Masaka Maduhu vs Republic (Criminal Appeal No. 138 of 2021) [2024] TZCA 1048 (5 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA ( CORAM: MWANPAMBO. J.A, RUMANYIKA, J.A. And KHAMIS. 3.A .) CRIMINAL APPEAL NO. 138 OF 2021 MASAKA MADUHU..................................................................APPELLANT VERSUS THE REPUBLIC .................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Luvanda, 3^ dated the 26th day of November, 2021 in Economic Case No. 1 of 2020 JUDGMENT OF THE COURT 1s t & 5th November, 2024 MWANPAMBO, 3.A.: The appellant Masaka Maduhu was convicted by the High Court (Corruption and Economic Crimes Division), sitting at Shinyanga of Trafficking in Narcotic drugs contrary to section 15(1) (a) of the Drugs Control and Enforcement Act (the DCEA) read together with paragraph 23 of the First Schedule to and section 57(1) of the Economic and Organised Crimes Control Act. The conviction earned the appellant

twenty years' imprisonment. Aggrieved, he has appealed against both conviction and sentence. According to the particulars of the information, on 11 May 2019 at Ngando Village in Itilima District, the appellant was allegedly found in possession of 118.68 kilograms of Narcotic Drugs that is to say; Cannabis sativa commonly known as Bhangi. The appellant's arraignment was a result of an operation launched by the Police targeting people who were involved in the illicit business in the district. Inspector Johansen Justine Mkera (PW6) and F. 2600 Detective Seargent Emilian (PW5) were among the police officers involved in the operation. On May 2019, the operation team landed at Ngando village at the homestead of the appellant upon a tip from an informer that he was involved in the illicit business. The team conducted a search at the appellant's homestead through PW5, PW6 and other Police Officers witnessed by a Village Executive Officer (PW1) and other civilians. The search resulted in the discovery and retrieval of six bags of leaves suspected to be Bhangi. Similarly, the search revealed growing crop of Bhangi few metres from the appellant's homestead suspected to be grown by him and destroyed instantly. The appellant was immediately arrested and taken to the police along with the contraband for further investigative steps.

At the police station, the appellant was interrogated by PW5 before whom he is said to have confessed to the offence. PW5 who recorded a cautioned statement tendered it in evidence as exhibit P5. Moments later, the appellant was taken to Daniel Keloiga Marwa (PW4); a justice of the peace before whom he recorded an extra judicial statement confessing to the offence. The extra judicial statement was admitted as exhibit P2. Subsequently, on 13 May 2019, the six bags containing the suspicious leaves under a cover letter bearing exhibit Ref. No. ITL/IR/188/2019 were taken to the offices of the Weights and Measures Agency (WMA) at Bariadi for determining their weight. Augustin Amos Maziku (PW7); a Regional Manager of WMA at the time weighed the bags and recorded a total weight of 118. 68 Kgs. After the weighing had been done, PW7 extracted samples of leaves from each bag which he stuffed in an envelope for the purpose of analysis by the Government Chemist Laboratory Authority (GCLA) Zonal offices at Mwanza under a cover letter (exhibit P8) for analysis. On 16 May 2019, No. H 5644 PC Adam testified as PW2 told the trial court that he was instructed to send the sample of the suspicious leaves in an envelope to the CCLA through Form No. DCEA -001. Paulo Mtango

(PW3) received the samples weighing 57 grams. After the laboratory analysis, PW3 concluded that the samples tested positive to Cannabis Sativa and posted his findings in a report vide Form No. DCEA 009 (exhibit PI) collected by PW2 on 18 June 2019. At the end of the trial, the High Court was satisfied that the case for the prosecution was proved against the appellant to the required standard. In the end, the trial court found the appellant guilty as charged and convicted him as mentioned above. In his quest to vindicate his innocence, the appellant has preferred four grounds of appeal faulting the trial court for; one, sentencing him on weak evidence which did not prove the case beyond reasonable doubt; two, failure to consider his defence that he was arrested at the house of his brother without any exhibits; three, acting on contradictory evidence regarding difference in the weight of the sample taken for analysis and; four, failure to issue and tender a receipt of the seized items. The appellant appeared in person, unrepresented fending for himself at the hearing of the appeal. Resisting the appeal, the respondent Republic was represented by Ms. Salome Mbughuni, Ms. Caroline Mushi, both learned Senior State Attorneys and Mr. Goodluck

Saguya, learned State Attorney. At the appellant's election, the respondent, through Ms. Mbughuni, addressed the Court in reply to the grounds of appeal, first We have found it convenient to begin with the 2n d ground whose complaint is directed at the trial court's alleged failure to consider the appellant's defence in relation to the place of arrest and without any exhibits. Ms. Mbughuni urged that the trial court considered the appellant's defence but rejected it drawing our attention to page 107 to 110 of the record of appeal. The appellant had nothing in response. With respect, we agree with Ms. Mbughuni. It is glaring from page 107 of the record of appeal that the appellant had claimed in his defence that he was arrested at his brother's house without anything and so the case against him had no legs to stand on. However, it is plain that the trial court found no substance in the defence and rejected it. It is significant that the appellant's arrest and search that led to the seizure of the illicit drugs was witnessed by PW1 who knew the appellant's home very well from where he was arrested. His evidence was not controverted in cross-examination and so we find no merit in this ground and dismiss it which takes us to the 4th ground.

The complaint in the 4th ground is against the alleged failure by the prosecution to issue receipt for the seized items coupled with failure to tender it in evidence. Although he did not elaborate, we understood the appellant suggesting that there was no evidence proving that the illicit drugs were seized from him thus, his conviction was against the weight of evidence. Yet again, the learned Senior State Attorney urged us to find the complaint baseless and dismiss it. She cited the Court's decision in Marwa Joel Marwa & 5 Others v. Republic [2024] TZCA 537, TANZLII in support of the proposition that, a receipt is not necessary in cases where search is evidenced by a certificate of seizure signed by a criminal suspect. The trial court dealt with this complaint and rejected it albeit for reasons not necessarily legally correct. Be it as it may, we agree with the learned Senior State Attorney in this regard mindful of the Court's decision in Marwa's case (supra) in which a similar complaint was raised. Referring to its previous decisions in Matata Nassoro & Another v. Republic [2022] TZCA 690, TANZLII and Papaa Olesikaladai @ Lendemu v. Republic [2023] TZCA 51 TANZILII, the Court reiterated its stance that, a certificate of seizure listing seized items constitutes evidence of the items seized, hence, a receipt is not required.

The position in the instant appeal is that, after the seizure of six bags of the cannabis sativa, PW6 prepared a certificate of seizure which he tendered in evidence as exhibit P6. That certificate was witnessed by PW1 and thumb printed by the appellant as shown at page 103 of the record. Apparently, the certificate of seizure was admitted without any objection. Neither did the appellant who was legally represented by an advocate challenge its authenticity before the trial court. The appellant's complaint in the 4th ground is devoid of merit and we dismiss it. We shall now turn our attention to the complaint in the 3r d ground in relation to the difference in the weight of the samples taken to the GCLA for analysis. Ms. Mbughuni drew the Court's attention to the impugned decision to argue that the complaint was raised by the appellant before the trial High Court which considered it and found it immaterial to the result of the analysis of the samples. She was insistent that, the trial court believed the witnesses (PW3 and PW7) who dealt with and weighed the samples at different times and places and found them to be credible and prayed for the dismissal of this ground. The appellant was relentless in his address on this ground. He drew our attention to a forwarding letter by the Regional Manager of WMA in Bariadi, Ref. No. WMA/SMY/GC/330 (exhibit P8) addressed to the GCLA,

Mwanza Zone in relation to 50 grams of samples of the leaves suspected to be cannabis sativa. He pointed out that, exhibit P8 related to a sample weighing 50 grams subject of investigation; Ref. No. ITL/IR/188/2019 but, vide exhibit PI, PW3; the officer who conducted the analysis of the samples referred to 57 grams of the samples he received in an unsealed envelope in case No. ITL/IR/189/2019. According to him, the sample received by PW3 involved quite a different case from the case involving samples sent to him by PW7. It was thus his submission that, since what was sent to GCLA involved a different case with a different weight, the trial court ought to have held that the case against him was not proved as required entitling him to an acquittal. We gave opportunity to Ms. Mbughuni to comment on the complaint but she maintained her stance that, the discrepancy in the weight of the sample was sufficiently addressed by the trial court. We have given the appellant's complaint its deserving consideration in the light of exhibit PI and P8 and we note an obvious discrepancy in the weight of the sample. We also note the difference in the number of the case subject of the investigation that is to say; ITL/IR/188/2019 according to exhibit P8 and ITL/IR/188/2019 according to exhibit PI. However, upon our closer examination, we are satisfied

that, the number reflected in exhibit PI was a result of a typo rather than referring to a different case altogether. We have taken that view having examined exhibits P4 (chain of custody record) and the cautioned statement (exh. P5) both making reference to ITL/IR/188/2019 consistent with exhibit P8. As submitted by the learned Senior State Attorney, the trial court analysed the evidence of PW3 and PW7 on the discrepancy in the weight and arrived at a correct conclusion that it was a result of use of different types of weighing places. That aside, we agree with the trial court's reasoning that, in any event, the discrepancy was within acceptable margin which had no bearing on the overall result of the analysis caried out by PW3. In the upshot, we find no merit in this ground and dismiss it. Finally, we move on to a discussion on the complaint that the case against the appellant was not proved on the standard required in criminal cases. Ms. Mbughuni impressed upon us to sustain the trial court's finding on the appellant's guilt premised on evidence which was watertight. She drew our attention to the sequence of events right from the search and seizure of the illicit drugs at the appellant's home which was witnessed by PW1 and corroborated by exhibit P6. She too drew our attention to the unbroken chain of custody of the seized illicit drugs as

well as the samples from the WMA to the GCLA and later to the police station which has not been challenged coupled with the appellant's own confession vide cautioned and extra judicial statements (exhibit P2 and P5 respectively). The learned Senior State Attorney referred to the Court's decision in Chande Zuberi Ngayaga v. Republic [2021] TZCA 122 TANZLII in support of the proposition that the best evidence in a criminal case comes from the accused who voluntarily confesses his guilt. It was her further submission that both exhibits P2 and P5 were admitted without any objection and contained nothing but confession to the possession of six bags of illicit drugs admitted as exhibit P7 collectively. She thus invited the Court to dismiss this ground. The appellant's argument on this ground hinged on two aspects. First, that the police officer (PW5) who investigated the case is the same person who recorded a cautioned statement branding it as irregular. We understood him suggesting that the caution statement was irregularly admitted and relied upon in grounding conviction. Secondly, the appellant sought to challenge the extra judicial statement arguing that, contrary to what DC Bwire who escorted him to the justice of the peace (PW4) and told the latter about his confession, he was adamant that he

never confessed that he cultivated Bhangi. Neither was he found in possession of it. Since the appellant raised an issue of law on the propriety of PW5 performing two roles as an investigator and recording a caution statement, we invited Ms. Mbughuni to respond to that issue. Placing reliance on section 57 of the Criminal Procedure Act (the CPA), Ms. Mbughuni urged that there is no prohibition under the law for an investigator recording a caution statement from a criminal suspect. She argued further that, after all, the appellant made a similar confession before the justice after PW5 had recorded a caution statement. The complaint in the first ground calls upon the Court to determine whether the appellant's conviction was on the weight of evidence. It is remarkable that as we are sitting in a first appeal, we are under rule 36 (1) (a) of the Tanzania Court of Appeal Rules, 2009 (the Rules) enjoined to re- appraise the evidence and arrive at our own findings of fact. The case against the appellant was predicated on trafficking in narcotic drugs. Although the evidence was largely on possession, section 2 of the DCEA defines trafficking to include possession, storing and producing. That means that, proof of possession was sufficient to sustain the charge. In order to sustain a charge of trafficking in narcotic drugs it was

incumbent upon the prosecution to lead evidence proving; one, that the contraband was found and seized from the appellant, two, that the contraband was nothing but cannabis sativa and; three, that, what was seized from the appellant was the same as what was sent to the GCLA for analysis. In other words, the prosecution must prove uncompromised integrity of the chain of custody of both the seized illicit drugs and the samples taken to the GCLA for analysis. We shall discuss each of them in turn. Regarding seizure, like the trial court, we are satisfied that the evidence through the arresting police officers PW5 and PW6 as well as PW1 who was an independent witness coupled with the certificate of seizure was sufficient to prove that the illicit drugs were seized from the appellant. It will be recalled that the trial court rejected the appellant's claim that he was arrested with nothing at his brother's home. We agree with that finding as sound. On the other hand, the evidence shows an uncompromised chain of custody through the witnesses who handled the exhibits starting with PW2 to PW7 and later with PW7 who weighed the bags and recorded their total weight as 118. 68Kg and thereafter took samples from each bag weighing 50 grams and packed in an envelope which he forwarded

to GCLA through exhibit P8. It was also proved through PW2 that the bags containing the illicit drugs were returned to the police station for custody by the exhibit keeper who kept them until they were tendered them in court. It is significant that the movement of the illicit drugs was recorded in a special form for chain of custody admitted in evidence as exhibit P4. As to whether exhibit P7 was proved to be narcotic drugs, the evidence through P3 and the report he tendered and admitted as exhibit PI proved it all that it was indeed cannabis sativa. Besides, the prosecution tendered in evidence exhibit P2; an extra judicial statement after the appellant had confessed to the crime before PW4. The appellant made a confessional statement before PW4 moments PW5 had recorded his cautioned statement (exhibit P5). We heard the appellant challenging both exhibits P2 and P5 but we think the grounds upon which he challenged the confessions are baseless. In the first place, we take the view that the objection has been taken belatedly. In Emmanuel Lohay & Another v Republic [2014] TZCA 220 TANZLII, the Court dealt with a similar argument challenging admissibility of a cautioned and extra judicial statements tendered during the trial. The Court rejected the objection and stated:

"It is trite law that if an accused person intends to object to the admissibility of a statement/confession he must do so before it is admitted and not during cross-examination or during defence - Shihoze Semi and Another v. Republic (1992) TLR 330. In this case, the appellants "missed the boat" by trying to disown the statements at the defence stage. That was already too late. Objections, If any, ought to have been taken before they were admitted in evidence." In the same vein, having made a confession before PW4 in the absence of the police officer who escorted the appellant signifying that he was a free agent, it is too late in the day to claim as the appellant does that he did not confess. Had it been otherwise, he could have told PW4 that he had no intention of recording the extra judicial statement and the whole exercise could have ended there. Since he did not object to its admission, he cannot safely assail it now on appeal. The same applies to the caution statement. The argument that it was wrong for PW5 to record a cautioned statement is legally untenable considering the dictates of section 58(4) of the CPA which states: "(4) Subject to the provisions of paragraph (c) of section 53, a police officer investigating an

offence for the purpose of ascertaining whether the person under restraint has committed an offence may record a statement of that person and shall - (a) show the statement to the person and ask him to read it; or (b) read the statement to him or cause the statement to be read to him and ask him whether he would like to add' Section 53 of the CPA prescribes conditions to be fulfilled by police officers interviewing criminal suspects. Paragraph (c) provides: "(c) the person has been cautioned by a police officer in the following manner, namely■ , by informing him, or causing him to be informed, in a language in which he is fluent, in writing in accordance with the prescribed form and, if practicable, orally- (i) that he is not obliged to answer any question asked of him by a police officer, other than a question seeking particulars of his name and address; and (iI) that, subject to this Act, he may communicate with a lawyer, relative or friend".

Although the appellant's complaint was against PW5 performing the role of an investigator and recording a cautioned statement which we have already held that it was in order, we are satisfied that PW5's evidence at page 53 of the record as well as exhibit P5 depict full compliance with paragraph (c) of section 53 of the CPA. At any rate, Ms. Mbughuni submitted that it has not been suggested in what way the performance of roles by PW5 prejudiced the appellant to sustain the appellant's contention. Aware of the Court's previous decisions in particular, Tabu Nyanda @ Katwiga v. Republic, Criminal Appeal No. 220 of 2004 and Shani Kapinga v. Republic, Criminal Appeal No. 337 of 2007 (both unreported) a cautioned statement recorded by an investigator cannot be rejected unless there is evidence of prejudice on the accused person. See also: Flano Alphonce Masalu @ Singu v. Republic [2020] TZCA 197, TANZLII. As there is no such evidence, the appellant's argument is baseless and we reject it. As we observed earlier in connection with the extra judicial statement, the appellant did not object admission of the cautioned statement during the trial. Raising it now is, but an afterthought which cannot be taken with any seriousness. All in all, as argued by Ms. Mbughuni, even if we were to agree with the appellant on his claim

against exhibit P5, the extra judicial statement suffices to prove that the appellant confessed to the commission of the offence independent of exhibit P5. In the event, like the trial court, we are satisfied that the respondent's case on the trafficking in narcotic drugs was proved beyond reasonable doubt warranting a finding of guilt and the conviction that followed, and the sentence. The above said, we find no merit in any of the grounds of appeal and we hereby dismiss the appeal in its entirety. DATED at SHINYANGA this 4thday of November, 2024. A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 5th day of November, 2024 in the presence of the Appellant in person, unrepresented and Ms. Caroline Mushi, learned Senior State Attorney for the Respondent Republic is hereby certified as a true copy of the original. L.J. S. MWANDAMBO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL