CRIMINAL APPEAL NO 65 01 OF 2022 MWITEKA GODFREY MWANDEMELE VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CORAM: MWARIJA. 3.A. KHAMIS, 3.A And MGEYEKWA. 3.A.1 CRIMINAL APPLICATION NO. 65/01 OF 2022 MWITEKA GODFREY MWANDEMELE............................. ............ APPLICANT VERSUS THE REPUBLIC ..... ................ .............................................. RESPONDENT (Application for review of the decision of the Court of Appeal of Tanzania at Dar es Salaam fKwariko. 3.A.. Kerefu, 3.A. and Maiqe, 3.A.) dated the 28th day of September, 2022 and delivered on 29th day of September, 2022 in Criminal Appeal No. 388 of 2021 RULING OF THE COURT 3rd May & 28th June, 2024 KHAMIS. J.A.: Mwiteka Godfrey Mwandemele, the applicant herein, filed the instant application seeking to review, reverse, modify or vacate the decision of this Court delivered on 29th day of September, 2022 in Criminal Appeal No. 388 of 2021, which had confirmed his conviction for the offence of trafficking in narcotic drugs and the twenty years' imprisonment sentence meted against him by the High Court. The application was made by way of notice of motion under rule 66 (1) (a) and (b) of the Tanzania Court of Appeal Rules, 2019 [the Rules] and section 4 (4) of the Appellate Jurisdiction Act, Cap 141 R.E 2019 (the AJA). The applicant's own affidavit supported the application. The applicant alleged that the impugned decision of the Court was based on a manifest error on the face of the record resulting to the miscarriage of justice on three fronts: the decision to reinstate the number of years deducted by the trial court was irregular and contrary to the court's earlier stance; failure to deduct the number of years which the applicant had served as a prisoner was a misdirection; the Court improperly relied on four pellets (4) being part of exhibit PI which were seized by PW17 whose evidence was expunged. The applicant further alleged that the impugned decision deprived him of the opportunity to be heard allegedly because the Deputy Registrar failed to assign an advocate to represent him at the hearing of the appeal contrary to section 3 of the Legal Aid (Criminal Proceedings) Act, Cap 21, R.E 2002 [R.E 2019] (the LACPA). The respondent did not file an affidavit in reply. Having read the grounds of review as briefly stated above, we find it expedient to capture the facts narrated in the appeal which are pertinent to the instant application, thus: The applicant was arraigned in the High Court, Dar es Salaam, charged with 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 R.E 2002 (the DPITDA). The prosecution alleged that, on 11th May, 2011 at the Julius Nyerere International Airport (the JNIA) within Ilala District, Dar es Salaam City, the applicant trafficked in narcotic drugs, to wit, cocaine hydrochloride, weighing 1,112 grams, valued atTZS. 55,600,000.00. When the charge was read over to him, he pleaded not guilty and the matter proceeded to trial. Upon conviction, he was sentenced to twenty (20) years jail term and payment of TZS. 166,980,000.00 as fine being three times value of the narcotic drugs involved. On appeal vide Criminal Appeal No. 56 of 2016, the entire proceedings, judgment and sentence of the trial court were quashed and on order of retrial was made by this Court. Upon retrial, the applicant was convicted and sentenced to twenty (20) years imprisonment. Considering the duration spent in remand custody, the trial Judge (Rwizile, J.) reduced the imprisonment term to ten (10) years in addition to payment of TZS 166,980,000.00 as fine. The 64 pellets admitted in court as exhibit PI were to be destroyed as per section 353 (3) of the Criminal Procedure Act, Cap 20 R.E 2019 [the CPA]. The prosecution case was built on the evidence of Salma Idd Chaurembo (PW6), an immigration officer at JNIA who testified that, on 11th May, 2011 at 15.00 hours, the applicant arrived at the JNIA from Sao Paulo, Brazil via Doha, Qatar aboard Qatar Airways Flight No. QR 544. Immediately upon landing, he presented his emergency travel document (the ETD) to PW6 who managed the immigration counter at the time. PW6 noticed that the applicant was trembling and sweating, and upon inquiry, the applicant disclosed to have stomached "some items" and sought assistance to get out of the airport. Having scanned, stamped and signed the ETD, PW6 notified her supervisor and officials of the Anti -Drugs Unit (ADU) on the suspicious state of the applicant. The latter initiated the investigation process. Police Officers with Nos. D 7262 Detective Station Sergeant Mashaka (PW17) and F 6059 Detective Station Seargent Athuman (PW9) were officers of ADU who arrested the applicant and subjected him to police observation from 11th to 14th May, 2022. Upon initial search, he was found in possession of four (4) pellets hidden in his shorts worn under the trousers. During the period of observation, the applicant defecated a total of sixty-two (62) pellets at different sessions that were witnessed by police officers and the independent witnesses, namely: PW4, PW7, PW8, PW10, PW12, PW13 and PW14. Particulars of the defecated pellets were filled in the observation form (exhibit P5) which was co-signed by the applicant, police officers and the independent witnesses. A total of 64 pellets seized from the applicant were handed over to SSP Neema Mwakagenda (PW5), a custodian of exhibits at the headquarters of ADU. According to her, the same were presented to her by PW9 and PW17 on different dates. Upon receiving the pellets, she made entries in the exhibits register and safely kept them at the exhibits room. Subsequently, PW5 packed the 64 pellets in a khaki envelope which was sealed and labelled KLR/IR/146/2011 for onward transmission to the Chief Government Chemist (the CGC) for chemical analysis. The exercise was attended by the Assistant Commissioner of Police (ACP) Godfrey Nzowa who did not testify at the trial, alongside PW9, PW17 and other officers of ADU. Also in attendance was Zainabu Duwa Makilane (PW3), the ten-cell leader who served as an independent witness. The packed, sealed and labelled 64 pellets were accordingly presented to the CGC for chemical examination. Bertha Fredrick Mamuya (PW11), a Chemical Analyst at the CGC, gave a detailed account on how she received and analysed the 64 pellets that weighed 1,112 grams and established that, they contained cocaine hydrochloride. The 64 pellets were also taken to Christopher Joseph Shekiondo (PW2), the then Commissioner for the National Coordination of Drug Control Commission (the NCDCC) who upon assessment, certified that, were valued at TZS 55,600,000.00. The certificate of value was admitted as exhibit P3. In defence, the applicant distanced himself from the charge and denied to have ever travelled to Brazil or holding the ETD. He stated that, on the date of the incident, he was at Tabata Segerea, Dar es Salaam, where two police officers, Fidelis and Gabriel, improperly arrested him in connection with drug trafficking. He was taken to police station at the JNIA and subsequently at ADU Head Quarters, Kurasini, for interrogations by ACP Godfrey Nzowa. After the formalities, he was reserved at the Central Police Station, Dar es Salaam and subsequently 6 arraigned in court. Upon trial, he was convicted and sentenced to 20 years7imprisonment in addition to payment of fine. Aggrieved by the conviction and sentence, the applicant preferred Criminal Appeal No. 388 of 2021 which was dismissed in its entirety. However, the Court faulted the trial Judge for excluding the time spent in remand custody and reversed the sentence to be reckoned from the date of conviction, 23rd June, 2021. Disgruntled by the findings of the Court, the applicant filed this application for review on the grounds that were hitherto stated. At the hearing of the application, Mr. Nehemia Geofrey Nkoko, learned advocate, appeared for the applicant whereas Mses. Benedicta Colie and Mwanahamisi Kilongo, learned State Attorneys, acted for the respondent Republic. Mr. Nkoko adopted contents of the written submissions earlier on filed by the applicant and prayed to have them formally accepted. Meanwhile, he successfully sought leave to amend the first, second and third grounds of review to read as follows: "2. It is reflected at page 2 o f the Impugned judgment o f the Court that the applicant was earlier on tried and convicted by Arufani, J in Criminal Session Case No. 19 o f 2015. Decision o f the Court to reinstate the duration o f imprisonment that was deducted by the trial court was contrary to section 172 (3) (c) o f the CPA and violated Article 13 (1) o f the Constitution o f the United Republic o f Tanzania, 1977 (the Constitution)" 2. The decision o f the Court was made upon satisfaction that the evidence as a whole had established the prosecution's case beyond reasonable doubts without taking into consideration that at page 15 o f its decision, it expunged the evidence ofPW17 who was alleged to have searched the applicant ad seize four (4) pellets from his pocket Despite expunging the evidence o f PW17, the Court did not discard the 4 pellets, exhibit P .l would not have remarked the same as weight would be less than 9, 112 grams which was valued at TZS 55,600,000/=. 3. The applicant was deprived o f an opportunity to be fully heard when the Court upheld his conviction and sentence based on exhibit PI despite the fact that it had earlier on allowed his fourth ground o f appeal as shown in the memorandum o f appeal. In the impugned judgment, the Court partly reproduced the fourth ground o f appeal meaning that it was partially 8 dealt with which occasioned injustice on the applicant as it denied him the right to be heard." In support of the first ground of review, Mr. Nkoko contended that, decision of the Court to reinstate the years spent in custody and in prison awaiting hearing of the appeal, occasioned a miscarriage of justice. He explained that, when the applicant was tried and convicted by Arufani, J. on 11th December, 2015, he preferred Criminal Appeal No. 56 of 2016 which resulted to an order of retrial on 31st January, 2018. He submitted that, the period between 11th December, 2015 and 31st January, 2018 was spent by the applicant as a prisoner and ought to be included in the computation of a jail term. The learned counsel asserted that, the decision of Rwizile, J. to consider the period spent in custody was legally sound and should not have been reversed by the Court in Criminal Appeal No. 388 of 2021. Further, Mr. Nkoko contended that, the Court's decision to alter the sentence was contrary to section 172 (2) (c) of the CPA which provides that, for a person who has been in remand custody awaiting trial, his sentence whether under the Minimum Sentences Act (the MSA) 9 or any other law, should take into account the period that person spent in custody. The applicant's counsel added that, the Court decision had equally contravened Article 13 (1) of the Constitution which provides that, all persons are equal before the law and are entitled to equal treatment without discrimination. Elaborating, Mr. Nkoko contended that, before the Court arrived at the decision to vary the sentence, the applicant had submitted on the propriety of the sentence meted by the trial court and cited our decision in Michael Adrian Chaki v. Republic, Criminal Appeal No. 399 of 2019 [2021] TZCA 454 (9 September 2021) which emphasised the need to consider the time spent in remand custody during sentencing. The counsel further cited Sano Sadiki & Tukure Ally v. Republic, Criminal Appeal No. 623 of 2021 [2023] TZCA 17476 (9 August 2023) wherein section 172 (2) (c) of the CPA was considered in computation of a sentence under a similar offence. He invited us to see merits in the first ground of appeal and proceed to reverse the impugned decision. 10 On the second ground of review, Mr. Nkoko referred us to the circumstances of the applicant's arrest at the JNIA and the subsequent search conducted by PW17 where four (4) pellets were seized. He contended that, since it was only PW17 who testified on the seizure of the four (4) pellets, the same ought to be expunged as well. The learned counsel implored us to go along our decision in Abas Kondo Gede v. Republic, Criminal Appeal No. 472 of 2017 (unreported) where the evidence of PW7 together with the observation form (exhibit P6) tendered by the said witness were expunged. Next, the counsel submitted on the third ground of review and contended that, the applicant was denied the right to be heard. To refresh our memories, he quoted the fourth ground of appeal as it appeared in the memorandum of appeal, thus: "That the learned trial Judge erred in law and fact to rely upon an unsworn evidence o f PW17 who neither tendered a search order nor certificate o f seizure in respect o f the four (4) pellets that forms part o f exhibit PI alleged to have been found from the appellant." In further submissions, Mr. Nkoko contended that, at page 15 of the impugned judgment the Court found merits in the fourth ground of appeal but went ahead to rely on exhibit PI to found a conviction. He li argued that, exhibit P.l included the four pellets which ought to be expunged because the fourth ground of appeal was allowed. Further, the counsel quoted part of page 17 of the impugned decision wherein the Court held: "Four, the trial Judge erred in law to reiy on an unsworn evidence o f PW17"and asserted that, the statement was unfairly paraphrased by the Court as the vital part of the fourth ground of appeal was left out unattended. On further submissions, the applicant's counsel drew our attention to page 8 of the impugned decision where the Court proposed to reformulate the parties' submissions in the course of determining the grounds of appeal. He argued that in so doing, he was denied the right to be heard hence a miscarriage of justice. For those reasons, Mr. Nkoko moved us to allow the application and thus review, reverse and modify the impugned decision to set the applicant free. Ms. Benedicta Colle, the learned State Attorney, strongly opposed the application. She submitted that, the Court was correct in sentencing the appellant to twenty years7 imprisonment running from the date of conviction, as it considered the imposed sentence was a bare minimum. 12 She argued that, the Court could not consider the time spent in custody because by then the applicant was presumed innocent and could not be sentenced for the offence charged. Ms. Colle submitted that, since improper sentence was raised by the applicant as one of the grounds of appeal and fully decided upon by the Court, it could not be a basis of review. She relied on Ernest Jackson @ Mwandikaupesi & Hamza Said Ramadhani v. Republic, Criminal Application No. 46/01 of 2021 [2023] TZCA 17472 (7 August 2023) where the Court found a complaint which was raised as a ground of appeal and decided upon could not be a ground of review. On the four (4) pellets of narcotic drugs seized from the applicant, the learned State Attorney submitted that, in relying on exhibit PI to uphold the conviction, the Court had correctly considered the testimony of PW6 who testified that, the applicant was arrested by PW9 and PW17. She submitted that, on strength of the evidence of PW6 and PW9, the Court did not err in treating the four pellets as part and parcel of exhibit PI. Ms. Colle refuted claims that the applicant was denied the right to be heard and or on existence of an error on the face of the impugned decision. She submitted that, on the face of the decision, the applicant was given full opportunity to present his case and all grounds of appeal were sufficiently addressed by the Court. She therefore prayed for dismissal of the application in its entirety. By way of rejoinder, Mr. Nkoko reiterated that, the Court failed to uphold the High Court decision which deducted the period spent by the applicant in remand custody and argued that, the misdirection was an error apparent on the face of the record. Relying on section 172 (2) of the CPA, he argued that, the marginal notes on the general authority of the court were supportive of the applicant's line of arguments and that, the provision was interpreted in Sano Sadiki (supra) to mean the period spent by a convict in remand custody should be deducted from the mandatory sentence imposed against him. Having read the affidavit in support of the notice of motion sworn by the applicant on 4th November, 2022, and lodged in Court on 14th November, 2022, upon considering the grounds in support of the application for review and the parties' rival submissions, the issue for 14 our determination is whether, the grounds advanced by the applicant warrants a review of the impugned decision. The legal position regarding this Court's power to review its own decision under section 4 (4) of the AJA and rule 66 (1) of the Rules was settled in the cases of Chandrakant Joshubhai Patel v. Republic [2004] T.LR 218; Crospery Ntagalinda @ Koro v. Republic, Criminal Application No. 08/04 of 2021 [2022] TZCA 450 (20 July, 2022); Selemani Nassoro Mpeli v. Republic, Criminal Application No. 68/01 of 2020; Mirumbe Elias @ Mwita v. Republic, Criminal Application No. 4 of 2015; Twaha Michael Gujwile v. Kagera Farmers' Cooperative Bank Ltd, Civil Application No. 156/04 of 2020; Patrick Sanga v. Republic, Criminal Application No. 08 of 2011; and; Martine Christian @ Msuguri v. Republic, Criminal Application No. 07 of 2013 (all unreported), to name a few. In those cases, it was established as a general rule that: for an application of review to succeed, the applicant must satisfy one of the conditions stipulated under rule 66 (1) of the Rules; matters which were fully dealt with and decided upon in appeal, cannot be a ground(s) for review; the jurisdiction of the Court in review is limited to its own decisions and not examination of the proceedings, evidence, 15 submissions and or admitted exhibits; an error apparent on the face of the record must be such that can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points which there may conceivably be two options. The first ground of protest in this case is the decision of the Court to reverse the trial court's sentence which reckoned the imprisonment term from the date of arrest. It was argued by the applicant's counsel that, the decision was contrary to article 13 (1) of the Constitution and section 172 (2) (c) of the CPA. It was also argued that, this grievance was a manifest error on the face of the record and deprived the applicant of the right to be heard as per rule 66 (1) (a) and (b) of the Rules. The applicant's counsel contended that, as a result of the error, the sentence meted against the applicant was a legal injustice. This assertion compels us to address the question whether on the face of the record, the applicant was not afforded the right to be heard before the Court decided to reckon the imprisonment term from the date of conviction perverse with the trial court's stance. It is on record that, upon conviction, the applicant was sentenced to twenty years7 imprisonment minus the ten years spent in custody (counting from 11th May, 2011 to 23rd June, 2021). That stance was challenged by the respondent on the ground that, the applicant was considered innocent for the entire period he was in remand custody and therefore, no valid sentence could be made against him for the offence charged. Prior to the respondent's contention, the applicant addressed the appellate Court that, it was proper and in the interests of justice for the trial Judge to take into account the time spent in custody. The submissions were based on the decision of this Court in Michael Adrian Chaki v. Republic, Criminal Appeal No. 399 of 2019 [2021] TZCA 454 (9 September 2021). Having heard both sides, the Court was on all fours with the State Attorney's submissions and concluded at pages 29 - 30 of the record that, it was erroneous to order the sentence to run from the date of arrest. It was also established that since the sentence was a bare statutory minimum, the trial Judge's hands were tied to order otherwise. In the circumstances, we are satisfied that, before the Court made a decision to reckon the applicant's sentence from the date of his 17 conviction, it gathered the parties' rival views as a basis for its decision. In so doing, the applicant was afforded the right to be heard. As such, his dissatisfaction with the outcome of the decision cannot be a ground for review. The first ground of review is therefore devoid of merits and thus rejected. In the second ground of review, the applicant contended that, having expunged the evidence of PW17, it was wrong to rely on the four pellets forming part of exhibit PI which were seized by him. Whereas the applicant's counsel submitted that the four (4) pellets were singly seized by PW17, the learned State Attorney relied on the testimony of PW6 to argue that, the pellets were seized by PW9 and PW17 who testified at the trial and therefore, the Court did not err in arriving at its decision. This issue should not hold us as it was sufficiently covered in the impugned decision. Admittedly, at page 15 of the decision, we expunged the evidence of PW17 and allowed the fourth ground of appeal. In the said fourth ground of appeal, the applicant argued that, it was wrong for the trial court to rely on the evidence of PW17 who neither tendered a search order nor a certificate of seizure in respect of the disputed four pellets. 18 At pages 16 to 17 of the impugned decision, we categorically stated that, PW6 sufficiently narrated on how the applicant arrived at the JNIA, how she suspected him and then caused his arrest by PW9 and PW17. We established that, the trial Judge had correctly relied on her evidence to found a conviction. In the decision, we further observed that, upon being arrested, the applicant was placed under the supervision of PW9 who was in charge of the observation and defecation exercises. In the process, PW9 signed the observation forms (exhibit P5) and testified in court. His evidence was corroborated by testimonies of PW4, PW7, PW8, PW10, PW12, PW13, PW14, PW15 and PW16. Since all these pieces of evidence were subjected to our microscope, reviewed, analysed and critically examined at pages 16, 17 and 18 of the impugned decision, we are of the view that, the applicant's attempt to have the evidence re-assessed is nothing other than an appeal in disguise. We refuse to encourage that venture as per our decision in Ansaar Muslim Youth Centre v. Ilela Village Council & Another, Civil Application No. 310 of 2021 [2022] TZCA 615 (7 October 2022). In the circumstances, we find no merits in the second ground of review which is accordingly rejected. 19 On the last ground of review, Mr. Nkoko complained that, the applicant was deprived of the right to be heard on exhibit PI, an envelope containing 64 pellets seized from him. He contended that, since the pellets were challenged in the fourth ground of appeal which was allowed, it was wrong to partially reproduce that ground of appeal. On the other hand, Ms. Colle submitted that, the applicant was fully heard on all the grounds of appeal and moved us to pay no heed to the applicant's allegation which she termed unfounded. At the outset, we should point out that, this issue was partly addressed in the second ground of review. In the course of addressing that ground, we referred to page 15 of the impugned decision where the fourth ground of appeal was allowed. The effect of allowing the said ground of appeal was to discredit the evidence of PW17. In so doing, we considered that both sides were in agreement on the impropriety of the evidence of PW17 which contradicted section 198 (1) of the CPA. We also considered the authorities relied on by the applicant particularly, the case of Hamis Chuma @ Hando Mhoja and Another v. Republic, Criminal Appeal No. 371 of 2015 (unreported). In the circumstances, we note that, before our finding on the fourth ground of appeal was made, both parties were afforded the right 20 to be heard. That means, we did not partially deal with that ground of appeal as wrongly contended by the applicant. Like the previous ground of review, we find no goodness in the third ground of review which is also turned down. In view of our reasons as stated herein above, we agree with Mses. Colie and Kilongo that, the application is devoid of merits. Consequently, it is hereby dismissed in its entirety. DATED at DAR ES SALAAM this 25th day of June, 2024. A. G. MWARDA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 28th day of June, 2024 in the presence of Appellant appeared in person through Video link from Ukonga prison and absence for the respondent, is hereby certified as a 21