George Menson Sanga vs Republic objection on labelling of tshirts

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT NJOMBE. CRIMINAL SESSION CASE NO. 5236 OF 2024 THE REPUBLIC VERSUS GEORGE S/O MENSON @ SANGA................................................. 1st ACCUSED GOODLUCK S/O OYGEN @ MFUSE............................................... 2nd ACCUSED OPTATUS S/O ELIAS NKWERA..................................................... 3rd ACCUSED RULING ffh & 0" July, 2024 I.C. MUGETA, J: I would preface this decision by the general practice in tendering exhibits. The practice is that the witness does not stay with the exhibit he intends to tender. It is given to him by the prosecutor upon the witness's explaining the features which can enable him to identify it when he sees it. That is what happened in this case. PW6 gave evidence and explained that he searched the residence of the first accused person and seized among other things, "tshirt mbili za Chama cha CHADEMA na moja ikiwa na matone ya damu mali ya George s/o Sanga". This is how the two objects are referred to in the seizure certificate which is exhibit P3. When PW6 sought to tender them as exhibits, two objections were raised. Firstly, that the witness did not lay a Page 1 of 5 foundation on how the exhibits came into his possession today herein court. By necessary implication the objection is that the chain of custody has been broken. The defence led by Innocent Kibadu conceded to the argument of the prosecution led by Cecilia Mkonongo that a chain of custody cannot be proved by a single witness. However, they insisted that a witness who tenders the exhibit ought to explain how the exhibit came to him in court. It is my view that a witness in the witness box does not always carry the duty to explain how the exhibit he intends to tender came in court. His duty is to explain how he can identify the exhibit if he sees it which PW6 did. PW6 testified that after seizure, he handed over the exhibits to the exhibit keeper. Therefore, it is not mandatorily upon him to prove how they came to court at this stage. Paragraph 2.4.3 of the Exhibit Management Guideline relied upon by the prosecution, as submited by Gedfia Mkonongo, deals with the relationship between the exhibit and the witness at places other than in the court room in order to establish if he is competent to tender them. The first objection is misconceived I overrule it. Page 2 of 5 The second objection is that the witness did not explain how the two Tshirts one described as blood stained believed to be human blood and another one as property of the Njombe Mjini Parliamentary seat CHADEMA contestant relate to this case since the said descriptions were not given at the committal proceedings. I agree such description was not made at the committal proceedings conducted in terms of section 246(2) of the CPA [Cap. 20 R.E 2022], In his evidence too, PW6 did not testify that one of the tshirts contained human blood as a mark for his identification of the same nor associated any of them with a contestant for CHADEMA Njombe Mjini constituency parliamentary seat. His evidence is that the two tshirts has CHADEMA logo and one of them is stained with blood. The description of the exhibits as containing blood or related to CHADEMA Njombe Mjini parliamentary seat contestant which has provoked the defence team to raise this objection, concerns how the exhibits were identified at the exhibit store. Each envelope is labeled by writings on it. Those words were written by the exhibit keeper not PW6. In his evidence on identification of the tshirt he said he identified them by the red, black and white colours but one is stained with blood and both have CHADEMA Page 3 of 5 logo. Therefore, the issues of human blood and Njombe Mjini parliamentary seat contestant for CHADEMA are not part of identification marks in the knowledge of PW6. Indeed, at committal proceedings, no details were given to describe the tshirts including the fact that one of the tshirt is stained by blood. The defence has argued that such failure did not give the first accused better particulars as to the nature of the evidence he shall face at the trial and does not also guarantee that the exhibit remains the same without being changed as CHADEMA tshirts are many and are sold as normal commodity. While I agree that the tshirts were listed without describing their features, it is my view that that is what the law requires the committing court to do. The law obligates the subordinate court to read and explain the substance of evidence against the accused person. Therefore, once a witness's name or a document or object is listed, it is deemed that its contents or features was explained. The law does not require the record to reflect how the explanation was made. The second objection has no merits too. Page 4 of 5 The parties have argued on the application of section 4A of the CPA to assist me to reach a just decision. The section concerns the use of the overriding objective principle. It suffices to say here that I do not need the aid of that principle to determine the objections raised. In the event, I overrule the two objections. The two exhibits, I hold, are admissible in evidence. I) R 7 1 I.C. Miigeta Judge 8/7/2024 Court: Ruling delivered in open court in the presence of the accused persons in person, Mr. Innocent Kibadu, Mr. Frank Ngafumika, Dickson Matata and Ms. Neema Msafiri learned advocates for the accused persons, Cecilia Mkonongo, Principal State Attorney, Genes Tesha and Tito Mwakalinga, Senior State Attorneys and Elise James, State Attorney for the Republic. Sgd. I.C. Mugeta Judge 8/7/2024 Page 5 of 5