GUMBO STAMPED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA CORRUPTION AND ECONOMIC CRIMES DIVISION AT DAR ES SALAAM ECONOMIC CASE NO. 17 OF 2023 THE REPUBLIC VERSUS 1. RAMADHANI SHABANI GUMBO 2. FAHADI NASSORO SALEHE 3. ASHRAF MOHAMED HAMIS JUDGMENT 28th August and 20th September, 2024 KISANYA, J.: Ramadhani Shabani Gumbo (the first accused person), Fahadi Nassoro Salehe (the second accused person), and Ashraf Mohamed Hamis (the third accused person), stand charged with one count of trafficking in narcotic drugs, contrary to section 15(1)(a) of the Drug Control and Enforcement Act, No. 5 of 2015 (hereinafter referred to as “the DCEA”), as amended, read together with paragraph 23 of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap. 200, R.E. 2002 [now R.E. 2022] (hereinafter referred to as “the EOCCA”). The prosecution alleges that on July 13, 2019, at Mbezi Kwembe area within Kinondoni District, Dar es Salaam Region, the accused persons trafficked in narcotic drugs, namely 21.67 kilograms of Heroin Hydrochloride. 1 Throughout the proceedings, the accused persons maintained their plea of innocence. The Republic was represented by Mr. Felix Kwetukia, learned Senior State Attorney, along with Mr. Mafuru Moses, Ms. Marietha Maguta, and Mr. Erick Kamala, learned State Attorneys. The defence team, on the other hand, was comprised of Messrs. Abdul Azizi and Nehemia Nkoko, learned Advocates, who acted on behalf of the three accused persons. In an effort to substantiate its case, the prosecution presented a total of eleven (11) witnesses namely, Joseph Jackson Ntiba (PW1), E5581 D/SGT Gharib (PW2), Leticial Waitara (PW3), ASP Hassan Masawika (PW4), Christina Mgandi (PW5), Hussein Ally Nyundo (PW6), ACP Neema Andrew Mwakagenda (PW7), Noel Salia (PW8), Insp. Philemon (PW9), Mashaka Abdi Hamadi (PW10) and Cobson Nzige (PW11). Their oral testimonies were bolstered by eight exhibits. These exhibits include; a Sample Submission Form DCEA 001 (Exhibit P1), a Government Chemist Analyst Report dated 06/07/2020 (Exhibit P2), a box containing remnants/residue of narcotic drugs, namely heroin (Exhibit P3), a Sample Submission Form DCEA 001 dated 15/07/2019 (Exhibit P4), a Government Chemist Report dated 12/09/2019 (Exhibit P5), a box containing 22 packets of narcotic drugs, identified as heroin (Exhibit P6), a Certificate of Seizure related to the search conducted at Kwembe (Exhibit P7), and a Certificate of Seizure dated 30/05/2020 (Exhibit P8). In essence, the prosecution’s case reveals that, on the late evening of July 12, 2019, during a routine patrol in the Kimara Malamba Mawili area, ASP. Hassan Masawika (PW4), along with fellow officers from the Anti-Drugs Unit (ADU) 2 including A/Insp. Philemon (PW9) received a tip from an informant about a house in the Mbezi Kwembe area suspected of storing narcotic drugs. The informant indicated that the narcotic drugs were likely to be moved that night. Acting swiftly on this intelligence, PW4 led the team to the location, accompanied by the local leader (mjumbe) of that area, Christina Mgandi (PW5), to observe the search as a witness. Upon arrival, they encountered the house watchman, Hussein Ally Nyundo (PW6), who informed them that the house keys were with the owners, residing in Ilala Bungoni. PW4 instructed PW9 and another officer to find the owners, with PW6 accompanying them. Meanwhile, PW4, PW5, PW6’s wife, and other officers remained outside the premises’ fence, awaiting the return of the team. The following morning, PW9 successfully apprehended the first accused person, Ramadhani Shabani Gumbo, at his parents’ residence in Ilala Bungoni within Ilala District. A search of the premises yielded no discovery of narcotic drugs. According to PW9, the first accused person pointed out that the second accused person, Fahad Nassoro Salehe, resided nearby. This information prompted PW9 to dispatch an officer to apprehend the second accused person, leading to his subsequent arrest. At around 11:00 a.m. to noon on July 13, 2019, PW9 returned to Kwembe with the first and second accused persons, along with PW6, who was also a suspect. After introducing themselves and informing the suspects of the suspicions, PW4 commenced the search with the suspects’ consent. It is alleged 3 that the first accused person had the key used to unlock the wooden door and consented to the breaking of the iron gate, stating that he had forgotten its key at Ilala Bungoni. Upon entering the house, PW4 conducted a thorough search of the living room, kitchen, and bedrooms but initially found nothing. However, he discovered a hole leading to the attic. As PW4 climbed into the attic, he observed packets stored there but was unable to reach them. According to the testimonies of PW4, PW5, PW6, PW9, and PW11, a total of 22 packets containing powder suspected to be narcotic drugs were later retrieved and seized after breaking a PVC pipe located outside the house. Following the seizure of the narcotic packets, along with the suspects’ mobile phones and a vehicle, PW4 completed a certificate of seizure, duly signed by witnesses (PW5 and PW11) as well as the first and second accused persons and PW6. This certificate of seizure was admitted into evidence as Exhibit P7. It is the prosecution case that during an interview held at the scene, the first accused person admitted to PW4 that he had received the narcotic drugs from a person named Abdalah @ Dulla at Kinondoni. Subsequently, the first and second accused persons and PW6 were then taken to the Kimara Police Post where the matter was formally reported and case file number KMR/IR/6436/2019 opened. Thereafter, they were transferred to the ADU in Kurasini, where PW4 handed over the seized packets of substances suspected to be narcotic drugs to ACP Neema Andrew Mwakagenda (PW7) for storage. 4 The next day, on July 14, 2019, PW4 was appointed to the investigative team and assigned the task of sealing the exhibits for submission to the Government Chemist. In the presence of independent witnesses (PW5, PW10 and PW11), the first and second accused persons, and PW6, PW4 labeled the 22 packets, which were then sealed into two parcels marked “A” and “B.” These parcels were placed in a box and handed over to PW7 for safekeeping in the exhibit room. On July 15, 2019, PW4 retrieved the box containing the 22 packets form PW7 and delivered it to the Chief Government Chemist for analysis. At the Chief Government Chemist’s office, PW4 handed over the box containing the packets of suspected narcotic drugs to a chemist, Leticia Waitara (PW3) who registered and assigned them laboratory number (Lab. No.) 2155/2019. The dispatch of the box with the 22 packets containing suspected narcotic drugs was documented in the sample submission form dated 15/07/2019 which was tendered and admitted into evidence as Exhibit P4. After conducting the preliminary and confirmatory tests, PW3 confirmed that the substances in all 22 packets were 21.67 kilograms of Heroin Hydrochloride. Her findings were recorded in the Government Chemist Report (Exhibit P5). Following the preliminary analysis on July 15, 2019, PW3 returned the box to PW4, who subsequently handed it over to PW7 for storage until it was required in court as evidence. The box together with the 22 packets containing 21.67 kilograms of Heroin Hydrochloride were tendered by PW3 and admitted into evidence as Exhibit P6. 5 It is worth noting here that, PW4 identified and tendered the seizure certificate related to seizure at Kwembe (Exhibit P7) explaining that a minor error in the date (13/07/2017) appearing on the front page was due to human oversight. PW4 and PW9 further testified regarding a subsequent operation on the night of May 29, 2020, while patrolling the Kinondoni area with A/Insp. Philemon (PW9) and DC John. It was their testimonies that, PW4 received information about two suspects, Abdallah @ Dulla and Ashraf Mohamed Hamisi (the third accused), involved in case KMR/IR/6434/2019. Acting on this tip-off, the team proceeded to the indicated location and successfully apprehended the third accused, although Abdallah @ Dulla managed to escape. After arresting the third accused person, PW4 requested him to take them to his residence for a search. It is alleged that initially, the third accused person led them to an incorrect address in Kinondoni Mwanyamala, where his grandmother denied that he lived there. That, eventually, the third accused person led them to his actual residence, a rented room in Sinza Palestina. Arriving at 3:00 a.m., PW4 secured the presence of an independent witness, Noel Salia (PW8), to oversee the search. During the search of the third accused person’s room, they discovered a box emitting a strong odor, which they suspected had been used to store narcotic drugs. The seizure document (Exhibit P8) was drafted and duly signed by the witness (PW8), the third accused and the seizing officer (PW4). PW4 later transported the seized box and vehicle to the ADU office, where he stored the box in his cabinet. 6 On June 3, 2020, PW4 entrusted the box to CPL Ghalib (PW2) for transfer to the Chief Government Chemist for laboratory analysis. Upon arrival, PW2 handed the box to Joseph Jackson Ntiba (PW1) vide a sample submission form (Exhibit P1). PW1 conducted a laboratory analysis, confirming, as per the Government Analyst Report (Exhibit P2), the presence of heroin hydrochloride residues. After completing the preliminary analysis, PW1 returned the box to PW2, who then delivered it back to the ADU office, where it was placed under the custody of the exhibit keeper (PW7). This box with residue of heroin was tendered and admitted into evidence as Exhibit P3. Having evaluated the prosecution’s evidence, this Court was of a finding that a prima facie case had been established against all the accused persons. Upon being informed of their right to testify and call witnesses, each accused person opted to testify under oath without presenting any additional witnesses or exhibits. However, it is important to note that, the witness statement of PW3 was introduced as Exhibit D1 during the prosecution's case, upon the defense's initiative. The first accused person, Ramadhan Shabani Gumbo (DW1) testified that he was arrested on July 13, 2019, by Insp. Emanuel Msakuzi and Insp. Abdallah Juma at his home in Ilala Bungoni, Dar es Salaam, on charges of cyber theft. He claimed that during the arrest, his belongings, including an iPhone X Max and an HP laptop, were seized. He further asserted that he was transported to Arusha, placed in solitary confinement, and later returned to Dar es Salaam without formal procedures. It was also his evidence that, he first learned of narcotic drug 7 trafficking charges when he was arraigned before the Resident Magistrate’s Court of Dar es Salaam at Kisutu (hereinafter referred to as “Kisutu Court”). DW1 denied the drug trafficking charges, stating that the certificate of seizure is incorrect and that he has no connection to the house in Kwembe or the vehicles mentioned. He claimed that the evidence and witness testimonies against him are false or misrepresented. DW1 also disputed allegations of directing police to the second accused person’s residence and asserted that he was not involved in narcotic drugs. The second accused, Fahadi Nassoro Salehe (DW2) stated under oath that he was arrested on July 13, 2019, at Magomeni Mikumi by officers investigating stolen motorcycle spare parts. He claimed that he was taken to Kariakoo and then Central Police Station of Dar es Salaam, where he was placed in lockup and later transferred to Kisutu Court. It was his testimony that he was charged with drug trafficking, which he was surprised by as he was initially arrested for spare parts theft. DW2 denied any involvement in drug trafficking, disputes claims about the first accused, and challenges the evidence against him. He also claimed that his uncle, who could have supported his defence, passed away, and contended that the charges are false. On his part, the third accused, Ashraf Mohamed Hamis (DW3) stated that he was arrested on May 29, 2020, at Kinondoni Mkwajuni under suspicion of selling a defective car. He further stated that he was later charged with drug trafficking on June 12, 2020, and transferred to Keko Prison. DW3 denied the 8 charge of trafficking in narcotic drugs and claims he has never been involved in such activities. He disputed the prosecution’s evidence, including claims about a car and items seized. DW3 also denied familiarity with the other accused persons or the locations mentioned in the prosecution's evidence and asserted that the charges are false. In conclusion, each accused person implored the Court to find him not guilty and acquit him. After the defence case was wrapped up, both parties' counsel filed their final written submissions, which will be reviewed while addressing the core issues of this case. I have carefully considered the evidence and arguments presented by both parties. It is a customary practice, and indeed the norm, in criminal trials that, once both the prosecution and defence have presented their evidence, the crucial question for the court’s consideration and determination is whether the prosecution's evidence has proven the charges against the accused beyond all reasonable doubt. This principle was clearly articulated in the case of Joseph John Makune vs. Republic [1986] TLR 44, which reinforces the prosecution's unenviable duty in the following terms: “The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case. The duty is not cast on the accused to prove his innocence.” 9 Based on the principle set forth above, the fundamental issue for determination is whether the prosecution has satisfied the standard of proving its case beyond any reasonable doubt. One of the issues raised by the defence pertains to the defectiveness of the information for being at variance with the evidence regarding the location where the offence was committed. Mr. Nkoko, learned counsel for the defence, argued that the information indicated the trafficking offence occurred at Mbezi Kwembe area within Kinondoni District, whereas the evidence of PW4, PW5, PW6, PW9, and PW11 revealed it was actually within Ubungo District. He submitted that the proof of the location is a crucial and mandatory requirement in establishing a criminal charge, and any discrepancy between the place mentioned in the charge and the evidence renders the error fatal and incurable under section 388 of the Criminal Procedure Act [Cap. 20, R.E. 2022] (the CPA). Mr. Nkoko further argued that the prosecution should have sought an amendment to the charge under section 276(2) of the CPA, particularly because the 1st and 2nd accused persons were arrested in Ilala District, while the 3rd accused person was apprehended in Kinondoni District. He referred the Court to the case of Godfrey Simon & Another vs Republic, Criminal Appeal No. 296 of 2018 [2022] TZCA 8 (11 February 2022), asserting that the failure to amend the charge led to a miscarriage of justice and prevented the prosecution from proving the case to the required standard. In rebuttal Ms. Maguta contended that the evidence of PW5, PW6, PW9, PW11, and Exhibit P7 demonstrated that the first and second accused persons 10 were caught trafficking narcotics at Mbezi Kwembe. She argued that the reference to Kinondoni District in the information, while the witnesses indicated uncertainty about whether Mbezi Kwembe was situated in Ubungo District or Kinondoni District after the creation of Ubungo District, was a minor discrepancy. Citing the case of Godfrey Simon (supra), she maintained that this discrepancy was curable under sections 388 and 234(3) of the CPA. She further contended that that Mbezi Kwembe could not be located elsewhere in Tanzania, and the accused persons were not prejudiced, as their cross-examination focused on Mbezi Kwembe, where the narcotics were discovered. I have decided to prioritize this issue, given the legal position that the charge or information is the backbone of criminal proceedings. The law further stipulates that any inconsistency between the charge and the evidence, which is not corrected through an amendment, is fatal to the prosecution’s case if it results in injustice to the accused person, ultimately leading to the charge or information being considered unproven. The case of Godfrey Simon (supra) referred to this Court by both parties is particularly instructive. In that case, the Court of Appeal considered the discrepancy between the information and the evidence concerning the location where the offence was committed. It went on to hold that: “In view of the stated position of the law, it was prudent to amend the charge. As this did not happen, the prosecution account regarding the place where the offence was committed did not support the charge. We say so because while the prosecution account from PW1 and PW3 revealed that the offence was committed at Matofarini as reflected at pages 10 and 15 of the record of appeal, the charge shows that it was 11 committed at Dofa village. This had the effect of weakening the prosecution case and in the absence of requisite amendment.” In addition, the Court of Appeal referred to its previous ruling in Bainth and Another v. Republic, Criminal Appeal No. 339 of 2013 (unreported), which emphasized: "... where there is a variation in the place where the alleged armed robbery took place, then the charge must be amended forthwith, if no amendment is effected the charge will remain unproved and the accused shall be entitle d to an a acquittal as a matter of right Short of that a failure of justice will occur.” Turning to the present case, it is undisputed that, according to the information, the alleged trafficking of narcotic drugs took place at Mbezi Kwembe area, which falls within Kinondoni District. Consequently, the prosecution bore the duty to present evidence demonstrating that the offence was indeed committed at Mbezi Kwembe within Kinondoni District. In their testimonies in chief, PW4, PW5, PW6, PW9, and PW11 all stated that the offence occurred at Mbezi Kwembe. However, none of them was led to clarify the district in which Mbezi Kwembe was located. It was during cross-examination that PW5, the local leader (mjumbe) of the street where the alleged offence occurred, testified that Kwembe ward had been part of Ubungo District since 2014. While under cross-examination, PW9 admitted he was unsure of this fact. Nevertheless, PW9 confirmed that the matter was reported and a case file opened at the Kimara Police Post, also known as Gogoni, 12 which is located in Ubungo District. Furthermore, although the seizing officer (PW4), who was also the investigator, did not specify whether Mbezi Kwembe was located within Kinondoni District as stated in the charge, he testified that he completed the sample submission form (Exhibit P4) used to deliver the seized narcotic drugs to the Chief Government Chemist. In that form (Exhibit P4), PW4 explicitly indicated that the place of seizure was Mbezi Kwembe within Ubungo District. The forgoing evidence depicts that that the prosecution was all aware that the offence was committed at Mbezi Kwembe within Ubungo District and not Kinondoni District. Therefore, the argument raised by Ms. Maguta, that there was uncertainty as to whether Mbezi Kwembe was within Ubungo District or Kinondoni District, is not supported by the evidence on record. In fact, pursuant to the Local Government (Urban Authorities) (Conferment of Municipal Council Status) Order, 2015 (GN No. 512 of 2015), Mbezi and Kwembe are distinct wards and areas within Ubungo District since November 6, 2015. In any case, given that the alleged offence occurred on July 13, 2019, it is clear that the information and the evidence are inconsistent regarding the location where the offence was committed. Despite this, the prosecution did not utilize section 276(2) of the CPA to seek an amendment of the information. The question that now arises is whether the discrepancy between the information and the evidence regarding the location of the offence in the present case can be cured under section 388(1) of the CPA. With due respect to the learned State Attorney, I cannot agree that this discrepancy is minor or curable under section 388(1) of the CPA, for the following reasons: 13 First, PW4 testified firmly in chief that, during the oral interview with the suspects, the first accused person explicitly stated that he had received the 22 packets of narcotic drugs after picking them up in Kinondoni. It is my considered view that, this raises a crucial question for the defence as to whether the charge pertained to an offence committed in Kinondoni or Ubungo Districts, a distinction critical for preparing their defence. Second, the arrests of the accused persons were made in separate locations, further complicating matters. The first and third accused persons were arrested in Ilala Bungoni within Ilala District and in Kinondoni area, respectively, while the arrest location of the second accused person was not proven. PW4 did not personally arrest him but assigned another officer to do so at the place the first accused person allegedly pointed out. In the circumstances, the accused persons were entitled to know the precise area, including the district, where the alleged offence took place to effectively prepare their defence. Third, contrary to the learned State Attorney’s contention, the prosecution witnesses, particularly PW5 and PW9, were questioned specifically about the district or council where the offence was alleged to have occurred. It is clear that the defence counsel focused on this point during cross-examination, underlining its importance to their case. Fourth, the accused persons were entitled to and did indeed raise the belated defence of alibi. For the defence of alibi to be effectively, they needed precise information about the exact location where the alleged offence took place. 14 Since the information suggested that the offence occurred in Kinondoni District, but the evidence pointed to Ubungo District, I am of the firm view the defence was prejudiced in their ability to raise a proper alibi. Considering those reasons, I agree with the defence that the discrepancy concerning the location of the offence is a serious and incurable defect. Drawing on the legal position outlined in the case of Godfrey Simon (supra), I hold that the failure to amend the information not only resulted in a miscarriage of justice but also left the prosecution’s case unproven to the required legal standard. Even if I was to accept that the discrepancy between the information and the evidence is minor and curable, still the issue for determination is whether the charge of trafficking in narcotic drugs was proved. According to section 15(1)(a) and 3(i) of the DCEA, as well as the particulars of the offence, the prosecution had the responsibility to prove that the accused persons trafficked in 21.67 kilograms of heroin hydrochloride (Exhibit P6). The term "trafficking" is broadly defined under section 2 of the same Act to include various activities involving narcotic drugs. These activities range from importation and exportation to buying, selling, giving, supplying, storing, possessing, producing, manufacturing, conveying, delivering, or distributing narcotic substances. As submitted by the defence counsel, the legal principle established in cases such as Haji Rashid Matundu and Another vs Republic, Criminal Appeal No. 314 of 2021 (unreported), advocates that trafficking can be proven through any of these defined activities or acts. Given the broad scope of 15 what constitutes trafficking, it is imperative for the prosecution to provide clear evidence of the accused person’s specific act related to the charged offence. In this case, the particulars of offence did not set out the mode of trafficking. However, it is common ground that the accused persons were not found in possession of the narcotic drugs at the time of their arrest. The prosecution’s evidence suggests that the “trafficking” in the present case involved storage, constructive possession or distribution. For example, PW4 testified: “…an informant provided me with information that at Mbezi Kwembe area, there was a house whose owners were involved in narcotic drugs and that the drugs were stored in that house and then distributed at night to various parts of Dar es Salaam.” (Emphasize supplied). Despite the tip provided to PW4, it was not proved the accused persons were distributing the narcotic drugs in question. On the contrary, the testimonies of PW4, PW5, PW6, PW9, and PW11 indicate that the narcotic drugs (Exhibit P6) were found in the house at Mbezi Kwembe. Their evidence that PW4 had to break the PVC outside the house to retrieve the packets containing the narcotic drugs suggests that the narcotic drugs were indeed stored in the house. If the packets could not be retrieved from inside the house as was in this case, PW6, who was the watchman to that house, should have observed the accused persons retrieving the drugs from outside the house for distribution. However, this observation is missing from his evidence. 16 Nevertheless, the pivotal question remains whether the accused stored or had constructive possession of the narcotic drugs (Exhibit P6) at the house in Kwembe. Starting with the third accused person, he was not present when the narcotic drugs (Exhibit P6) was retrieved at Kwembe. Both PW4 and PW9 stated that he was arrested based on information they received, alleging that he was responsible for the narcotic drugs found at Kwembe. Yet, no evidence was tendered to directly implicate him in the charged offence of narcotic drugs found at Kwembe. The evidence on record shows that PW4, PW9 and other officers went to his house in Sinza, where a neighbor cum independent witness, Noel Salia (PW8), opened the entrance gate for them. It was also presented that, upon entering, the third accused person informed the team that he did not have the keys to the house, as he had given them to a friend, which led PW9 and his team to break down the door to gain entry. However, this testimony is questionable because the prosecution omitted crucial information, such as the specific house number where the third accused person resided, the identity of the house owner, and whether the house or room was indeed leased to him. For instance, while the testimonies identified the location as Sinza Palestina, the Certificate of Seizure (Exhibit P8) referred to Sinza E, with no clarification provided as to whether these two areas refer to the same location. Furthermore, the fact that the third accused person told PW9 and his team that the keys to the room were with his friend shows that it cannot be concluded that he must the one placed the box in the room and not someone else. 17 Additionally, doubts arise from the search being conducted at night and the breaking in of the door. How is it that the noise did not wake the neighbors? It was also mentioned that the accused's room was inside a main house, which would require someone to open the main door for them to enter. Yet, it remains unclear who opened this main door, a fact not brought to the Court’s attention. Moreover, it is undisputed that the third accused person was apprehended on May 29, 2020. The prosecution did not present evidence showing when he was arraigned before the committal court and joined the first and second accused. Furthermore, the committal file does not provide this detail. It indicates that all accused persons were presented to the committal court on February 28, 2023, but proceedings suggest that the initial case against the accused persons had been withdrawn. In this regard, the third accused person’s defence that he was first brought to committal court on June 12, 2020, for trafficking in narcotic drugs, a charge that was specific to him alone, and that he was later charged with the first and second accused persons in March 2021 cannot be disregarded. This is especially relevant given that such evidence was not challenged during cross- examination. If the third accused person was indeed connected to the narcotic drugs found in Kwembe, it remains unclear why he was charged separately and why there was a delay of almost ten months before he was charged with the first and second accused persons, who were arrested earlier. This unexplained delay and/or failure to present evidence on the issue under consideration cast another doubt on the prosecution’s case against the third accused person. 18 As for the first and second accused persons, the prosecution did not present evidence proving that they were the owners of the house where the narcotic drugs were found. PW11, a neighbor, stated in his chief evidence that the house was known as "Mama Gumbo’s house" since mid-2018. He explained that he used to see Mama Gumbo frequently during the construction of the house, and she had introduced herself as the owner. When cross-examined, PW11 further explained that the first and second accused persons were not residents of the house and that he only saw them on the day of the incident. PW6, who was guarding the house on the material date, testified in his chief examination that he was employed as a security guard by the first accused person under an agreement for a monthly payment of TZS 150,000/=. He even stated that he informed the police officer that the house key had been taken by the first accused person. However, under cross-examination, PW6 gave the following testimony: “The security job was given to me by Mama Gumbo and Shaffih… …I first met Gumbo in June 2019. I was introduced to him by his mother (Mama Gumbo). When the house was being built or renovated, I knew Shaffih and Mama Gumbo… …I have never seen any document showing that the house belonged to Ramadhani Shabani Gumbo… The house I was guarding was under renovation, which was complicated in June, 2019. During the renovation, the supervisor was Shaffih, but I do not know his second name… 19 My boss was Mama Rama, who is also Shaffih’s mother. I have not seen Shaffih today. I knew Shaffih as mama Gumbo’s son. Yes, I told the police that before June, 2019, I knew Shaffih. I do not have any security/guarding agreement with Rama or mama Rama.” From the above testimony, it is evident that the house where the narcotic drugs were found belonged to Mama Rama, the first accused person’s mother. This was further confirmed by PW9, who stated during cross-examination that the ownership documents obtained during the investigation identified the owner as Amina, the first accused person’s mother. Given this evidence, Amina, also known as Mama Rama, the first accused person’s mother and the owner of the house, would have been a crucial witness for the prosecution. Alternatively, the prosecution should have presented the previous owner identified by the mjumbe (PW5) of that area as Hamisi. If, as stated by PW9 and PW11, the house belonged to the first accused person’s mother, Amina, she could have clarified the connection between the accused persons, the house, and its keys, as well as the narcotic drugs found there. The law is established that when there are gaps or missing links in a case that could be resolved by witnesses who are better positioned to testify, but these witnesses are not presented, the court may reasonably draw an adverse inference. This principle is well-affirmed in a plethora of authorities, including the case of Aziz Abdallah vs. Republic [1991] T.L.R. 71, where the Court of Appeal held that: 20 “The general and well-known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify to material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution.” It is instructive to note that the principle stated in the above excerpt was also underlined by the defunct Court of Appeal for Eastern Africa in R vs. Uberle [1938] 5 EACA 58, which held: “The court is entitled to presume that evidence which could be but is not produced would if produced be unfavourable to the person who withheld it.” This rule is pertinent because a well-executed prosecution strategy would not miss the chance to call these key witnesses, as their testimony could have a substantial effect on establishing the accused person’s culpability. Given the nature of the prosecution's case, the testimony of key witnesses such as the seller (Hamisi) or Mama Gumbo (alleged buyer or owner) was crucial for demonstrating, inter alia, the following: (i) That the house either belonged to the accused persons or was entrusted to them by its owner for use; (ii) That the narcotic drugs, which are the subject of these proceedings, were seized from the house allegedly entrusted to the accused by the owner. 21 Now that the prosecution did not call Amina and/or Hamisi as witnesses and provided no justification for this omission, it is reasonable to draw an adverse inference against the prosecution's case, as the identified gaps and missing links on the house owner remain unaddressed. Moreover, PW6’s testimony quoted above indicates that several people including Mama Gumbo, Shaffih, and the accused persons had access to the house since it was unoccupied. PW9 further mentioned that Nice was regularly assigned to the house to carry out decoration work. This clearly indicates that the first and second accused persons did not have exclusive control over the house, thereby casting doubt on the true ownership or possession of the narcotic drugs found therein. For example, when the arresting officer (PW9) was asked by the defence counsel about Shaffih, he responded: “According to the information we received, Shaffih was mentioned in connection with drugs, but we did not find him. Yes, to this day, we have not managed to locate him.” Considering that the first and second accused persons were not found storing the narcotic drugs and that the packets containing the narcotic drugs (Exhibit P6) could not have been placed from outside the house, it cannot be irresistibly determined that they were responsible for storing the narcotic drugs, as opposed to someone else with access to the house before the fateful date. Another evidence linking them is the set of keys allegedly used by the first accused to open the door. From the outset, it was not established that only the first accused person had the keys to the house or that no other person with keys 22 had ever visited the house. This clarification could have been provided by the house owner, Amina, if she had been called as a witness, which did not occur. Secondly, PW9 stated in his evidence in chief that, before leaving Ilala Bungoni to Kwembe he instructed the first accused person to collect the keys for the Kwembe house. Since the first accused person’s mother is reportedly the house owner and the first accused person was arrested at his mother’s home in her presence, it cannot be definitively concluded that the first accused person was found in possession of key in to implicate him with the narcotic drugs found therein. Third, the keys could have served as crucial evidence connecting the first accused person to the case but were not presented as exhibits. Thus, the fact that the accused had access to the keys to the wooden door does not suffice to prove his involvement with the narcotic drugs found inside, especially in light of the reasons previously discussed. Lastly, the prosecution's evidence shows that the house was equipped with a CCTV camera. According to the certificate of seizure (Exhibit P7), the CCTV footage was among the items seized from the house. It is my considered view that this footage could have potentially shown whether the accused persons were entering and/or leaving the house with suspicious packages. However, apart from failure to tender it into evidence, neither PW4 nor PW9 provided any information about the contents of the CCTV footage or whether it had been disconnected. The lack of this evidence raises a doubt in the prosecution’s case, particularly given that the accused denied the charges and the facts read during the preliminary hearing. 23 Based on the reasons I have detailed, I find that the prosecution has not proved the accused persons' involvement in the trafficking of the narcotic drugs (Exhibit P6). Consequently, my thorough review of the testimony and submissions from both parties confirms the concerns raised by the defence that the prosecution's evidence is insufficient and does not meet the legal threshold. This finding is adequate to resolve the case, and thus, I see no necessity to address other issues raised by the parties. In the event, the accused persons, Ramadhani Shabani Gumbo, Fahadi Nassoro Salehe, and Ashraf Mohamed Hamis, are found not guilty of the offence of trafficking in narcotic drugs they were charged. Accordingly, I hereby acquit them and order their immediate release unless they are lawfully held for another cause. Dated at DAR ES SALAAM this 20th day of September, 2024. S.E. KISANYA JUDGE 20/09/2024 Judgment delivered on this 20th day of September, 2024 in the presence of Ms. Marietha Maguta and Ms. Happy Mwakanyamale, learned State Attorneys for the Republic, the first, second and third accused persons and Mr. Abdul Azizi, learned Advocate for the accused persons. Right of appeal is duly explained. 24 S.E. KISANYA JUDGE 20/09/2024 ORDER The narcotic drugs (Exhibit P6) and the box (Exhibit P3) containing residues of heroin shall be destroyed in accordance with the Drug Control and Enforcement Act, Cap 95, R.E. 2019, and the Drug Control and Enforcement (General) Regulations, 2016, as amended. Until the destruction order is executed, both exhibits shall remain in the custody of the Anti-Drugs Unit of the Tanzania Police Force. S.E. KISANYA JUDGE 20/09/2024 25