Mike Nwankwo vs Republic (Criminal Appeal No. 200 of 2021) [2024] TZCA 773 (20 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: LEVIRA, J.A., GALEBA, 3.A .,- And ISMAIL, J J U CRIMINAL APPEAL NO. 200 OF 2021 MIKE NWANKWO .......... ...... ........ ............. ..... APPELLANT VERSUS THE REPUBLIC ....... ...... ......... ...... ...... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Moshi) (Gwae J.) dated the 12th day of February, 2021 in Criminal Sessions Case No. 48 of 2018 JUDGMENT OF THE COURT & 2Cfh August2024 GALEBA. J.A.: Mike Nwankwo a resident of Lagos in Nageria, also a national of that Federal Republic, and Mastura Abdalah Makongoro (DW1), a Tanzanian woman, were jointly charged with the offence of trafficking in narcotic drugs, namely Heroin Hydrochloride weighing 4,926.43 grams. They were arraigned before the High Court of Tanzania at Moshi, (the trial court) in Criminal Sessions Case No. 48 of 2018. The offence was allegedly committed contrary to section 16 (1) (b) of the Drugs and Prevention of Illicit'Traffick in Drugs Act, now repealed. According to the charge, the offence was committed at Kilimanjaro International Airport i

(KIA), within Hai District in Kilimanjaro Region. At the end of the trial, DW1 was acquitted of the charge, but the appellant was convicted, and was subsequently sentenced to life imprisonment. The brief facts relevant to this appeal are that, the appellant and DW1 were lovers. The appellant had his own wife Janeth Monko and their two children Onyenyichuu Mike and Chupuepuka Mike, living in Mbezi Beach Dar es Salaam. As for DWi, she was single a second year student at Tanzania Ports Authority College in Temeke Dar es Salaam. According to the schedule, on 12th February, 2014, DW1 was to travel to Freetown in Sierra Leone, West Africa. The exit airport was to be KIA. So, plans had been put in place including procurement of an air ticket to that destination, and the carrier was Ethiopian Airlines to Freetown via Addis Ababa. In order to catch the plane in time, on 1 .0 th- February, 2014, the appellant accompanied DWI on board Dar Express bus to Kilimanjaro. Upon their arrival and disembarking from the bus at KIA Junction, Rajab Rashid Kwayu, (PW7), a taxi driver picked and dropped them at KIA Junction Guest House, where they hired a room for accommodation, waiting for DWl's departure date. On 12th February, 2014, at around 00:45 hours, DWI called PW7, so that the latter could come and rush the lovers to the airport in order for DWI to 2

catch the scheduled flight. The two boarded PW7's taxi and headed to the airport, where the appellant dropped and waved bye to DWl, got back into PW7's taxi which drove him straight to his guest room. As the appellant was being conveyed back by taxi, DWl was engaged in normal airport logistics at various clearance desks that one goes through before catching a flight to a non-domestic destination. It transpired that on that date, WP No. 3052 D/C Janeth (PW8), stationed at the Intelligence Department of the Police Force at KIA, was on duty, and was monitoring movements of departing passengers. Somehow it appeared to her that, DWl looked stressed to the extent of raising her suspicion. To clear her doubts, the witness proceeded to the Hold Baggage Screen System (the HBS) in order to carry out a thorough screening of DWl's luggage. In the process, she ordered DWl to remove all her belongings from her bag, which she did, but the empty bag felt relatively heavier than an empty bag would normally weigh. So, the "empty bag" was rescreened, but still nothing unusual could be notice on the display screen of the HBS. Because of the suspicious weight of the bag, a decision was made to unglue and tear apart the inner lining of the bag, from its outer hard cover. At this point, DWl's stressful look, had transmogrified into a full state of physically visible

trembling. After parting the inner and the outer parts of the bag's housing, there was discovered to have been hidden there/ four envelopes (exhibit PE8) containing foul smelling substance. Noticing what had been discovered from her bag, DW1 broke into tears, this time. PW8 and others present, suspected the substance to be narcotic drugs. At once, DW1 was arrested, and ali his travel documents and other belongings were impounded by E. 4003 D/C Amini (PW5) and a seizure document (exhibit PE 13) was filled in. Both, the items seized and DW1, who was already a suspect, were taken to the Police Station at KIA. In her explanation, DW1 told the police officers that she had her own bags before the travel, and had come with them from her home, in Ilala Dar es Salaam but upon reaching at his lover's hotel in Sinza, the appellant told her that it was advisable during travel to maintain less pieces of baggage and offered her a larger bag, in which case, she emptied her two bags and repacked her belongings in one larger bag, which she was given by the appellant at Sinza. According to DW1, it was the appellant who had arranged her travel to Sierra Leone in order to pay a visit to his sister living in Freetown, because that host, had recently delivered a baby. The plan, according to her was that, the two 4

would travel together, but suddenly the appellant unilaterally changed the schedule and booked a ticket for her only such that he would join her in the West African country later in the month, particularly on 26t h February, 2014. Briefly, DWl's case was wholly against the appellant and was that, every detail of her travel had been arranged and perfected for her by the appellant, including procurement of the bag she was travelling with, such that if the bag had contraband concealed in it, such an act must have been ill arranged by the appellant, who gave her the bag in the morning of 10th February, 2014, which bag, she quite unsuspectingly accepted to use. Based on that information, the police officers permitted her to call the appellant, for him to come to the airport, which she did. Upon receipt of his lover's call, the appellant called PW7 who went and rushed him back to the airport. Upon their arrival, both PW7 and the appellant were immediately apprehended by E. 5128 D/C Elihuruma (PW9). After a while, and having satisfied themselves that PW7 had no any criminal connection with the impounded substance or the disputed bag, the police released him to go home, but the appellant was searched, and both with DW1, were conveyed to the Regional Crimes Officer's office in Moshi, for further investigations.

As for to the appellant, his position was that he never arranged any travel details for DW1 to visit Freetown, because he does not have any relative in Sierra Leone, and that he did not give DW1 any bag on 10th February, 2014 as alleged by DW1. The bag was DWl's property because she had come with it. His statement in brief was that, his only involvement with DWl's affairs in her trip to West Africa, was only and only to escort her to KIA, period. Going forward in pursuit of the investigations, on 10th March, 2014, F. 157 D/SSGT Hashim (PW3) from the RCQ's office in Moshi, was given the substance that was impounded from DWl's bag, to take it for analysis and testing to the Government Chemist Laboratory Agency (the GCLA) in Dar es Salaam. At the GCLA, Machibya Ziliwa Peter (PW1), chemically analysed the compound, tested it, and confirmed the same to be Heroin Hydrochloride also known as Diacetyfmorphine Hydrochloride, in chemistry. In that respect the witness prepared a report which was tendered and admitted as exhibit PEI at the trial. PW3 brought back the exhibit to Kilimanjaro, and kept it in the exhibits room. On 14th August, 2014 Kenneth James Kasseke (PW2), a Commissioner for the National Coordination of Drug Control Commission, certified that the exhibit's value was TZS. 297,745,800.00,

as at the date of the valuation. PW2 prepared and tendered the Certificate of Value of Narcotic Drugs and Psychotropic Substances (exhibit PE3). It is based on the above facts that, DW1 and the appellant were jointly charged with the offence of trafficking in the drugs as highlighted earlier on, Consequent to their trial, the trial court believed the evidence of the prosecution to have failed to prove the case against DW1, and acquitted her. On the other hand, the trial court found the appellant guilty of the offence charged and sentenced him as stated above. The decision of the trial court aggrieved the appellant, hence this appeal. The appeal is predicated on seventeen substantive grounds of appeal; twelve in the substantive memorandum, and five, in the supplementary memorandum of appeal. Nonetheless, following what ensued at the hearing of this appeal, we find it redundant to list down in this judgment, all the grounds of appeal that were raised against the impugned judgment At the hearing before us, the appellant had the services of Mr. Majura Magafu, learned advocate, whereas the respondent Republic was represented by Ms. Rose Sulle, learned Senior State Attorney, teaming up with Mr. Isack Mangunu, learned State Attorney. It was Ms.

Sulle, who first took the floor to give her preliminary remarks, as to the position that the respondent was taking. In that regard, the learned Senior State Attorney confirmed to the Court that, the respondent was in full support of the appeal, for the case against the appellant at the trial, was not proved beyond reasonable doubt. The learned Senior State Attorney did not wait for Mr. Magafu to submit in supporting the grounds of appeal raised, but gave her reasons for the stance she took. The learned counsel staked her position on a couple of points which to her, demonstrated that indeed, the case was not proved against the appellant. Her points were that; first, considering the bag and its contents, there was nothing that could be used to link the appellant and ownership of the drugs; two, the seizure certificate at page 168 of the record of appeal, shows that the bag containing the drugs was found in exclusive possession of DW1 and not the appellant. Three, the fact that the appellant agreed voluntarily to go back to the airport from his guest room, after being informed that DW1 had encountered a problem at the airport, is an act inconsistent with a conduct of a guilty person, Four, although DW1 stated that she was going to Sierra Leone to visit the appellant's sister, the address of her destination was at Mererani

Hotel along Aberdeen Street downtown Freetown in Sierra Leone, which fact was not consistent with her evidence that her destination was at the appellant's sister's house in Freetown. Five, at page, 381 of the record of appeal, the trial court shifted the burden of proof to the appellant which was unprocedural and quite unlawful. Lastly, Ms. Sulle contended that, the appellant was convicted wholly based on the uncorroborated evidence of DWl, who was an accomplice to the appellant. In view of these points, the learned Senior State Attorney, concluded that the appeal had merit and it ought to be allowed, insisting that the conviction of the appellant was illegal. On his part, Mr. Magafu was at one with Ms. Sulle on all points but added emphasis on a few of them. As for him, there was not a single prosecution witness whose evidence linked the appellant to the drugs or the bag which contained them. Thus, there was no evidence from the prosecution which proved any guilt on the part of the appellant. That, he contended, left only the evidence of DWl, but being an accomplice, her evidence needed corroboration, and there was no evidence which could, or did corroborate it. The learned advocate relied on the cases of DPP v. Elia Laurent Mkoba and Another [1990] T.L.R. 115, and; Pascal Kitigwa v. R [1994] T.L.R. 65 to support his

contention. The learned advocate acknowledged the provisions of section 142 of the Evidence Act, but still he maintained the position that according to decided cases, the evidence of an accomplice has to be corroborated before a court of law can base a conviction on such evidence. The learned advocate faulted the decision of the trial court, because it relied on the evidence that was not assessed critically, which was its duty, such that had it done so, it would not have found the appellant guilty and convicted him as it did. In that respect, Mr, Magafu referred us to the case of Shija Massawe v. R, Criminal Appeal No. 158 of 2007 (unreported). Finally, the learned counsel joined hands with the learned Senior State Attorney, on all other points that the latter had argued, and moved the Court to allow the appeal. Having attentively heard both learned counsel on their submissions, and having carefully considered the evidence that was tendered at the trial, the single issue that poses for our determination, is whether the charge of trafficking in narcotic drugs was proved against the appellant to the required standard. In determining that issue and indeed, this entire appeal, we will mainly be guided by certain principles of law, namely; first, the 10

principle that he who alleges, must prove, as per section 110 of the Evidence Act. The second principle relates to the high standard of proof required of the prosecution in criminal trials as embedded in section 3 (2) (a) of the Evidence Act, that of proof beyond reasonable doubt. The third principle which is equally important in this matter is that, generally, in criminal cases an accused person can only be found guilty by relying on the strength of the evidence from the prosecution, and not the weakness of the accused's defence or his failure to defend his innocence. The fourth is that, the evidence of an accomplice cannot solely be relied upon to convict his co-accused, without corroboration unless the court warns itself of the likely injustice that might result. These principles, we trust, will enable us to dispose of the appeal as appropriate. In this case, the appellant was alleged to have been constructively found trafficking in narcotic drugs, which were however, found in actual possession of DW1. In this appeal, what we wili, all along, be seeking to ascertain, is the existence of any facts from the prosecution evidence which Jinked the appellant to the impounded drugs. If we fail to trace any, we will then cross over to the evidence of DW1 and see whether the learned trial Judge relied solely on such evidence of DW1 to convict

the appellant, and if so, whether the court did that in accordance with both law and practice obtaining in this jurisdiction. To do so, we will start from the time when the appellant was arrested. The appellant was apprehended by detective corporal Hlihuruma PW9, from PW7's car at the airport, upon his arrival at the airport for the second time. After effecting the arrest, PW9 testified at page 96 of the record of appeal as follows: "When we put the said Mike under restraint, thereafter we made a search to him. He was searched by Inspector Shufaa. Mr. Mike was found in possession o f a passport, four mobile phones, bus tickets Dar express and Ngorika bus service, return ticket, money in different currencies/notes, USD 703, Kenya shillings 1,750 and other documents. After the search, a seizure note was filled, and the said Mike duly signed it, as well as Inspector Shufaa, Salimini Mushwa and myself" [Emphasis added] So, clearly, at his arrest, the appellant was not found with anything in the nature of the drugs he was charged for trafficking. We must also clarify at this point that, we have carefully studied the entire 12

record of this appeal in details, especially the prosecution evidence with special and keen interest in the evidence of PW5, PW8 and PW9 who practically dealt with all the exhibits and handled the appellant at the airport, and found that none of those witnesses made any statement linking the appellant with the drugs or the bag Into which the drugs were found. We are therefore firm in our mind in stating that, not a single prosecution witness uttered a single fact incriminating the appellant to the slightest, for possession, storage or transportation of any narcotic drugs. Thus, we agree with both learned counsel, that the appellant's conviction was never based on the prosecution evidence. In view of the above, it was Ms. Sulle's and Mr. Magafu's contention that, the appellant's conviction was entirely based on the evidence of DW1, who was not a prosecution witness, but a co-accused to the appellant, and whose evidence needed, but lacked corroboration. This Court's careful scrutiny of the impugned judgment, revealed to us the reason why, a person who was not physically arrested with any narcotic drugs, could be charged for trafficking the illicit substance, and much worse, be convicted of the offence. The basis upon which the appellant was found guilty of the offence, may be traced from the 13

learned trial Judge's reasoning from page 378 to page 381 of the record of appeal, where he stated: "I have examined the passport o f the 2n d accused, it reveals that the 2n d accused started regularly visiting Tanzania since 2&h October, 2012 as well as Kenya and Uganda .... These visits must have pertained with reason(s) other than family matters in Tanzania, as he testified that he had commercialbusiness in Nigeria only. His visits may be considered to be for personal interest as a tourist or pertaining with hidden agenda... However, with other pieces o f evidence, the 2n d accused's knowledge can be found to have been established or conveniently inferred for example the assertion that he was a resident o f Mbezi and he used to regularly visit Tanzania because o f family matters (marriage with one Joyce) as he had no commercial business in Tanzania except in Nigeria but surprisingly, he had summoned no person to support his assertions that he was a resident of Mbezi and not Sinza in Dar es Salaam City and that he was married to a Tanzania woman called Joyce. 14

The assertion by the 1st accused that the baby's clothes found in the bag (PE8) were in favor of his sister, a resident o f Sierra Leone-Freetown, is not heaviiy challenged and the same is believed by the court [as] the same is likely [to be] a [present] on the part of the 2n d accused [following] his absolute failure to tell the court as [to] why the 1st accused has decided to incriminate him... More so, his assertion that, he accompanied the 1st accused to KIA merely because he feared that he would be called at night hours while with his wife at their residence is equally unfounded since he could simply switch off his mobile at night hours. The 2n d accused person 's denials, in my considered view, amount to lies which bring me to feeI compelled to adhere to the principle enunciated by the Court o f Appeal of Tanzania in Nkanga Daud Nkanga vs R ep u b lic Criminal Appeal No. 316 o f 2013 (unreported), where it was rightly held that, lies of an accused person may corroborated the prosecution case. Despite the fact that, an accused person does [not] have a strong duty to prove his innocence, yet in the circumstances of this case, in order 15

the 2n d accused to make his assertions to be believed by the court, he ought to at least support his assertions. It follows therefore [thatI in view o f the [cumulative] 2n d accused conducts, and the evidence o f his co-accused, this sub-issue in the J d issue, is answered in the affirmative against the 2n d accused," [Emphasis added] In the case at the trial, the second sub-issue of the third issue that the court resolved in the affirmative against the appellant above, was whether the appellant had knowledge of the existence of the drugs in DWl's bag, that is the guilty mind behind the offence. And it is upon the above affirmative answer to the sub issue, that the appellant was found guilty of the offence charged. According to the above quotation, the appellant was convicted based on his conduct. In pursuit of the validity of that, we will first summarize the points found in the above quotation and then discuss the trial court's justification of convicting the appellant based on the alleged conduct. In terms of the above quotation from the trial court's judgment, the conduct of the appellant can be summarized thus; one, he was discovered to have had unexplained frequent travels and visits to the 16

East African states, which could have a disguised agenda; two, the appellant failed to call any witness to support his assertion that his residence was in Mbezi Beach and not in Sinza Dar es Salaam; three, the appellant did not explain the reason why would DW1 incriminate him in her evidence; four, the appellant's denials were lies, which built up the prosecution case, and; five, the appellant was unable to support his assertions. We will discuss the above points in turn. One of the points above was that, the appellant had to call witnesses to show that his residence was in Mbezi Beach and not Sinza in Dar es Salaam. Respectfully, the issue in dispute was not where the appellant had residence rather it was whether the appellant was guilty of the offence charged. There was also an allegation that as the appellant was a frequent traveller to the East African States without explanation on record, he had a concealed agenda and therefore could be guilty of the offence charged. With respect, it is not clear why should the travels of the appellant to East Africa be linked to trafficking in narcotic drugs. If at all the prosecution believed are knew that there was a hidden agenda, it was incumbent upon them to show or prove what was that agenda, because, again, he who alleges must prove instead of shifting the burden. What was needed was the evidence 17

linking the appellant and the drugs which the unexplained visits could not do. The trial court also condemned the appellant for his failure to explain the reasons that led DWl to give evidence that incriminated him. Again, with respect to the trial court, we think the only appropriate person who was in the position to explain why DWl gave evidence incriminating the appellant, according to logic, was the witness who was giving the evidence, that is DWi. So, to blame the appellant for not telling the trial court, why did DWl give evidence incriminatory to him, was to demand too much of him. The other point why the appellant was convicted was that, he told lies because travelling in order to avoid DWl to call him at night when he would be with his wife, instead of switching off the phone, was, with respect, one of the options which would not necessarily be the best for the appellant. As for him, he chose to travel with DWl, which was amply demonstrated to be true. Otherwise, we failed to understand which lie of the appellant was the trial court making reference to. The last point in the decision of the trial court was that, the appellant failed to call witnesses to support his defence. We do not agree that the appellant had a legal duty or otherwise to prove his defence. Conversely, it was the duty of the prosecution to prove the

charge levelled against the appellant beyond reasonable doubt. There was nothing for him to prove, his duty was only to state facts that cast doubt on the prosecution case, which he did. Under the law, it is illegal for the court to shift the burden of proof to the accused, for that goes contrary to the principle in section 110 (1) of the Evidence Act, that we referred to earlier on, that he who alleges must prove. The act of shifting the burden of proof to the accused, equally offends another constitutional ideal; the presumption of innocence of a criminal suspect as enshrined in article 13 (6) (b) of the Constitution of the United Republic of Tanzania. In connection with the issue of conduct of the appellant, we wish to make one remark. In this case, after the appellant escorted DW1 to the airport, and before his apprehension. This point was also pointed out by Ms. Sulle. According to the evidence of PW7, DW1 and the appellant, after the latter escorted DW1 to the airport, he waved her farewell, and returned to his hired guest room. After a while, DW1 called him back to the airport as there was a problem which had cropped up. The appellant dutifully heeded, and went back to see what might have befallen his lover. In our view, the appellant's act of voluntarily going back to the airport after being informed that there was

a problem facing DWI, is not a conduct expected of a criminal, who knows that DWI was carrying illicit drugs in the bag. If he knew that there were illegal substances in his lover's bag, when he was called to go back to the airport, the logical and urgent conduct of a typical drug dealer, would have been to disappear to a destination that no one would easily trace. So, that conduct of heeding and going to the airport, just as easy and unsuspectingly, was an act consistent to the appellant's innocence. In view of the foregoing discussion, we are satisfied that there was nothing like the appellant's conduct that implied any guilt on his part. Next, we will consider the issue whether it was lawful to convict the appellant based on the evidence of DWI. In this regard, the general premise as to the applicability of the evidence of an accomplice, is stipulated under section 142 of the Evidence Act, which provides that: "142. An accomplice shall be a competent witness against an accused person; and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. " According to this provision, it is lawful to convict an accused person based on the evidence of a co accused. However, that is a 20

position of the statutory law, but its interpretation by this Court is that as a matter of practise, in order to solely base a conviction on the evidence of a co accused, such evidence has to be corroborated. On that assertion we find comfort in this Court's decision in Stephano Ndagizi and Another v. R [1994] T.L.R. 62, where we held that: "(} QEvidence from a co-accused as in this case, is accomplice's evidence and a court may convict on accomplice's evidence without corroboration, if it is convinced that the evidence is true, and provided it warns itself o f the dangers o f conviction on uncorroborated accomplice's evidence; (Hi) Although the law does not say that conviction on uncorroborated accomplice's evidence is illegal, it is still unsafe, as a matter of practice, to uphold a conviction case on the uncorroborated evidence o f a co-accused ." See also: Fanuel Joseph Mbedule v. R [1989] T.L.R. 221; R v. Sitta Joseph and Two Others [1977] L.R.T. 66, and; Selemani Rashid and Others v. R [1981] T.L.R. 252. Although the learned trial Judge acknowledged that, convicting the appellant based on the sole evidence of DW1 was unsafe without 21

warning or corroboration, still the trial court convicted the appellant based on the evidence with neither warning, not corroboration. It just suffices to mention, in the circumstances, that there were abundant reasons to dismiss the evidence of DWl as against the appellant, rather than to embrace it. That is so because, scanning through the general scheme and substance of the evidence of DWl, effortlessly one notices that the only purpose of the evidence was to exculpate herself from the guilt, and to incriminate the appellant. Thus, the trial court was utterly wrong when it grounded the appellant's conviction, on the evidence of DWl. As we draw closer to the end, we wish to admit that in this judgment, we have not been as explicit and as exhaustive as we should have been, on all points that were raised by Ms. Sulle in supporting the appeal. Our reason is that we had to avoid doing so as much as we Could, because there is still pending Criminal Appeal No. 202 of 2021 between the Director of Public Prosecutions and Mastura Abdalah Makongoro (DWl), challenging the latter's acquittal. A detailed discussion on each point, we suspected, could lead to a potential temptation of misinterpreting our judgement to imply that which we did not intend. Nonetheless, based on the points that we have endeavoured 22

to discuss, we are satisfied that this appeal has merit, and as argued by both learned counsel, the case was not proved beyond reasonable doubt against the appellant. In the final analysis, we quash the appellant's conviction and set aside his sentence of life imprisonment. We further direct that, the appellant be released from prison and be set to liberty, unless he is held for any other lawful cause. DATED at MOSHI, this 20th day of August, 2024. The Judgment delivered this 20th day of August, 2024 in the presence of Ms. Diana Solomon, learned counsel holding brief for Mr. Majura Magafu, learned counsel for the Appellant and Mr. Innocent Ng'assi, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 23