ISSA SEIF ABEID VERSUS REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: NDIKA. J.A.. KITUSI. J.A.. And MASHAKA, J.A.) CRIMINAL APPEAL NO. 384 OF 2022 ISSA SEIF ABEID....................................................................... APPELLANT VERSUS REPUBLIC.............................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Arusha) (Phillip, J.) dated the 15th day of August, 2022 in Criminal Appeal No. 104 of 2021 JUDGMENT OF THE COURT 25th November & 6th December, 2024 NDIKA, J.A.: The appellant, Issa Seif Idd, is contesting the decision of the High Court of Tanzania at Arusha dated 15th August, 2022, which dismissed his appeal against his conviction for trafficking narcotic drugs and the concomitant sentence of twenty years imprisonment imposed by the Babati District Court. He essentially argues that the conviction is not only vitiated by a series of procedural indiscretions but also unsupported by the evidence on record. The appellant was accused of trafficking a narcotic drug, namely catha edu/is, commonly known as khat or mirungi, weighing 2.71 kilogrammes, in the Mswakini area of Babati District in Manyara Region on 16th August, 2018. He was alleged to have used a minibus with registration number T.763 DLT to transport the drug. The prosecution's case was that on 16th August, 2018, at approximately 16:00 hours, Inspector Gregory (PW6), along with two other police officers, including Detective Corporal Yusuph (PW1), conducted a routine inspection of passenger vehicles in the Mswakini area. One of the vehicles that they stopped and examined was a minibus with the registration number T.763 DLT, which was known as Machimula's Express. The appellant was travelling from Arusha to Kondoa in this vehicle. During a body search of the appellant, which was observed by PW11 Aisha Khalifa, the minibus conductor, the officers found that he had fastened thirty bundles of what they suspected to be catha edulis, wrapped in scrap newspapers and banana leaves, to his body using sellotape. Following the appellant's immediate arrest and the seizure of the suspected narcotic drug, PW6 issued a certificate of seizure (exhibit PI) that was signed by the appellant, PW1, and PW11. As evidence that the appellant was a passenger on the minibus with seat number Kl, PW6 also submitted a bus ticket number 7641 (exhibit P2), bearing the appellant's name. 2 PW1 and PW6 then transported the appellant and the seized substance to the Minjingu police post, where PW1 transferred the suspected contraband to PW2 Detective Corporal Steven a few moments later. Detective Corporal Bahati (PW4) collected the substance from PW2 and transported it, along with the appellant, to the Babati police station within the same evening. At that station, PW4 transferred the substance to PW5 Corporal Mondu, the exhibits custodian, who secured it under lock and key. The suspected contraband was later fetched by Detective Sergeant Dongoye (PW8) from PW5 on 20th August, 2018. He then transported it to the Weights and Measures Agency, where the agency's officer, Seleman Said, issued a report (exhibit P5) certifying that it weighed 2.71 kilogrammes. The material was returned to PW5 by PW8 on the same day. The substance was collected from PW5 by PW7 Detective Constable Amos three days later. He then transported it to the Northern Zone offices of the Chief Government Chemist Laboratory Agency ("CGCLA") in Arusha, where it was received by PW3 Kordin Dolishoele, a government chemist. The material was weighed by PW3, who verified its weight as 2.71 kilogrammes. He subsequently extracted a sample weighing 22 grammes and stored it in a sealed envelope 3 labelled NZL.350/2018. Subsequently, he transferred the remaining material to PW7, who ultimately returned it to PW5 for safekeeping. PW3 informed the trial court that he transferred the sample to PW10 Amina Benta, a CGCLA officer. Benta transported the sample to the CGCLA's laboratory in Mwanza, where it was received and processed by Bonaventure N. Masamba (PW9), a Principal Government Chemist Grade I. The substance was confirmed to be catha edulis, as suspected, as evidenced by his report dated 25th January, 2019 (exhibit P7). During the interim, PW8 retrieved the contraband from PW5 on 24th August, 2018. He transported it, along with the appellant, to the District Court of Babati, presided over by Boniface R. Semroki, Resident Magistrate, to obtain an order for the destruction of the substance, which had since begun to decay. The material was incinerated in accordance with the order of the said court dated 24th August, 2018 and an inventory thereof was duly issued (exhibit P6). The appellant vigorously denied the allegations put forth against him. Although he acknowledged being on the minibus on the fateful day, he maintained that the minibus conductor forcibly removed him from the vehicle upon reaching Mswakini due to his failure to pay the fare. At that moment, a group of police officers who seemed to be awaiting his arrival seized him and transported him to the Minjingu police post, and subsequently, the Babati police station. According to him, the allegation against him was fabricated. The appellant was found guilty of the charge by the trial court and sentenced accordingly, as previously mentioned. In doing so, the court relied on the evidence of the two arresting officers and the minibus conductor (PW11), as well as the certificate of seizure (exhibit PI) and the bus ticket (exhibit P2), to determine that the appellant was discovered to be transporting the alleged substance, unveiled by the inventory (exhibit P6). Additionally, the court was satisfied with the integrity of the flow and movement of the substance from seizure to its exhibition at the trial vide exhibit P6, as demonstrated by the chain of custody form (exhibit P4). Moreover, the appellant's defence was examined by the court, but it was ultimately rejected. The appellant's initial appeal was unsuccessful, as previously indicated. He has now appealed to this Court on fourteen grounds that were raised in his two memoranda of appeal, which we have condensed into eleven complaints: 1. The charge was fatally defective. 2. The ruling on the case to answer was given without due consideration o f the prosecution case. 3. The certificate o f seizure was deficient due to not being signed by any independent witness. 4. The alleged illegal substance was destroyed upon an order o f a magistrate made in the absence o f the appellant rendering the inventory thereof worthless. 5. There was no proof o f the value o f the alleged illegal substance. 6. The trial court did not consider that the appellant failed to cross- examine the prosecution witnesses because he was an indigent lay litigant. 7. The chain o f custody o f the alleged illegal substance founded on the testimonies o f PW2, PW3 and PW5 was irretrievably broken. 8. The prosecution case was incredible, contradictory and insufficient. 9. The charged offence was not proved beyond a reasonable doubt 10. The appellant's defence was not properly analysed. 11. The appellant was not heard on his mitigating circumstances during sentencing. The appellant pursued the appeal as a self-represented litigant, relying on a written statement of argument that he had submitted in advance. For the respondent, Mr. Benedict Kivuma Kapela, learned Senior State Attorney, and Ms. Anifa Athuman Ali, learned State Attorney, vigorously opposed the appeal. The appellant did not present any argument in support of the first ground of appeal, which posited that the charge was fatally defective. Mr. Kapela contended that the charge was appropriately laid under section 15A(1) of the Drug Control and Enforcement Act, Cap. 95 ("the DCEA"), as amended by section 9 of the Drug Control and Enforcement (Amendment) Act, No. 15 of 2017. Initially, he acknowledged that the charge did not explicitly reference subsection (2) (c) of that section as the specific provision that established the charged offence of trafficking khat or catha edu/is weighing less than fifty kilogrammes. However, he urged us to find the omission curable under section 388 of the Criminal Procedure Act, Cap. 20 ("the CPA"), as the particulars of the offence justified the charge. He cited Alonda Ekela v. Republic [2021] TZCA 500 to substantiate his argument. We affirm Mr. Kapela's submission without hesitation. We concur with his argument that the omitted provision is cured by section 388 of the CPA, in addition to agreeing with him that the charge should have been laid under section 15A (1) and (2) (a) of the DCEA. This is because the particulars of the offence, which indicated that the corpus delict in this case was 2.71 kilogrammes of catha edu/is or mirungi, sufficiently informed the appellant of the essence of the charge against him. It is evident that the appellant was not prejudiced by the omission. In Alonda Ekela {supra), cited by Mr. Kapela, we adhered to our previous decision in Jamali Ally @ Salum v. Republic [2019] TZCA 32, which established that irregularities regarding non-citations and citations of inapplicable provisions in the statement of the offence were harmless and curable: "In the instant appeal before us, the particulars o f the offence were very dear and, in our view, enabled the appellant to fully understand the nature and seriousness o f the offence o f rape he was being tried for. The particulars o f the offence gave the appellant sufficient notice about the date when the offence was committed, the village where the offence was committed, the nature o f the offence, the name o f the victim and her age." The first ground of appeal lacks substance considering the aforementioned. 8 The second ground's argument that the prima facie ruling was wrongfully issued without adequate consideration of the evidence presented by the prosecution witnesses is equally irrelevant. Indeed, it is not surprising that the appellant did not address it in his written argument given its apparent implausibility. The trial magistrate, as Mr. Kapela correctly argued, indicated in the record of appeal on pages 44 and 54 that he considered the prosecution case based on the testimonies of eleven witnesses and concluded that a case was made out against the appellant for him to be required to present his defence. Subsequently, he provided him with a comprehensive explanation of the charge's substance and advised him of his right to present evidence under oath or affirmation and to summon witnesses in his defence. There is no question that the requirements of section 231 (1) of the CPA were appropriately complied with. The learned Senior State Attorney provided a comprehensive response to the third ground complaint, which alleged that the certificate of seizure was not signed by any independent witness. It is evident that the said document was not only signed by the appellant, PW1, and PW8, but also witnessed by PW11, the minibus conductor, who was, by any standard, an independent witness. In addition to being the minibus conductor, she was a neutral individual who was expected to provide an unbiased account of the search and seizure of the alleged illicit substance, having witnessed the events. We now address the fourth grievance, which alleges that the alleged unlawful substance was destroyed upon an order of a magistrate issued in the appellant's absence, rendering the inventory thereof worthless. Initially, it is important to note that regulation 14 of the Drug Control and Enforcement (General) Regulations, 2016, Government Notice No. 173 of 2016, which governs the destruction of seized drugs, does not require the presence of the suspect during the destruction of drugs. However, it is established that, in accordance with Paragraph 25 of the Police General Orders (PGO) No. 229, a magistrate must provide the suspect or accused with an opportunity to be heard on the matter before issuing an order for the destruction of any perishable seized material. The Court in Mohamed Juma @ Mpakama v. Republic [2019] TZCA 518 ruled that an inventory that results from the destruction of a seized material without providing the accused with a hearing on the matter is inadmissible in evidence. The Court recently emphasised in Buluka Leken Ole Ndidai & Another v. Republic [2024] TZCA 116, which concerned the destruction of government trophies, 10 that if a destruction order is likely to be relied upon in any future court proceedings against any suspect, that suspect must be present at the time of making the prayer and must be permitted to comment or raise any objections as regards the perishable exhibit sought to be destroyed. Mr. Kapela is correct in his assertion that the current instance is incomparable to the events in Mohamed Juma @ Mpakama {supra) and Buluka Leken Ole Ndidai {supra), in which destruction orders were issued and executed in the absence of the suspects. The appellant's participation in the proceedings before Boniface R. Semroki, Resident Magistrate, on 24th August, 2018, which culminated in the incineration of the illicit substance, is reasonably inferable from the fact that he appended his thumbprint to exhibit P6. The appellant argues in the fifth ground that the value of the putative illicit substance represented by the inventory was not established. It is evident that this assertion is mistaken. The gravamen of the offence under section 15A (1) and (2) (c) of the DCEA is the trafficking of "cannabis or khat weighing not more than fifty kilogrammes. "We agree with Mr. Kapela that the value of the substance is not a component of the offence that the prosecution was required to establish. All the prosecution was required to li prove as per the particulars of the offence was that the appellant was found in possession of catha edu/is weighing 2.71 kilogrammes. The appellant's argument in ground six, that he was unable to cross- examine the prosecution witnesses due to his standing as an indigent lay litigant, is irrelevant in light of the record of appeal. We immediately disregard it, as he did not explicitly pursue it in his written argument. Next, we consider the veracity of the chain of custody of the purported illicit substance, which, as previously mentioned, is the seventh ground of appeal. Addressing us on the above issue, the appellant argued that none of the prosecution witnesses who handled the substance (particularly PW2 and PW5) stated that it was sealed and labelled after it was seized. He believed that the substance was likely to have been tampered with, as it was presented to the Weights and Measures Agency for weighing on 20thAugust, 2018, four days after it was seized and that it subsequently passed through the hands of PW1, PW2, PW3, PW4, PW5, PW7, and PW8. He pressed us to ascertain that the substance's chain of custody had been irreversibly disrupted. He cited Paragraph 8 of the PGO No. 229, as elucidated in 12 Zainabu d/o Nassoro @ Zena v. Republic [2015] TZCA 51, to substantiate his argument. This paragraph outlines the necessity of securing and labelling any seized material intended to be used as an exhibit in court. Mr. Kapela rebutted by tracing the sequence of events from the arrest of the appellant and the seizure of the alleged substance by PW1 and PW6 on 16th August, 2018 to 23rd August, 2018, when the substance was taken by PW7 to the CGCLA Arusha. PW3 extracted 22 grammes as a sample, which was subsequently entrusted to PW9 in Mwanza by PW10 for chemical analysis in the CGCLA's laboratory. Additionally, the learned Senior State Attorney examined the evidence that on 24th August, 2018, PW8 removed the substance from PW5's custody and subsequently transported it, along with the appellant, to the District Court, where it was duly destroyed upon the order of the court. He cited the certificate of seizure, the chain of custody form and the inventory in addition to the testimonies of PW1, through PW11 to illustrate these facts. At first, it is important to reiterate that PGO No. 229 is the pertinent provision that regulates the chain of custody in police investigations. This provision directs the police in the management of exhibits, from their seizure to their presentation as evidence in court. The Court has maintained in 13 numerous decisions, such as Paulo Maduka & Others v. Republic [2009] TZCA 69, that the seizure, custody, control, transfer, analysis, and disposition of evidence cannot be guaranteed to be relevant to the alleged crime in the absence of chronological documentation or paper trail. The prosecution presented evidence of ten witnesses (PW1 through PW10) who handled the substance to elucidate its movement from seizure to custody, control, transfer, analysis, and disposition. Briefly, the evidence indicates that the substance was confiscated from the appellant by PW1 and PW6 on 16th August, 2018, as revealed by exhibit PI, after his arrest. It was conveyed to PW5 at the Babati police station by PW4 after being handed over to PW2 at the Minjingu police post on the same day. PW5 maintained custody of the substance, ensuring its security under lock and key, beginning that evening. The contraband was taken from PW5 on 20th August, 2018, for weighing at the Weights and Measures Agency, as certified by the weight report (exhibit P5), and was subsequently returned to PW5 by PW8 on the same day. PW7 collected it from PW5 once more three days later and transported it to CGCLA in Arusha. PW3 verified its weight as 2.71 kilogrammes and extracted a 22-gramme sample, which was placed in a 14 sealed envelope. Then, PW3 transferred the remaining material to PW7, who subsequently returned it to PW5 for safekeeping. In the interim, PW3 handed over the sample to PW10 in Arusha, who subsequently transported it to the CGCLA's laboratory in Mwanza. PW9 received and processed the sample, confirming it as catha edulls in accordance with exhibit P7. Additionally, on 24th August, 2018, PW8 removed the remaining substance from PW5 and transported it, along with the appellant, to the District Court in Babati for incineration, as indicated by the inventory. The chain of custody form (exhibit P4) was signed by all individuals who handled the substance along the way, which is a significant factor in documenting its movement. We are aware that the appellant's primary grievance is that the illicit substance was not labelled and sealed following its seizure. Certainly, as previously stated, none of the prosecution witnesses referenced that fact. However, we are of the opinion that the chain's integrity was not compromised by the omission, as the substance in question was not susceptible to manipulation or corruption. We would like to emphasise that the chain of custody principle should not be considered a shackle, but rather a constriction that must be relaxed whenever an item is involved that is not 15 readily susceptible to alteration or contamination. In this regard, the Court noted in Joseph Leonard Manyota v. Republic [2017] TZCA 260 that: "... it is not every time that when the chain o fcustody is broken, then the relevant item cannot be produced and accepted by the court as evidence, regardless o f its nature. We are certain that this cannotbe the case say, where the potential evidence is not in the danger o f being destroyed, polluted, and/or in any way tampered with. Where the circumstances may reasonably show the absence o fsuch dangers, the court can safely receive such evidence despite the fact that the chain o f custody may have been broken. O f course, this will depend on the prevailing circumstances in every particular case." [Emphasis added] We are confident that the chain of custody in this case was beyond reproach, as evidenced by the unassailable testimonies of the witnesses and the supporting documentary material (exhibits PI, P4, P5, P6, and P7) as previously discussed. On this basis, ground seven fails. Given that the combined essence of Grounds 8 and 9 is the determination of whether the offence was established beyond a reasonable doubt, it is necessary to address them collectively. In summary, the appellant argued that the offence was not proven, citing the unreliability of the seizure of the substance due to the absence of an independent witness, the irreversible breakdown of the chain of custody, and the inconsistent and unreliable testimonies of the prosecution witnesses. We have ascertained that the seizure in question was unblemished, as it was not only attested by PW11 as an independent witness, as revealed by exhibit PI, but also established by PW1 and PW6's evidence that the appellant was found with the substance, which, according to exhibit P6, was catha edu/is. The appellant's countersigning of the certificate of seizure, as Mr. Kapela correctly argued based on Nabibakhsh Pirbakhsh Bibarde & Another v. Republic [2023] TZCA 17269, was indicative of his acknowledgement that the illicit substance was recovered from him. Furthermore, the finding on the analysis of the substance is equally incontestable given our determination that the integrity of its chain of custody was fully maintained. The appellant did not identify any inconsistencies in the prosecution's case in his argument. None have been identified during our examination of the record. We are satisfied that the prosecution witnesses' testimonies are 17 consistent and cogent, indicating that the appellant possessed the substance, which was subsequently confirmed to be khat. Consequently, the eighth and ninth grounds of appeal are devoid of any significance. The inquiry as to whether the appellant's defence was considered by the courts below, which is derived from the tenth ground of appeal, is evidently without substance. It is clear from page 66 of the record of appeal that the trial court considered his defence but rejected it on the basis that it did not raise any doubts regarding the prosecution's case. As illustrated on page 198 of the record of appeal, the first appellate court upheld that determination. We agree with the lower courts that the robust prosecution case was not displaced by the appellant's blunt denial of the charge. In our opinion, his assertion that he was forcibly removed from the minibus he was travelling on because of his failure to pay the fare and then bundled into a waiting police vehicle at Mswakini was a fabrication. The bus ticket (exhibit P2) serves as evidence that he was a fare-paying passenger who parted with TZS. 10,000.00 to travel on the minibus. Regarding the eleventh grievance, which pertains to the legality of the appellant's sentence, Mr. Kapela acknowledged that the appellant was sentenced in absentia on 15th June, 2021, purportedly in accordance with section 227 of the CPA, without being given the opportunity to present his mitigating circumstances. According to page 51 of the record of appeal, when he appeared before the trial court the following day, he asserted that: "it is true and correct that yesterday I did come to court at late hours. I pray for forgiveness." The appellant was then committed to prison to serve the sentence it had imposed the previous day, after the trial court dismissed his explanation offhand. We believe that the trial court's judgment and sentencing of the appellant in absentia, which were purportedly conducted under section 227 of the CPA, were rather hasty. The court should have pursued that course of action only if it was convinced that the appellant's attendance could not be arranged or procured on another day without inordinate delay or expense, in accordance with that provision. The court did not make such a determination. Therefore, by convicting and sentencing him in absentia, it denied him the opportunity to present his mitigating circumstances. We are 19 aware that the offence in question, which carries a maximum sentence of thirty years of imprisonment, was essentially discretionary and subject to the sentencing jurisdiction of the presiding magistrate, as outlined in section 170 of the CPA. Thus, his mitigation would have been a key factor in the determination of the appropriate sentence to be meted out. We agree with the learned Senior State Attorney that the disputed sentence is manifestly excessive, primarily because the court did not hear him on mitigation. We are aware that the trial magistrate held the rank of Senior Resident Magistrate, which meant that his sentencing jurisdiction was not restricted to a maximum of five years imprisonment under section 170 (1) and (2) of the CPA provided for any magistrate of a lower rank. While we may not exactly predict what penalty he would have imposed had he heard the appellant's mitigating factors, we believe that he would not have imposed such a long period of incarceration. Furthermore, we note from the record of appeal that the appellant's status as a first-time offender does not seem to have been considered by the trial court. We, therefore, find merit in the ground of appeal at hand. In view of the foregoing discussion, we set aside the anomalous sentence and replace it with a seven-year prison sentence that we believe 20 will be consistent with the justice of the situation. The substituted sentence shall be deemed to have commenced on 16th May, 2021 when he was committed to prison by the trial court. Save for the reduction of the sentence, the appeal stands dismissed. DATED at ARUSHA this 5th day of December, 2024 G. A. M. NDIKA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL Judgment delivered this 6th day of December, 2024 in presence of appellant in person - unrepresented and Ms. Thobiesta Chang'a, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL