Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 8195 OF 2024 (Arising from the decision of the District Court of Lindi at Lindi in Criminal Case No. 39 of2023) SALUMU ALLY MOHAMEDI @DADI........................ APPELLANT VERSUS THE REPUBLIC.......................................................... RESPONDENT JUDGMENT 14h August & 24h September 2024 MPAZE, J.: On 9th August, 2023 A/INSP Dickson Dominic Kajagi (PW2) was on patrol in Mchinga and Kitomanga villages with his fellow officers, including CPL Belitila (PW4), CPL Manfred, CPL Ernest, CPL Juma, and DC Dickson. At around 01:00 hrs, they arrived at Mkwajuni village, where PW2 received information from an informant that Salumu Ally Mohamedi @Dadi, the appellant residing in Namkongo Village, Mipingo Ward, was allegedly involved in the trafficking of cannabis sativa, commonly known as 'bhangi'. Acting on this information, PW2 led his team to Namkongo Village using a police vehicle, a Toyota Land Cruiser. They arrived there at approximately 1 02:00 hrs and sought out local leaders. They found Hamisi Mohamed Mkova (PW5) cum Village Executive Officer, who then, due to his unfamiliarity with the area, looked for Issa Ismail Nguliche. Together, they led the team to the appellant's house, arriving at 04:00 hrs. Upon arrival, PW5 knocked on the door, and the appellant came outside. He was informed that the police officers needed to search his house based on allegations of his involvement in the trafficking of narcotic drugs, suspected to be cannabis sativa (bhangi'). It was further alleged that the appellant admitted to trafficking 'bhangi' and directed the officers to a room on the right side of the house, used as a store. There, they found eight buckets of ten litres with lids, containing dried leaves suspected to be 'bhangi'. Additionally, they found a sulphate bag labeled 'Dangote Cement,' which contained another sulphate bag inside, also filled with dried leaves suspected to be 'bhangi'. After the search and discovery of the said items, PW2 filled out the certificate of seizure listing all the items found in the form, which was signed by PW2, PW5, Issa Ismail Nguliche, and the appellant. A sketch map of the 2 crime scene was also drawn by PW4. After all procedures were completed, the appellant and all exhibits were taken to the Lindi Police Station. At the station, PW2 handed over the appellant to the officer in charge of the Crime Records Office (CRO) and opened case file LIN/IR/772/2023 while handing over the exhibits to G213 D/CPL Hezron (PW3) vide a chain of custody form. PW3, the exhibit keeper, after receiving the said exhibits, labeled the eight buckets A-H and one sulphate bag labeled I. He registered them in the Exhibit Register P16, giving them number No. 15 of 2023, dated 10/08/2023, and wrote the police file number LIN/IR/772/2023 on each exhibit. On 30th August, 2023 D/CPL Rita (PW6) took the exhibits from PW3 and transported them to the government laboratory for analysis, where she was received by Eliuthery Andrew Hhary (PW1). After verifying the documents, PW1 weighed the exhibits, finding their total weight to be 14.80 kg. After recording the weight, he took samples of the dried leaves from each exhibit for laboratory analysis. PW1 then resealed the exhibits with the GCLA label. Once the sealing process was complete, PW1 returned the exhibits to PW6 through the chain of custody, after which he continued with the analysis. 3 The results confirmed that the dried leaves contained in the exhibits were narcotic drugs, specifically cannabis sativa. PW1 documented his findings in Form No. DCEA 009 and handed it over to PW6. Thereafter, PW6 returned both the exhibits and the analysis report to Lindi Police Station, where they were received by PW3, who again recorded them and assigned No. 17 of 2023 and continued to store them while the analytical report was given to D/CPL Baraka, the investigator of the case. On 16th October, 2023 PW3 handed over the exhibits to D/CPL Kibibi through the exhibit register and the chain of custody form for bringing the exhibit in court. The said exhibits were tendered in court where Submission Form DCEA 001, Form DCEA 009, 3 red buckets, 3 green buckets, 2 blue buckets, and one sulphate bag containing cannabis sativa, along with the certificate of seizure, Exhibit Register PF16, and sketch map were admitted as Exhibit Pl, P2, P3, P4, P5, P6, P7, and P8, respectively. The above facts led to the appellant being arraigned and charged with the offence of trafficking narcotic drugs, contrary to section 15A (1) and 2(c) of the Drugs Control and Enforcement Act (Cap 95 RE 2019). 4 After the particulars of the offence were read to the appellant, he entered a plea of not guilty. When called upon to defend himself, in light of the charge and the evidence provided by the prosecution, the appellant defended himself without calling any witnesses or tendering any exhibits. In his defence, the appellant stated, I quote; 'Z remember on 10/08/2023, I was at my house in Namkongo, sleeping at 4:00 a.m. I heard my door being knocked on by people I didn't know. I opened the door, and the people outside introduced themselves as police officers. They told me they came to search my house. The police officers entered my house, went to a room I use as a store, and began searching. They found bhangi (cannabis sativa) kept inside 8 buckets and more bhangi inside a small cement bag... It is true that the police found bhangiin my house.'[Emphasis Added] SIGNED SRM 07/12/2023 At the conclusion of the trial, the court was satisfied that the offence had been proven beyond a reasonable doubt. As a result, the appellant was found guilty as charged, convicted, and sentenced to 30 years of imprisonment. 5 Dissatisfied with the conviction and sentence, the appellant filed an appeal before this court, raising four grounds of appeal as follows; 1. That the trial court erred in law and fact by convicting and sentencing the appellant while the prosecution failed to prove the case beyond a reasonable doubt. 2. That the trial court erred in law and fact by proceeding with the matter without reading and explaining the memorandum of facts to the appellant. 3. That the trial court erred in law and fact by convicting and sentencing the appellant without the testimony of material witnesses. 4. That the trial court erred in law and fact by convicting and sentencing the appellant based on the Certificate of Seizure (Exhibit P7), which was improperly obtained and admitted. At the hearing of this appeal, the appellant was represented by Mr. Ahyadu Nannyohe, a learned advocate, while the respondent was represented by Ms. Frolence Mbamba, the learned State Attorney. Mr. Ahyadu abandoned the second and fourth grounds of appeal and proceeded to argue the first and third grounds in seriatim. 6 In support of the first ground of appeal, Mr. Ahyadu referred to section 3(2)(a) of the Tanzania Evidence Act, Cap 6 R.E. 2022 (the TEA), which mandates the prosecution to prove the case beyond a reasonable doubt. To strengthen this argument, he cited the cases of Maqendo Paul & Another v, R [19931 TLR 219 and Jonas Nkize v. R [19921 TLR 213 both of which emphasize that a conviction must be based on the strength of the prosecution's evidence, rather than the weaknesses of the defence. Based on the legal stance, he was of the view that in this case, the prosecution side failed to prove the case beyond a reasonable doubt. Mr. Ahyadu criticized the trial court's handling of exhibits, particularly the cannabis sativa, arguing that the exhibits were not properly tendered in accordance with legal requirements. He pointed out that the items were labeled generically from 'A to I' without proper identification, creating confusion about the actual exhibits. This, he contended, was a significant oversight in the management of such exhibit. Furthermore, he argued that the trial court erred by failing to inspect the contents of the containers that were alleged to hold the cannabis sativa. By not verifying the presence of the narcotics, the court failed to meet the evidentiary standards required. He insisted that what was tendered and 7 identified by PW1 was the container of the cannabis sativa, not the substance itself. Mr. Ahyadu highlighted by referring the case of Hussein Salumu Kanunqa v, R (Criminal Appeal No. 8817 of 2024) [2024] TZHC 6679 (15 July 2024) where the importance of verifying an exhibit's contents was stressed. These procedural lapses, according to him, undermined the prosecution's ability to prove its case beyond a reasonable doubt, casting substantial doubt on the legitimacy of the exhibit. Turning to the second issue, Mr. Ahyadu discussed the legal requirements for search and seizure as outlined under section 38(3) of the Criminal Procedure Act, [Cap 20 R.E 2022] (the CPA). He emphasized that the presence of the property owner or a relative, a valid search warrant, an independent witness, and the issuance of a receipt for seized property are mandatory requirements during search. He argued that in this case, deviations from these stipulations occurred, specifically pointing out that the search was conducted in the absence of the property owner or a relative, and without the necessary documentation, rendering the search unlawful. To bolster this point, he cited the case of 8 Samweli Kibundali Mqaya v. R (Criminal Appeal No. 180 of 2020) [2022] TZCA 342 (14 June 2022), which underscores the importance of adhering strictly to legal procedures in search and seizure operations. Despite being aware of the provision under section 42 of the CPA, which allows for emergency searches by police officers. However, Mr Ahyadu argued that this section does not authorize police officers to conduct a search without the presence of the owner, occupier, or relatives. Moreover, he said this section is inapplicable to the case at hand, as the search conducted here was not an emergency search. Mr. Ahyadu further criticized the excessive number of police officers involved in the search, noting that the CPA specifies the search should be conducted by the officer in charge or an authorized officer. In this case, eight officers participated in the search without proper authorization, as evidenced by both testimony and the absence of supporting documentation. This, he argued, raised concerns about the risk of evidence fabrication, citing the case of Badiru Mussa Hanoqi v. R (Criminal Appeal No 118 of 2020) [2021] TZCA 237 (9 June 2021), where unauthorized searches were a significant issue of concern. 9 In conclusion, Mr. Ahyadu called for the exclusion of the evidence obtained from this flawed search process. He invoked precedents such as Rita Goodluck Mosha v. R (Criminal Appeal No 49 of 2021) [2021] TZHC 9174 (1 December 2021) and DPP v. Doreen John Mlemba (Criminal Appeal No. 359 of 2019) [2021] TZCA 482 (14 September 2021), which support the dismissal of evidence obtained through unlawful searches. He stressed that such evidence should be expunged from the record to preserve justice and uphold legal integrity, particularly when procedural violations are apparent. In the third ground of appeal, Mr. Ahyadu challenged the trial court's decision, arguing that the conviction was flawed due to failure of calling crucial witnesses. He pointed out that only one of the two independent witnesses, Hamis Mohamed Mkova (PW5), was called to testify. However, Mkova's involvement was limited to signing the seizure certificate, and he did not play a substantial role in the actual search. This, according to Mr. Ahyadu, raised questions about his materiality as a witness. He further argued that the other witness, Issa Ismail Nguliche, should have been called, as his testimony could have been significant and might have provided a more precise account of the findings during the search. Mr. io Ahyadu suggested that Nguliche's evidence had the potential to alter the outcome of the case. Additionally, Mr. Ahyadu faulted the trial court for failing to explain why Issa Ismail Nguliche was not summoned to testify. This omission, he argued, significantly weakened the prosecution's case. He referred to the case of Ahmad Salumu Hassani @Chinqa v. R (Criminal Appeal No. 386 of 2021) TZCA (23 February 2024), where the court held that the failure to call a material witness without a valid reason could negatively affect the prosecution's credibility. Ultimately, Mr. Ahyadu urged the court to grant the appeal, calling for the reversal of both the conviction and the sentence imposed by the trial court. He emphasized that the procedural errors, particularly the failure to summon a material witness, compromised the fairness of the legal proceedings and warranted the appellant's acquittal. In response, Ms. Florence opposed the appeal, asserting that the case had been proven beyond a reasonable doubt. To support this argument, she referred to the testimony of PW1, the chemist, whose evidence is found on pages 8 to 18 of the trial court proceedings. She emphasized that this li witness established that exhibits P3, P4, P5, and P6 were, in fact, cannabis sativa. Ms. Florence robustly defended the trial court's admission of the Exhibit P3, P4, P5 and P6 in her response, emphasizing that the dry leaves identified as cannabis sativa were properly handled and examined by PW1, as confirmed by his testimony and subsequent report. She refuted the claim that the cannabis sativa was not adequately identified or tendered, referring court records on page 17, where the trial magistrate clearly stated what each exhibit (P3 to P6) contained, thus establishing the legitimacy of the seized items. Additionally, Ms. Florence distinguished this case from the Hussein Salumu Kanunqa's case cited by the opposition, noting that in the current case, the Exhibits were thoroughly inspected and recorded in court. In contrast, the Kanunga's case displayed evident procedural lapses in handling the Exhibits. To further strengthen her argument that the case was proved beyond a reasonable doubt, she cited the case of Moses Charles Deo v. R [1987] TLR 134, where the court stated that to establish possession whether actual 12 or constructive it is necessary to demonstrate the person's knowledge and control over the items. She highlighted that this was clearly articulated by PW2. Insisting that the prosecution successfully proved the case to the required standard, Ms. Florence argued that the appellant's signature on the certificate of seizure demonstrated that the seized items were found in his possession. To support this argument, she referred the case of Papa Olesikaladai @ Lendemu & Another v. R (Criminal Appeal No. 47 of 2020) [2023] TZCA 51 (20 February 2023), specifically pages 12 and 13, where the court stated that the proper signing of the certificate of seizure confirms that the item was in the possession of the suspect. In conclusion, Ms. Florence maintained that the evidence was incontrovertibly linked to the appellant, reinforced by the signed certificate of seizure and the undisputed court admissions regarding the presence of cannabis sativa at his residence. She cited cases demonstrating judicial precedent on proving possession and the prosecution's burden to show control and awareness of the narcotics, asserting that this burden was comprehensively met through reliable witness testimonies and verified analytical report. 13 Addressing the legality of the search, Ms. Florence countered Mr. Ahyadu's assertion of procedural violations by highlighting the testimonies of PW2 and PW4. They described the search as urgent, indicating that PW2 obtained information regarding the appellant's possession of narcotic drugs while on patrol. She argued that this justified the emergency search under section 42 of the CPA, negating the need for a search warrant and the presence of family members. This point was underscored by the case of Shabani Said Kindamba v. R (Criminal Appeal No. 390 of 2019) [2021] TZCA 221 (2 June 2021). Regarding the Samweli Kibundai's case mentioned by Mr. Ahyadu, Ms. Florence contended that the circumstances of the search in the current case differed from those in the cited case, as the search in the present instance was an emergency, while the search in the cited case was not. She also dismissed concerns about the number of officers present, asserting that the critical issue was the emergency nature of the operation, rather than the specific authorization of each officer. Ms. Florence addressed the appellant's complaint regarding the absence of material witness Issa Ismail Nguliche, emphasizing the credibility 14 of PW5's testimony, who independently verified the search's outcomes and signed the certificate of seizure. She argued that PW5's detailed account on page 40 of the proceedings sufficiently described the events during the search, asserting that the absence of Issa Ismail Nguliche did not detract from the established facts. Ms. Florence dismissed the suggestion that Issa Ismail Nguliche's testimony could have provided additional clarity, labeling it an afterthought, particularly since the defence failed to probe deeper during PW5's cross­ examination about specific rooms searched, implying acceptance of the testimony presented. Furthermore, she distinguished the current case from Ahmad Salumu Hassani @ Chinqa, cited by the appellant counsel, by highlighting that essential witnesses (PW1 through PW6) had testified, covering all aspects of the appellant's offence. She underscored that the quality of evidence, as per the TEA, is more crucial than the quantity. To support her stance, she cited the case of Remmy Gelarad Sikuka v. R (Criminal Appeal No. 67 of 2019) TZCA (28 July 2021), arguing that the testimony of PW5 alone was substantial and robust enough to uphold the findings. 15 In conclusion, Ms. Florence argued for the dismissal of the appeal based on the adequacy and quality of the testimonial evidence, urging the court to uphold the trial court's decision and thereby reinforce the integrity of the testimonies that confirmed the presence of contraband in the appellant's possession. In a brief rejoinder, Mr. Ahyadu challenged Ms. Florence's arguments while reiterating his earlier submissions. Having considered the rival submissions of the trained minds and the evidence presented during the trial in light of this appeal, I find that the main issue for determination is whether the prosecution proved its case beyond a reasonable doubt. As the appellant's counsel rightly submitted, in criminal trials, the prosecution has a duty to prove the charge against the accused beyond a reasonable doubt. Numerous decisions of the Court of Appeal have continued to emphasize this legal principle, such as in the case of George Mwanyinqili v. R (Criminal Appeal No. 335 of 2016) [2018] TZCA 20 (12 December 2018), in which it was emphasized as follows; 16 'We wish to restate the obvious that the burden ofproof in criminal cases always ties squarely on the shoulders of the prosecution, unless any particular statute directs otherwise. Even then however, that burden is on the balance of probability and shift back to prosecution.' In the instant appeal, the appellant was charged under sections 15 A (1) and 2 (c) of the DCEA. Therefore, the prosecution was required to prove that the substance for which the appellant was charged was a narcotic drug, specifically cannabis sativa, known as 'bhangi,' weighing 14.09 kg. The appellant's counsel argued that the prosecution failed to prove the charge against the appellant, presenting several complaints that I will address one by one. Conversely, Ms. Florence contended that the prosecution met the required standard of proof. Starting with the complaint that the cannabis sativa was never tendered as an exhibit, I carefully examined the records of the trial court, particularly page 17 of the typed proceedings highlighted by the appellant's counsel. I observed that before PW1 tendered Exhibits P3, P4, P5, and P6, he testified as follows; 'The buckets with mark A -C have green color which are 3; Mark D and E have blue color which are 2; Mark F to H have red color which 17 are 3 and I is a sulphate bag written Dangote Cement AH the 8 buckets of 10kg contains dried leaves of bhangi and I is a sulphate bag written Dangote and inside it, there is sulphate bad containing bhangi dried leaves'. Jordan SA: I pray court to move outside for the witness to identify the exhibits Court: Prayer granted SIGN SRM 16/10/2023 Court: PW1 shown the exhibits of 8 backets of 10 liters containing dried bhang leaves and one sulphate bag written Dangote inside it there is sulphate bag containing dried bhang leaves and able to identify the same. PW1:1 pray to tender exhibit 'A'to T as evidence in this case which contained dried bhangi leaves Jordan SA: PW1 prays to tender exhibit marked A' to 'I' which contains dried bhang leaves if no objection from the accused Accused: I have no objection Court: 1. The 8 backets ofplastics of 10 liters -3 having green color having mark A to C are admitted as Exhibit P3 18 2. 2 blue backets with blue color containing dried bhangi leaves marked'D and E'are admitted as Exhibit P4 3. 3 red buckets with mark 'F' to 'H' containing dried bhangi leaves are admitted as Exhibit P5. 4. Mark T is a sulphate bag written Dangote Cement inside it there is a sulphate bag containing dried bhang leaves is admitted as exhibit P6.' From the above excerpt, I don't think it would take long to verify whether the cannabis sativa was properly tendered as an Exhibit. The excerpt clearly and specifically outlines all that transpired leading to the tendering of the said exhibit. Based on the events described, it is sufficient to state that what was received and marked as Exhibit P4 to P6 by the court from PW1 was nothing but dry leaves identified as cannabis sativa. However, I noticed that when recording Exhibit P3, the trial magistrate stated that it was 'three green-coloured buckets marked A to C, without specifying what was inside them. I find this to be a mere slip of the pen because, in the recording of other Exhibits, the magistrate clearly described them. Furthermore, during the identification process, PW1 identified Exhibit P3 and explained in detail that it contained cannabissativa. 19 Regarding the case of Hussein Salumu Kanunqa, which Mr. Ahyadu referred to, as Ms. Florence correctly submitted, this case differs from the present one. In Kanunga's case, what was tendered was merely a bag, and none of the witnesses explained what was inside it. They all referred to the bag without stating its contents, and, worse still, the record was silent on whether the contents were ever made known to the court. In contrast, in the present case, as shown in the above excerpt, not only was the container tendered, but the cannabis sativa itself was also tendered, with all the witnesses being able to identify it. The court was even moved outside to physically inspect the bhangi. Thus, I find this complaint to be without merit. To address the second complaint raised by the appellant's counsel regarding the legality of the search, which had three key aspects, Mr. Ahyadu argued that section 38(3) of the CPA was not adhered to. Firstly, he pointed out that the evidence on record suggests the search was conducted without the presence of a relative or occupier, which is contrary to the legal requirements. Secondly, he contended that the search was not an emergency, and thus, a police officer should have had a search warrant or an order. Thirdly, 20 he argued that the involvement of eight police officers during the search was unlawful and created the potential for fabricating evidence. He further emphasized that even if one assumes the search was an emergency, the presence of a relative or occupier was still necessary. As I highlighted earlier, Ms. Florence, in addressing these complaints, stated that the search conducted was an emergency. She stressed that PW2 and PW4 provided explanations regarding the circumstances that led to this search. I agree with Mr. Ahyadu's position regarding searches, that as a general rule, any search must comply with section 38(3) of the CPA. However, while this is the general rule, there are exceptions, as explained by Ms. Florence. She argued that certain circumstances necessitate a search that does not follow section 38(3) but instead falls under section 42(l)(iii) of the CPA, which governs emergency searches. The core dispute here revolves around the appellant's counsel asserting that the search should have been conducted in accordance with section 38, while Ms. Florence argued that the specific circumstances made 21 the search unavoidable under section 42. Let me pause here briefly to review what section 42(l)(iii) states. The section provides as follows; 'The search or entry is made under circumstances of such seriousness and urgency as to require andjustify immediate search or entry without the authority of an order of a court or of a warrant issued under this Part.' The Court of Appeal, in the case of Maluqus Chiboni © Silvester Chiboni and Another v. R (Criminal Appeal No. 8 of 2011) [2011] TZCA 174(1 April 2011), held that; 'We are aware of the law governing search warrant and seizure (Part IIA (d) of the Criminal Procedure Act, Cap 20 R.E. 2002, particularly section 38 to 42). Section 38 and 40 require, generally, that a warrant be issued to a police officer or other person 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.' See also: Mirzai Pirbakhshi © Haji © Ally Mizrai & Others v. Republic (Criminal Appeal No. 490 of 2022) [2024] TZCA 454 (13 June 2024), DPP v. Doreen John Mlemba (supra), and Marceline Koivoqui v. R (Criminal Appeal No. 469 of 2017) [2020] TZCA 252 (26 May 2020). 22 From the authority above, returning to the case at hand, I hesitate to agree with the appellant's counsel's argument that section 38(3) of the CPA applies in this situation. This is because PW2 and PW4 provided detailed testimony, stating that while they were on patrol, they received information regarding the appellant's involvement in the possession of cannabis sativa. Upon receiving this information, they immediately proceeded to the appellant's home, accompanied by PW5. This clearly indicates they had no prior knowledge before the search. Therefore, based on this evidence, I concur with the state attorney that the search conducted was indeed an emergency search. The appellant's complaint that section 38 of the CPA was violated cannot stand, as the search did not follow section 38(3) but was instead conducted under emergency circumstances. Moreover, the cases cited by the appellant's counsel, including DPP v. Doreen John Mlemba and others, involved searches that were not classified as emergency searches. Hence, those cases fall under section 38 of the CPA and are irrelevant to the current case. Regarding the issue of the number of police officers involved in the search and the claim that they could have fabricated the case, I consider this 23 argument an afterthought. This is because, as shown earlier, the appellant's defence did not raise any allegations of fabrication during their testimony. Instead, under oath, the appellant provided a detailed account of the events that transpired at his home, which aligned with the testimony of PW2 and PW4. Furthermore, the certificate of seizure was signed by PW2, the appellant, PW5, and Issa Ismail Nguliche, confirming the legitimacy of the process. In summary, the appellant's claim that the search was illegal due to the absence of a relative, the lack of a search warrant, and the involvement of unauthorized officers is without merit. The search was lawful, and the Exhibit obtained, including the cannabis sativa, was properly admitted in court. Therefore, this complaint is dismissed. Lastly, the complaint that Issa Ismail Nguliche was a material witness who could have provided crucial testimony was countered by Ms. Florence. The appellant's counsel argued that Issa Ismail Nduliche was in a better position to inform the court of what was actually found in the appellant's house, as opposed to PW5, who did not fully engage in the search. 24 It is a well-established principle that no specific number of witnesses is required to prove a particular fact, as provided under section 143 of the Evidence Act Cap 6 RE 2022. This legal position has been well articulated in numerous cases, including Yohanis Msiqwa v. R [1990] TLR 148 and William Kasanqa v. R (Criminal Appeal No. 90 of 2017) [2020] TZCA 279 (28 May 2020). In this case, PW5 testified that Exhibits P3, P4, P5, and P6 were retrieved from the right-side room, which was used as a store and which he entered, corroborating the testimonies of PW2 and PW4. During cross­ examination, PW5 confirmed that he did not enter the left-side room. As far as the contraband was found in the right-side room, the testimony of PW5 is sufficient to confirm what was discovered. The fact that he did not enter the left-side room does not negate the validity of the recovery of the contraband in the right-side room, as established by PW5's testimony. Aside from PW5's testimony and the absence of Issa Ismail Nguliche, who in my view would not have provided anything different from what PW5 described, there remains the appellant's own defence. By his own account, he stated; 25 'The police officers entered my house, went to a room I use as a store, and began searching. They found bhangi (cannabis sativa) kept inside 8 buckets and more bhangi inside a small cement bag... It is true that the police found bhangi in my house.' What else would Issa Ismail Nguliche have contributed beyond what was already stated by the prosecution witnesses and the appellant's defence? Considering this, I find that this complaint lacks substance and thus dismiss it. Based on the above discussion regarding the complaints raised by the appellant and how they were argued by his counsel, I find that none of the complaints have merit. On the contrary, I concur with the State Attorney that the prosecution successfully proved the charge against the appellant beyond a reasonable doubt. Consequently, I find that the appeal lacks merit and hereby dismiss it in its entirety. It is so ordered. 26 learned state attorney for the Republic and Mr. Ahyadu Nanyohe learned advocate for the appellant and the appellant. 27