Nusura Sultani Mtinge @ Nusura Sultani Mtinde vs Republic (Criminal Appeal No. 61 of 2021) [2024] TZCA 779 (21 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI ( CORAM: JUMA. C.3., LEVIRA. 3.A., And GALE BA, J. A, ^ CRIMINAL APPEAL NO. 61 OF 2021 NUSURA SULTANI MTINGE @ NUSURA SULTANI MTINDE......APPELLANT VERSUS THE REPUBLIC ......... . ....... . ....... . ............. . .......... . RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Moshi) (Gwae 3.1 Dated the 23rd day of December, 2020 in Criminal Sessions Case No. 7 of 2018 JUDGMENT OF THE COURT 12th & 21st August 2024 GALEBA. J.A.: Nusura Sultan! Mtinge @ Nusura Sultani Mtinde, the appellant in this appeal, was arraigned before the High Court of Tanzania at Moshi, (the trial court), facing two counts of trafficking in narcotic drugs contrary to section 16 (1) (b) of the Drugs and Prevention of Illicit Traffic in Drugs Act, Cap 95 of the Laws, now repealed. According to the charge, the offences were committed at Kilimanjaro International Airport (KIA), within Hai District in Kilimanjaro Region. The narcotic drugs subject of the proceedings at the trial court, were 4,095.1 grams of cannabis sativa for the first count. As for the second count, it was

6 , 175.9 grams of the same psychoactive substance. At the end of the trial, the appellant was acquitted of the charge in respect of the second count, but was convicted of the first, and was subsequently sentenced to life imprisonment. The appellant was aggrieved by both conviction and sentence, hence the present appeal. The material facts of the case which are of particular relevance to this appeal are that, on 23rd July, 2013, the appellant who had been booked on Turkish Airline, flight number TK 673 departing to Istanbul Turkey, was at KIA ready to catch the flight scheduled for take-off at 04:20 hours in the morning. The appellant's travel to Turkey, was a fifteen days business trip/ according to his visa endorsement in his passport (exhibit P7). The appellant was booked to fly back to the country on 3rd August 2013 as per his air ticket, exhibit P9. At the airport, as usual the appellant engaged normal logistical clearances at various desks and checkpoints. One of the checkpoints at KIA, was equipped with a system called the Hold Baggage Screen System (the HBS). On that day, the officer on duty supervising operation of the system and monitoring the baggage passing through it for security screening, was one Ahmed Mwachalula (PW8), an employee of Kilimanjaro Airports Development Company Ltd (KADCO), assisted by

Ditricia Mosha. It transpired that, at one moment a bag written MEIQITUN was being screened through the system, but there was a certain image that the system could not detect easily. The baggage was isolated and screened using an x-ray machine, but still it was uncertain as to the nature of the substance in the bag. Eventually, PW8 informed WP No. 2102 D/SGT Ndeshi (PW7), a police officer stationed at KIA Police Station, that there was a luggage with suspicious contents which were yet to be identified. Meanwhile, PW8 required the appellant via a Public Adress System to identify himself at the HBS, which he did. Upon arrival, the appellant confirmed to PW7 that although his name in the passport was "Nusura Sultani M tingef', the name on his e-ticket, the boarding pass and the baggage tag was "Nusura Sultani M tin d d ' which was nonetheless, a typing error. The appellant identified the bag with the controversial substance as his, and was required to empty it, which he did. The normal contents of the bag were, a bottle of water, baobab seeds, passion fruits, sardines, tea leaves and various clothes. After removal of the said contents from the suspicious bag, PW8 and Ditricia Mosha, returned it to the scanning system for rescreening, but there was no change; the initial images of the unidentified substances, were still visible. At this point PW7 called

ASP Leonidas Leonard (PW4), the Officer Commanding Station (OCS) for KIA Police Station, who ordered PW7 to tear the bag in order to separate its inner lining and the outer hard cover. Tearing of the bag exposed seven soap bar-shaped packages, each wrapped with yellow coloured adhesive tape. One bar was torn in the presence of the appellant and PW4 could see dried leaves, which he suspected to be cannabis sativa (exhibit P6). PW4 ordered PW7 to fill in a certificate of seizure (exhibit P23). Thereafter, the appellant who was already apprehended by PW7 together with all the exhibits, were conveyed to KIA Police Station. From HBS to Police KIA, the bag containing exhibit P6 was taken by PW4. A while later, in the morning of the same day, that is, 23rd July, 2013, PW4 took the appellant and all exhibits to the Regional Crimes Officer's (the RCO) office in Moshi, where the exhibits were handed over to D/SSGT Hashim (PW2). To exhibit the transaction, a handover certificate, (exhibit P5) was prepared and completed. According to PW2, this handover at the RCO's office was carried out in the presence of the appellant. Then PW2 labelled the exhibits, entered them in Police Form No. 16, (exhibit P19) and stored then in the strong room, as the appellant was detained in the police lock up.

On 14th August, 2013, along with other exhibits, which are not relevant to this appeal, PW2 took exhibit P6 from the strong room and prepared it ready for delivery to the Government Chemist Laboratory Agency (the GCLA) in Dar es Salaam, for testing and identification of the substance. PW2 travelled to the GCLA with the said exhibit in an envelope marked 'A7 , and when he got to Dar es Salaam, the exhibit was registered at the GCLA reception and was, handed over to Theresa John Kahatano (PW1) for testing, analysis and identification. Upon completion of preliminary tests, as a confirmatory test of the sample, using the High-Performance Liquid Chromatography equipment, PW1, confirmed that the compound constituent of exhibit P6, were branches and seeds of cannabis sativa, an illicit drug whose abuse, storage, possession, transacting in, or trafficking in, is illegal under the laws of Tanzania. This witness prepared a report, (exhibit PI), and addressed it to the RCO's office in Moshi. Exhibit P6 was handed back to PW2 by PW1 the same day. The said PW2 caught an evening flight and landed at KIA where he found the RCO and several other police officers for escort. He went straight to Moshi and kept the exhibit in the strong room from where he had taken it earlier that morning. In 2018, PW2 was transferred to Kilumba Police Station in Mwanza City. Before

relocating to the new station, PW2 handed over all exhibits in the strong room including exhibit P6 to H. 3923 D/C Michael (PW3). In that regard, PW3 tendered his statement (exhibit Dl) at page 241 of the record of appeal. PW2 identified the exhibits and tendered the same in court at the hearing. In addition to PW1, PW2, PW3, PW4, PW7 and PW8, who are the Witnesses whose evidence, we have thus far touched on, in brief, there were three more prosecution witnesses; D. 2205 D/SSGT (retired) Adson Mwasenga (PW5), Kenneth James Kaseke (PW6) and E. 1974 D/C Chediel (PW9). In a nutshell, according to the prosecution, the evidence of the above witnesses proved that the appellant was found trafficking in narcotic drugs, and it did so beyond reasonable doubt. The appellant denied the charge. The substance of his defence evidence was that the purpose of his travel to Istanbul on 23rd July, 2013 was medical treatment. He tendered exhibit D2 showing that he was suffering from unexplained fatigue, chest tightness, difficulty in breathing and cardiac related complications, and was being attended to, at Mwananyamala Hospital in Dar es Salaam, previously. As for the drugs, the appellant denied to have any knowledge of, or any connection with them. He denied even to be known as Nusura Sultani

M tinde, for his real name was Nusura Suitani M tinge. In that regard, he distanced himself with any travel documentation bearing the surname M tinde . The appellant also called Salma Sultani Mtinge, his sister whose testimony was that the appellant was sick as recorded in exhibit D2. Despite the appellant's denial of committing the offence, and despite that all the three assessors returned a verdict of not guilty, the trial court made a finding of fact that the prosecution proved the case beyond reasonable doubt. It therefore convicted the appellant and sentenced him as indicated earlier on. Aggrieved by that decision, the appellant lodged this appeal. Initially, the appeal was based on a total of eleven grounds; seven grounds of appeal, in the substantive memorandum of appeal, and four; in the supplementary memorandum of appeal. However, as it will be noted below, determination of this appeal was based on eight grounds of appeal, which are the following: "1. That, the learned trial Judge grossly erred both in law and fact when he relied on speculative ideas which influenced his judgm ent by holding that, the electronic ticket (P9) and a boarding pass (P8) tendered by the prosecution were the same exhibits found with the appellant, hence based a

conviction on those exhibits, but the certificate o f seizure (P23) suggest contrary to the Judge's findings. 2. That, the learned trial Judge grossly erred, both in law and fact when he abdicated his duty o f subjecting the entire evidence to an objective scrutiny hence wrongly decided that exhibit P6 and P16 which contained the alleged narcotic drugs namely cannabis sativa belonged to the appellant with intent o f trafficking the same. 3. That, the learned trial Judge grossly erred, both in law and fact in failing to note that, exhibit P23, the certificate o f seizure was obtained illegally, for failure to comply with section 38 (3) o f CPA and section 35 (3) o f the Police Form and Auxiliary Service Act. Admission o f the same contravened section 169 o f CPA as they failed to issue a receipt immediately after the conduct o f the said search considering that it was not an emergency search. 4. That, the learned tria l Judge erred in law and fact by wrongly convicting the appellant without considering the principles which have to be taken into account in respect o f the chain o f custody o f exhibits. Since exhibit P19 (exhibits register) is clearly seen to have been severely tampered with, 8

hence the integrity o f the chain o f custody remains [unestablished]. 5. That, the learned trial Judge, erred in law and fact for failure to observe that the prosecution evidence was contradictory, unreliable and had m aterial inconsistencies which rendered their story highly improbable and incredible. 6. That, the learned trial Judge grossly erred both in Jaw and fact by being adamant that the appellant's fully supported defence did not cast any reasonable doubts on the prosecution case. 7. That, the learned trial Judge grossly erred both in law and fact in finding and holding that the prosecution case was sufficiently proved to the required standard established by the law. 8. That, the honourable trialJudge erred in law and in fact in admitting and relying on exhibit P23 (certificate o f seizure) which was not read over during the committal proceedings contrary to section 246 (2) o f the Crim inal Procedure Act, Cap 20R.E. 2019, * At the hearing of this appeal, Messrs. Majura Magafu and Patrick Paul, both learned advocates, appeared for the appellant, whereas, Ms. Rose Sulle, learned Senior State Attorney, teaming up with Mr. Isack

Mangunu, learned State Attorney appeared for the respondent Republic. After Ms. Sulle had made the respondent's position clear that, she was not supporting the appeal, it was Mr. Magafu who was the first to address the Court on the modality of arguing the appeal, in which case, he abandoned grounds two, three and four in the supplementary memorandum of appeal, thereby retaining the above listed eight grounds. In addition, Mr. Magafu informed us that he would argue the appeal generally without addressing any one specific ground of appeal, but would do so under one umbrella of the seventh ground, namely that, the prosecution did not prove the case beyond reasonable doubt. Mr. Magafu was explicit on the one major issue that the appellant wished this Court to determine which was whether the illicit drugs subject of the charge in the first count, were found in his possession. Submitting in supporting his position, the {earned advocate addressed us on two interrelated points, namely; one that the respondent failed to establish that the appellant was found in unlawful possession of the drugs, and; two, that the chain of custody of the offensive drugs was not established. These were the major points, although the learned counsel, had numerous other complaints that will, nonetheless, be addressed close to the end of this judgment. 10

Mr. Magafu's first point related to four documents, namely; a boarding pass, exhibit P8; the e-ticket, exhibit P9; the exhibits register exhibit P19; a seizure certificate exhibit P23, and; the baggage tag that was attached with the bag containing the drugs. As for the seizure certificate, the learned counsel stated that, the document was invalid and no valid conviction could be based on it. Thebasis for his contention was that the serial number of the e-ticket in that exhibit (P23) was 23524669497889 which was different compared to the real serial number in the actual e-ticket (exhibit P9) which was 2352469497889. There! was one excess numeral "6" in exhibit P23 which was an error, he criticized. In respect of the boarding pass, Mr. Magafu's complaint was that the boarding pass that was read during committal proceedings was with number 0026 whereas in exhibit P23 the boarding pass number was indicated as TK 673, a completely different number. As regards the exhibits register, exhibit P19, the appellant's advocate's contention was that the document contained multiple cancellations and various additions and with numerous dates in its handwritten text. Mr. Magafu's issue in respect of the baggage tag, was 11

that the same was not tendered in court to support the prosecution case, and his Irking question was, why was that so. According to Mr. Magafu, the above anomalies dented the authenticity and legality of the documents, particularly exhibit P19 and P23, such that their reliability, was badly impacted, in the circumstances. As for him, in order to protect and preserve the integrity of the criminal justice process in his client's case, those two documents ought to be expunged from the record. Mr. Magafu integrated his desired conclusion on the above two documents, into his contention supporting his other complaint concerning the chain of custody of the drugs. His point was that if we were to agree with him and expunge exhibits P19 and P23, then the chain of custody of the drugs will have been severed and disconnected, because there would be no unified paper trail which is an inevitable legal requirement in establishing the chain of custody of the drugs. On this aspect he referred the Court to the case of Paulo Maduka and Four Others v. R, Criminal Appeal No. 110 of 2007 (unreported). The learned counsel also submitted that the trial court did not appropriately evaluate the evidence, such that if it would have done so, the court would not have convicted his client based on the evidence of 12

the prosecution. He thus, implored us to evaluate the evidence on our own and come up with a proper finding, particularly a finding favourable to his client. Briefly, save for a few points that will be considered at the end of this judgment, the above was the submissions of learned counsel in support of this appeal. In reply, Ms. Sulle contended that, the difference in number of the ticket in exhibit P23 was a typing error. She argued in alternative that, even if exhibits P23 and P19 would be expunged, their absence on record would not have any adverse effect to the prosecution case because, the evidence that will be remaining on record, will still be sufficient to support the disputed conviction. As for the chain of custody of the bag with the drugs and the drugs, the learned Senior State Attorney submitted that the same was observed and properly established. Her point was that the evidence of PW1, PW2, PW3, PW4, PW7 and PW8 established an unbroken chain of custody of the drugs from the time they were seized at KIA, to the time they were tendered in court as an exhibit. In effect, the learned Senior State Attorney implored the Court to dismiss the appeal for want of merit. 13

After studying the grounds of appeal raised, and considering the submissions of counsel for the parties, we agree with Mr. Magafu that, because the High Court was exercising original jurisdiction, and that this is a first appeal, the appropriate approach to engage in determining it, is to invoke the provisions of rule 36 (1) (a) of the Tanzania Court of Appeal Rules 2009, which provides that; "36, -(1) On any appeal from a decision o f the High Court or Tribunal acting in the exercise o f its originaljurisdiction, the Court may: - (a) re-appraise the evidence and draw inferences o f fa c t" Thus, in view of the above provision, in determining this appeal, we will by and large, consider a great deal of the relevant evidence that was tendered at the trial, in arriving at whatever decision we will come up with, and we will do so in the context of the learned counsels' submissions. Another underlying feature of this judgment, is that we will not resolve the grounds of appeal, ground by ground as listed above, because Mr. Magafu did not argue them in that way, he "consolidated" them and argued them together aiming atone desirable conclusion favourable to his client; namely, that the prosecution failed to prove the case beyond reasonable doubt. 14

The appellant's most significant complaint, according to Mr. Magafu, was the illegality of the seizure certificate, exhibit P23, and the exhibits register, exhibit P19. We will examine the validity of Mr. Magafu's attacks targeting the two documents, and will start with exhibit P23. The issues there, were in relation to the variance in serial numbers on the e-ticket and on the boarding pass. During committal proceedings at page 69 of the appeal record, it shows that, out of the ten documents that were shown and read to the appellant and which the prosecution Would rely upon at the trial, three of them were; a search warrant or seizure certificate exhibit P23, an e- ticket exhibit P9, and a boarding pass exhibit P8. It shows thus: "2 (b) The substance o f the following exhibits/documents have been read over and sho wn to the accused person:

1. N/A
2. A search w arran t d a te d 2 3 /0 7 /2 0 1 3 3 and4 N/A
3. E le ctro n ic T ick e t d a te d 1 5 /0 7 /2 0 1 3 6 . B oarding P ass No. 0026 Turkish A irlin e s d a te d 2 3 /0 7 /2 0 1 3 7 to 10 N/A" 15

During preliminary hearing (PH) before the trial court, out of the four facts and documents that were not disputed, were the e-ticket and the boarding pass. Something to keep at ones back of their mind, is that these two documents have also the surname of the appellant as "M tin d d ' and not "M tinge?, an aspect we will get back to in due course. But for now, we will revisit the relevant part of the record where a preliminary hearing was conducted. It is at page 87 of the appeal record. It shows the following: "MEMORANDUM O F UNDISPUTED FACTS. Ms. Mbova Advocate: The following are facts not disputed:" 1 and 2 N/A 3. I t is tru e th a t the accused w as tra v e llin g an d h ad been issu e d w ith tic k e t No. 23524694497889. 4. I t is tru e a lso th a t the accused h ad a boarding p ass w ith No. 0 0 2 6 ." Originals of these two documents, the boarding pass and the e- ticket, were tendered in evidence by PW2, and were marked as exhibits P8 and P9 respectively. They are contained at pages 218 and 220 of 16

the record of appeal. These documents were tendered and admitted without objection at page 107 of the record of appeal where, Mr. Patrick Paul submitted that, he objected only to the USD currency notes. The issue with Mr. Magafu was that although the correct e-ticket number was the above [No. 23524694497889) and the boarding pass authentic number was the one above, -(No. 0026), exhibit P23 had different numbers for these documents. The exhibit (P23) shows, as stated earlier on, one figure 6 being excess (23524669497889) in the e-ticket, and the boarding pass had a completely different number, that is number TK 673. This is a fact and Ms. Sulle was in agreement with that position. On our part, we have painstakingly studied the record of appeal including the documents in the original record to verify the concerns of parties, particularly the appellant. In that regard, our close reading of the original boarding pass shows that its number is 0026, but the same boarding pass has the flight number, which was flight number TK 673. In other words, whoever recorded the boarding pass number on exhibit P23, recorded a flight number instead of the boarding pass number. We have carefully perused the original exhibit, and we are convinced that the reason for the mix up of the numbers is that the boarding pass

has both numbers on it; and there is no clarity on the exhibit, as to which one of the two numbers, is a boarding pass number and which one is a flight number. So, one number can easily be mistaken genuinely for the other, and vice versa. In our view therefore, because the boarding pass was consistently admitted by the defence as a valid document that needs no proof at PH, and even at the trial, that mix up of the flight number and the boarding pass number while both numbers are on same document, is an error that is not that significant to the extent of rendering exhibit P23 an illegal document. Thus, we cannot expunge exhibit P23 because of the highlighted mix up of numbers. We will now move to the e-ticket number. Just as for the boarding pass, the e-ticket, was a document that raised no issue at PH, and was expected to raise none at subsequent stages of the case, including in this appeal. At that session (PH), it was a document whose contents would need no proof. Admittedly, its authentic serial number is 2352469497889, but the one on P23 has one excess figure 6. It is entered as 23524669497889 on that exhibit. Initially Ms. Sule stated that, that was an accidental slip, although later on she was swayed and drifted along Mr. Magafu's course, and conceded that the document ought to be expunged. 18

As we get to deciding the above point, it is significant that we firmly state that this Court's power to remove, disregard or expunge any documentary evidence from the court record, is not the power that this Court exercises casually. Particularly where the document or part of the document sought to be faulted, was not at all challenged at the time of tendering it or at the time of cross examining a witness who tendered it. For instance, exhibit P23, was tendered by PW7 at page 177 of the record of appeal. At that page, Mr. Patrick Paul who was appearing for the appellant stated that he had no objection to its admission, only that he would cross examine the witness, who tendered it. In that regard, at page 179 of the record of appeal, from line 8 to line 27, PW7 was cross examined on that document. However, the witness was not asked anything concerning the e-ticket, and worse, nothing was cross examined on the e-ticket number. If the issue of addition of one figure 6 in that ticket number, had such a devastating impact on the defence case and as alarming as was expressed by Mr. Magafu, surely, the point could have been raised at the time of hearing, and it could possibly, be explained at that time by the witness who recorded and tendered the exhibit. 19

In this case, if the prosecution at committal listed the ticket with the proper ticket number; if at PH the appellant and his advocates signed in agreeing that there would be nothing that would be raised against the document, and equally at the hearing is admitted unobjected, one fails to figure out how can such a document be seriously questioned on appeal like what Mr. Magafu was doing before us. In our view, as long as exhibit P9 is the only ticket that the appellant had, and as long as it is the only ticket at the trial, which no party denied, we are satisfied that the ticket number recorded in exhibit P23, although with one figure 6 in excess of the figures of its valid serial number, the ticket referred to in exhibit P23 is none other than exhibit P9, the e-ticket of the appellant. In that regard, we hold that the error on exhibit P23 in respect of the ticket number, was an accidental slip of a recording officer, which is curable under section 388 of the CPA. In challenging the authenticity of exhibit P23, Mr. Magafu challenged also the process of seizure, because, he argued, it did not comply with section 38 (3) of the CPA and section 35 (3) of the Police Force and Auxiliary Service Act (the PFAS). Section 38 (3) of the CPA provides as follows: 20

"(3) Where anything is seized in pursuance o f the powers conferred by subsection (1), the officer seizing the thing shall issue a receipt acknowledging the seizure o f that thing, being the signature o f the owner or occupier o f the prem ises or his near relative or other person for the time being in possession or control o f the premises, and the signature o f witnesses to the search, if any." And section 35 (3) of the PFAS, provides that: (3) Where anything is seized in pursuance o f the powers conferred by subsection (1), the officer seizing the thing shall issue a receipt acknowledging the seizure o f that thing bearing the signature o f the owner o f the premises, and those o f witnesses o f the search, if any. The above provisions of the CPA and of the PFAS, require issuance of a receipt to a person from whom exhibits have been seized. In this case PW4 and PW7, the officers who seized the exhibits signed a certificate of seizure, which was countersigned by the appellant. The certificate, in this case was as well, signed by PW8, an employee of KADCO who also witnessed the whole process. That, in our view, was enough, without having to have to issue the receipt to the appellant, which would be listing the same items as those in the certificate of 21

seizure. Luckily, this is not the first time that we are taking that position; in the case of Matata Nassoro and Another v. R, Criminal Appeal No. 329 of 2019 (unreported), we stated as follows: "There is no dispute that PW1 did not issue a receipt following seizure , but in view o f the fact that the appellants counter-signed a certificate o f seizure containing a lis t o f items seized from them, such certificate was sufficient under the circumstances, considering that there was also oral evidence from the arresting witnesses and the independent witness. In any case, as we held in Nyerere Nyague v. R, Crim inal Appeal No. 67 of 2010 (unreported) not every apparent contravention o f the CPA would result in the automatic exclusion o f the evidence in question." We trust that the substance of the above quotation settles Mr. Magafu's worry that sections 38 (3) of the CPA and 35 (3) of the PFAS, were not complied with. The sections were not complied with, we agree, but that omission to comply, is inconsequential as per the case of Matata Nassoro and Another (supra). The other issue that was raised as regards exhibit P23, was that although, there is listed in it, a tag which was found on the bag, the 22

said tag was not tendered as an exhibit. With respect to learned counsel, we do not think failure to tender any item or document mentioned in a seizure certificate, renders the certificate illegal. The adverse effect of such omission to the case, would be to weaken the evidence of a party omitting to tender the evidence. Thus, it was expected that the appellant's counsel would be challenging the adequacy of the evidence following the said failure to tender the tag. But that was not Mr. Magafu's course of argument. All in all, even if he would have taken that line of argument, still we do not think that the prosecution case was weakened by the omission to tender the tag which was attached to the bag which had the drugs. Next for attack by Mr. Magafu was exhibit P19. This document is the exhibits register. It is also called PF 16, and has 13 columns and numerous rows. The manner of handling exhibits at a police station is detailed in Police General Orders (PGO) 229 clause 1 to 38. As for recording of exhibits in police custody, the document necessary for doing so, is the said PF 16, as per clause 26 of the said PGO 229, which provides that:

"26. When an exhibit is temporarily removed from and returned to the exhibits store,, an entry shad be made in the Exhibits Register (P F 16)." The manner of recording of exhibits in PF 16, is detailed in PGO 229 clauses 16,17 and 18 which state as follows: "R ecording o f E xh ib its 16. Particulars o f each exhibit shall be recorded in columns 1 to 5 o f the exhibits register (PF 16) by the O/C. Station or other Police Officer deputed by a commanding officer to keep the register, as soon as the exhibit has been brought to a station. 17. (a) Column 6 o f the Exhibit Register shall be completed by the officer who receives and places the exhibit in the store for safe custody. (b) Any movement o f an exhibit after it has been placed in the store shall be recorded in Columns 7 to 11 of the Register. (c) Column 12 shall be completed when the exhibit is finally handed into Court against receipt on PF 137. (d) Column 13 shall be completed when the exhibit is returned to the owner or destroyed by the O/C. Station as having no value or on the order o f a Court or the owner. 24

18. (a) Each exhibit in a crime or incident shaii be recorded under a separate item number in column 4 o f the exhibit register, except in the case o f a number o f identical exhibits which m aybe recorded in one entry and the quantity only recorded (for example, 20 tins o f m ilk o f the same brand and size recovered in a theft case at the same place and time), (b) A black line shall be drawn below the last exhibit entry o f each case, allowing for sufficient space to record the movement o f exhibits/' That register is kept in the police premises where the police force has a store for keeping exhibits. We were moved to expunge this document P19, because it had numerous corrections. First, we agree, that there are numerous cancellations and replacements particularly of serial numbers of documents listed in column number 4. Admittedly, the act of correcting a genuine error in free hand by neatly crossing out a number, a word, or a relatively short phrase composed of a few words in a document, might not per se render the whole of it invalid or illegal. However, in the document at hand (P19), there are on one page as many cancellations as there are insertions. The worst part of it, is that some of the new replacements are not even 25

legible. For instance, in column 4 row 2, the last replaced word or number is illegible; in row 4 of the same column, the replaced number of the tag is illegible, and; in the same column 4 row 5 the replaced number or word in brackets is not legible too. That document has 9 more deletions and replacements of texts or numbers. All these are on one page, and are all in one column; column 4. We wish to confess that, there is no one clause of the PGO quoted above, that restricts deleting an existing text and replacing it with an appropriate information, but in this case, we agree with Mr. Magafu and Ms. Sulle, that the cancellations of texts and numbers and replacing them with illegible material, was just too much to raise a concern as to what might have been the cause of doing so just on one page. In our view, the many unexplained cancellations, deletions and replacements of texts and serial numbers of listed items and documents in exhibit P19, undermined the decency and integrity of the relevant exhibits register. In the circumstances, we are constrained to expunge exhibit P19 from the record. Mr. Magafu had contended that if we will expunge exhibits P19 and P23, then the prosecution case will automatically crumble, because

it will be missing the paper trail which is an inevitable feature in establishing the chain of custody in cases of illicit drugs. Ms. Sulle, was of a completely opposing view. Her submission was that even oral evidence can establish the chain of custody of the exhibits. We appreciate the learned advocate's argument, but we do not agree with it hook line and sinker. It is not necessarily the case that on every occasion, where there is no paper trail, a chain of custody cannot be established. It depends on each case's circumstances; the established factor is to consider the exhibits' susceptibility to change of hands or exposure to conditions favouring change of hands. See this Court's decision in Kadiria Said Kimaro v. R, Criminal Appeal No. 301 of 2017 and Leonard Manyota v R. Criminal Case No. 485 of 2015 (both unreported). In this case, there was nothing suggesting that the cannabis sativa subject of the charge, was exposed to conditions favouring free change of hands. In any event, there is not only oral evidence that remained after expunging exhibit P19 in this case; but also there is documentary evidence to support the chain of custody. There is on record, for instance, exhibit P5 at pages 213 showing the handing over of the impounded exhibits from PW4 to PW2, there is exhibits P21 and D1 27

exhibiting a handing over of the exhibits from PW2 to PW3 as a new exhibits keeper. Finally, there is exhibit P23 at page 239 of the record detailing all that was seized from the appellant at the airport. These documents, except for exhibit P23, were not challenged before us. Therefore, it is inaccurate, to submit that our order expunging exhibit P19 above, did not leave any documentary evidence to establish the chain of custody. Obviously, there is on record too, abundant and credible oral accounts to complement the above documentary evidence. For instance, in this case, we chronologically detailed in the first part of this judgment, how exhibit P6 changed hands from witness to witness from the time of impounding it, up to the time it got to the trial court. At some detail we captured the evidence of PW4 and PW7 demonstrating how they arrested the appellant at the airport building, seized all items that he had and recorded them in exhibit P23. He was then, with the exhibits, moved to KIA police station and in the same morning PW4 conveyed him to the RCO's office in Moshi where the exhibits were handed over to PW2 by PW4, We also noted the evidence of PW2 showing how he travelled to Dar es Salaam in order to have the drugs tested and identified by PW1 and how he travelled back by air the same 28

evening, with the exhibits which he kept at the exhibits' room in the RCO's office in Moshi. This witness was transferred to Mwanza in 2018 but before he could relocate, he handed over the exhibits to PW3 who became the new exhibits keeper at the RCO's office in Moshi. PW2, came back to Moshi from Mwanza, identified the exhibits and tendered them before the court of law at the trial. In summary, with the evidence of PW2, PW3, PW4, PW7 and PW8, there is no way one can convincingly allege that the chain of custody, subject of the drugs in the first count of the charge, was broken. Before we finally conclude this judgment, there are a few more points that Mr. Magafu complained about, and which we fee! duty bound to address. The first one was that his client's surname was not "Mtinde," as contained in the e-ticket and the boarding pass, in which case the learned counsel argued that, the e-ticket and the boarding pass that were seized from him were not the same documents as the ones which were tendered in evidence. In reply, Ms. Sulle, referred the Court to page 176 of the record of appeal where the appellant admitted to PW4 and PW7 to be the owner of the disputed bag containing the drugs and where he also stated that the surname " Mtindd' instead of 29

"Mtingd' was a typing error by whoever typed it on the e-ticket and the boarding pass. According to Mr. Magafu, what PW4 and PW7 stated, were their own story, which did not concern the appellant. As regards this issue, it will be recalled that, we indicated earlier on, that the two documents are part of the 5 documents which were admitted at page 110 without any objection. The documents had previously been accepted at PH as matters on which no issues would be raised. In terms of section 192 (4) of the CPA, a document listed amongst matters not in dispute, is deemed to be proved, and no questions as to authenticity of it can arise subsequent to its admission. That section, (192 (4)) of the CPA, provides as follows: "(4) Any fact or document admitted or agreed (whether such fact or document is mentioned in the summary o f evidence or not) in a memorandum fiied under this section shall be deemed to have been duly proved; save that if, during the course o f the trial, the court is o f the opinion that the interests o fjustice so demand, the court may direct that any fact or document admitted or agreed in a memorandum Wed under this section be form ally proved." 30

That is to say, the fact that the appellant's advocate agreed with the contents of the e-ticket and the boarding pass during PH, those documents and their contents are deemed to have been duly proved, see this Court's decision in Mgonchori (Bonchori) Mwita Gesine v. R, Criminal Appeal No. 410 of 2017 (unreported). If that is the case, the appellant is estopped from questioning the said documents on any aspect including, the issue of his surname. That said, we agree with the position taken by Ms. Sulie that, the boarding pass and the e-ticket were his, for had that not been the case, the appellant or his counsel, at the PH, would not have accepted the documents to be listed as non disputed, and even at the trial, they would not easily be admitted without objection, as it happened. Thus, Mr. Magafu's contention that the boarding pass and the e-ticket, exhibits P8 and P9 respectively, are not his client's, is with respect, without basis. Secondly, Mr. Magafu argued that PW2, was not a credible witness because of the manner he deleted texts and numbers on exhibit P19, which we have expunged. The other point he made was that, although PW2 went to the CGLA in Dar es Salaam for testing of samples marked A, A1 and A2, after they were examined and analysed, according to exhibit P19, the witness came back to Moshi with sample 31

A, A l and A3. As stated by Ms. Sulle at page 145, PW2 clarified that issue where he stated that, he mistakenly wrote A2 as A3 in the register. We wish to state that, in determining whether a witness is credible or not the court assess coherence of his own evidence and consistence of his evidence compared to the evidence of other witnesses. See this Court's decisions in Galus Kitaya v. R, (Criminal Appeal No. 196 of 2015) (15 April, 2016) [TANZLII]; Issa Reji Mafita v. R, (Criminal Appeal 337 of 2020) (24 August, 2021) [TANZLII] and Shabani Daudi v. R, Criminal Appeal No. 28 of 2000 (unreported). In the latter case of Shabani Daudi (supra) this Court observed that: "...the credibility o f a witness is the monopoly o f the trial court but only in so far as the demeanor is concerned. The credibility of the witness can also be determined in two other ways: one, when assessing the coherence o f the testimony o f that witness. Two, when the testimony o f that witness is considered in relation with the evidence o f other witnesses, including the accused. " The point we wish to drive home is that, there are established legal modalities of determining credibility of witnesses, and assessing neatness of a document that a witness prepares, is not one of such 32

modalities. Briefly therefore, we cannot hold that PW2 was not credible by considering cancellations in the document he was filling in at his place of work, or by looking at how he labelled samples of the drugs. Thus, Mr, Magafu's complaint in that respect, is without merit. Thirdly, there was a contention by Mr. Magafu that PW4 and PW7, were not credible and that their evidence was contradictory. In that regard he submitted that, the appellant cannot be taken to have been in possession of the drugs while the drugs were discovered after he had checked in, and was already in the waiting lounge ready to board the aircraft. Ms. Sulle disagreed with her counterpart, contending that the witnesses were credible and had no reason to incriminate the appellant. On this point, if we understood Mr. Magafu Correctly, his complaint was that the drugs might have been planted in the appellant's bag without his knowledge. In our view, that contention can only be true, if the appellant was not disputing owning the baggage in which the drugs were hidden. In this case, however, the appellant was emphatically denying ownership of the baggage. This is so because one cannot allege planting unknown items in his bag, if he does not own the bag, in the first place. Besides, in this case we have reevaluated the evidence of 33

these two witnesses, but did not find out that, there might have been any motive for them, to plant any drugs in the appellant's baggage, for there was no evidence that the witnesses knew the appellant before the date of the incident, or even that they could benefit from such act. Thus, we do not agree that PW4 and PW7 were not credible witnesses. In the same breath, we did not find any contradictions between the evidence of these two witnesses as was alleged by Mr. Magafu. The fourth point that Mr. Magafu raised, was that when PW2 was preparing the drugs for the purposes of taking them to the CGLA in Dar es salaam for testing on 14th August, 2013, the appellant was supposed to be present and witness the exercise in order to ascertain that the drugs being taken for testing were really those involved in his case. Ms. Sulle's position was that, there is no iegal requirement to call the appellant before PW2 was to take the exhibits for testing. On this, we agree with the learned Senior State Attorney, because even our survey of PGO 229, revealed no provision allowing participation of civilians in handling documents which are already in the custody of the police force. It is for that reason that we are settled in our mind that Mr. Magafu's contention in that respect, has no merit. 34

Fifthly, Mr. Magafu contended that the bag which contained the drugs, was not torn open by the appellant to reveal the drugs, rather it was PW7 who did so, in his presence. Ms. Sulle, opposed the learned advocate's contention, but we must hasten to state, with respect, that she was wrong. Of course, Mr. Magafu did not refer us to any material on record, but at page 176 of the record, PW7 himself said that, it was himself who tore open the bag in order to impound the drugs. Although we noted Mr. Magafu putting forth this argument of who opened the bag with emphasis, we do not think that he needed to, because, it is immaterial that the bag was opened by the appellant or PW7, what was relevant in the case was the owner of the bag and therefore of the drugs. So, we agree with Mr. Magafu that the person who opened the bag to expose the drugs in the presence of the appellant was PW7, in exercising powers of seizure, and that had no advantage to the appellant, except discovering what was hidden in the bag. Sixthly, we recall Mr. Magafu to have also emphatically complained about the trial court's failure to consider the appellant's defence evidence when determining the first issue. Citing the case of Godfrey Richard v. R, Criminal Appeal No. 365 of 2008 (unreported), the learned counsel submitted that because of that omission, the 35

appellant's right of being fairly heard was undermined. Ms. Sulle's reaction was that as long as the court considered the appellant's defence in other issues, the trial court cannot be faulted. We agree with Mr. Magafu that in determining the first issue the trial court did not consider the evidence of the appellant, but there is a way to resolve that issue. Where that happens the commonest practice of this Court is to step into the shoes of the High Court, take the matter in our own hands, consider the evidence otherwise not considered, and ascertain whether indeed, the same raised doubt on the prosecution case or not. As for us, the appropriate starting point, we think, is to find out what the disputed issue was, and what can be taken to have been the evidence of the appellant in relation to the issue. The first issue, that Mr. Magafu took up with the Court, as can be seen at page 375 of the record, was this: "1. Whether the two bags exhibit P6 and P16 contained narcotic drugs namely cannabis sativa commonly known as [bangij " What we can gather from the appellant's defence evidence on that issue, is contained from pages 189 to 190 of the record, where the appellant was recorded as saying:

"When my passport was about to be screened, I heard one officer at the check point, saying that "usigonge kwanza" (do not [stam p] the passport [as] there was an [inquiry] reiating to me). Thereafter I was taken to inspection room which is within KIA. I found three persons a t MBS and [on] the tabie there was a big bag thereon. Having been there, my b rief case was inspected through [an] inspection machine which did not notice any [unusual] material. Thereafter, I was asked about my awareness o f the bag in question. I replied to the negative. I was then required to produce my passport and compared it with the bag tag but the two did not match...I was taken to Moshi centra! poiice station. Upon our arrival a t the police station, I was further detained till when I was awakened by police. W hen the substances w ere being ascertained, I w as asked a s to w hy I w as sleeping. I told the police that I was tired..." [Emphasis added] First, we must clarify one point on the issue as framed. The appellant was acquitted of the second count of the charge relating to the drugs that were impounded on 26th July, 2013 from a bag that was brought back from Istanbul. That means, this discussion relates only to exhibit P6, the bag which was impounded on 23rd July, 2013, the day 37

of the appellant's intended travel. Mr. Magafu's point was that, when determining the issue whether, the bag had drugs, the appellant's defence was supposed to be considered, but it was not. The appellant in his evidence quoted above, says that when they were ascertaining substances, at the police, he was sleepy. The appellant does not state what the substances were. His statement was neutral; it was neither an affirmation, nor a denial of any contents of the bag. We are therefore of the considered position that, in resolving the first issue, even if the trial court would have considered the appellant's defence quoted above, it would not have arrive at a different outcome. Therefore, the learned counsel's complaint that had the trial court considered the evidence of the appellant in determining the first issue, it would not have come up with the finding it came up with, is misplaced and we dismiss it. Lastly, there was raised an issue in one of the grounds of appeal, registering a complaint that exhibit P23 was not read during committal proceedings. With respect to learned advocates for the appellant, that was not the case, in view of the available records. We quoted some of the documents which were shown to the appellant and read to him on the date that a committal order was made. One of such documents, 38

was the search order which incorporated a seizure certificate. It was listed at page 69 of the record of appeal which is to the effect that, the document was shown to the appellant and then read over to him. Accordingly, the above complaint has no basis. In conclusion, based on the discussion in this appeal, save for the order we made expunging exhibit P19, this appeal is without merit, and we dismiss it. DATED at MOSHI, this 20th day of August, 2024. The Judgment delivered this 21st day of August, 2024 in the presence of Mr. Patrick Paul, learned Counsel for the Appellant and Mr. Frank Daud Wambura, State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. I. H. JUMA CHIEF JUSTICE M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL