Republic vs Jacob Benard Ulaya and Others (Criminal Sessions Case No. 2 of 1996) [1998] TZHC 2180 (4 May 1998)

IN TIIB IDGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL SESSIONS CASE NO. 2 OF 1996 REPUBLIC versus JACOB BENARD ULA YA ................... 1ST ACCUSED GODFREY ELIA WONI ....................... 2ND ACCUSED TRYPHONE RillIOGORA .................. 3RD ACCUSED JOSEPH AMBROSE MARANDU ......... 4TH ACCUSED RULING KALEGEYA,J The accuseds, Jacob Benard illaya, Godfrey Eliawoni, Tryphon Ruhogora and Joseph Ambrose Marando, styled 1st, 2nd, 3rd and 4th accuseds respectively stand jointly charged with two counts ofUNLA WFUL EXPORTATION OF DANGEROUS DRUGS els 13(5) and 23(1)(a) and (d) of the Dangerous Drugs Ordinance, chapter 95 of the laws, read together with paragraph 20 of the first schedule to and section 59 of the Economic and Organised Crime Control Act, No. 13 of 1984 (1st Count), and LEADING ORGANISED CRIME c/s 4 (l)(a) of the First Schedule to and section of the same Act, No. 13 of 1984 (2nd Count). The particulars for the first count have it that "on or during the month of November, 1995 at Dar es Salaan1 port, Ilala District, they (accuseds) did jointly and together unlawfully export outside the Territory of the United Republic of Tanzania 6,300 kgms of Cannabis resin valued at T.Shs. 4.0 billion to Antwerp, Belgium witho&U authority",

·« I 2 while those for the 2nd connt state, "On or during the month ofNovember 1995 within Dar es Salaam region, the first accused being a fanner, the second and third accuseds being customs collectors and the fourth accused being the shipping and warehousing Manager of Tanzania Tea Authority, intentionally organised a criminal racket, to wit, they did jointly and together organise the exportation outside the territmy of the United Republic of Tanzania, 6,300 kgms of Cannabis resin to Antwerp - Belgium." At the close of the prosecution case supported by the evidence of seven witnesses the defence submitted no case to answer in respect of all the accuseds hence the present ruling. As is the procedure prescribed nnder the law of the land, dwing plea talcing and preliminary hearing matters not disputed were recorded down and formed part of the record. The idea behind this procedure is to accelerate trials by scaling down the number of witnesses: that is, witnesses need not be called on matters recorded as not being disputed. The memorandum of matters recorded as not being disputed is as follows:- F or the 1st accused "1. That he owns a company known as Hagafilo Farms but not Hagafilo Farms Ltd .. 2. That he is the sole proprietor of the said business concern. 3. That aU the relevant permits were processed and obtained by the first accused after complying with the required procedure. 4. That it is true th~t first accled shipped the two containers of teaMihi•h were to be off-loaded at Rotterdam port.

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5. That it is true that first accused and other people witnessed the loading of some sacks of Tea into the containers at the Warehouses <>fTanzani~ Tea Authority.
6. That the 1st accused admits that after the tea was loaded the containers were duly sealed.
7. That it is true that the tea was loaded into the two containers bearing numbers lKKU 22163-4 and JKKU 001627-5.
8. It is ttue the said consignment of tea was not transported vide shipping Order No. ZIM/01 by a ship known as Kenya star on 27/11/95 and instead it was transported by a ship known as as Victoria Bay after the shipping order was given new nun1ber WEC/065/No. 020676. -9. That it is true the exporters of this consignment is· MIS Hagafilo Fanns of P.O. Box 50 Njombe and the consignee is PROLD-NIKALAJE VERONECA. l O. It is true that Mis Hagafilo Fann Ltd. was not registered under Companies Ordinance except that Hagafilo Farm was registered under Business Names Registration Ordinance.
9. It is true that the containers were loaded in two lorries bearing nos. TZB6582 and TZ8598" For the 2nd accused "1. It is true that on 27/10/95 second accused and other people witnessed the loading of sacks of tea into the two containers.
10. It is lrue that after the tea was loaded, the two containers were duly sealed by a seal from customs office.

4 3. It is true that second accused inspected the said containers to ensure that what was being loaded was tea. 4. It is true that second accused sealed the said containers and signed the relevant docwnents. 5. It is true that second accused sent the relevant documents to his incharge, the third accused, after he had completed the work of inspecting the loading and sealing of the containers." · For the 3rd accused 11 l. It is true that third accused received documents from the second accused concerning the loading and sealing of the two containers in question. 2. It is true that the relevant documents were sealed by third accused." For the 4th Accused "l. It is true that on 27/10/95 myself and other people witnessed the loading of 400 sacks of tea into the two containers nos. IKKU 2216354 and IKKU 0016275. 2. It is tn1e that after the containers were loaded with tea, both of them were sealed by customs seals. 3. It is true that I am a tea expert." Cushioned by the above undisputed facts the prosecution decided to call only seven witnesses, Adadi Rajabu (CP), now DCI who was the Dar es Salaam Regional Crin1es Officer (PWI); Inspector Salwn Kisai, an investigator who worked under PWl (PW2); Sinani Saidi Mpondela who worked as an Acting Principal Collector of Customs (PW3); Monica Muhogosi, a NASA CO shipping officer dealing with exports (PW4);

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.. ·.·:.· .. ;: .·:. . ·: .•:• : .. ·.· . -; . 5 Emmanuel Mwaikambo, a Forwarding Assistant and godown keeper working with TTA (Tanzania Tea Authority) (PW5); Francis Shirima, currently a fanner, who at the time was the Managing Director of the Tanzania Tea Authority (PW6); and ASP Hussein Nassoro, one of the investigators (PW7). The prosecution also called to its aid 10 documentary Exhibits - an export entry ~o. 0000718 as Prosecution Exh. A; various reports by Antwerp investigators, Exh. B-1; 36 photographs by the Antwerp police, Exh. Janda shipping order No. 020676, Exh. K. While the 4th accused defended himself Mr. Nyange, Mr. Nyangarika and Mr. Msirikali, Advocates, represented the 1st, 2nd and 3rd accuseds respectively. From the evidence adduced and the memorandum of matters undisputed facts of this case are as follows. Tn October, 1996, Jacob Benard Ulaya (1st accused) bought two containers of twenty feet long each, Nos. IKKU 2216354 and IKKU 0016275, from Mediterranean shipping company. He also bought 16,000 kgms of Tea FNGs, products ofMponde and Mwakaleli Tea factories, from Tanzania Tea Authority. The Tea sale contract stipulated that it was ex-warehouse meaning that the loading and handing over of the tea bought was to be done at the TIA warehouse. 'The first accused who is also a sole proprietor ofHagafilo Fatms of Njo111be, and owner of Box 50, Njomhe, on 26/10/95 prepared an Export Entry No. 000718 (Exh. A) in respect of his Tea showing, among others, the following, . Exporter: Mis Hagafilo Farms Ltd. Box 50 Njombe Consignee: Mis Prodo Nikalaje Veroneca -No. 6 Ukraine

.:•. · ... 6 Shipping marks/container No: Prodo Odyessa Via Dubai Container Nos. 1. 221635-4 2. 001627-5 Place of delivery: Odessa No. and Kind of packages, Goods description Quantity 400 polypoprine with inner polythelene Bags FNGS TEA 16000 kgms valued at $ 8800 On 27.10.95 in the presence of the 1st, 2nd and 4th accuseds and PW5, the two containers hauled by a trailer MN bearing Registration Nos. TZB 6582 and TZ 8589 were loaded with 200 bags each of tea from the Tanzania Tea Authority warehouse. PW5 was the storekeeper of the warehouse where the 400 bags had been stored. The trailer MN was furnished by the 1st accused. The presence of the 1st, 2nd and 4th accused during the loading was within common practice: the first accused was the customer who had bought the tea being loaded~ the 2nd accused was a customs collector who had to inspect the goods to ascertain the accuracy between the goods themselves and particulars on documents and who had to seal the containers after loading, and the 4th accused in his capacity as a shipping and warehousing Manager had to be present during such loading. The bags were loaded into containers after the 2nd accused had carried out the nonnal inspection hy piecing the bags. After loading the containers were sealed by 2nd accused with customs seal No. 60.

.. ·-:,: 7. Meanwhile however, on 26/10/95, the 1st accused had applied and secured a shipping order (Exh. K) whose particulars, among others, run as under:- Exporter: Hagafilo Fanns Ltd. P.O. Box 50, Njombe, Tanzania Consignee: Prodo - Nikalaje Veroneca - No. 6 Ukraine Notify address: Mis Tycon (Pty) Ltd A.G. De Witt Drive Fishers Hill Genniston South Africa Nominated Vessel: Kenya Star Port of discharge: Odessa Other particulars concerning shipping marks and Goods description are the same as described in Exh. A above. On 27th October. 1995 the 1st accused went back to NASACO, armed with Exh. K. and asked to have both the carrier and port of destination changed. PW4 conceded to·this and the carrier was changed to M/V Victoria Bay from Kenya Star and the port of destination became Rotterdam instead of Odessa. At the same time, as per procedure, after sealing the containers the 2nd accused fmnished J1is inspection notes to his boss, 3rd accused, for verification, who in tum finding nothing amiss duly marked the relevant documents with "release" stamp signifying that the goods were then ready to be loaded into an exporting ship. The two containers were finally loaded into MN Victoria Bay.

8 On 4/1/96 MN Victoria Bay arrived at Antwerp (as per Exh. H) and off- loaded containers Nos. 221635/4 and 001627/5. The said ship was coming from Dar es Salaam via the port of Hamburg. The bill of lading (No. DR.01) which was presented to the Antwerp customs officials, among others, specified, "Shipper: Mis Hagafilo Farms Ltd. P.O. Box50 Tanzania Consignee: H.F. N. Import and Export Achilles Strasse, 4000 Dusseldorf via Rotterdam Holland Tel. 0049-211554414 Fax 0049-211584811 To be notified: Holland Transport Innovation Grindweg6 3295 KR's Gravendeel Tel. 078:6733377 Fax 078:6734991 The two containers struck Antwerp customs officers as suspicious. These containers were picked upon following a risk-analysis of the cargo Manifest. 1bey became suspect because they were "shippers own" meaning that they are not used by the shipping companies but by the owner himself, and also a search in respect of the company Holland Transport Innovation revealed that its manager, Feelders, was without precedents, and a woman involved also in that company was a divorcee of a narcotic dealer. Their suspicion was rightly rewarded for a thorough check on the containers, though revealing tea bags, revealed also drugs. The report states, "during the piecing of some of the bags we hit had material. After opening one such bag we fow1d a smaller bag in the midst of the tea. This bag contains several packages with ketchup packing. ·n1is packing contains a hard dark brown substance. 11 ..

.•.··.: ':·... '.'.• •,, 9 Thereafter the Antwerp police netted Van Gerven, a driver working with Holland Transport Innovation who was sent to collect the containers, and further investigations unveiled certain dubious companies and personalities who may have been involved in the drug tr{ficking ring but the evidence could not permit their prosecution. In all, the Antwerp investigators uncovered drugs weighing 6,300 kgms which were packed in 17 different ways with wrappings marked differently in the titles of Taco Bell, McDonalds, Merck, Mayonnaise etc. The Antwerp police perfonned the Beckton-Dickinson test on the substance seized and fmmd them to be noxious. They also took photographs of the various wrappings and the containers hence the 36 photographs (Exh. J). However they did not report on how the containers were sealed nor was the Bill of lading or its copy produced. With this discovery the Antwerp police relayed the information to the Director of Criminal Investigation in Dar es Salaam who in tlml detailed PWl to make a follow up and investigate to net the culprits on this end. This is how PW2 (h1sp. Salwn) and PW7 ASP Hussein Nassoro under PWl CP Adadi moved into action. Investigations unearthed 1st accused who had been in Dar es Salaam moving from one hotel to another. He in tum disclosed how one Dadi in Company of Gebber had stored some goods at his home in Njombe which however was collected a few days later; how the same had come loaded in a redish Iveco lorry and how the driver of that vehicle was called Kisaka, a resident of Moshi. This information led to attempts by investigators to trace Kisaka, and subsequent discovery of 4,400 kgms of some drugs at Kisaka's place which are subject of another case at Moshi. PW7 was subsequently sent to Antwerp where he collected photographs and reports (Pros.Exh. B-J). Investigations revealed how 2nd-4th accuseds in one way or another dealt with the exported tea hence their arraignment as well. It is on that set of facts that the defence submitted that the accuseds have no case to answer. TI1e dcfoncc had forcefully argued that for an accused to be put on his defence the prosecution must establish a prima facie case i.e. the evidence against the accused must be so overwhehning "that if the accused does not

·.•.·::.•,•.· •• ·,· ,. t'•• .·, ·,:,. •. 10 offer counter-evidence the court can convict" - cited Ramanlal Bhatt v R (1952) EA 334 as approved in Murimi v R (1967) EA 342; that the circumstantial evidence at hand does not establish irresistibly the accuseds' guilt - cited Geradi vs R (1972) 87, Samwel v R (1972) HCD 105; Miswahili Mulugala v R (1977) LRT. As to evidence they argued that the inspection of the containers and tea before loading, and the subsequent sealing established that there were no drugs i-ior any knowledge of the same by accuseds; that there is no evidence of trunpering with containers between their being sealed at TT A godowns and acceptance by THA nor any linkage of the same with any of the accuseds after 27/10/95; that seals were not identified at Antwerp before the opening of the containers let alone the absence of prefix IKKU on the containers and instead there was ICCU. In reply the prosecution conceded that on the evidence at hand no prima facie case has been established on 3rd and 4th accuseds. The prosecution was in doubt in respect of the 2nd accused and left it to the Court to decide, but maintained very strongly that the 1st accused has a case to answer. On 2nd accused they said that had he been careful during his inspection by piecing the bags he would have discovered the enclosed Drug wrappings. As to the first accused they argued that using a fake name, Hagaftlo Farms Ltd. and vehicle with fak~nwnbers (TZB 6582 and TZ 8589) shows that he knew that he was dealing with drugs. They added that the drugs were fowid in the same containers he bought from Mediterrenean Shipping Company, and that it was the I st accused who signed Exh. K, the shipping order, whose particulars tarry with those contained on a bill of lading no. DR-01 found with the driver at Antwerp who was sent to clear the containers adding that the said containers could not have been coUected from Antwerp port if the 1st accused had not dispatched the Bill of Lading to the consignee. The prosecution did not end there but added that as the sale was done ex- warehouse the consignment was under 1st accused's control right from TIA godowns hence had opportunity to tamper with the containers. l should start by saying that indeed as conceded to by the prosecution and defence, the evidence against accuseds is circumstantial, and that the principles of law as to the utility of this kind of evidence are as propowided by the defence in their submissions. It is now. settled law, constantly hammered home by courts, that for circumstantial evidence to form a basis of conviction it must lead

--------- &- 11 irresistably to the guilt of the accused and be incapable of any other reasonable exphmation. This goes hand in hand with the requirement that the court should, before making a finding of guilty based on such kind of evidence, ascertain that there are no co-existing circumstances which would weaken or destroy such inference. As to a prima facie case, the principle laid down in BHATT case, (1957) EA, 332 at 334 and adopted with approval in MURIMI case, (1967) EA 542 and 1nany others thereafter, speaks for itself in the following words which I will quote at length for clarity, "Rc1nembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one 'which on fu]I consideration might possibly be thought sufficient to sustain a conviction'. This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is 'some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence'. A mere scintila of evidence can never be enough; nor can any amow:it of wotthless discredited evidence. It is true, as WILSON, J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively; that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a 'prima facie case', hut at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered hy the de.fence."

.. :·1. . _.;·:.:-:• 12 I should add however that analysis of the evidence of the prosecution cannot be avoided, and if during such exercise an obvious lacuna is revealed, which lacwia left out by the prosecution cannot allow the proof of accused's guilt beyond any reasonable doubt, the court should acquit. This is so because conviction is based on the strength of the prosecution evidence, and, as ~xemplified above, it is the law of this land that the prosecution cannot camp on th·c defence to plug in and seal loopholes it has obviously left out. Starting with 2nd - 3rd accuseds it does not require much reasoning to note that, on the evidence available, no case has been made out against them by the prosecution. It is no wonder that the prosecution conceded as such in so clear terms regarding 3rd and 4th accuseds although it waivered, undecidedly, on 2nd accused. The very evidence produced against them by the prosecution is the very evidence that exomerates them. All of them are painted to have attended the loading exercise as a nonnal procedure for any load of Tea eannarked for export. Each performed what he was supposed to do. 4th accused as a Shipping and Warehousing Manager had to attend such exercise. There is no evicence to show or even suggest that he went out of his way. Well, PW5, his Director deposed that he had earlier on issued instructions to 4th accused's boss (the Marketing Manager) that no sales should be done ex-warehouse to avoid possible illegalities but there is no evidence that this was ever communicated to him. This is apart from the fact that there was already a contract for ex- warehouse sales for which he was not an author but was required to execute and this is apart fro111 the clear evidence by the same prosecution that this was not the only sale made ex-warehouse. As for the 3rd accused I could not bring myself to understand why he was ever charged at all. The prosecution proved that he was the 2nd accused's boss; that he sent 2nd accused to inspect the consignment to be loaded; that the latter acted and brought back the relevant inspection notes on which he released the containers, already at the Harbours then, for shipping. All this was just as per customs procedures. In his capacity he was not required to see the consignment let alone the containers if satisfied with the 2nd accused's inspection notes. The prosecution has not ventured to show, not even to suggest, that the inspection notes produced to hitn by 2nd accused contained errors or were suspicious. As for the 2nd accused indeed there is also very little evidence against him. He was called lo the scene to inspect the consignment intended to be exported. We are told that the inspection is done by piecing the bags and

. . 13 drawing samples. The evidence shows that that is what he did; that after loading he sealed the containers with customs seal No. 60 and presented the inspection notes to his boss, 3rd accused, who on being satisfied as to its correctness released the containers for shipping. On the other hand, if I may digress a bit, treading on what happened in respect of the whole episode a lot depended on this 2nd accused. The witness who deposed to have witnessed the inspection is PW5, a godown keeper. Others • PWl - 3, and 7 most likely WM relied on stories given by accuseds and this PW5. So it is possible that the 2nd accused did not piece the bags as required out of negligence or with prior knowledge of what was contained. If this is what happened no one would expect any different statement from accuseds nor from PW5. For the latter to say the opposite would implicate him as he was the custodian of the godowns, while, for the 2nd accused it would be suspicious or at least portlay negligence. 1bis is one of the areas where the investigations left a lot to be desired, and, it is no wonder that notwithstanding the contrary evidence given, the prosecution in reply to defence submission on no case to answer made a turn-rowid and said, "Pamoja na kwamba njia ya sampling ndio iliyotwnika kukagua bidhaa ndani ya makontena hayo, Msht. 2 angekuwa makini angeweza kugundua uwepo wa vifurushi vya madawa ya kulevya ndani ya makontena hayo kwani 'packing' yake ilitofautiana na ile ya majani ya chai". ! The above quoted clearly shows the uncertainty of the prosecution. That 2nd accused may have suspiciously acted - either knowingly or negligently is left to conjecture as it is not supported by evidence. There is yet another zone left untouched. The prosecution evidence does not portlay what happened (time span inclusive) between the sealing of the containers and their entry unto Tanzania Harbours Authority yard. One would have expected that evidence woud be led to show that the 2nd accused escorted the containers until they entered the Harbour. The evidence is silent on this. In fact looking at the various testimonies and Exh. K it is not so clear as to when the containers actually entered the Harbour. So whatever adverse inference could be drawn have no soil in ~hich to germinate.

14 As is the case with 3rd and 4th accuseds..,in the absence of other evidence--> the 2nd accused cannot be called upon to speak on nothingness. Finally we tum to the 1st accused who seems to be the centre of this saga. His full participation has amply been explained above. He bought the 16,000 ~gms of Tea fr01n Tanzania Tea Authority on 25/10/95. He bought 2 containers Nos. IKKU 22163-4 and IKKU 001627-5. The tea was loaded into the two containers after going through the necessary f onnalities and was cleared by customs officials at the Tanzania Harbours Authority ready to be shipped. It was the 1st accused who processed the export entry (Exh. A); the shipping order (Pros. Exh. K). 'Ibe particulars of these two documents have already been detailed above. While the first entries on Exh. K. were that the two containers were to be shipped by M/V Kenya Star and destined for Odessa the 1st accused applied for their change. 'That was on 27/10/95. These were changed in accordance with his wishes - the ship was changed to M/V Victoria Bay while the port of destination was changed to Rotterdam. It was the 1st accused who applied and paid for the bill of lading which was given No. DR-01. The procedure is that the shipper has to send the original bill of lading to the consignee to enable the latter collect the goods. According to Exh. A and K while the shipper throughout remained MIS Hagafilo Fam1s Ltd, Box50, Njombe, the bill of lading changed the consignee. All along, starting from the aplication for export entry (Exh. A) to the processing of the shipping order, the shipper (1st accused) indicated that the consignee was "MIS Prodo Nikalage · Veroneca No. 6 Ukraine." Again on the shipping order the person to be notified was, "M/S Tycon (Pty) Ltd A.G. De Witt Drive Fis hers Hill Gem1iston . South Africa

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• .••• ; • ••• • 'f' 15 However, during the paparation of the bill of lading, for reasons undisclosed, the latter two particulars changed to:- Consignee: H.F.N. Import and Export Achilles Strasse, 4000 Dueseldor via Rotterdam Holland Tel. 0049-211554414 Fax 0049-211584811 To be notified: Holland Transport Innovation Grindweg6 3295 KR's Gavendeel Tel. 078:6733377 Fax 078:6734991 These changes are in accordance with the reports of the Antwerp police as to what was seen on Bill of Lading No. DR-01. It is a pity that the bill of lading found with the driver who went to collect containers was not seized. It is not one of the documents produced by PW7 as having been collected from Antwerp. It is riot surprising that the defence launched a serious attack on this omission. In my opinion however, the absence of the bill of lading notwithstanding the Antwerp investigators Reports are that it was No. DR-01 which No. tarries with the one issued by NASA CO. Indeed PW4 deposed that that was the relevant number. Not only that she had its copy displayed in court and which, on application by the defence was adtnitted and marked as Defence Identification Exh. 1 whose contents tarry with the particulars contained in the Antwerp police report as to what was contained in the bill of lading DR-01. According to PW 4 it was the accused who caused the preparation of the said bill of lading. Naturally he is the one conversant with all the changes that were made on the various docwnents (Exh. A, K and Bill of Lading). The Antwerp investigators report is that the driver who was netted while carrying the containers worked for Holland Transport Innovation Company whose Manager is one F eelders who was the one who had sent the said driver on that errand. rfl1e relevant containers in which the drugs were found have same numbers as those bought by 1st accused from the Medditerrenean Shipping . ·. · ... ,·. .. ..

16 Company and which were loaded with tea save for the Prefix IKKU. The Nos. are 2216304 and 001627-5. Apart from the evidence of PW7 which is to the cff ect that at Antwerp he witnessed the prefix obliterated with redish paint though they could be seen faintly the evidence shows that the general trend was to simply write the numbers and not the prefix. None of the documents authored ~y 1st accused himself indicate prefixes - only numbers are indicated. If they were of any importance at all naturally he could not have omitted them on his export entry (Exh. A); Exh. K nor could they be omitted on the Bill of Lading. It is no surprise therefore that even the Antwerp investigators attached no importance to them. The defence's argument that the prefixes on the intercepted containers were different - being !CCU cannot hold water. I can only say that these (ICCU) are merely markings of the sidelings of the containers as vividly indicated in the photographs (Exh. J) and not prefixes to the numbers. I am convinced that the prosecution have established that the intercepted containers are the same as those which were loaded with tea on 27.10.95. Clearly therefore the 1st accused is impregnably connected to the containers in which drugs were found at Antwerp. In the natural course of affairs 1st accused should explain how the noxious substance got into his tea consignment. We have observed above that a prima facie case is established where a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence. Could the coW1 convict if l st accused decided not to go on defence? Here the prosecution has successfully established the inter-connection between the l st accused and the containers 1ound with drugs. Unfortunately however one vital valve has escaped the investigatory plugging - evidence on the state of containers as regards seals on 4/1 /96 before they were opened at Antwerp. Although PW7, the police investigator who went to Antwerp, deposed before this court, "The investigators in Antwerp told me that the containers had been sealed which they broke open in order to see the contents. I asked them to give me the remnants of the seal but they told me that they did not have it nor did they record it as they did not find it irnportant",

17 nowhere in the 8 Reports (Exh. B-ij furnished by them did they even hint on any of the alleged observations. l11 fact, to be fair to the reports, PW7 did• not tell the truth on this. The Antwerp reports show that the police only came into the matter after the Antwerp customs officers had already opened the containers and discovered the drugs. This is clearly put by Exh. I, A Summary of the investigations carried out by the judicial police and the Administration of Customs and Excise, which in part states, "Both containers were subjected to a physical inspection by customs officers after risk analysis of the cargo manifest. Grounds to inspect these containers were:- the fact that both were shippers own "containers" - the fact that according to the Dutch Custon1s and Excise, one of the participants in HOLLAND TRANSPORTATION INNOVA- TION hv had already been mentioned in a drug- related investigation. Upon such physical inspection, three customs officers found hashish hidden in the bags containing tea ... These officers were led by Dirk DELANGHE, asissted by Danny VERDICKT and Gustaaf VAN NYEN. They informed the Kings prosecutors office of their finding. The latter ordered the judicial Police to take all necessmy steps to aITest suspects and to clarify the case." ( emphasis 1nine) The three officers above named are not police - Delanghe is a Customs Verifier; V crdickt is a Chief Customs officer and Van Nyen is a Senior Finance officer with customs (as per Exh. H). PW7 clearly deposed that in Antwerp he only met two police investigators, Jvo-Van Eyned and Rudy-Kokenlberg of the judicial police who were investigating this matter. He did not meet customs officers. So it is most unlikely that the two officers could make representations concerning seals in the words quoted above from the very mouth of PW7 for they were not the ones who first opened the container~. PW7, as a seasoned investigator may on second thoughts have discovered the lacuna but it was too late thus leaving the gapping hole stand in favour of the 1st accused.

18 Tue circumstances surrounding this case clearly show that the deal was being handled by a string of people both within and outside Tanzania, and seasoned mucoticians for lhal matter. The type and the llllique wrappings in which the drugs were found tells a lot about this let alone the manner in which they came to be stuffed in the Mponde and Mwakaleli tea·factory products which have to be received at the Tanzania Tea Authority godowns while already . sealed, all of which facts buffled our investigators such that they closed their investigation without making any break through. I should hastily add that even the Antwerp investigators were surprised by the whole episode. The various characters and companies named as contacts in connection with the two containers were either dubious, non-existent or those with reports involving in Narcotics. In Exhibit 11 l 11 it is observed, "It seems therefore logical to suppose a non- existent company's name was used by drug ring, including HOLLAND TRANSPORTATION INNOVATION and its officials. 11 As to the existence of a ring of drug dealers involved and that this was not an isolated incident, among others, Exh. D, states, " ... it is also worth noting that the final consignee of the cargo apparently has not inquired, up to now, about the reason for the delay or the present location of the tea he has ordered ... 11 Exh. H, takes the report further, "Conce1ning the packaging of the hashish, it is worth noting that it is similar to the packing discovered during two previous findings of harshish, also in tea.

1. Our report of finding No. 149/93 of 02.02.1993 concerning the seizure of 7,362.5 kg '1ashish coming from Mombasa (Kenya) aboard MIS CMB ENSIGN and

19 2. Our report of findings No. 866/93 of 02.07.1993 concerning the seizure of 5,315 kg hashish coming from Nampula (Mozambique) aboard MIS MSC LUISA" Not only the above but we also have the question of destination. The bill of lading indicated Rotterdam as the port of discharge. It is not surprising that the defence clrunoured for clarification on this during cross-examination. It would seem PW4's evidence that goods destined for Rotterdam have to be off loaded at Antwerp is not correct. This is so because the Antwerp police, in Exh. D were surprised over this change of the port of discharge. It is therein recorded, "contrary to the initial plan, the containers were not unloaded in Rotterdam, but in Antwerp." ~nus clarified that it is possible to off load goods at Rotterdam - if so, why were the directions on the bill of lading not honored? Why off load at Antwerp? Who gave instructions for the change when the 1st accused's bill of lading showed Rotterdam? Clearly therefore a more lot of people, with different capabilities and connections, were involved in this matter. I have gone into these details for clarity. In this state of affairs it was necessary for the prosecution to prove that the containers remained intact and sealed from the moment the 2nd accused affixed the seal at the Tanzania Tea Authority (TT A) godown up to the point when they were opened by the Antwerp customs officers. Although the prosecution did not venture to prove, not even to suggest, the particular point ~ time when the noxious substance was stuffed into the bags containing tea, had they established that the containers remained intact and sealed right from TT A's godown up to the time when they landed in the Antwerp customs officers' hands the 1st uccusc<l would have been called upon to explain how the noxious substance came to be in his tea consignment. In the absence of this, however suspicious the other evidence against him may be, a doubt regarding possible tampering with the containers by silent associates unknown to him (thus excluding mens rca) is created which would natura1ly be resolved in his favour. In the circumstances it wuukl be a futile exercise to put the accused on defence after which lhe end result would he the same.

' . 20 Before I conclude I should touch on the prosecution's submission regarding the use ofHagafilo Fanns Ltd instead ofHagafilo Fanns and the fake Registration numbers. As for the former, while using "Ltd" could have been intentional and intended to shield illegal dealings it can also be explained otherwise. It is not uncommon to find people with simple business names using the word "Ltd" next thereto either because of ignorance or show off or both. I have failed to comprehend how 1st accused could have hidden his identity by using just the word "Ltd" when he used at the sametime his full address - P.O. Box 50, Njombe. As to fake Registration: that Reg. Nos. TZB 6582 and TZ 8589, which appeared on the lorry which loaded the containers from TTA godowns, were for s111all vehicles, the defence is not without substance when it attacked this. The prosecution should have established that the 1st accused knew either directly or circun1stantially, that those numbers were fake. In fact I am surprised that the investigation is dead silent on this state of affairs for this is one of the areas where a detailed search should have been done to show some of the 1st accused's hidden motives in all that he was doing. Further and detailed investigation should have been made to establish the proper identity of "red fiat Iveco lorry" which PW5, the godown keeper, deposed upon to have been the one which loaded the containers which could have been linked with an "Iveco lorry" that tmloaded unknown substance at 1st accused's house at Njombe. With the above findings it becomes unnecessary to discuss other minor matters raised hy both the defence and the prosecution in their submissions. On the clear reasons discussed above and in the absence of any other evidence the Court hereby upholds the defence's submission that all the four accuseds have no case to answer and are accordingly acquitted,bn all counts. KALEGEYA mDGE 1/5/98

.. I, • -; ., _., .' ' .... -.-.-. ••· .. ·· . 21 Ruling delivered today the 4th May in the presence of Mr. Luena SIA assisted by Mr. Kamugisha SIA and Mr. Nyangarika for 2nd accused and holding briefs for Mr. Nyange and Mr. Msirikali for 1st and 3rd accuseds. All accuseds present. KALEGEYA JUDGE 415/98