ezekiel john masaba

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO 22340 OF 2024 ORIGINAL CRIMINAL CASE NO.25OF 2022 (I n the District Court of K igam boni at K igam boni before Hon. K UP P A(P R M ) Dated on 17 th day of July 2024) EZEKIEL JOHN MASABA@MAKOLI..................... APPELLANT VERSUS THE REPUBLIC................................................. RESPONDENT JUDGMENT MKWIZU,J: The Appellant was charged and convicted for the offence of stealing goods on transit contrary to section 258 (1) (2)(a) and 269 (c) (a) and in the alternative count, stealing by servant Contrary to section 258 (1) 2 (a) and 271 of the Penal Code Cap 16 R.E 2022 and sentenced to five (5) years imprisonment. He is dissatisfied with the decision of the trial court and has raised four (4) grounds of appeal, as follows: 1 That the learned trial magistrate erred in law and fact by holding the appellant's conviction for the offence of stealing goods on transit and stealing by servant whereas there was no relevant evidence to establish the commission of any of those offences. 2 That the learned trial magistrate grossly erred in holding the appellant's conviction by failure to draw an adverse inference 1 against the prosecution on their failure to bring in court one Augusta Energy (a customer) from DRC, a material witness, and one who wrote an email, (Exh P4) to PW8 a company manager. 3 That the learned trial magistrate grossly erred in law and fact by simply ignoring the defence of the appellant, which raised reasonable doubt to the prosecution side. 4 That the learned magistrate erred in law and fact to warrant a conviction against the appellant without considering that the prosecution failed to prove the case to the required standard in a criminal case. When the matter came for a hearing on November 11, 2024, the Court ordered that the appeal be resolved through written submissions. Both parties subsequently filed their written submissions. The appellant abandoned the first ground of appeal and chose to proceed with the remaining grounds. In response, the respondent supported the conviction and sentence, opposing the appeal. In support of the second ground of appeal, the appellant's counsel argued that the failure to call a key witness to explain an important fact should lead the court to draw an adverse inference against the party that did not summon this witness. He said the evidence indicates that the 3,500 litres 2 of diesel was intended to be offloaded to Augusta Equal Energy in DRC Congo. Despite an email claimed to be from Augusta Equal Energy, which contains legal irregularities, no witness from this company was called to confirm that the consignment did not reach its destination. He relied on the case of Methuselah Musa versus The Republic, Criminal Appeal No. 214 of 2021 (unreported), explaining that a witness from Augusta Equal Energy would have been better positioned to clarify whether the diesel consignment was received. On the second ground of appeal, he argued that the trial magistrate made a significant error in law and fact by entirely disregarding the appellant's defence. Had he considered it, the court would likely have reached a different decision. He invites this court to reassess the defence evidence and give it the consideration it deserves merits. In support of the third ground of appeal, the appellant's counsel argued that the magistrate erred in convicting the appellant without adequately considering the prosecution’s failure to meet the burden of proof, which requires establishing guilt beyond reasonable doubt. He pointed out inconsistencies in the prosecution case, that, while PW2 stated that the appellant possessed the original delivery note, he later explained that delivery notes are made in three copies, with the original potentially held 3 elsewhere at the same time PW9, telling the court that the original documents were handed to a TRA officer in Tunduma and that the appellant was only given copies. To him, this contradiction raises questions about PW2's credibility, suggesting that PW2 either made an error or knowingly provided false information. Furthermore, he criticised the prosecution for failing to request the original delivery note from the TRA or summon them as witnesses to clarify the document's ownership. The counsel contended that these factors illustrate significant doubt about the prosecution's case. He banked on Daniel Apael Urio versus Exim (T) Bank, Civil Appeal No. 185 of 2019 (Unreported), stressing that having been admitted in the absence of notice issued to the possessor of the original document, the impugned exhibit P2 should be expunged from evidence to the detriment of the respondent's case. He also asserted significant inconsistencies in PW10’s testimony on how the appellant was searched after the disconnection of the tracking system. He said according to PW10 on page 42, they searched the appellant and found him fixing the puncture, indicating that they did not harbour any doubts about this information, as it was not the appellant's first journey. However, during re-examination, as noted on page 43, 4 paragraph 3, PW10 contradicted himself by stating that after the GPS was disconnected, they contacted the appellant, who again mentioned the puncture and his intention to resume the journey. Given the contradictions in his testimony, he maintained that PW10 was not a credible witness. He relied on Lucas Kapinga and Two Others V. Republic [2006] TLR 374, Another reason the case was not established to the requisite standard is the inadequate evaluation of Exhibit P3, which is email correspondence. It was noted that, while the exhibit was admitted without objection, its authenticity is highly questionable. How the email (Exhibit P3) was downloaded, stored, and communicated raises clear violations of section 18, casting doubt on its credibility and reliability. He cited the Court of Appeal decision in Hussein Kausar Rajan versus The Republic, Criminal Appeal No. 670 of 2020 (unreported) adding further that, there is a lack of evidence confirming the proper functioning of the devices used by PW8's mobile and Bibiana's computer during the communication, storage, and printing of Exhibit P3. Explaining what was testified in court, the appellant counsel said, PW8 stated he received the email from his client, Agusta Energy, and forwarded it to Bibiana, who was responsible for documentation and invoices, but no any affidavit or certificate verifying 5 the authenticity of Exhibit P3. Additionally, while Bibiana testified as PW11, she did not address the email's authenticity. Due to these deficiencies, the counsel argued for the expungement of Exhibit P3 from the records. If Exhibit P3 is removed from consideration, he argued, the court would be left solely with the caution statement, Exhibit P7 whose validity is also questionable. His contention was that Exhibit P7 was inadequately obtained, as it was recorded in narrative form rather than in the required question-and-answer format, violating Section 57(2)(a)(d) of the Criminal Procedure Act [CAP. 20 R.E. 2022] . He also relied on Mbuzi Lushona @ Mangaiki & 2 Others v. The Republic, Criminal Appeal No. No. 159 of 2022) [2024] TZCA 964 (unreported) to support his arguments. He further stated that the prosecution's case was significantly undermined by the apparent fabrication of when the interview with the appellant began. Evidence from PW13 indicates that the appellant was arrested in Kimara and taken to Chang'ombe Police Station on 06/10/2021 at 19:05. At the same time, the start time of the interview is recorded as 09:05. He implored the court to find that this fabrication prejudiced the appellant's case and represented a deliberate violation of section 57(2)(d). 6 He insisted that for the prosecution to prove its case beyond a reasonable doubt, it was essential for the appellant to be informed of his rights to have a relative or friend present during the interview. This should be evident in the responses given by the appellant in Exhibit P7. The question “Are you ready to provide your statement?” was answered with “Yes,” and when asked “, Who would you like to witness your statement?” the appellant replied, “On my own.” These responses indicate that the appellant was not fully informed of his rights, suggesting a lack of understanding of the questions posed to him. He relied on the case of Republic vs. Yahya Twahiru Mpemba and 11 others, Criminal Sessions Case No. 65 of 2023 (unreported) stressing that had the court considered these issues, it would not have relied on the evidence presented and subsequently convicted the appellant. He requests that exhibit P7 be expunged from the records, He also faulted the attacked prosecution case for failing to meet Augusta Equal Energy, who could have helped the Court justify that the diesel consignment did not reach her. He contended that the alleged diesel theft was said to have occurred in the Democratic Republic of Congo (DRC). Still, the investigator, PW12 DSGT Eligius Kashasha, only conducted inquiries within Tanzania, specifically from Dar es Salaam to the Songwe 7 Region. During cross-examination, PW12 admitted that he lacked the necessary permits to cross into the DRC and explained that his investigation was limited due to the absence of support. Additionally, he did not communicate with Augusta, who allegedly did not receive the consignment, despite having been in contact with Lake Oil. He posited that PW12’s failure to secure the appropriate permits and communicate with all relevant parties casts doubt on the thoroughness of the investigation. Another challenge the appellant poses is that he was interrogated by a group of investigators whose number is not readily known, including PW12, before whom a confession was made. Thus, he prayed that PW12’s evidence be excluded from the records. In response to the appeal, the learned State Attorney supported both the conviction and the sentence meted against the appellant. He cited section 143 of the Evidence Act and the case of Julius John Shalu v. Republic, Criminal appeal no.35 of 2001 (Unreported), on the principle that no particular number of witnesses shall in any case be required for the proof of any fact and that not every witness is crucial to the prosecution case. He said the prosecution had called material witnesses to substantiate its claims in the present case. On pages 12 to 13 of the typed proceedings, 8 PW1 testified to what had happened on 4th August 2021 at the Lake Oil Depot, where he loaded 34,500 litres of fuel into truck number T518 DLV and trailer T287, driven by the appellant and en route to DRC Congo. He mentioned receiving a sale order and delivery note for this transaction. PW2 affirmed that he was the one who loaded the same amount of fuel into the same truck driven by the appellant; having received a purchase order for the 34,500 litres, he prepared three copies of the delivery note (exhibit P1), duly signed by both the appellant and himself. The vehicle was inspected by PW3, who confirmed it was filled with 34,500 litres of diesel, identifying the appellant as the driver responsible for delivering the fuel to Congo DRC. Following the inspection, both PW3 and the appellant signed the inspection report (Exhibit P2). This evidence was also supported by PW5, who went further to tell the court that the appellant had failed to return the necessary documents to the documentation department, which would have confirmed the successful delivery of the consignment to Augusta Equal Energy. On the other hand, the State Attorney said the PW7, PW10, and PW15 testimonies provide key information regarding the movement of truck number T518 DLV, with trailer number T287. PW10, responsible for monitoring vehicle movements, stated that the appellant crossed from 9 Tunduma into Zambia on 14 August 2021 and disconnected the truck's tracking device on 19 August, claiming a puncture,the disconnection that lasted until reestablishment on 28 August when the Truck was found at Lake Trans yard in Vijibweni. PW10 noted that the driver did not present the documentation to confirm delivery to Augusta Equal Energy. PW15, the person in charge of tracking devices, explained that a GPS had been installed in the truck. On 16 August, the appellant reached Lubumbashi but intentionally disconnected the GPS while parked in Yowela. A mechanic confirmed that this disconnection was deliberate, and the client reported that the consignment did not reach its destination. He was emphatic that the prosecution managed to prove that the appellant was an employee of Lake Carrier through PW6 and Exhibit P3. Additionally, the appellant admitted in court that he failed to bring essential documents, such as the Movement Sheet and Delivery Note, which indicated that the consignment of 34,500 litres of diesel did not reach its destination. PW15 evidence and email correspondence(Exhibit P9) corroborated this assertion, and PW8 and an Augusta Equal Energy officer confirmed the consignment's failure to arrive (Exhibit P4). The distinction was made between the current case and Metusela Musa versus Republic, highlighting that in the latter, PC Juma was a crucial 10 eyewitness present at the crime scene, necessary to clarify gaps in the prosecution's case. In contrast, the present appeal lacks missing links requiring an explanation from the officer from Augusta Equal Energy. He posited that the evidence presented in court and Exhibits P1, P2, P3, and P4 sufficiently addresses all disputed facts. He requested that the first grounds of appeal be dismissed due to lack of merit. On non-consideration of defence evidence in the third ground, the State Attorney said the trial court adequately assessed evidence from both parties by evaluating the appellant's actions concerning fuel storage and tracking device disconnection, as well as relevant documents like the Movement Sheet and Delivery Note and found that the defence failed to cast doubt on the prosecution's case and that the appellant's conviction resulted not from weaknesses in the defence but from the prosecution fulfilling its burden of proof under section 110 (1) of the Evidence Act Cap 6 R.E. 2022. He also contested the argument that the prosecution failed to meet the necessary proof standards. While acknowledging that Exhibit P2 was secondary evidence, the state attorney said that PW9 had stated in court that the original documents were submitted to the TRA. The appellant was served with a notice to rely on secondary evidence. Despite refuting 11 possession of the original document, the State Attorney asserted that the appellant should have filed a counter affidavit to object to the use of secondary evidence. He cited section 123 of the Evidence Act and the case of Mohamed Enterprises (Tanzania) Limited and Another vs Shishir Shyamsingh (9 of 2022) 2022 TZHC 12420. He argued that PW2, the maker of Exhibit P2, qualified as a competent witness since he had established his connection to the exhibit he previously possessed, claiming that the appellant's request for a notice to the TRA or a summons for the TRA to testify in court was unwarranted. He cited to the court the case of Affary Saidi Mwalimu versus Republic (CAT), Criminal Appeal No. 497 of 2019( unreported) and DPP V. Mirzai Pirbakhsh @ Hadji and 3 others, Criminal Case Appeal No. 493 of 201 ( Unreported). Distinguishing the facts of the case with the decision of Daniel Apael Urio versus Exim (T) Bank, Civil Appeal No. 185 of 2019 (Unreported), he said the receipt was problematic and confusing in the cited case, which is not the case here. The State Attorney also denies the appellant's claims of inconsistencies in PW10's testimony, asserting that PW10's account was, in fact, consistent. He clarified that both the examination in chief and re-examination supported this consistency. In the examination in chief, PW10 stated that 12 a truck disconnected from the tracking device and that one of his colleagues contacted the driver, who mentioned a puncture issue. In the re-examination, PW10 reiterated that they connected with the driver by phone regarding the same puncture problem. The State Attorney highlighted that PW10's references to "finding" the driver and "taking a step off the phone" indicated collective involvement, not individual action. This interpretation affirmed that PW10’s testimony remained consistent throughout the proceedings. Regarding the authenticity of Exhibit P3, he stated that section 18(1) of the Electronic Transaction Act, Cap 422 R.E 2002, cited by the appellant, was irrelevant to the appellant's submissions. He explained that this section permits the reception of electronic evidence in court, while section 18(2) outlines the factors to consider when determining whether an electronic document should be admitted. Citing the case of Mohamed Enterprises (Tanzania) Limited and Another vs Shishir Shyamsingh (( supra), he identified the condition precedent for admitting electronic evidence as the reliability of how the document was generated, stored, or communicated. In the current appeal, he argued that PW8 testified to receiving the email from Augusta Energy, which had been sent to the invoice department. PW8 confirmed that he printed the 13 email from Bibiana’s computer to obtain a hard copy using Bibiana’s printer. He emphasised that he received the email from Augusta Energy, the client, who communicated it over the phone. Thus, he contended that this condition for admissibility was adequately met. He affirmed that PW8 was competent to present the document and that sufficient grounds were established for him to be permitted to do so. On the issue of the authenticity of the electronic records system, he noted that the authenticity of the system where documents are recorded or stored is presumed to be good unless evidence to the contrary is presented. He stated that this presumption applies unless it is shown that the computer system was malfunctioning in a way that could affect the document or if it is established that the document was recorded or stored by an adverse party. He acknowledged that while PW8 did not explicitly state that the computer and printer were functioning correctly, the absence of evidence indicating defects meant that the reliability of the computer system and printer could be assumed. Regarding how the cautioned statement (Exhibit P7) was procured, the state attorney contended that PW13's testimony complied with sections 57(2)(d) and 53 of CAP 20 R.E 2022. After arresting the appellant, PW13 14 introduced himself as a Police Inspector and informed the appellant about the allegations of fuel theft from Lake Trans Company. He documented the appellant's responses and made it clear that the appellant was not obligated to speak and had the right to have a lawyer or friend present. He noted that while section 57(2)(a) requires admissions to be recorded in a question-and-answer format, the appellant was not deprived by using a narrative format. He stated that the substance of the statement remained unchanged, as permitted by section 58(4) of the CPA. Therefore, it was argued that the appellant faced no prejudice from this omission and any irregularity could be corrected under section 169(1) of the CPA, citing the case of Nyerere Nyangue vs. Republic, Criminal Appeal Case 67 of 2010) [2012] TZCA103 and Republic vs Yohana Mtitu Kayanda, Criminal Session Case 38 of 2016) 2023 TZHC 16475, In response to the appellant's inquiry regarding the effectiveness of the investigation, he stated that PW12 had conducted a thorough investigation, gathering all relevant evidence related to the offence at that time. He noted that the investigation was completed, which led to the appellant's prosecution and subsequent conviction. The appellant's reference to Metusela’s case was deemed distinguishable, as the investigator in the current appeal took the necessary initiative to 15 determine how the offence was committed, how the appellant was connected to it, and whether the appellant had been given 34,500 litres of diesel to deliver to the client which was not ultimately delivered as required. Addressing the question of the number of investigators involved, he emphasised that the law does not specify a required number of investigators to interrogate an accused person. Furthermore, the appellant failed to demonstrate any prejudice from this factor. He strengthened this argument by citing Director of Public Prosecution vs. Remina Omary Abdul and 2 Others, Criminal Appeal No.57 of 2019, asserting that the conditions reported by PW13 in the present appeal were conducive to a proper investigation, suggesting that PW12's evidence was appropriately tendered in court and should remain admissible. I have thoughtfully considered the party's submissions, the appellant's grounds of appeal, the trial court's records, and the impugned decision. In the second ground of appeal, the appellant is challenging the trial court decision for failing to draw an adverse inference against the prosecution for failing to bring to court an officer from Augusta Energy (a customer) from DRC, a material witness, and one who wrote an email (Exh P8) to 16 PW8, a company manager. Principally, in a criminal case, the prosecution is required to prove the case to the required standards by adducing evidence that meets appropriate standards of credibility and weight, focusing not solely on quantity, such as the number of witnesses presented, but rather on the substantive quality of testimony provided by those witnesses called in court. See Section 143 of the Evidence Act, Cap 6 R.E. 2022, and the decision in Yohanes Msigwa v. Republic (1990) TLR 148, which reinforces that the prosecution's case does not fall short merely due to the absence of a witness unless the omitted testimony is demonstrably pertinent to a key aspect of the prosecution’s claims. In this case, the main issue is whether the appellant stole 34,500 litres of diesel valued at 96,462,000, the property of Lake Trans/Careers Limited. It is not contested that the appellant was the company's driver, Lake Trans Carrier Limited. He was assigned to transport the fuel to DRC to a client, AUGUSTA ENERGY Company. That on 23/4/2021, the appellant was given a motor vehicle, T. 518 DLV, with a trailer registered T. 287 CAR make HOWO, with directives to load 35400 litres of Diesel worth 96,462,000/= and transport the same to DRC CONGO . To establish stealing, the prosecution called several witnesses who verified that the accused stole the fuel after he had tampered with the 17 tracking device. It is also the prosecution case that the officer from the transporter customer, AUGUSTA Energy, wrote to the company manager (PW8) via email (exhibit P4), deducting the product price of USD 37,684.90 from what she was to pay, necessitating an investigation that led to the apprehension of the appellant. PW15 testified that the GPS device on the truck the appellant drove had been disconnected. Analysis of Exhibit P9's printouts confirmed that the GPS was inactive from Yowela Village, Lubumbashi, DRC, until the vehicle was back in Tanzania, indicating potential tampering during transit. This interruption in the tracking system was highlighted as evidence that the driver may have taken a detour to steal the fuel. It was further explained that upon safe return, the driver was expected to present documentation proving the fuel had reached its destination, but could not do that, a requirement the defence did not contest. After his arrest, the accused admitted to committing the offence in a cautioned statement (Exhibit P7), in which he confessed to conspiring with two others to steal and sell the fuel in DRC and the statements whose admission was not opposed by the defence during trial. Considering the nature of the case and the evidence presented, there were no gaps in the prosecution's case that required further explanation 18 from the officer from Augusta Equal Energy. The trial court rightly dismissed the defence's argument regarding AUGUSTA's officer's absence as a witness. Having considered the appellant’s complaint on non-calling of the officer from Augusta Company, the trial magistrate held at page 6: “I think and it is my view that it is not a convincing argument from the defense that that client who is alleged to have not received fuel was not brought as witness (AUGUSTA). The complainant in this case is not AUGUSTA. It is LAKE TRANS/CARRERS LIMITED per charge. Having not received the said fuel, AGUSTA had correspondence with the company manager (PW8) via email (exhibit P4) where the former deducted product price USD 37,684.90 from what she termed as next batch of payment. It is no gainsaying therefore that the company as complainant had to proceed with her case against the accused for they have suffered deduction from AUGUSTA. I am reasoning this way being aware as well that where crucial or material witnesses who are within reach once are not brought to testify in court an adverse inference may be brought against the prosecution as it was held in AZI ZI ABDALLAH V R [1991] TLR 71 but this is not the case. 19 I think for this analysis the case by the prosecution left no loose end untied and the argument by the accused that he had some misunderstandings with his boss on matters of allowance or mileage as he so put is in my opinion an afterthought.” I see no valid reason to critique the trial court's reasoning. The evidence submitted in court (Exhibits P1, P2, P3, and P4) adequately addresses all disputed facts. Therefore, the second ground of appeal is unfounded. The third ground challenges the trial court for failing to consider the defence. I have re-read the trial court’s decision and am firmly convinced that the court properly assessed evidence from both parties. It evaluated the appellant's defence and found that it failed to cast doubt on the prosecution's case, as the appellant did not provide pertinent evidence related to GPS or the submitted documents. See, for instance, pages 5 and 6 of the trial court's decision. The last grounds censure the trial court for convicting the appellant on weak evidence by the prosecution. I have re-evaluated the evidence adduced at the trial court. As stated earlier, the prosecution effectively established the appellant's employment with Lake Oil Carrier through the 20 evidence provided by PW6 (Exhibit P3). PW1 provided compelling testimony regarding the incident on August 4, 2021, at the Lake Oil Depot, where he loaded 34,500 litres of fuel into truck number T518 DLV and trailer T287, which was driven by the appellant and intended for delivery to the Democratic Republic of Congo (DRC). PW1 specifically noted that he received a sale order and a delivery note for this transaction, establishing the basis of the transportation. This evidence was corroborated by PW2's account, stating that he loaded the same quantity of fuel into the same truck driven by the appellant, having also received a purchase order for 34,500 litres. He described preparing three copies of the delivery note (Exhibit P1), which bore the signatures of both himself and the appellant, as detailed on pages 17 to 19 of the typed proceedings. PW3 inspected the vehicle and confirmed it contained 34,500 litres of diesel, identifying the appellant as the driver responsible for transporting the fuel to the DRC. This inspection led to PW3 and the appellant signing the inspection report, further solidifying the evidence of the appellant's involvement in the delivery process. PW5, too, affirmed that they had received a purchase order from a client in DRC for the delivery of the diesel, reinforcing the transactional legitimacy and expectations regarding the consignment. PW5 underlined 21 that the appellant did not return the requisite documents to the documentation department, which should have substantiated the successful delivery of the consignment to Augusta Equal Energy. The PW7, PW10, and PW15 testimonies provide crucial insights into the movements of truck number T518 DLV with trailer number T287. PW7 reported returning from DRC driving the truck on the evening of August 28, 2021. PW10, tasked with monitoring vehicle movements, revealed that the appellant crossed into Zambia from Tunduma on August 14 and subsequently disconnected the truck's tracking device on August 19, claiming a puncture. This disconnection persisted until it was reactivated on August 28 when the car was located at the Lake Trans yard in Vijibweni. Importantly, PW10 noted that the driver failed to present documentation to confirm delivery to Augusta Equal Energy. PW15, Rashid Mkande, who oversaw the tracking devices, testified that a GPS unit was installed in the truck and confirmed that on August 16, while parked in Yowela, the appellant intentionally disconnected the GPS despite having arrived in Lubumbashi, a mechanic corroborated that this disconnection was a deliberate act, and crucially, the client had reported that the fuel consignment did not arrive at its intended destination. 22 Moreover, the appellant did not dispute that upon his return, he never produced documentation proving that the fuel had arrived at its destination, as required. This failure to produce documentation was further supported by PW15's evidence and email correspondence between PW8 and an Augusta Equal Energy officer(Exhibit P4), which confirmed the consignment's non-arrival More to that is the appellant’s confession. After his apprehension, the appellant was duly cautioned and confessed to committing the offence, which is captured in Exhibit P7. The appellant believes that the caution statement (exhibit P7) was recorded contrary to section 57(1)(a)(d) of the Criminal Procedure Act, Cap 20 R: E 2022. However, upon careful examination of the entire cautioned statement and the testimony provided by PW13, it is evident that the notation of 9:00 hours in the statement as the start time is likely merely a clerical error. The appellant does not contest that he was cautioned on the pertinent date following his arrest, underscoring the statement's validity. Moreover, the appellant, who was adequately represented, did not contest its admissibility during the trial. Given the critical nature of the evidence in question, one would reasonably expect that his legal counsel would have addressed it appropriately if there were substantial grounds for objection. Surprisingly, during the trial, 23 the appellant not only remained silent, but his advocate clearly stated that they did not oppose the admission of the accused’s cautioned statements. Thus, the appellant's complaint appears to be an afterthought lacking any substantive foundation. In his cautioned statement, the accused acknowledged his involvement in a conspiracy with two accomplices, PAPII and PATRICK, to steal the fuel and sell it to another party in the DRC. The testimony of the recording officer, PW13, corroborated this confession, further solidifying the prosecution's case against the accused.I am supported by the Court of Appeal decision in Nyerere Nyague v. The Republic, Criminal Appeal No. 67 of 2010 (unreported). In that appeal, a cautioned statement was admitted in evidence without any objection from the appellant. In considering whether the appellant had a right to challenge its admissibility under section 169 of the CPA, The Court of Appeal said; "It follows in our view, therefore, that the admission of evidence obtained in the alleged contravention of the CPA is in the absolute discretion of the trial court and that before admitting or rejecting such evidence, the parties must contest it, and the trial court must show that it took into account ai! necessary matters into consideration and is satisfied that, if it 24 admits it, it would be for the benefit of public interest and the accused's rights and freedom are not duly prejudiced. In other words, there must be a delicate balancing of the interests of the public and those of the accused. It is not, therefore, correct to take that every apparent contravention of the provisions of the CPA automatically leads to the exclusion of the evidence in question. The decision of the trial court on such matters can only be faulted if it can be show n, that the adm ission or rejection of such evidence w as objected to and that it did not properly ex ercise its judicial discretion, or at all, in rejecting or adm itting it."( emphasis added) In the end, the Court held that since the appellant did not object to its admission when it was sought to be tendered, he had no right to complain about its admissibility at the appeal stage. Another challenge is that exhibit P2, secondary evidence, was admitted contrary to the law. I have weighed the arguments for and against such a complaint. The statements made by the learned State Attorney are that exhibit P2 was preceded by a notice to produce served on the appellant without any objection. On the records, a notice to produce was issued 25 under section 68 of the Evidence Act dated 5th September 2022 and served to the appellant. However, the Inspection report (exhibit P2) was not one of the documents listed in the notice. Even if exhibit P2 was one of the documents listed in the Notice to produce secondary evidence issued by the prosecution, the appellant's reaction to it is evident in the records. He replied on 28th September 2022, denying possession of the original documents listed in the notice to produce, and during the hearing, he objected to the admissibility. The trial court's ruling, which overruled the objection, is silent on the reasons behind such a decision, rendering it hasty, as it left the appellant and this court unaware of why the document was admitted. I, therefore, find the complaint justified, necessitating the expunging of exhibit P2 from the records. This also applies to exhibit P3, which was received contrary to the law and without its contents read aloud in court after its admission. Nevertheless, even in the absence of the Inspection Loading Report (exhibit P2) and exhibit P3, I find that the remaining evidence on record sufficiently established that truck number T518 DLV, with trailer number T287, driven by the appellant, carried the entire 34,500 litres of diesel to the DRC, and the fuel did not reach the destination. So, the exclusion of exhibits P2 and P3 is inconsequential to the prosecution case. 26 I have also tried to assess the inconsistencies highlighted by the appellant in this case concerning PW10’s testimony. PW10’s testimony is very straightforward. It explains how they traced the appellant after he had disconnected the tracking system on 19/ 08/ 2021. He maintained the same evidence during cross-examination, telling the court that having traced the appellant, he told them he had a puncture he was fixing. And they were not worried about that. The language used in the records doesn't conclusively suggest that the appellant was physically traced. The relied decision of Lucas Kapinga and Two Others V. Republic(supra) is thus distinguishable as no change of the story in this case. The assertion regarding the investigation aspect raised in the fourth ground is fundamentally baseless. According to the established principles governing criminal trials, the prosecution is responsible for proving its case beyond reasonable doubt, regardless of the methods employed during the investigation. In the present case, the evidence presented by the prosecution sufficiently meets this stringent standard. Regarding the number of investigators involved in the enquiry with the appellant before his cautioned statement was recorded, I agree with the 27 learned state attorney that no number of investigators is required to interrogate an accused person provided the procedures set under the CPA are followed. The appellant acknowledges that PW13 recorded his cautioned statement. Furthermore, the court's assessment indicates that he was fully informed of his rights before recording the statements. He has failed to demonstrate how the interrogation by multiple investigators before recording his statement by PW13 was prejudicial. In totality, the cumulative evidence, including the tampering of the tracking device, the testimony regarding the vehicle’s fuel load, the expectations of documentation upon delivery, and the unequivocal confession paints a compelling picture of the appellant’s guilt. I uphold the trial court's findings and dismiss the appeal for lacking merit. Order accirdingly. DATED at DAR E SA SALAAM this 3rd Day of February 2025 E. Y MKWIZU JUDGE 28 29