Makolobela and Another v Republic (Criminal Appeal No. 62 of 2000) [2000] TZHC 693 (1 November 2000)

296 TANZANIA LAW REPORTS [2002]T.L.R. a JOHN s/o MAKOLOBEL A KULWA MAKOLOBELA AND ERIC JUMA alias TANGANYIKA v. REPUBLIC HIGH COURT OF TANZANIA B ATMWANZA (Mroso, J.) c CRIMINAL APPEAL No. 62 OF 2000 (From the District Court of Geita District at Geita, in Original Criminal Case No. 127 of 1999, LNB Ngovungo, Esq, DM) U Criminal Law - Defence case - Inconsistence in the defence case - Accused persons jointly prosecuted giving conflicting defences - Whether inconsistence in their defences is an incriminating factor. Criminal Law - Burden of proof — Weakness of defence case - Whether an E accused may be convicted on the weakness of his defence. Evidence - Witnesses for the prosecution stating that they smelled bhang — Whether the statement by the witness is sufficient to support conviction. The three appellants were jointly and together prosecuted in the District Court of J Geita for unlawful possession of cannabis sativa contrary to, and they were convicted on the grounds, among others, that they gave conflicting accounts. The Trial Court also found the prosecution evidence to be watertight as the witnesses testified that they smelled bhang and they found the appellants smoking bhang. On appeal: G Held: (i) The fact that the appellants gave different defences is not an incriminating factor; since they were not found together at the time of their arrest, it is not surprising that their respective accounts differed; H (ii) A person is not guilty of a criminal offence because his defence is not believed; rather, a person is found guilty and convicted of a criminal offence because of the strength of the prosecution evidence against him which establishes his guilt beyond reasonable doubt. I

JOHN s/o MAKOLOBELA KULWA MAKOLOBELA AND 297 ERIC JUMA alias TANGANYIKA v REPUBLIC (iii) A person who says that a substance is cannabis saliva has at least to tell the court how he was able to know that the substance was what he claimed it was. Appeal allowed Statutory provision referred to:

1. Drugs and Prevention of Illicit Traffic in Drugs Act Number 9 of 1995, section 12(d) Appellants unpresented JUDGMENT (Dated 1 November 2000) D Mroso, J.: Three appeals, namely Criminal Appeals Numbers 62 of 2000, 63 of 2000 and 64 of 2000 in which John Makolobela, K.ulwa Makolobela and Eric Juma alias Tanganyika are the respective appellants, were consolidated for hearing and also consolidated in this judgment, p. When I heard the appeals on 13 October 2000 I allowed them and reserved reasons which I now endeavour to give. The three appellants were jointly and together prosecuted in the District Court of Geita for unlawful possession of cannabis sativa f contrary to section 12(d) of the Drugs and Prevention of Illicit Traffic in Drugs Act Number 9 of 1995. They were found guilty and convicted and each was sentenced to seven years imprisonment. Aggrieved by the conviction and sentence, they have appealed to the High Court, g The allegation against them was that on 24 April 1999 at 01 :00 hours they were jointly and together found in unlawful possession of 5 grams of cannabis sativa (bhang). Two prosecution witnesses gave brief evidence at the trial. PW 1 - page C Mohamed, told the H Trial Court that at about 01.00 hours while on patrol duty together with page C Ndalahwa and a member of the Sungu Sungu militia “ smelt bhang ” , the smell coming from an uncompleted building. On going in they found the three appellants sitting and smoking bhang. The i

298 TANZANIALAWREPORTS [2002]T.L.R. A first appellant was handling cigarette like bhang to the third appellant and when the second appellant was searched bhang was found in his pocket. PC Ndalahwa and the Sungusungu did not give evidence. The second B prosecution witness was one Joseph Nkumbulwa, a village executive officer. Although he was not mentioned by page C Mohamed (PW1) as one of the people were present when the appellants were allegedly found smoking bhang, he claimed to have been with those police c officers and that he found the appellants smoking bhang and that the appellants were arrested. The three appellants gave sworn evidence in their respective defences. The first appellant said he was arrested while sleeping (at home) D because he had not paid development levy. He was arrested and taken to the police station. At the police station he met the third appellant. The third appellant said he was arrested while watching a cinema. The second appellant said he had been to mama mdogo and on his E way home he met page C Ndalahwa, an executive officer and a member of the Sungusungu militia. He was arrested and taken to police station. He was required to pay TZS. 2 000 and when he failed to pay, he was taken to Court and prosecuted along with the other two. It is apparent F that the three appellants were saying that they had not been found together when they were arrested. One of the reasons the Trial Court found them guilty and convicted them was that they gave conflicting accounts. The court said: G ... considering the defence of the accused I disregard the accused defences as they as they differ ... These inconsistencies do not put any doubt on the evidence of the prosecution which is watertight. H In the first place, the fact that the appellants gave different defences is not an incriminating factor. Secondly, since, according to the appellants, they had not been found together at the time of their arrest it is not surprising that their respective accounts differed. Thirdly, a person j is not guilty of a criminal offence because his defence is not believed. A person is found guilty and convicted of a criminal offence because

JOHN s/o MAKOLOBELAKULWAMAKOLOBELAAND 299 ERIC JUMA alias TANGANYIKA u REPUBLIC of the strength of the prosecution evidence against him which establishes his guilt beyond a reasonable doubt. So, the approach by the trial magistrate is a misdirection in law. The trial magistrate considered the prosecution evidence “ watertight ” . But what was watertight in that evidence? All they said was that they smelled bhang and that the appellants were found smoking bhang. Is a statement by a police officer and or a village executive officer that a suspect was smoking bhang or had bhang in his possession conclusive proof that the substance being smoked or being possessed is cannabis satival That cannot be the law and if it were it could result in innocent people being convicted at the mere saying that they were in possession of cannabis sativa. I think that the person who says that a substance is cannabis sativa has at least to tell the court how he was able to know that the substance was what he claimed it was. Perhaps he would tell the court that he knew cannabis sativa from its appearance or smell and how he gained such knowledge. It cannot be enough for him to merely say without more that a substance is bhang, as the trial magistrate appears to think. In effect, there was no evidence to prove the offence charged and the learned Principal State Attorney for the respondent Republic could not support the conviction. For those reasons I allowed the appeals.