ABUBAKAR RAJABU MBANJE VS THE REPUBLIC CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 156 OF 2023 (Arising from the judgment of the Court of the Resident Magistrate of Kibaha at Kibaha in Criminal Case No. 37 of 2022) BETWEEN ABUBAKAR RAJABU MBANJE…………………………………APPELLANT VERSUS THE REPUBLIC…………………………………………………RESPONDENT JUDGMENT Date of last order: 10/02/2025 Date of judgment: 10/02/2025 A.A. MBAGWA J. This is an appeal against the conviction and sentence imposed by the trial Resident Magistrate’s Court of Kibaha. The appellant was arraigned on an indictment of trafficking in narcotic drugs contrary to Sections 15A(1) and 2(2) of the Drugs Control and Enforcement Act [Cap. 95 R.E. 2019]. It was alleged that the appellant, Abubakar Rajabu Mbanje on the 9th day of May 2022 at Bandari Bubu Mji Mpya Mlingotini area within Bagamoyo District in 1 Coast Region, was found conveying narcotic drugs, namely, Cannabis Sativa commonly known as ‘bhangi’ weighing 38.84 Kilogrammes by using a motorcycle make Haojoue with no registration number but with frame number LC6PCJK21M0036484. The appellant denied the accusations henceforth, the prosecution was called upon to prove the allegations. As per the record of appeal, the respondent paraded a total of seven (7) witnesses namely, Ramadhani Hassan Nanja, the Government Chemist (PW1), WP 7631 D/CPL Zuwena (PW2), Assistant Inspector Daudi (PW3), Assistant Inspector Innocent Masangula (PW4), Assistant Inspector Lazaro (PW5), Abdallah Thabiti (PW6), and Inspector Brown (PW7). Besides, the prosecution produced eleven (11) exhibits, both documentary and physical. On the adversary side, the appellant stood as a defence witness and called four other witnesses to back up his defence. It was the prosecution’s account that on 9th May 2022, Assistant Inspector Daudi (PW3), in the company of Assistant Inspector Lazaro (PW5) and other officers from the Drugs Control and Enforcement Authority (DCEA) were on 2 ordinary patrol within Bagamoyo District. In the course, they saw the appellant, Abubakari Rajabu Mbanje, standing beside the motorcycle which had on it four sulfate bags at Bandari Bubu, Mji Mpya, Mlingotini area. The appellant smelt a rat, hence took at his heels. The police officers pursued him and ultimately managed to arrest him shortly. They thus brought him back to where the motorcycle was parked. Upon a search, the four bags were found containing a substance suspected of being cannabis sativa. As such, the four bags, the accused’s cell phone, and the motorcycle were seized. According to PW3, a seizure certificate was filled in and signed by the appellant, PW3, and an independent witness, Abdallah Thabiti (PW6). The seized items were later handed to the custodian of the exhibits, Inspector Innocent Masangula (PW4). Having received the seized items, PW4 subsequently packed the suspected substance in the presence of the appellant, Zuwena PW2, and Benjamini Waryoba, an independent witness, and finally handed the same to Zuwena (PW2) to submit it to the Government Chemist Laboratory Authority (GCLA). At the GCLA, the suspected narcotic drugs were received and examined by Ramadhani Hassan 3 Nanja (PW1), who, after a laboratory test, confirmed that the alleged substances were narcotic drugs, namely, cannabis sativa weighing 38.84 kilograms. Upon completion of the forensic examination, PW1 repacked, sealed, and gave back the substances (exhibit P2) to Zuwena (PW2). Zuwena returned them to Inspector Innocent Masangula (PW4), who continued to keep them until the 27th day of July 2022, when he brought them to the trial Court. PW1 identified the alleged narcotic drugs (exhibit P2) and tendered them in evidence. He buttressed his forensic findings by producing the Government Chemist Report (exhibit P1). Inspector Brown (PW7) told the Court that he made strides to inquire about the ownership of the motorcycle from the Tanzania Revenue Authority (TRA). He found that the said motorcycle had registration number MC 815 CXT, and the registered owner was GS Group Limited. PW7 tendered the request letter from the DCEA along with its corresponding reply from TRA, and the duo were admitted and marked as exhibits P10 and P11, respectively. Inspector Brown clarified that he traced the owner, GS Group 4 Limited, to no avail. He also recounted that the seized phone (exhibit P6) was submitted to and examined by the Cyber Crime Unit, but nothing useful was obtained. It was further testified by Assistant Inspector Lazaro (PW5) that during the interview, the appellant admitted the offence. He, therefore, tendered the caution statement. It is worthwhile to note that as per the record, it would appear that the trial Court conducted an inquiry to establish the appellant’s voluntariness in recording the statement. However, the ruling through which the caution statement was admitted is not part of the record. The subsequent proceedings suggest that the caution statement was admitted and marked as exhibit P9. In rebuttal, the appellant insistently denied the accusations. As hinted above, the appellant stood as DW1 and called four other witnesses to augment his defence. In brief, it was the appellant’s defence that the case was concocted against him. He refuted being found in possession of the alleged narcotic drugs (exhibit P2). He also disputed signing the seizure certificate (exhibit 5 P5). He stated that he was arrested at Kilomo while on his way home from watching the football match around 21:00hrs. He expounded that when he reached Kilomo ‘B’ area, he encountered a commotion in which people were running for fear of gunshots. He thus started running also but accidentally stumbled and fell down. As such, the police officers, including PW3, arrested and put him in the van. Later on, he was searched, and his belongings, to wit, Tanzania shillings fifty thousand ( TZS 50,000/=), and the wristwatch were seized. According to the appellant (DW1) and Idrisa Salum (DW5), only the wristwatch and TZS 50,000/= were seized from the appellant. The duo insisted that they signed a seizure certificate that contained only two items, namely, the wristwatch and TZS 50,000/=, but surprisingly, shortly after signing the seizure certificate, the arresting officers gave them another document to sign that purportedly indicated that the appellant was found in possession of cannabis sativa. According to DW5, he declined to sign it because it contained false information. Having heard the evidence from both sides, the trial Principal Resident Magistrate was inclined that the charge against the appellant was proved 6 beyond a reasonable doubt. He thus found the appellant guilty and convicted him accordingly. Consequently, the appellant was sentenced to a prison term of thirty (30) years in terms of Sections 15A(1) and 2(2) of the Drugs Control and Enforcement Act. Concomitantly, the trial Magistrate ordered the destruction of the narcotic drugs (exhibit P2) and forfeiture of the cell phone (exhibit P6) and the motorcycle Frame No. LC6PCJK21M0036484 (exhibit P7). The appellant was dissatisfied with both conviction and sentence and hence knocked on the doors of this Court with several complaints which may conveniently be reduced into the following grounds; 1. That the trial Court erred both in law and fact to convict the appellant whilst the prosecution failed to prove the case to the hilt. 2. That the trial Court failed to analyse the evidence as a consequence, arrived at a wrong decision. When the appeal came for a hearing, the appellant stood in person whilst the respondent/Republic was represented by Ms. Gladness Mchami, the 7 learned Senior State Attorney. At the appellant’s instance, this Court granted leave to dispose of the appeal by way of written submissions. Gratefully, both sides duly filed their respective submissions. This Court being the first appellate Court, I invoked the powers to reevaluate the evidence adduced before the trial court. I also strenuously read and considered the rival submissions. Based on the evidence and the rival submissions, I was settled that the pivotal issue for determination is whether the evidence sufficiently proved the charge against the appellant to the hilt. According to the evidence of PW1, PW2, and PW4, along with exhibits P1, P2, P3, and P4, the tendered substances (exhibit P2) were narcotic drugs, namely, cannabis sativa (bhangi). The defence side did not adduce any evidence to rebut the prosecution's solid evidence on this. Therefore, the pertinent question to ponder is whether it was established beyond reasonable doubt that the alleged narcotic drugs (exhibit P2) were truly found with and seized from the appellant. In addressing this noble issue, the relevant evidence comes from the arresting officer Assistant Inspector 8 Paschal Daudi (PW3), Assistant Inspector Lazaro (PW5), Abdallah Thabiti (PW6), the appellant (DW1), Idrisa Salum (DW5), and the seizure certificate (exhibit P5). It was the prosecution evidence, in particular of A/Inspector Daudi (PW3), that the appellant was not found on the motorcycle, but rather he was standing aside from the motorcycle. It is also on record that the independent witnesses, namely, Abdallah Thabiti (PW6) and Idrisa Salum (DW5), were not at the scene of the crime at the time of arresting the appellant but rather were followed and brought by the police officers to witness the search after the appellant was put under restraint. During cross-examination, PW3 said that Idrisa Salum (DW5) witnessed the search but refused to sign the seizure certificate. In contrast, DW5 testified that he signed the seizure certificate, which genuinely indicated two seized items, namely, a wristwatch and TZS 50,000/=, but refused to sign the second seizure certificate, which falsely indicated that the appellant was found with narcotic drugs. Further, there is evidence of Inspector Brown (PW7) to the effect that he 9 made an inquiry from TRA about the ownership of the instrumentality, to wit, the motorcycle (exhibit P7), and found that it was registered in the name of GS Company Limited. Nonetheless, PW7 did not bother to seek the information from BRELA, which could have helped the prosecution locate the owner of the said motorcycle. Admittedly, under the circumstances of this case, particularly the way the appellant was arrested and searched, it was very critical to establish beyond reasonable doubt that the appellant was in possession of the motorcycle (exhibit P7) on which the narcotic drugs (exhibit P2) were carried. The prosecution evidence suggests that there was no other person than the appellant at Bandari Bubu, where he was allegedly arrested, hence the reason to look for and bring PW6 and DW5 from a different place to witness the search. It baffles my mind if DW5 agreed to come to witness the search, why would he refuse to sign the seizure certificate? To crown it all, DW5 stated that he refused to sign the second seizure certificate that purportedly showed that the appellant was found with the alleged narcotic drugs. 10 Moreso, PW3 did not want to disclose that DW5 was there and refused to sign the seizure certificate until when he was cross-examined on that. Indeed, search and seizure under circumstances like the ones in the instant appeal are always critical and quite challenging. This is due to the organized nature of the drug trafficking crimes. Nonetheless, the prosecution was still obliged to satisfy the Court, beyond a reasonable doubt, that the narcotic drugs (exhibit P2) under contest were truly seized from the appellant. It is against this background our laws have been amended to allow the use of electronic evidence such as videos, photos, and the like. One would expect at least to see a video clip showing how the appellant was apprehended and finally searched. Such evidence would have complemented the disputed seizure certificate (exhibit P5) and, therefore, increased the Court’s confidence in how the seizure exercise was carried out. The other issue worth consideration is the admission of the appellant’s caution statement. As pointed out hereinabove, the prosecution sought to tender the caution statement, but the prayer was objected to by the 11 appellant on the ground that it was not made voluntarily. As such, the trial Court conducted an inquiry to establish the voluntariness. However, the ruling on the contested voluntariness is not part of the record. In addition, there is no court order admitting the said caution statement into the evidence, although the subsequent proceedings dated 28.02.2023 impliedly suggest that the caution statement was admitted and marked as exhibit P9. This is unprocedural, as rightly submitted by the appellant, because the trial Court was obliged to make a ruling on the voluntariness within the inquiry proceedings before admitting it into evidence. After delivering the ruling, it is when the trial Court ought to resume the main suit and call the witness, in this case, Assistant Inspector Lazoro (PW5), to tender the caution statement. The caution statement ought to be tendered in the proceedings of the main suit and not otherwise. Expounding on this procedure, the Court of Appeal in the case of Makumbi Ramadhani Makumbi and 4 Others vs the Republic, Criminal Appeal No. 199 of 2010, CAT at Mwanza on 19 had the following to say: 12 ‘Once objection is made by the defence after the trial court has informed the accused of his right to say something in connection with it, which is an unavoidable duty on the part of the court, the trial court must stop everything and proceed to conduct a trial within a trial, giving each side opportunity to call a witness or witnesses in support of its position: See, Twaha Ali & 5 Others v.R, Criminal appeal No. 78 of 2004 (unreported). This trial is like an ordinary trial in a criminal case. The only difference is that it ends up with the determination of the admisibility or otherwise of the disputed statement only. Once ruled to have been made and voluntarily, the statement should be tendered in evidence by theconcerned witness in the main trial. The acceptable procedure to be followed, fortunately, was clearly described in detail by this Court in our judgment in Seleman Abdallah & Two Others R., Criminal Appeal No. 384 of 2008 (unreported).’ Thus, since the caution statement (exhibit P9) was illegally tendered and admitted in evidence, I expunge it from the record. This position was also 13 supported by the decision in the case of Selemani Abdallah and 2 Others vs the Republic, Criminal Appeal No. 384 of 2008, CAT at Dar es Salaam. On my part, having dispassionately reevaluated the evidence adduced by both sides, I am inclined to hold that the evidence on the search and seizure of the appellant is highly suspicious. The defence evidence, particularly of DW1 and DW5, casts reasonable doubt on the prosecution evidence. As such, it was unsafe to convict the appellant of such a serious offence based on feeble evidence. Simply said, the prosecution evidence failed to prove beyond a reasonable doubt that the appellant was found with the alleged narcotic drugs (exhibit P2). All the above considered, I find merits in the appellant’s complaints and consequently allow the appeal. As a result, I quash the conviction and set aside the sentence. The appellant should be released from custody forthwith unless he is lawfully held. However, I sustain the consequential orders made by the trial Court in 14 respect of the destruction of the narcotic drugs (exhibit P2). Further, in terms of Section 49A(1) of the Drugs Control and Enforcement Act, I endorse the confiscation/forfeiture order of the cell phone (exhibit P6) and the motorcycle with Frame No. LC6PCJK21M0036484 (exhibit P7) as the appellant disowned them. It is so ordered. The right of appeal is explained. Dated at Dar es Salaam this 10th day of February 2025. A.A. Mbagwa JUDGE 10/02/2025 Court: The judgment has been delivered in the presence of Ms. Gladness Mchami (SSA) for the respondent/Republic and the appellant on this 10th day of February 2025. A.A. Mbagwa JUDGE 10/02/2025 15