majid ally mabrouk another vs republic 2023 tzhc 22819 30 october 2023

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY)

AT MTWARA CRIMINAL APPEAL NO 72 OF 2023 (Originating from Mtwara District Court at Mtwara in Criminal Case No. 51 of2022) MAJID ALLY MABROUK ...........................................1st APPELLANT ABDALLAH AYUBU KAUKA ......................................2rtd APPELLANT

VERSUS THE REPUBLIC.......................... RESPONDENT

JUDGMENT IS” & 30* October 2023 LALTAIKA, J. The appellants herein MAJID ALLY MABROUK and ABDALLAH AYUBU KAUKA (referred to collectively simply as appellants or separately as the 1st and 2nd appellant respectively) were arraigned in the District Court of Mtwara at Mtwara charged with the offence of Drug Trafficking c/s 15A (1) and (2) (c) of the Drug Control and Enforcement Act Cap 95 RE 2019. It was the prosecution's allegation that on the 12!h day of March 2022 at Nagumi Village, Mtwara, the appellants trafficked in narcotic drugs namely Cannabissativa weighing 28.10 kilograms. Page 1 of 9 When the charge Was read over and explained to the appellants (then accused) they pleaded not guilty. This necessitated the conducting of a full trial. Having been convinced that the prosecution had proved the case beyond reasonable doubt, the trial court convicted them as charged and imposed a sentence of thirty (30) years imprisonment to each. Needless to say, that the appellants are dissatisfied with the decision of the District Court of Mtwara dated 21st July 2023 (LM Jangandu, RM). They have appealed to this court by way of a petition of appeal containing only one ground on variance of dating the charge sheet. I take the liberty to reproduce the ground; as hereunder: 1. That the teamed trial Magistrate erred in both law and fact by convicting the appellant while there was variance in

date (sic!) in the charge sheet. On the Charge sheet read by the prosecution it shows that the event occurred on 12/03/2022 at Nanyumi Village while PW2 who re-arrested the accused testified in the court of law that he re-arrested the accused on 12/03/2022 about 5:00 AM in Hiary Village on the other hand PW3 who arrested the appellants at first time testified at the Court oflaw that he arrested the accused on 11/03/2022 about 8:00 PM. When the appeal was called on for hearing on the 18th day of October 2023, the appellants appeared in person, unrepresented. The respondent Republic, on the other hand, appeared through Mr. Steven Aron Kondoro, learned State Attorney. Not being learned in law, the appellants indicated that they had nothing more to add to their expounded ground of appeal. They requested that the learned State Attorney is allowed to proceed with his submission while they reserved their rights to rejoinder. Page 2 of 9 Taking up the podium, Mr. Kondoro announced that the responded Republic supported both conviction and sentence of the trial court. The learned State Attorney then proceeded to counter the one and only ground of appeal raised by the appellants. . After examining the raised ground, the learned State Attorney reasoned, he acknowledged the existence of a variance in the date as testified by witnesses. For instance, Mr. Kondoro pointed but, PW2,

Inspector TUNTUFYE MWANSAMPETA, mentioned arresting the appellants on 12/3/2022 at Hiari Village, while PW3, Abdallah Ally (a security guard for the. village), asserted that he arrested them for the first time on 11/03/2022. Mr. Kondoro, expressed conviction that the event indeed occurred on 12/3/2022 at Nanyumi Village, as indicated in the charge sheet. Upon reviewing the evidence from PW.l, PW4, and PW6, along with the charge sheet, Mr, Kondoro argued, he strongly believed that the inconsistency in the time indicated by PW3 was deemed an error and hot substantial. According to the learned State Attorney, the evidence presented by the prosecution, including the charge sheet, consistently proved that the offenses for which, the appellants were charged occurred on the precise date of 12/3/2022. Therefore, the learned State Attorney stated, he objected to the ground of appeal, asserting that the variance in the dates among the witnesses did not fatally impact the prosecution case. Mr. Kondoro concluded his submission by asserting that based on section 234 of the Criminal Procedure Act Cap 20 RE 2002 the charge Page 3 of 9 could not be amended by a variation in time or date. He prayed for the entire appeal to be dismissed for luck of merit. The first Appellant, on his part, in his rejoinder submission, prayed for the acceptance of the written submissions as part of their

overall submission and requested the court to thoroughly review the evidence presented by all Prosecution Witnesses (PW1 to PW4). Regarding PW3, the Appellant highlighted that this- witness asserted being present at the gate and claiming responsibility for the appellants' arrest. However, the lsf Appellant criticized PW3 for stating that he did not physically know the appellants or their names. According to the 1st Appellant, PW3 handed over the appellants to the village leaders and continued with his own activities. The chairman of the K/tongoji testified that the appellants were arrested on 11/03/2022. However, the 1st Appellant argued that there were inconsistencies in PW4’s testimony, particularly regarding his knowledge of the appellants and the circumstances of their arrest. The 1st Appellant further pointed out discrepancies in the dates provided by the witnesses. PW2 stated that the events occurred on 12/03/2022, while PW4 mentioned 11/03/2022. The charge sheet indicated the offense took place dn 12/03/2022, creating confusion. ; Highlighting the variation in villages mentioned (Nangumi Village in the charge sheet versus lyali Village from the witnesses), the 1st Appellant contended that these inconsistencies cast doubt on the authenticity of the alleged offense. Page 4 of 9 In conclusion, the 1st Appellant urged the court to thoroughly examine all documents and, if

possible, consider reducing the punishment or acquitting them based on the identified discrepancies. The second Appellant appeared rather passive. He also appeared deeply reflexive throughout the hearing. He expressed his alignment with the submission of the 1st appel lant, emphasizing that their grounds of appeal had been legally submitted. The 2nd Appellant prayed for the court's consideration of the same. I have dispassionately considered the grounds of appeal, rival submissions, and the lower court's records. My role as the first appellate court is to re-evaluate the evidence tendered in the trial court and come up with my own findings if necessary. See LEORNARD M WAN ASH OKA V. REPUBLIC Crim Appeal No 226 of 2014 CAT. I am also alive to the canon principle of our criminal justice system that the prosecution case must be proved beyond- reasonable doubt. This duty rests on the prosecution. See WOODMINTON V. DPP [1935] AC 462. The term proof beyond reasonable doubt has not been defined in statutes. However, in the case of MAGENDO PAUL AND ANOTHER V. REPUBLIC [1993] TLR 219 the CAT held that: "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strongly against the . accused as to leave a remote possibility in his- favour which can easily be dismissed." Page 5 of 9 The appellants have complained on the variance of the date in the Chargesheet

and the testimonies of the witnesses. I have taken very keen interest on competing positions. The learned State Attorney forcefully submitted that the event took place on the 12/03/2022. However, he acknowledged that some witnesses testified that the event took place on 11/03/2023. Specifically, he mentioned that Inspector TUNTUFYE MWANSAMPETA, testified arresting the appellants on 12/3/2022 at Hiari Village, while PW3, Abdallah Ally (a security guard for the village), asserted that he arrested them for the first time on 11/03/2022. To put the alleged variance in the right perspective, I needed to familiarize myself with the heart of the story. It appears that the appellants left their ghetto in Mtwara in a motorcycle enroute to a village called Nanyamba. They allegedly collect 28.10 kilograms of bangi from an unnamed person with the intention of trafficking it to Dar es Salaam again to an unnamed recipient. On their way back, the appellants were allegedly arrested by village authorities at Hiary. PW3, Abdallah Ally was a village security guard (mgambo) who' testified that the appellants were arrested on the 11/03/2022. The police were allegedly informed, and they rushed to re­ arrest the appellants who were in the company of PW3 and other village leaders. ' In my opinion, if the date indicated on the charge sheet is the same as the date testified by the police officer who

re-arrested the appellants, I have no hesitation in concluding that the incident indeed took place, on the Page 6 of 9 12/03/2022 as insisted by the (earned State Attorney. The basis for my argument is that a police officer is more likely to remember a date than a village security guard who only rarely need to know what date it was on a particular day. People in the village, unlike their urban counterparts, do- not generally care so much about dates or even days of the week. They seem to rhyme with the teaching of Jesus in the Gospels: "Therefore, do not worry about tomorrow, for tomorrow will worry about itself. £ach day has enough trouble of its own. ” (See Matthew 6:34 NIV. Emphasis mine) Now, what if the witnesses have indeed testified on a different date than the actual date of the incident? The answer is to be found in the Court of Appeal of Tanzania's case of EVARIST KACHEMBEHO AND OTHERS V. REPUBLIC [1978] L.R.T 70 where it was observed, rightly so, that: ‘'Human recollection is not infallible. A witness is not expected to be right in minute details when retelling his story." As alluded to earlier, the witnesses "from the village" or any other witness in that regard, cannot be expected to be spot on in everything. The variation in their testimony, as argued by the learned State Attorney did not touch the root of the case. Before I finalize, I am inclined to state it is

unfortunate that, the appellants chose only a minor error in the proceedings of the trial court as their safety valve. In the case of MARKO PATRICK NZUMILA AND ANOTHER V. R CRIM APP 141 OF 2010 (unreported) the CAT stated Page 7 of 9 "Failure ofjustice has in more than one occasion been held to happen where ah accused person is denied an opportunity of an acquittal but in our considered view, it equally occurs the prosecution is denied an opportunity of conviction. This is because, while it is always safe to err in acquitting than in punishment it is also in the interest of the state that crimes do not go unpunishment." Given the devastating effects of narcotics in the society especially the youths, it would be absurd for this court to hide behind technicalities, typographical errors, or lapse of memory of a witness to acquit the appellants. Even when asked by this court during rejoinder if they had anything more to tell; the only point of departure was a prayer that, if possible, the sentence imposed on them is reduced. I refrain from addressing such a complaint which was not in the list of grounds of appeal. Said and done, I am fortified that the prosecution left no stone unturned in proving their case and that the trial complied with procedural laws obtained in our country. Consequently, this appeal is hereby Judgment delivered under my hand and the seal of this Court this 30th day of October 2023 in the presence of Mr. Steven Aron Kondoro, learned State Attorney and the appellant who has appeared in person, unrepresented. Page 8 of 9 30.10.2023 Court The right to appeal to the Court of Appeal of Tanzania is fully explained. Page 9 of 9