Braison Japhet v Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 33232 OF 2024 (Originating from Criminal Case No. 8 of 2021 District Court of Kiteto at Kibaya) BRAISON JAFETI…….…………………………………………. APPELLANT VERSUS REPUBLIC…….…………………….……………………………RESPONDENT JUDGMENT 17th & 20th Mar, 2025 MWIHAMBI, J.: This is an appeal that arose from the judgment of Republic v. Braison Jafeti, Criminal Case No. 8 of 2021 in the District Court of Kiteto at Kibaya (the trial court) where the appellant was charged with the offence of trafficking narcotic drugs contrary to section 15A (1) and 2 (C) of the Drugs Control and Enforcement Act [Cap. 95 R.E. 2019] as amended by section 19 (a) of the Written Laws (Miscellaneous Amendment) Act No. 5 of 2021. It was alleged that he was found in unlawful possession of 1 kg of narcotic drugs commonly known as bangi. 1 The prosecution paraded five witnesses and after full hearing Braison Jafeti was convicted and sentenced to a term of thirty years imprisonment. Being aggrieved by the said decision he is before this Court with ten grounds of appeal and for the reason that will be apparent soon I will not reproduce the grounds. In the hearing the appellant was represented by Mr. Omary Msemo, Advocate and the respondent (Republic) was represented by learned State Attorney Ms. Rose Kayumbo. At the outset the learned Senior State Attorney, Ms. Rose Kayumbo, supported the appeal on the main reason that the prosecution case was not proved beyond reasonable doubt due to various irregularities that appeared in the trial court. That, when PW2 tendered Caution statement (exhibit P1) as an exhibit the appellant objected on the ground that he recorded the same after “kipigo” by the police and instead of holding a trial within a trial as the law directs, the trial court went ahead and admitted it. She cited the case of Daniel Matiku v. Republic, Criminal Appeal No. 450 of 2016 tanzlii [2019] TZCA 462 dated 3rd December, 2019 to cement her argument. That, in handling exhibits the Chain of custody was irreparably broken because PW3 Inspector Evarist while testifying did not show or said after seizing the bangi on 17.1.2024 if he handed it to anyone for safety keeping instead 2 it seems that the seized exhibit was taken to Government Chemist by PW5 on 19.1.2024, therefore for 2 days evidence is silent on where the exhibit was. The learned State Attorney argued that maintaining a chain of custody is paramount in charges especially on drugs and the main reason for its proper maintance is to avoid tempering with the alleged exhibit, and Zainab Nassoro @ Zena v. Republic, Criminal Appeal No. 348 of 2015 tanzlii [2015] TZCA 329 15th October, 2015 was cited as an authority. Ms. Kayumbo further argued that there were major contradictions in the adduced evidence especially on what was seized from the appellant; while PW1 said the appellant was arrested with 121 roles in a green utensil and dried bangi in a white plastic bag, PW3 said that the appellant was arrested with 7 roles of bangi and 121 pellets (kete) of bangi and unrolled bangi and PW5 adduced that they seized 7 pellets of bangi and 121 rolls and dried leaves of bangi. In these are major contradictions, it is not clear as to the number of bundles that was seized whether 7 bundles of bangi or 121 pellets of bangi and vice versa, she argued. The learned State Attorney summed up that due to these irregularities it is obvious that the case was not proved against reasonable doubt. After this favorable submission for their part, Mr Msemo had not much to add except on insisting that the trial magistrate had shifted the burden of proof from the prosecution to the accused contrary to what was held in 3 the case of Mike Nwankwo v. Republic, Criminal Appeal No. 200 [2021] TZCA Moshi. Hence praying for this Court to allow the appeal. This Court after going through the trial court records join hands with the learned State Attorney and Advocate Msemo that there are major shortcomings which put lots of holes in the prosecution case. There is a broken chain of custody as the movement of exhibits is not explained. There is no explanation on where the seized exhibits were taken after seizure. There is no explanation on how the chemist, Michael Benard came into contact with the exhibits while he testified that after examination, he returned the exhibits to one A/Insp Innocent. The chemist report says that the narcotic drugs weigh 687.3g while the charge sheet says 1 kg. Page 9 of the proceedings does not reflect the name of PW5 but page 5 of the judgment has reflect him as D/CPL Destery. This brings confusion; the judgment states that Destery was the one who handled the exhibits to the chemist while the chemist testified that it was A/Ins Innocent who handled the exhibits to him. A/Ins Innocent was not brought as a witness to clarify on this matter. The report of the chemist states that the exhibit was returned to A/Ins Innocent in a sealed evidence bag. The trial court proceedings do not reflect that the evidence bag was sealed. Also, the proceedings in the 4 admitted exhibit states, “bangi kete 120 alama A, bangi ambayo haijasokotwa ipo kwenye mifuko alama B”, this contradicts the chemist report and raises a doubt on whether the sealed bag was opened before the court for the accused to be able to admit or object. This Court in addition with accepting arguments of the learned State Attorney and Advocate Msemo, takes guidance from Bundala Mahona & Another v Republic (Criminal Appeal No. 224 of 2013) [2014] TZCA 2141 in relation to trial within a trial and Dickson Elia Nsamba Shapwata and Another v Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 in relation to disparities in adduced evidence, to conclude that the prosecution failed to prove the case to the required standard, that is beyond reasonable doubt. Consequently, I allow the appeal, quash the conviction and set aside the sentence. The Appellant should be released from prison forthwith unless held on a lawful cause. DATED at BABATI this 20th Day of March, 2025. N. J. MWIHAMBI 5 JUDGE COURT: Judgment delivered today in the presence of the appellant and his Advocate Mr. Omary Msemo and Ms. Rose Kayumbo, State Attorney for the respondent. B/C Ms. Fatina Haymale (RMA) present. N. J. MWIHAMBI JUDGE 20.03.2025 6