exhibits PI and P2 was unprocedural because the witness who tendered them (PW1) did not describe them before he did so, the chain of custody of exhibit P2 was not established. Elaborating on the breakdown of the chain of custody of exhibit P2, Ms. Sulle argued that, according to the evidence, after the seizure of the rolls, the same was taken to Central Police Station, Moshi but the person to whom the same was handed over, was not disclosed. Similarly, the learned Senior State Attorney went on to argue that, the person who kept that exhibit at the police station was neither

mentioned nor called to testify. She contended further that, evidence was lacking as regards the person who handed over to PW3, the sample which was taken by him to the CGC for analysis and how that sample was obtained from the seized rolls. On the basis of her arguments, Ms. Sulle submitted that, the case against the appellant was not proved to the required standard. She thus urged us to allow the appeal. The appellant did not have much to submit in his rejoinder. He supported the concession made by the learned Senior State Attorney and urged us to allow his appeal. To begin with the submissions made by the learned Senior State Attorney on the 3rd ground of appeal, it is not disputed that, PW1 who tendered exhibit P2 did neither describe how he identified the same nor on how it came into his possession before he tendered it. At page 14 of the record of appeal, the witness was recorded to have merely stated as follows: 7 arrested (sic) 74 ro lls o f Bhang which was kept under Malboro or plastic bag black in colour. I pray to tender the 74 ro lls o f bhang as exhibit ..."

It is trite law that, before a witness tenders an item or physical object as an exhibit, he or she must first give its description. In the case of Rashid Shabani v. Republic (Criminal Appeal No.310 of 2015) [2016] TZCA 63 (29 July 2016), two physical exhibits, a radio and an axe were admitted in evidence while the witness did not give a description on how he identified them before he prayed that the same be admitted in evidence. Having considered that irregularity, the Court observed as follows: "The law demands that before a witness is allow ed to tender a physical evidence as an exhibit, she/he m ust first describe it, identify it and explain how it came into his/her possession. I f it was seized by the police from the appellant, the chain o f custody m ust be explained." On the effect of a failure to observe that procedure, the Court stated that: "The irregularity in the adm ission o f the said exhibits im pacted on the appellant's righ t to a fa ir trial. A s such, the existence o f those exhibits in the record further renders the appellant's conviction unsafe."

See also the case of Kaenge Christopher v. Republic (Criminal Appeal No.187 of 2016) [2019] TZCA 219 (18 July 2019). Given the position of the law as stated above, we agree with the learned Senior State Attorney that, the irregularity in the admission of exhibit P2 rendered it invalid. That was not however the only flaw as regards reliability of exhibit P2 in proving the case against the appellant. As submitted by Ms. Sulle, when arguing in support of the 4th ground of appeal, the chain of custody of the said exhibit was not established. It was her submission that, the evidence of the prosecution witnesses did not show how the movement of exhibit P2 was handled from the time of its seizure until when it was tendered in court. In determining these grounds of appeal, we are mindful of the principle that, in a second appeal, the Court will not, ordinarily, interfere with the concurrent findings of the two courts below on matters of fact unless there has been a misapprehension of evidence or that the findings have occasioned a miscarriage of justice. It will also interfere where there has been a violation of the principles of the law or procedure. In the case

of Wakuru Mwita vs. Republic, Criminal Appeal No.219 of 2012 (unreported), the Court stated that principle as follows: "The law is w ell-settled that on second appeal, the Court w ill not readily disturb concurrent findings o f facts by the tria l court and the first appellate court unless it can be shown that they are perverse , dem onstrably wrong or clearly unreasonable on are a result o f a complete m isapprehension o f the substance, nature or non-direction on the evidence, a violation o f some principle o f law or procedure or have occasioned a m iscarriage o f ju stice . " In the case at hand, the evidence by the prosecution witnesses was that, the appellant was allegedly found with exhibit P2 in the PW2's house. PW1 stated that, the said exhibit was taken to Moshi Central Police Station but his evidence was silent as to the person who received the same for safe keeping. Furthermore, even if the exhibit was handed to the exhibit's keeper from whom PW3 collected it and took it to the CGC, still that person was neither named nor was he called as a witness. Worse further, as argued by the learned Senior State Attorney, PW1, who tendered the exhibit in court, did not state how he obtained it from the CGC to whom the same was sent by PW3 for analysis of the samples 10

therefrom. Again PW5 who analysed the 24 gms from the rolls of the alleged bhang did not name the person from whom he received the package or the person to whom he handed both the report of analysis and the remaining quantity after extraction of 24 gms for analysis. It is clear from the prosecution evidence that, the chain of custody of exhibit P2 from the time of its seizure until when it was tendered in court, was neither documented nor established by the oral evidence of the witnesses. As to what the chain of custody entails and the relevance of substantiating that evidence, the Court stated as follows in the famous case of Paulo Maduka and 4 others v. Republic (Criminal Appeal No. 110 of 2007) [2019] TZCA 69 (28 October 2009): "By chain o f custody we have in m ind chronological docum entation and or paper trail, showing the seizure , custody, control, transfer, analysis and disposition o f evidence be it physical or electronic. The idea behind recording the chain of, it is stressed, is to establish that the alleged evidence is in fact related to the alleged crim e..." On how to establish the proper chain of custody of an exhibit which, also like in the case at hand, requires to be analysed by the CGC, it was

observed as follows in the case of Chacha Jeremia Murimi and 3 others, Criminal Appeal No,551 of 2015 (unreported): "In order to have a so lid chain o f custody, it is im portant to follow carefully the handling o f what is seized from the suspect up to the tim e o f laboratory analysis, until fin ally the exhibit seized is received in court as evidence. There should be assurance that the exhibit seized from the suspect is the same which has been analysed by the Chief Government Chem ist The movement o f exhibit from one person to another should be handled with great care to elim inate any possibility that there may have been tem pering with that exhibit The chances o f tem pering in the Government Laboratory analysis should also be elim inated." As shown above, in this case, the handling procedure and custody of the said exhibit, which was the subject matter of the charge, left a lot to be desired. With that flaw, the exhibit was wrongly acted upon because the breakdown of the chain of custody rendered it to be of no evidential value. There was indeed, a misapprehension of evidence by the trial court in acting on exhibit P2 to convict the appellant, and the conviction was, for that reason, wrongly upheld by the first appellate court.

For the foregoing reasons, we agree with the learned Senior State Attorney that the case against the appellant was not proved beyond reasonable doubt. We thus allow the appeal, quash the appellant's conviction and set aside the sentence. He should be set free forthwith unless he is otherwise lawfully held. DATED at DAR ES SALAAM this 19th day of November, 2024. Judgment delivered this 22n d day of November, 2024 in the presence of Appellant in person and Mr. Ruth Emmanuel Kamola learned State Attorney for the Respondent/Republic connected through video conference from High Court Moshi, is hereby certified as a true copy of A. G. MWARDA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL the or'