NTENGENJWA NIMKAZA SENGOVI VS REPUBLIC

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI RM CRIMINAL APPEAL NO. 24300 OF 2024 (Originating from Criminal Case No. 58 of 2023 of Resident Magistrates’ Court of Moshi at Moshi) NTENGENJWA NIMKAZA SENGOVI ………….………. APPELLANT VERSUS REPUBLIC ………………………………………….......... RESPONDENT JUDGMENT 14/01/2025 & 17/02/2025 SIMFUKWE, J. In Criminal Case No. 58 of 2023, Ntengenjwa Nimkaza Sengovi, the appellant herein, was charged with trafficking in narcotic drugs, 1 specifically 18.41 kilograms of cathy adulis, commonly known as mirungi, contrary to Section 15A(1) and 2(c) of the Drugs Control and Enforcement Act [Cap 95 R.E 2019] read together with the Written Laws (Miscellaneous Amendment) Act No. 05 of 2021. The incident was alleged to have occurred on 6th July 2023, at Likweni Village, within Same District in Kilimanjaro Region. On the material date, the appellant was arrested at her homestead by PW2 D/Cpl Jackson Shambwe an officer from Drugs Control and Combating Authority (DCCA), after the appellant was named by the informer. The said informer showed them the house of the appellant. The house of the appellant was searched and one sulphate bag containing leaves suspected to be narcotic drugs was seized from that house. PW2 filled the certificate of search and seizure which was signed by the appellant and one Godfrey Hoza. A certificate of search and seizure was tendered before the trial court, it was admitted as Exhibit PE3. The seized leaves (substances) were examined by PW6, a Government Chemist, who confirmed that the seized substances were narcotic drugs weighing 18.41 kilograms. PW6, the Government Chemist tendered the Chief Government Chemist’s Report before the trial court. It was admitted into evidence as 2 Exhibit PE7. The handing over of the said drugs to PW6 was documented through Exhibit PE4, and the sample receipt notification form was admitted into evidence as Exhibit PE5. Thereafter, the narcotic drugs were disposed of in the presence of the appellant, PW4, before PW5 the learned magistrate. The inventory form documenting the disposal was admitted as Exhibit PE6. PW2 handed over the sulphate bag to PW1 A/Insp. Innocent the exhibit keeper. The sulphate bag was tendered and admitted into evidence as Exhibit PE1 while the exhibit register was admitted as exhibit PE2. During the trial, the appellant denied the prosecution's allegations and refuted the evidence adduced against her. She testified that she was arrested while on the way escorting her two children who were going to school. When she inquired the reason of her arrest, the arresting officers informed her that she would know when she would reach at the police station. After considering evidence of both parties, the learned trial court was satisfied that the prosecution had proved its case beyond reasonable 3 doubt. Hence, the trial court convicted the appellant and sentenced her to thirty (30) years imprisonment. The appellant was aggrieved with both the conviction and sentence. He filed the instant appeal on seven grounds as follows: 1. That, the learned trial Magistrate grossly erred both in law and fact in failing to note that, the charge was at variance with the evidence on record. 2. That, the learned trial magistrate grossly erred both in law and fact in failing to note that, the said search and alleged seizure of 18.41 kilograms of “mirungi” contravened the mandatory provisions of sections 38(1) and (3) of the CPA, Cap 20 R.E 2022. 3. That, the learned trial magistrate grossly erred both in law and fact in failing to note that, the inventory form and destruction form (Exh.PE6 collectively) were unprocedurally acquired and relied upon. Since the appellant was not accorded with an opportunity to be heard. 4 4. That, the learned trial magistrate grossly erred both in law and fact in relying upon Exhibit register (Exh. PE2) but failed to note that, the contents of it were not read out to the appellant in a language fluent to her. Therefore, the appellant’s attention was not drawn to the contents of Exh. PE2 5. That, the learned trial magistrate grossly erred both in law and fact in failing to note that, the chain of custody of the said seized “mirungi” was irretrievably broken. 6. That, the learned trial magistrate grossly erred both in law and fact in using weak, tenuous, contradictory, inconsistency (sic), incredible, uncorroborated and wholly unreliable prosecution evidence as a basis of the appellant’s conviction. 7. That, the learned trial magistrate grossly erred both in law and fact in convicting and sentencing the appellant despite the charge being not proved beyond reasonable doubt against the appellant and to the required standard by the law. 5 The appellant prayed the appeal to be allowed, the conviction be quashed, sentence be set aside and set him at liberty. At the hearing of the appeal which was done through written submissions, the appellant had no representation, while the respondent was represented by Mr. Makore Maheri, the learned State Attorney. The appellant abandoned the first ground of appeal and proceeded to argue the second ground, which challenged the legality of the search, alleging that it contravened Section 38(1) and (3) of the Criminal Procedure Act (CPA). The appellant contended that, although PW2 received information from an informer regarding the alleged narcotic drugs, he waited until nighttime to approach her house, conduct the arrest, and proceeded with the search and seizure without obtaining a search warrant, as required under Section 38(1) of the CPA. The appellant stated further that, after completing the search and seizure, PW2 sat under a tree and filled out various forms, including the search order and seizure certificate, which were later admitted into evidence collectively as Exhibit PE3. In support of her argument, the appellant referred to page 9, lines 20-25; page 10, lines 17-18; and page 11, line 20 of the typed trial court proceedings. 6 The appellant emphasized that it is a fundamental procedural requirement that a search warrant must be obtained before conducting a search. However, in this case, PW2 allegedly filled all necessary forms after the search had already been carried out, which, according to the appellant, was a serious procedural irregularity. The appellant pointed out another apparent anomaly to the effect that despite the fact that PW2 received information about the alleged drugs at the earliest time, no explanation was given as to why they decided to wait until night time to conduct the search and seizure without obtaining the court’s authorization. In support of his argument, the appellant cited the case of Shabani Said Kindamba v. Republic, Criminal Appeal No. 390 of 2019, at page 15, where the Court held that: “Since the general rule under CPA is that search of a suspect shall be authorised by a search warrant unless it falls under the exceptions provided for under section 42 of the CPA, and since the instant case does not fall under any of the exceptions, the search was illegally conducted.” 7 At page 17 line 1-7 the Court went further and held as follows: “... it must be pointed out that under section 40 of the CPA search may be executed between the hours of sunrise and sunset, except with the leave of the court. This is the same as what is provided under regulation 2(b) of the P.G.O 226. Therefore, it beats us why this search, not being an emergency, was conducted at night and without permission of the court. This aspect compounds the illegality of the search in this case.” Relying on the strength of the above authority, the appellant argued that the prosecution witnesses failed to justify their act of searching her house during night time hours, despite having prior knowledge of the alleged offence and without obtaining a search warrant as required by the law. In support of the third ground of appeal, the appellant stated that both the inventory form and the destruction form were unprocedurally acquired and relied upon as a basis of the appellant’s conviction. She contended that, instead of presenting the alleged Mirungi purportedly found in her possession, the prosecution tendered the inventory form and destruction 8 form (Exhibit PE6). She complained that she was neither involved before, during and after the said disposition of the alleged seized “Mirungi.” To justify her complaint, the appellant referred to the testimony of PW2 at page 10 of the typed trial proceedings, arguing that at no point did PW2 state that the appellant was involved in the process of disposal of exhibit. She explained that her only recorded involvement was when she was required to append her signature on exhibit PE6 collectively. According to the appellant, it cannot be said that she was involved in the said exercise and given an opportunity to be heard as required by the law. The argument was cemented with the case of Buluka Leken Ole Ndidai & Another v. Republic, (Criminal Appeal No. 459 of 2020) [2024] TZCA 116 (21 February 2024) Tanzlii at page 13 where it was held that: “As seen above, we indicated that PW3 testified that at the time of seeking a disposal order, the suspects were present. In our view, that simple linear statement is insufficient. Because it leaves many more questions unanswered in view of this court’s authorities we referred to above. Such queries are like; one, if the suspects were present before the magistrate, where is it indicated in the inventory, that the suspects were present? Two, were they asked for any 9 comment, remark or objection as regards the exhibit which was being sought to be disposed of? If yes, where is the record of their comment, remark or observation in that respect?” At page 14, the C.A.T in the above cited case went further and held as follows: “In our view, the void and emptiness left by the above questions lead to only one conclusion, namely, that the appellants were not heard and their comments or objections (if any) were not taken, at the time disposal order was being procured. If that is the case, which we are confident it is, the inventory cannot be relied upon to prove any case against them, it is ineffectual.” The appellant continued to insist that, in the case at hand, she was never involved at any stage of obtaining the court’s order or during the disposal of the seized “Mirungi”. Based on the noted procedural irregularity, the appellant prayed that Exhibit PE6 be expunged from the record. She further submitted that, once Exhibit PE6 is expunged there will be no remaining evidence to sustain her conviction. 10 On the fourth ground of appeal, the appellant contended that the contents of Exhibit PE2, the Exhibit Register, were not read aloud in court before being admitted into evidence. To buttress her submission, the appellant referred to page 8, line 8 of the typed trial proceedings, which states that: “PW1 then read out the contents of Exhibit PE2 in a loud manner, then he says…” The appellant continued to state that exhibit PE2 was not read to her in a language she fluently understood, thus preventing her from comprehending its contents and enable her to cross examine the witness (PW1). She claimed that the said failure occasioned miscarriage of justice against her. As a remedy, the appellant prayed the court to expunge the said exhibit from the record. In her final analysis, the appellant prayed this court to find that the conviction against her was based on weak, tenuous, incredible, and inconsistent evidence. She asserted that the prosecution failed to prove the case to the required legal standard. Consequently, the appellant implored the court to quash her conviction, set aside the sentence, and set her at liberty. 11 On the other hand, Mr. Makore, representing the respondent, resisted the appellant’s submission. Starting with the complaint against search; Mr. Makore contended that PW2 was an officer from Drug Control and Combating Office and not a police officer. The learned State Attorney explained that the procedures governing search and arrest are regulated by the Drugs Control and Enforcement Act [Cap 95 R.E. 2019], under Sections 32(7) and 48(2) of the Act. Mr. Makore buttressed his submission by citing the case of Director of Public Prosecutions v. Doreen John Mlemba, Criminal Appeal No. 359 of 2019, TZCA 482 [2021], at page 17. He emphasized that all procedures which were expounded in the cited case, were followed by PW2 as the search was an emergency. The information from the informer was received at night and the arrest and search was done at night. Therefore, the applicable provision was Section 42 of the Criminal Procedure Act, as the Drugs Control and Enforcement Act is silent on the issue of emergency searches. He made reference to page 9 of the proceedings of the trial court and asserted that Exhibit PE3 was correctly admitted in accordance with the law. 12 Responding to the appellant’s argument that she was not involved during the disposal of the exhibits; Mr. Makore submitted that this assertion was not correct. He pointed out that PW3 at pages 18 and 19 of the trial court proceedings, explained well what transpired during the trial. That, the learned trial magistrate in his judgment, also clarified on the said issue. Further, Mr. Makore argued that all necessary witnesses were called in accordance with Section 3(2)(a) and Section 127(1) of the Evidence Act [Cap 6 R.E. 2022]. He stressed that, the prosecution witnesses, particularly PW2, PW3, and PW4, proved how the disposal process was carried out properly and in the presence of the appellant. In addition, the learned State Attorney noted that the trial court, having moved from its premises, went directly to the scene of crime, where the application was heard in the presence of the appellant. He concluded that Exhibit PE6, was correctly admitted into evidence. Replying the allegation that Exhibit PE2, the Exhibit Register, was not read aloud before its admission, Mr. Makore explained that the exhibit was admitted in accordance with the law. He referred to page 8 of the proceedings of the trial court, where the exhibit was read out aloud, and 13 emphasized that the appellant raised no objection to the admission of the exhibit. Mr. Makore supported his position by citing the case of Paulo Maduka and Others v. Republic, Criminal Appeal No. 110 of 2007 [2009] TZCA 69 (28 October 2009) at page 18 and 19 where it was held that: “Thereafter, a foolproof chain of custody would have been set in motion. By “chain of custody” we have in mind the chronological documentation and/or paper trail, showing the seizure, custody, control, transfer analysis and disposition of evidence, be it physical or electronic….” Based on the above cited authority, the learned State Attorney was of the view that all the procedures were adhered by the trial court. Hence, conviction was proper against the appellant. He prayed that this appeal be dismissed and the decision of the trial court be upheld. In rejoinder, regarding the issue of search and seizure, the appellant reiterated her submission in chief. She criticized the learned State Attorney for arguing that the search was an emergency, on the reason that PW2 had prior information. 14 The appellant elaborated that by citing the case of DPP v. Doreen John Mlemba (supra), the learned State Attorney supported her appeal since in the cited case, the Court held that: “In other words, all things being equal, for a search into private premises to be lawful search, it must be conducted by either an Officer in charge of a Police station or another Police Officer with a search warrant as per the provisions of section 38(1) of the CPA and PGO No. 226 paragraph 2(a) ...” The appellant continued to reiterate her submission in chief in respect of other grounds of appeal and added that the circumstances surrounding this case connote that there is high possibility that the said “Mirungi” were planted fraudulently to make the appellant appear guilty. That marked the end of submissions of both parties. After carefully reviewing submissions of both parties, the records of the lower court, and the grounds of appeal, I am of considered view that the appellant’s grievances fall into two main categories to wit: evaluation of evidence and points of law particularly, procedural irregularities. Thus, I 15 will commence with the grounds of appeal in respect of procedural irregularities, namely the 2nd, 3rd, 4th and 5th grounds of appeal. Where necessary, I will then proceed to consider the 6th and 7th grounds of appeal, which concern evaluation of evidence. For the sake of consistency, I will start with the 3rd ground of appeal. On the third ground of appeal, the appellant contended that the Inventory Form and Destruction Form were obtained unprocedurally, as she was not afforded the right to be heard. The arguments were resisted by the learned State Attorney, who submitted that, based on the available evidence particularly the testimonies of PW4, PW5, and PW6, the appellant was accorded an opportunity to be heard. Having thoroughly examined the impugned Inventory Form and Destruction Form (Exhibit PE6) and the evidence on record in light of the legal requirements governing the disposal of exhibits, I acknowledge the significance of ensuring an accused person's right to be heard during the disposition of exhibit process. I also appreciate that both parties recognize the accused’s right to be heard in such proceedings. 16 The procedures for disposing of exhibits are well established through case law and the Judiciary of Tanzania Exhibits Management Guidelines, 2020. Items 4.4.1 and 4.4.2.1 of the Exhibits Management Guidelines provide that: “(a) The court may order storage or disposal of perishable goods before commencement or during trial depending on the nature of the exhibit; and (b) Storage or disposal order shall direct where and how the perishable goods shall be kept and treated. 4.4.2.1. The court shall record the proceedings for the said disposal.” Emphasis added Moreover, it is trite law that while disposing of the exhibits, the accused must be present and heard, not merely sign an inventory form. This was emphasized in the case of Buluka Leken Ole Ndidai & Another vs Republic (supra) which was also cited by the appellant. Furthermore, the case of Buluka Leken Ole Ndidai and Another (supra) established a landmark precedent by outlining the procedures to be followed during the disposal of exhibits. It was stated that: 17 “It will be sufficient for a magistrate before whom an order to dispose a perishable Government trophy or trophies, to make such order, provided that; one, the prayer to issue the order to dispose of perishable exhibits may be made by the investigator or the prosecution informally before a magistrate in chambers; two, if the 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; three, the suspect must be asked as to his comments, remarks or objections as regards the perishable exhibits sought to be destroyed. Four, if that suspect does not make any comments, remarks or objections, the magistrate shall record the fact that, the suspect was invited to make any comment, remarks or objections, but he opted to make none. Five, if the suspect makes any comments, remarks or objections, they shall be recorded as appropriate either on the reverse side of the Inventory Form or on any separate piece of paper or papers and shall be signed by the magistrate.” Emphasis added 18 In the matter at hand, the contested inventory form does not demonstrate compliance with the requisite procedures enumerated above. Meaning that, the Inventory form does not indicate whether the appellant was afforded an opportunity to be heard, nor does it incorporate her comments. Pursuant to the established legal precedent above, any comment or objection made by the appellant should have been recorded on the reverse side of the inventory form or on a separate piece of paper, which should have been duly signed by the presiding magistrate. This is the current best practice, and any deviation from the same is intolerable as it violates one of the principles of natural justice. The learned State Attorney was of the view that the fact that the appellant was heard was explained by PW4, PW6, and PW5, who was the magistrate who issued the disposal order. With due respect, evidence of the magistrate (PW5) was inadequate regarding what transpired during the disposition of the exhibits. This conclusion is based on the fact that, in his testimony, the said magistrate at page 26 of the trial court proceedings stated as follows: “I also wanted to satisfy of its weight where they measured and the weight of that narcotic drugs were 18.41. After that 19 I ordered the destruction of that exhibit. I also asked the accused person if she has something to say whereby, she had no useful word…” Emphasis mine From the above narration, the learned trial Magistrate was required to record his comment or what was stated by the appellant either on the inventory form or on a separate piece of paper, as recommended by the Court of Appeal in Buluka Leken Ole Ndidai & Another (supra). In absence of such record, what was stated by PW5 appears to be an afterthought. It is the considered opinion of this court that, during the disposal of exhibits proceedings, the court must ensure that it is not merely stated that the accused was heard, rather, what was stated by the accused must be recorded. In our case, written records would have spoken louder than the testimonies of witnesses. Even if we assume, for the sake of argument, that the appellant was heard as suggested by Mr. Makore, the testimonies of witnesses on this issue are contradictory. While PW5 testified that he asked the appellant if she had anything to say, PW6, at page 31, explained that the appellant was 20 only shown the exhibits before they were destroyed. His testimony appears as follows: “I was then introduced to Magistrate and environmental officer whereby the said leaves were poured down and get burned by fire…Before that the accused was shown with the exhibit which was supposed to be burned.” On the strength of the above findings, I am satisfied that the noted irregularities are fundamental and justify this Court to expunge Exhibit P6, (the Inventory Form and Destruction Form) from the record. Having expunged the Inventory Form, the remaining issue for determination by this Court is whether the prosecution's case can stand without Inventory form and Destruction Form. The answer is unequivocally ‘NO.’ The prosecution's case cannot be sustained in the absence of Exhibit P6, which forms the foundation of the charged offence of trafficking in narcotic drugs. Apart from the third ground of appeal, which has been found to have merit, I have also considered the second ground of appeal, where the appellant challenged the procedures followed in the search and seizure. 21 Despite the learned State Attorney's contention against this ground, this Court also finds it to have merit. As rightly argued by the appellant, despite having prior information from an informer regarding the incident, the Police and other Officers failed to obtain a search warrant. With due respect to Mr. Makore, the search cannot be deemed an emergency, as there was sufficient time to secure a search warrant and an independent witness who was not part of the task force involved in the operation. According to PW6, the Government Chemist, he travelled from Arusha to accompany other officers from Drugs Control and Combating Authority during the operation. Moreover, PW2, D/CPL Jackson Shambwe, testified that he received the information on 05/07/2023 and conducted the search at the appellant's residence on 06/07/2023. This clearly indicates that there was adequate time to follow proper legal procedures, including obtaining a search warrant and securing an independent witness. Based on these observations, this Court is settled that the procedural irregularities in the search and seizure process are substantial and significantly undermine the entire operation. 22 Accordingly, having found merit in the two grounds of appeal, I conclude that the appeal is worth to be allowed, as the two grounds suffice to dispose of it. Thus, there is no need to discuss the remaining grounds of appeal. The appellant’s conviction is hereby quashed, and the imposed sentence is set aside. The appellant is to be released forthwith unless lawfully held for other reasons. Dated and delivered at Moshi this 17th February 2025. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 17/02/2025 23