TULUSUBYA BUNINI KAMALAMO RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE CORRUPTION AND ECONOMIC CRIMES DIVISION

AT DAR ES SALAAM ECONOMIC CASE NO. 10543 OF 2024

THE REPUBLIC

VERSUS 1. TULUSUBYA BUNINI KAMALAMO 2. JAMES THOMAS BANGU 3. MOHAMED HAMADI KHAIS 4. ADBALLAH ALLY MLWALE 5. DEOGRATIAS BENEDICTO LUTATAZA 6. JUDICA NGOWO @LIGHTNESS S. MUNISI @LIGHTNESS SAMWEL MUNIS 7. FEBRONIA NANGWA 8. GLORY JOHN EUGEN 9. SAID MOHAMED BAKARI 10. JOSEPHINE GADIEL SANDEWA 11. DORICAS GABRIEL GWICHALA 12. JESCA JONATHAN LUTAGONZIBWA 13. ALINANUSWE OBEL MWASASUMBE 14. PATRICK MAZENGO CHIBWANA 15. ALLY BARUAN KHALID JAMES NYAKAMANDE

RULING 21st and 22nd November, 2024 KISANYA, J.: In this case, Edgar Goodluck Paul, an officer from CRDB Bank, appears as the fifth witness for the prosecution (PW5). During his testimony, he stated that he accessed the bank's system, downloaded the bank statement for Ilala Municipal Council for the period from January 2019 to December 2021, saved it on a flash disc, encrypted the data with security features to prevent unauthorized access, and then handed the flash disc over to an officer from the Prevention and Combating of Corruption Bureau (PCCB), who had requested the statement. PW5 identified a white Philips flash disc and sought to tender it as evidence, showing the information he had handed over. The defence raised several objections to the admission of the flash disc as evidence, citing the following grounds: 1. The flash disc is inadmissible for contravening Rule 8(2) of GN No. 267 of 2016 and Section 246(2) of the Criminal Procedure Act [Cap. 20, R.E. 2022] (the CPA).

2. The accused persons were not supplied with the flash disc as required by Rule 9 of GN No. 267 of 2016.

3. The witness had not laid the proper foundation for the admission of the statement in the flash disc, as required by Sections 76, 78, and 79 of the Evidence Act [Cap. 6, R.E. 2022].

4. The witness failed to establish the foundation necessary for the identification of the flash disc and the statement within it. Having thoroughly considered the submissions made by both parties, I will now proceed directly to the merit of the objection raised. Starting with the first ground of objection, the defence contends that Rule 8(2) of the Economic and Organised Crime Control (The Corruption and Economic Crimes Division)(Procedure) Rules, 2016, GN No. 267 of 2016 and Section 246(2) of the CPA were not complied with. It is well- established that these provisions, particularly Rule 8(2) of GN. No. 267 of 2016, which applies to this Court, require the committal court to read and explain, or ensure that the accused is made aware of, the information, as well as the statements or documents containing the substance of the evidence that the prosecution intends to rely upon during the trial. As correctly pointed out by Mr. Kakula, the purpose of this requirement is to inform the accused of the substance of the prosecution's evidence against him and to enable him to prepare an adequate defence. This was clearly stated in Remina Omary Abdul vs R, Criminal Appeal No. 189 of 2020 (unreported), where the Court underscored the significance of this process. Given the significance of this requirement, Section 289(1) of the CPA bars the admission of evidence that was not read over and

explained to the accused during the committal proceedings, unless a notice to produce it as additional evidence has been served to the accused or their counsel. This has also been reiterated in The Director of Public Prosecutions vs Sharif Mohamed @ Athuman and 6 Others, Criminal Appeal No. 74 of 2016 (unreported). In addressing the consequences of failing to comply with section 246(2) of the CPA, which is in pari materia with Rule 8(2) of GN No. 267 of 2016, the Court of Appeal remarked as follows: "If this is not complied with, the witness cannot later produce that document as an exhibit in court. The issue is not on the authenticity of the document but on non- compliance with the law. We, therefore, agree that unless it is tendered as additional evidence in terms of section 289 (1) of the CPA, it was not receivable at that stage" The defence argues that the contents of the flash disc were not read over to the accused during the committal proceedings. However, none of the defence counsel dispute that the record of the committal proceedings shows that the contents of the listed prosecution documentary evidence were read over and explained. This listed documentary evidence includes the "Flash Disc containing Bank Statement of ILALA MUN OWN SOURCE COLL, CRDB Account," as recorded on page 138. According to Section 3 of the Evidence Act [Cap. 6, R.E. 2022], the term “documentary

evidence” refers to all documents produced as evidence before the court. As correctly argued by Ms. Mwaseba, learned Senior State Attorney, the term "document" is broadly defined to include, among other things, computer data and any form of recording upon a tangible thing, which may be used for purposes of recording matters that are permanent and readable. With this definition in mind, it is clear that what was read over to the accused during committal proceedings included the contents of the flash disc. The defense's argument in support of this objection appears to challenge the accuracy of the proceedings. However, as rightly observed by Mr. Mulisa, Senior State Attorney, it is firmly established in this jurisdiction that court records are official documents that cannot be easily contested. The law presumes that the contents of the court records represent a true account of what occurred In the proceedings, as affirmed in Halfani Sudi v. Abieza Chichili [1998] T.L.R. 527, and as cited in the case of Shamim Omari Mwasha and Another vs Republic, Consolidated Criminal Appeals No. 173 and 182 of 2021 [2024] TZCA 1105 (14 November 2024), cited by the prosecution. Taking into account the stated position, I found it fitting, following submissions from both parties, to admit the flash disc for identification purposes. The purpose was to observe how the committal court could

have accessed the contents, which were documented as having been read to the parties. Indeed, PW5 indicated the procedure for opening the flash disc and managed to display the bank statement, although it took some time. Though there is no indication that the committal court was assisted by anyone in accessing the encrypted information implemented by PW5, I am of the view that, since the record shows that the contents were read out and no contrary evidence has been presented by the accused or their counsel, I must assume the committal record accurately reflects what transpired on that day. Therefore, I dismiss the first ground of objection. Next for consideration is the ground that, the flash disc was not supplied to the accused. This objection is based on Rule 9 of GN No. 267 of 2016, which provides: “9.-(1) A person who has been committed for trial before the Court shall, at any time before the trial, be entitled to obtain a copy of the record of the committal proceedings without payment. (2) The Court shall, at the time of committing the accused for trial, inform him of his right under sub-rule (1). (3) Every record of the committal proceedings supplied to the accused pursuant to this rule shall, subject to rule 9(1), contain a copy of the Information, the statements and documents produced before the district or a resident Magistrates’ court during the committal

proceedings. (4) The record of the proceedings referred to under this rule shall be restricted to the proceedings of the day of the accused person’s committal. As stipulated in the above provision, the accused is entitled to receive a copy of the record of the committal proceedings, which includes the information, the statements, and the documents produced before the committal court. According to the record, the accused were indeed informed of this right. As to whether the flash disc was actually served, Mr. Luteja did not dispute that it is the court's duty to supply the intended exhibits to the accused. In that regard, the prosecution cannot be penalized for such omission. It is well understood that the requirement to serve the record of committal proceedings is designed to safeguard the accused's right to a fair trial by ensuring they are informed of the evidence against them and can adequately prepare their defence. Therefore, the trial court should take into account the particular circumstances when addressing such omissions. In some cases, the court may, after considering submissions from both parties, grant the accused time to review the relevant documents before objections are made. In this case, the concern regarding the failure to supply the flash disc to the parties was not raised prior to raising the objection. Instead, during earlier proceedings, the defence

counsel informed the court that they had been served with soft copies of the documents and requested hard copies. In that regard, this objection is dismissed for lack of merit. Another ground for determination pertains to non-compliance with Sections 76, 78, and 79 of the Evidence Act, which, according to Mr. Rutahiwa, set the criteria for admitting evidence contained in a banker’s book. I agree with him that, based on the definition of a banker’s book under Section 76 of the Evidence Act, the contents of the flash disc sought to be tendered, being a bank statement, qualify as a banker’s book. The issue that arises, therefore, is whether there was any contravention of Sections 77, 78, and 79 of the Evidence Act due to the witness’s alleged failure to lay a proper foundation for the flash disc. Starting with Section 77 of the Evidence Act, it provides that a copy of an entry in a banker’s book is admissible as prima facie evidence of that entry. In this case, PW5 seeks to tender a flash disc that, according to him, contains statements he obtained from the bank’s system. Since PW5 has not sought to tender a physical copy of an entry but rather electronic evidence, I agree with the prosecution, represented by Ms. Mwaseba, that this provision is not applicable to the matter at hand. Moreover, the question of whether prima facie evidence has been established cannot be decided at

this stage. Likewise, Sections 78 and 79 of the Evidence Act, address copies of entries, and Section 78A(2) of the same Act states that any entry in a banker’s book is considered primary evidence of such an entry. Even assuming the applicability of Section 78 to the electronic evidence in question, PW5 testified as a bank officer directly involved in downloading, encrypting, and transferring the information to the flash disc. His testimony establishes that the entries were prepared in the ordinary course of business, as required by law. As a result, this objection is determined to have no merit and is dismissed accordingly. The final ground for consideration is the objection raised by the defence, asserting that PW5 did not properly lay the foundation for admitting the flash disc and the bank statement into evidence. Mr. Luteja and Mr. Mafuru argued that PW5 identified the flash disc solely by its colour (white) and brand (Philips), failing to mention other distinguishing features, such as additional colours, Arabic inscriptions, the storage capacity in GB, or the USB 3.0 specification] appearing thereon. Mr. Mafuru highlighted these omissions, contending that they rendered the identification incomplete. Additionally, Mr. Kakula argued that PW5 failed to sufficiently identify the bank statement he sought to tender, raising concerns about whether the bank statements were indeed

relevant to the case. He emphasized that the lack of proper identification undermines the authenticity and admissibility of the document. To support his argument, he cited the case of Sharif Mohamed @ Athuman (supra). In contrast, Ms. Mwaseba argued that the primary colour of the flash disc is white, which PW5 had adequately described. She further argued that PW5 could not demonstrate the contents of the flash disc without it first being admitted into evidence. Based on this reasoning, she urged the court to dismiss the objection regarding the admissibility of the exhibit. My starting point is the position that evidence can be classified into four main categories namely, real, demonstrative, documentary, and testimonial. In the case of Sharif Mohamed @ Athuman (supra) relied upon by both parties, it was held that all forms of evidence are subject to the universal rules of admissibility, namely relevance, materiality, and competence. In the present case, the flash disc and the statements contained therein suggest that the court is dealing with both real and documentary evidence. However, as correctly pointed out by Mr. Kakula, the prosecution did not lead PW5 to identify the bank statement, which he handed to the PCCB. The process of identification of evidence is known as authentication and seeks to validate the integrity of the exhibit by requiring the witness to confirm that

the exhibit is exactly as it is alleged to be. I am bolstered by the case of Sharif Mohamed @ Athuman (supra), where the Court of Appeal stated as follow: “To be admissible, such evidence must be relevant, material and competent. Its competence is established by showing that it really is what it is claimed to be. This process is called authentication. The Court of Appeal went on to provide the following guidance on how real evidence should be authenticated: Real evidence may be authenticated in three ways; by identification of a unique object, by identification of an object that has been made unique, or by establishing a chain of custody.” In another case of Christian Ugbechi vs Republic, Criminal Appeal No. 274 of 2019 [2021] TZCA 3539 (23 December 2021), the Court of Appeal made it clear that laying a proper foundation to tender an exhibit involves the witness demonstrating familiarity with and the ability to identify the item. Applying this principle to the case at hand, PW5 testified that he could identify the flash disc, describing it as a white device labeled 'Philips.' He further stated that upon accessing it, he could view an image, which appears as an encrypted file that can only be opened using the appropriate encryption key. This suggests that PW5’s evidence regarding the authentication of the flash disc and its contents was based on the identification of an object

that had been made unique. However, he requested the court to admit the flash disc with the bank statement, without identifying the features he had inserted therein. It is only after identifying the said features that the court could have determined whether the flash disc sought to be tendered had been properly authenticated. Furthermore, just before tendering the flash disc with the bank statement, PW5 neither displayed the relevant bank statement contained in the flash disc nor provided an explanation of how he recognized it. The prosecution's argument that PW5 could not demonstrate the contents of the flash disc prior to its admission into evidence is, in my view, unconvincing. This is because the witness made it clear from the outset that he was seeking the court’s permission to admit the flash disc as evidence containing the statement which he handed over. Indeed, it is the contents of the flash disc that are pertinent to the case. Similarly, the image, inscriptions, or security measures on the disc, prior to opening the statement and showing it, are not part of the exhibits but serve to assist the court in verifying the authenticity of the contents of the flash disc. Moreover, when the court allowed the witness to state or show how the statement could be accessed, the process took so long that the court had to adjourn for thirty minutes. Based on these circumstances, I

find that, before seeking to tender the exhibit, the witness failed to show that the flash disc and the statement it contains were truly what they were claimed to be, as required by the law. In the event, I sustain the fourth ground of objection and hold that the flash disc, presented as evidence with the information claimed to have been handed over by PW5, is inadmissible. DATED at DAR ES SALAAM this 22nd day of November, 2024. S.E. KISANYA

JUDGE