CRIMINAL APPEAL NO 490 OF 2022 MIRZAI PIRBAKHSHI HADJI ALLY MIRZAI 3 OTHERS VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM rCORAM: SEHEL. J.A., KENTE. J.A. And KIHWELO. J.A,^ CRIMINAL APPEAL NO. 490 OF 2022 MIRZAI PIRBAKHSHI @ HADJI@ALLY MIRZAI....................1st APPELLANT AZIZ JUMA KIZINGITI.........................................................2nd APPELLANT SAID MASHAKA MRISHO.... ............................................ ....3rd APPELLANT ABDULRAHMAN MTUMWA LUKONGO..................................4th APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) f Ebrahim, J.^ dated the 22nd day of December, 2021 in Criminal Sessions Case No. 24 of 2015 JUDGMENT OF THE COURT 3rd & 13th June, 2024 KIHWELO. J.A.: Mirzai Pirbakhshi@ Hadji @ Ally Mirzai, Aziz Juma Kizingiti, Said Mashaka Mrisho and Abdulrahman Mtumwa Lukongo are serving a sentence of 20 years in prison upon being tried and convicted by the High Court of Tanzania at Dar es Salaam for the offence of trafficking in narcotic drugs contrary to section 16 (1) (b) (i) of the Drugs and Prevention of Illicit Traffic in Drugs Act, Cap 95 (the Act). In addition, they were ordered to pay a fine of three times the market value of the narcotic drug the subject of the charge. This is an appeal against the said conviction and sentence, and we shall henceforth refer to them as the appellants. Briefly, the prosecution case was to the effect that, on 7th September, 2011 at Africana, Mbuyuni area within Kinondoni District in Dar es Salaam Region, the appellants trafficked in narcotic drugs namely Heroine Hydrochloride weighing 65730.67 grams and Cocaine Hydrochloride weighing 30537.51 grams valued atTZS. 3,369,386,300.00 in total. The trial court in convicting and ultimately sentencing the appellants relied upon the evidence of seven witnesses. Ms. Bertha Frederick Mamuya (PW1) a chemist from the Government Chemist Laboratory Authority (GCLA) who testified how she conducted the chemical analysis of the samples of the narcotic drugs which were sent to her and confirmed that they were Heroine and Cocaine. She then prepared a report which was tendered in court and admitted as exhibit PEI. Upon analysis, PW1 packed the narcotic drugs into three boxes which were marked with laboratory identification numbers, then signed and stamped. The three boxes were tendered by PW2 in court, admitted and marked collectively 2 as exhibits PE2, PE2A, PE2B and PE2C. Furthermore, PW1 tendered in evidence 31 packets of cocaine and 66 packets of heroine which were received in court and marked as exhibits PE3 and PE4 respectively. On the other hand, No. E. 2926 SSGT Dacto Daniel Dacto (PW2) testified that, acting on information from a whistleblower they intercepted two cars and arrested the appellants in 2011 at Africana, Mbuyuni area while they were trafficking in narcotic drugs and that they seized 97 packets of narcotic drugs and two cars which were taken to Kurasini Police Anti-Drug Unit (ADU), namely one white saloon car make Caldina with registration number T. 107 BAS and one grey saloon car make Carina with registration number T. 954 BGT which were both admitted in evidence and marked as exhibits PEG and PE7 respectively. PW2 handed the 97 packets of narcotic drugs to SSP Neema Andrew Mwakalinga (PW6), the exhibit keeper, who testified how she received the 97 packets of narcotic drugs at ADU in the presence of the appellants, she then registered them in the exhibit register, labelled, sealed and kept them in the exhibit room. PW6 in her further testimony explained in minute detail how on 8th September, 2011 she packed them after sealing the 97 packets of narcotic drugs in the presence of the appellants and one Zainabu Duwa Maulana (PW5), an independent witness and stored them in the exhibit room at ADU. A little later, on 12th September 2011, PW6 took the sealed packets 3 of narcotic drugs to the Chief Government Chemist (CGC) for scientific analysis which was done by PW1. It was further prosecution case that, the search and seizure of the narcotic drugs and the cars that were involved was done in the presence of an independent witness Japhet Jackson Mswaki (PW3) who testified in minute detail how the search of the two cars was conducted and how the packages containing the narcotic drugs were found and retrieved. He further testified to have seen and identified the appellants during the night of the incident but also in the dock. PW4, Mr. Christopher Shekiondo was the prosecution's witness who at the time of the incident was the Commissioner for Coordination of Drug Control Commission and conducted the valuation of the seized drugs and was able to establish the stated market value. PW4 filled one certificate of value for Heroine and another certificate of value for Cocaine which were tendered in court and admitted in evidence as exhibits PE8 and PE9 respectively. On the adversary side, the appellants gallantly denied the allegations leveled against them and stoutly defended their innocence. In their sworn testimonies they totally disassociated themselves with the allegations while raising the defence of alibi and further, they testified that the prosecution did not prove the case as required. When the respective cases on both sides were closed, the presiding learned Judge (Ebrahim, J.) summed up the case to the three assessors that sat with her. The assessors were of the unanimous opinion that the case for the prosecution fell short and, accordingly, they both returned a verdict of not guilty in favour of the appellants. On the whole of the evidence, the learned trial Judge was satisfied that the charged offence was proven beyond reasonable doubt and therefore she differed with the assessors. The appellants' denial was rejected. In the upshot, the appellants were found guilty, convicted and sentenced accordingly. In protesting their innocence, the appellants seek to overturn the decision of the trial court. Initially the first appellant through Mr. Jethro Turyamwesiga learned counsel from Jethro Turyamwesiga, Advocates on 21st June, 2022 amassed six (6) grounds of grievance. Later, on 23rd June, 2022 the first appellant further lodged a supplementary memorandum of appeal with eight (8) grounds of grievance. Furthermore, the appellants on 27th June, 2022 lodged in Court a joint memorandum of appeal with ten (10) grounds of grievance which however, during the hearing of the appeal were crystalized into the following grounds: one, that the information was defective since it did not indicate the mode in which trafficking in drugs took place and that it was omnibus; two, exhibits PE2, PE3, PE4, PE5, PE6 and PE7 were irregularly admitted because they were not listed during committal proceedings contrary to section 246 (2) of the Criminal Procedure Act, Cap 20 (the CPA); three, the prosecution did not prove its case since PW1 did not furnish to the court the necessary scientific criteria to prove that exhibits PE3 and PE4 were narcotic drugs, the search was illegally conducted and the chain of custody was broken; four, the prosecution did not prove how each of the appellants with common intention committed the alleged offence; five, the committal proceeding was nullity for want of assignment of the magistrate concerned; and finally, the learned trial Judge did not adequately address the assessors on vital points of law which rendered their opinion worthless. Eventually, when the matter was placed before us for hearing, Mr. Nehemia Nkoko, learned counsel appeared for the first appellant, Mr. Josephat Mabula, learned counsel appeared for the second, third and fourth appellants while Mr. Jeremia Mtobesya appeared for the second appellant along with Mr. Mabula. On the adversary side, the respondent Republic had the services of Ms. Flora Massawe, learned Principal State 6 Attorney who teamed up with Misses. Clara Charwe, Sabrina Josh and Batilda Mushi both Senior State Attorneys as well as Ms. Amina Mawoko, Mr. Titus Aron and Ms. Glory Kilawe both learned State Attorneys. Addressing the appeal, the learned counsel from both sides put up industrious submissions either in support or in opposition to the appeal to which we are, indeed, appreciative. It is worthy to note that, in the course of their submission, Mr. Mabula elected to abandon the fifth ground of grievance following our prompting and upon realizing that he was treading a solitary path. In their oral arguments the counsel for the appellants urged us to allow the appellants' appeal. On the adversary side, Ms. Charwe addressed the grounds of appeal having stated categorically that she was supporting the appellants' conviction and corresponding sentence. It is instructive to state at this juncture that, sitting as a first appellate court, we are entitled under rule 36(l)(a) of the Tanzania Court of Appeal Rules, 2009 to re-evaluate the evidence afresh subjecting it to a critical scrutiny and if need be arrive at our own finding subject to the usual deference to the trial court's findings on credibility of witnesses. See, for instance, D.R. Pandya v. Republic [1957] E.A. 336. In dealing with the points of contention, we propose to address the grounds of appeal in a sequence except for ground one and four which will be argued conjointly since they have similar denotation. We shall start with the first ground on the complaint that the information was defective together with the fourth ground on the complaint that the prosecution did not lead evidence proving how each of the appellants with common intention committed the alleged offence. Mr. Nkoko who took the floor first, argued that the information was defective for disclosing insufficient particulars on the offence since there was no mode of trafficking indicated to enable the appellants mount a defence and cited the case of Hamis Mohamed Mtou v. Republic (Criminal Appeal No. 228 of 2019) [2021] TZCA 478 (16 September,2021; TanzLII) to demonstrate their proposition. He further argued that, the information was omnibus hence it embarrassed or prejudiced the appellants. He went on to submit that, the information was duplex since the appellants were arrested in two separate cars and they were also found with two different types of drugs heroine and cocaine, as such, they ought to have been charged with two separate offences and that this made it hard for the appellants to mount their defence. He paid homage to the case of Issa Juma Idrisa and Another v. Republic (Criminal Appeal No. 218 of 2017) [2020] TZCA 206 (5 May, 2020; TanzLII) in which the Court held that an omnibus charge offends the principle of fair hearing and therefore it was declared incurable. The learned counsel urged us to find that the appeal is meritorious and therefore allow it and set the appellants free. Mr. Nkoko contended further that, the prosecution did not lead evidence to prove how each of the appellants with common intention committed the offence charged. Illustrating, he challenged the testimony of PW2 who testified that the basis of common intention was the fact that the two cars were intercepted together and the 97 packages found and seized in the two cars had the same packaging. For her part, Ms. Charwe countered that the information was properly drafted in line with sections 132 and 135 of the CPA. Illustrating further, she argued that the particulars of the offence sufficiently notified the appellants of the charged offence. Ms. Charwe submitted that the appellants committed one crime with common intention as clearly demonstrated by the evidence on record. She took the view that, the mode of trafficking was clearly demonstrated by the evidence on record and that the appellants had ample time to listen to the prosecution witnesses and therefore mount their defence. To demonstrate the appreciation of her proposition, she referred us to the case of Khamis Said Bakari v. Republic (Criminal Appeal No. 359 of 2017) [2020] TZCA 259 (29 May,2020; TanzLII) in which, faced with analogous situation we held that the information was compliant with sections 132 and 135 of the CPA. The learned Senior State Attorney distinguished the cited case of Hamis Mohamed Mtou v. Republic (supra) to the facts in the case before us. We have anxiously weighed the learned rival submissions above and we hasten to state that this issue should not detain us much. We think, with respect, that, the learned Senior State Attorney was undeniably right that the information is evidently in compliance to the mandatory provisions of sections 132 and 135 of the CPA as it contains the statement of the offence charged under section 16 (1) (b) (i) of the Act. The information further provides particulars of the offence which are necessary for giving reasonable information on the nature of the offence charged as required by the law and nothing more. The position of the law on this point was equally stated in the case of Khamis Said Bakari v. Republic (supra) in which, faced with analogous situation we held that: "The information is evidently compliant with the dictates of sections 132 and 135 of the CPA that every charge or information must contain a statement of the specific offence charged together with such particulars as may be necessary for giving reasonable information on the nature of the offence charged. To be sure, the 10 particulars o f the offence in this case indicate the name of the appellant as the accused person, and that he trafficked in a narcotic drug known as Heroin Hydrochloride weighing 964.24 grammes worth TZ5. 43,390,800.00 at the JNIA in Ilala District in Dar es Salaam. We cannot help but wonder what other detail the appellant expected in the particulars of the offence". Furthermore, we are unable to see how the information was omnibus and therefore embarrassed or prejudiced the appellants in mounting their defence as learned counsel for the appellants argued. As rightly argued by the learned Senior State Attorney, the appellants were apprehended together trafficking in narcotic drugs in two cars that were moving together in one mission and this was ably proved by the evidence on record. Trying as hard as we can to follow the appellants' counsel reasoning, we are unable to see, how the appellants were unable to mount their defence, embarrassed or prejudiced since they knew the charge they were facing all along and heard all the prosecution witnesses. Accordingly, the first and the fourth grounds of appeal fail. On the second ground the appellants complained about the irregular admission of exhibits PE2, PE3, PE4, PE5, PE6 and PE7 which were not listed during committal proceedings contrary to section 246 (2) of the li CPA. Elaborating, Mr. Nkoko argued that failure to list those exhibits during committal proceedings denied the appellants the right to know the substance, nature and kind of the documents that were to be relied upon by the prosecution which amounts to denial of the right to be heard. To support his proposition, he cited to us the case of Said Shaaban Malikita v. Republic (Criminal Appeal No. 523 of 2020) [2023] TZCA 17302 (5 June, 2023; TanzLII) and Ibrahim Juma Mbwambo v. Republic (Criminal Appeal No. 455 of 2020) [2024] TZCA 296 (2 May, 2024; TanzLII) in which we held that non-compliance with section 246 (2) of the CPA was fatal and therefore, he urged us to expunge exhibits PE2, PE3, PE4, PE5, PE6 and PE7 from the record. On the basis of that, Mr. Nkoko implored us to find that the conviction and sentence of the appellants were erroneous hence we should allow the appeal, quash the conviction and set aside the sentence imposed. In response, Ms. Charwe was fairly brief and direct to the point, she contended that, it is not true that exhibits PE2, PE3, PE4, PE5, PE6 and PE7 were not listed during the committal proceedings. Illustrating, the learned Senior State Attorney submitted that, the said exhibits were described in the witness statements that were read over and explained to the appellants during committal proceedings. Ms. Charwe further contended that exhibits PE3 and PE4 which are the foundation of the charged offence, apart from being described during committal proceedings, they were indicated in the holding charge and information but they were also described by PW1 and therefore there was no any prejudice occasioned to the appellants as alleged by the appellants' counsel. For her, the essence of section 246 (2) of the CPA is to enable the appellant mount an informed defence and in this case the appellants knew well in advance the substance of the case before them. Reliance was placed in the case of Edwin Cheleh Swen v. Republic (Criminal Appeal No. 649 of 2021) [2024] TZCA 272 (17 April, 2024); TanzLII). In all, she urged the Court to disallow the appeal. Having heard the competing arguments of the learned trained minds we have no doubt in our minds that, there is considerable merit in the submission by Ms. Charwe and the reason is not far-fetched. The record of appeal bears out clearly that when the matter came for committal proceedings on 23rd February, 2015 the presiding magistrate indicated the listed documents whose contents were read over to the appellants and these included the two certificates of value of the narcotic drugs the appellants stood charged with. Furthermore, the learned State Attorney informed the court that other physical exhibits would be tendered during trial. Apart from that, when the matter was set for preliminary hearing on 7th March, 2016 exhibits PE2, PE3, PE4, PE5, PE6 and PE7 were all listed and in any case during trial exhibits PE2, PE3, PE4, PE6 and PE7 were admitted in evidence without any objection. In the circumstances, it is not insignificant to say that it defies logic and common sense to allege that the appellants were prejudiced. Thus, the complaint in ground two has no merit. We now turn to the grievance that the trial court erred to convict the appellant while PW1 failed to furnish to the court any scientific criteria to prove that exhibits PE3 and PE4 were narcotic drugs, the search that ultimately led to seizure of the exhibits PE3 and PE4 was illegal and the chain of custody was broken. In deliberating this complaint, we will begin with the first limb of the evidence of PW1, the forensic science expert from the CGC. Mr. Mabula arguing this limb on behalf of other appellants' counsel faulted the evidence of PW1 on account that in her testimony she completely failed to explain scientifically in terms of procedures and materials used how she was able to come to the conclusions that exhibits PE3 and PE4 were actually narcotic drugs. In support he cited to us the cases of DPP v Shida Manyama and Another (Criminal Appeal No. 285 of 2012) [2013] TZCA 168 (25 September, 2013; TanzLII) and Samwel Japhet Kahaya v, Republic (Criminal Appeal No. 40 of 2017) [2020] TZCA 171 (2 April 2020; TanzLII). Mr. Mtobesya joining hand with Mr. Mabula in regards to this point, he referred us to the United Nations recommended methods for testing opium, morphine and heroine and argued that there was no oral account by PW1 on how she ruled out other possibilities having carried out the analysis of the samples of exhibits PE3 and PE4. For her part, Ms. Charwe was brief in reply and argued that, PW1 testified on how she conducted the analysis of the samples of the narcotics drugs sent to her by PW6 and that she conducted both preliminary and confirmatory tests and came to the conclusions that they were narcotic drugs. Citing our earlier decision in Edwin Cheleh Swen v. Republic (supra), in which like the case before us, we were invited to determine the probative value of the evidence of the chemist who conducted analysis of narcotic drugs and relying on our earlier decision in Goodluck Kyando v. Republic [2006] T.L.R. 363 we held that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness and in the case of Edwin Cheleh Swen v. Republic (supra) we found no credible reasons to fault the findings of the trial court in relation to the evidence of the forensic scientist who conducted the analysis. In the same spirit of our earlier decision in the case of Edwin Cheleh Swen v. Republic (supra) we find no compelling reasons to disturb the findings of the trial court which found the evidence of PW1 to be credible and reliable in convicting the appellants. We are fortified in this view by the principle stated in the earlier cited case of Goodluck Kyando v. Republic (supra). PW1, a chemist who was the Manager of Forensic Sciences at the GCLA and conducted analysis of samples sent to her is an expert with vast knowledge and experience in forensic science spanning several years of professional practice. It is worth noting that, both her qualifications and testimony was not put in question by the appellants during trial. Furthermore, as rightly argued by the learned Senior State Attorney, the UN recommendations are mere guiding and in no way, they bind GCLA or any national drug testing laboratory. We will next deliberate on the second limb of the complaint in which Mr. Nkoko urged us to find that the appellants were wrongly convicted and sentenced while the search which resulted to their conviction and sentence was illegally conducted. Mr. Nkoko's argument was two-fold, on one hand he argued that, the evidence on record suggests that the search was not emergence as it seems that there was a seizure certificate which PW3 signed but was not tendered in evidence, but on the other hand, he contended that even if the search was emergence, section 38 (3) of the 16 CPA requires the police officer conducting the search to issue any document and, in his view, a mere paper would have sufficed. Mr. Nkoko further argued that there was contradiction amongst prosecution's witnesses particularly PW2 and PW3 as to the exact time of search. Ms. Charwe on her part, had an opposing view, she contended that the search was property conducted by PW2 in the presence of the appellants and PW3, and that the team received the information from a whistleblower in the course of executing their ordinary duties of special patrol operations. Illustrating further, she argued that being an emergence search it was conducted under section 42 (1) of the CPA and not section 38 of the CPA which relates to ordinary search conducted under ordinary course of events. To support her proposition, she cited to us the case of Marceline Koivogui v. Republic (Criminal Appeal No. 469 of 2017) [2020] TZCA 252 (26 May 2020) in which we discussed the circumstances befitting emergence search under section 42 (2) of the CPA as opposed to ordinary search in which section 38 (3) of the CPA comes into play. In relation to the alleged contradictions, Ms. Charwe argued that there were no any contradictions between the testimony of PW2 and PW3 and if any there are minor and do not go to the root of the matter as such can be glossed over, and bearing in mind that the event happened in 2011 and the witnesses testified in 2021 which is ten years later. 17 Considering the rival submissions above, we do not find any reason to fault the learned trial Judge's findings in relation to search in the present case, since the circumstances in which the search and seizure were conducted, in our considered view and as rightly argued by the learned Senior State Attorney, befits emergence situation envisaged under the provisions of section 42 (1) of the CPA which provides: "(1) A police officer may- (a) search a person suspected by him to be carrying anything concerned with an offence; or (b) enter upon any land, or into any premisesvessel or vehicle, on or in which he believes on reasonable grounds that anything connected with an offence is situated and may seize any such thing that he finds in the course of that search', or upon the land or in the premises, vessel or vehicle as the case may be- ()) if the police officer believes on reasonable grounds that it is necessary to do so in order to prevent the loss or destruction of anything connected with an offence; and (ii)the search or entry is made under circumstances of such seriousness and urgency as to require and justify 18 immediate search or entry without the authority of an order of a court or od a warrant issued under this Part." There is, in this regard, a long line of authority to this effect. See, for instance, the case of Maluqus Chiboni @ Silvester Chiboni and John Simon v. Republic (Criminal Appeal No. 8 of 2011 (unreported) the Court held that: "We are aware of the law governing search warrants and seizure (PART II, A (d) of the Criminal Procedure Act, Cap 20 R.E. 2002, particularly sections 38 to 42), Sections 38 and 40 require, generally, that a search warrant be issued to a police officer or other person so authorized, before such officer or person executes the search. However, under exceptional circumstances, a police officer may conduct a search and seizure without warrant Such circumstances are listed under sections 41 and 42 of Cap 20. Relevant to this case are the provisions of section 42 (1) (b) of Cap 20." We wish to quickly and respectfully, state that, we are satisfied that, the search and seizure the subject of the complaint befits emergence situation envisaged under the provisions of section 42 (1) (b) (ii) of the CPA and therefore it was rightly relied upon by the trial court to ground conviction of the appellants. We have carefully considered the submission 19 of Mr. Nkoko for the appellants, however, with due respect, we are unable to accept his proposition that section 38 (3) of the CPA is applicable in the circumstances of the matter before us for the reasons assigned above. Furthermore, we are unable to accept Mr. Nkoko's argument that there was contradiction between PW2 and PW3 in relation to the time of search or signing of any seizure certificate. Put differently, we, like the trial court find no any contradictions, and, in any case, PW3 did not remember which document he signed. In this regard, time and again this Court has emphasized that human recollection is not infallible. A witness is not expected to be right in minute details when retelling his story. In the instant case the incident occurred on 7th September, 2011 and PW3 testified on 22nd April, 2021. Now coming to the final limb of the complaint that the chain of custody of exhibit PE2 to PE7 was broken, Mr. Nkoko argued that, PW2 did not sufficiently demonstrate in his testimony how the chain of custody of exhibits PE2 to PE7 were handled. In his view, the chain of custody was broken and the oral account of the prosecution witnesses is wanting. He further argued that PW2 did not mark any of the exhibits to differentiate which drugs were seized from which car as required by Police General Orders (PGO) No. 229 and thus, there being no oral account or 20 documentation the chain of custody was broken. In response, Ms. Charwe was very brief and submitted that the chain of custody was intact in particular taking into account the testimony of PW2 who explained how he received the information and upon information conducted the search which ted to the recovery of the 97 packets of narcotic drugs which were later taken to PW6 the exhibit keeper who also testified how she kept the exhibits with 97 packets of narcotic drugs and later took them to the CGC where PW1 was handed over for analysis and later after the analysis she handed back to PW6. In her view, the chain of custody was intact and this was clearly demonstrated by the oral account of the prosecution witnesses and that PW6 labelled the exhibits. She cited to us the case of Sano Sadick &Another v. Republic (Criminal Appeal No. 623 of 2021) [2023] TZCA 1776 (9 August, 2023; TanzLII) to support her argument. We hasten to state that this issue should not detain us much. We find considerable merit in the submission of the learned Senior State Attorney that, the chain of custody was not broken as there was sufficient oral account of PW2, PW6 and PW1 who consistently testified how exhibits PE3 and PE4 containing the narcotic drugs moved from the time of seizure to the time they were tendered in court. We are thus satisfied that the chain of custody was not broken and much as there is no documentation 21 from the time when the same were seized until when they were handed to PW6 at ADU but the oral account of the prosecution's star witness PW2 when considered along with the testimony of PW6 and PW1 who sufficiently accounted from the time of seizure to the time of tendering them in court. We are not losing sight the position we have taken in our previous decisions in respect of this matter. See, for instance the case of Marceline Koivogui v. Republic (supra) in which we held that documentation is not the only way of dealing with exhibits depending on the circumstances. We have carefully considered the submission by Mr. Nkoko in relation to the chain of custody. To say the least, his argument that PGO No. 229 was not complied with has no weight considering the fact that PW6 labelled the exhibits as part of investigation team in full compliance to the PGO No. 229. Taking into account the totality of the above, ground three of the complaint is unmerited. It equally fails. The last ground constitutes a complaint on the failure by the trial court to adequately address the assessors on vital points of law. Arguing in support of this ground Mr. Mabula contended that the learned trial Judge in summing up to the assessors who sat with her in terms of section 298 (1) of the CPA, did not address them on the vital points of law in particular the ingredients of the offence, and therefore, the assessors were unable to appreciate the law and give their opinions. Reliance was placed in the case of Bakari Selemani @Binyo v. Republic, Criminal Appeal No. 12 of 2019 (unreported) to support the proposition that failure to address the assessors on vital points of law vitiates the proceedings. For her part, Ms. Charwe had an opposing view, she contended that the learned trial Judge summed up the case to the assessors although she admitted with remarkable forthrightness that the assessors were not addressed on the elements of the offence. All in all, she took the view that the omission did not occasion any injustice to the appellants and cited to us the case of Safari Anthony @ Mtelemko and Another v. Republic, (Criminal Appeal No. 404 of 2021) [2023] TZCA 17768 (23 October, 2023; TanzLII) in which we discussed at considerable length the role of the opinion of assessors. She distinguished the case of Bakari Selemani @Binyo v. Republic (supra) with the case before us. We have considered the rival arguments on the propriety or otherwise of the summing up to the assessors, and it bears reaffirming that, the aid of assessors in a criminal trial can meaningfully be achieved if they understand the facts of the case in relation to the law. In the case of Hatibu Gandhi and Others v. Republic [1996] T.L.R. 12 where the Court apart from holding that the learned trial Judge's summing up of the case to the assessors is prudent as a matter of practice, it held that: 23 '!It is sufficient for the learned trial Judge to state the substance or gist of the case on both sides to enable the assessors'opinions to be formed on the case in general or on any particular point required" In the case of Safari Anthony @ Mtelemko and Another v. Republic (supra), the Court emphasized that for the failure to adequately address the assessors to vitiate a proceeding, it must be demonstrated that the lapse occasioned a miscarriage of justice, on the person alleging the irregularity. Otherwise, the omission is deemed inconsequential. Guided by the above, the question is whether in the case under consideration the summing up was properly done. Records of proceedings are clear that the learned trial Judge summed up the case to the assessors from page 187 through to page 218. It is conspicuously clear that, apart from stating the substance and gist of the case on both sides and issues for determination, she went further to state some basic legal principles pertinent to the determination of the case, such as, definition of narcotic drugs, chain of custody, duty of the prosecution to prove the case, defence of alibi as well as inconsistences and contradictions. It is worth noting that, as alluded before, all the three assessors who sat with the learned trial Judge returned a verdict of not guilty and we cannot help but wonder how the appellants were prejudiced by the verdict that found all 24 of them not guilty for the charged offence. Accordingly, this ground of appeal is equally dismissed. All said and done, we find this appeal totally lacking in merit. We hereby dismiss it in its entirety. DATED at DAR ES SALAAM this 12th day of June, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL The Judgment delivered this 13th day of June, 2024 in the presence of the Appellants in person via video link from Ukonga Prison Dar es Salaam and Mr. Titus Aron, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. 25