Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 24600 OF 2024 (Originating from the decision of the District Court of Newaia at Newaia in Criminal Case No. 51 of2023) SWALEHE SALUMU CHIBWANA............................ APPELLANT VERSUS THE REPUBLIC.................................................. RESPONDENT JUDGMENT ffh October & 5h November, 2024 MPAZE, J.: The appellant, Swalehe Salumu Chibwana, was arraigned before the District Court of Newaia at Newaia, charged with the offence of unlawful possession of traditional liquor, contrary to section 30 of the Traditional Liquor (Control of Distillatioh) Act [Cap 384 R.E. 2002]. The particulars of the offence alleged that on the 7th day of July, 2023 about night hours, at Tupendane Street within the Newaia Town Council in Mtwara Region, the appellant was found in possession of five liters of a prohibited liquor known as 'gongo. 'He pleaded not guilty to the charge. i To prove its case, the prosecution presented two witnesses; PF 21815 A/INS Derick Jovita Lekayo (PW1) and Seleman Hakika Musa (PW2). Their testimonies were supported by the admission of two exhibits; five liters of traditional liquor known as 'gongo', which was admitted as Exhibit Pl during the narration of the facts, and the Certificate of Seizure, which was admitted as Exhibit P2 during the full trial. Both Exhibits were admitted without any objection. The facts of the case are straightforward. There is no dispute that on the night of 7th July, 2023 the police arrived at the appellant's residence. Their visit was prompted by information received from an informant, who indicated that the appellant was engaged in the sale of prohibited traditional liquor, commonly referred to as 'gongo, 'from his home. Upon receiving the information, the police proceeded to the appellant's residence. Upon arrival, they informed him of the purpose of their visit and commenced a search inside the house, but found no illicit items. Consequently, they opted to inspect the surrounding areas outside the residence. 2 According to PW1, before searching the outside area, they asked the appellant to show the boundaries of his premises, which he did. The officers then commenced the search and discovered a hole covered with garbage behind the kitchen, at the end of a path leading to the farm. There was a distinct smell of 'pombe ya moshi'('gongo). The garbage covering the hole was removed, and a five-liter gallon of 'pombe ya /77os/7/'('gongo') (Exhibit Pl) was recovered. While the prosecution claims that, following the discovery of the gallons, the appellant admitted ownership, the appellant, in his defence, denied any ownership. He contended that, although the gallons were found at the location, they did not belong to him and were not discovered within his premises. Instead, he asserted that they were retrieved at the boundary of his neighbour premises. Following a full trial, the trial court found the appellant guilty as charged. Consequently, he was convicted and sentenced to three years imprisonment. Dissatisfied with both the conviction and sentence, the appellant filed this appeal on the following grounds; 3 1. That, the prosecution side did not prove its case beyond reasonable doubt. 2. That, the trial court having failed properly to examine, evaluate and analyze evidence on record. 3. That, the trial court erred in law and fact by convicting and sentencing the appellant as it did base on unreliable evidence. 4. That, the manner in which the proceedings at the trial court were conducted was irregular or/ and improper. 5. That, the chain of custody (Exhibit Pl) of the seized traditional liquor was not completely maintained and there is no explanation fromPWl on the movement of the exhibit. 6. That, the Certificate of Seizure (Exhibit P2) which indicating the appellant to be in unlawful possession of the traditional liquor was wrongly maintained and admitted. 7. That, the Exhibit Pl was not properly identified. 8. That, the search and seizure was done in contravention of mandatory provision of section 38 of the Criminal Procedure Act Cap 20 RE2022. 9. That, the charge was defective as it did not disclose the ingredient of the offence. At the hearing of this appeal, the appellant appeared unrepresented, while Ms. Florence Mbamba the Learned State Attorney represented the respondent/Republic. 4 When invited to present his arguments in support of his grounds of appeal, the appellant opted to abandon the 4th ground of appeal. He requested that his remaining grounds be adopted as part of his submission and allowed the State Attorney to present her arguments first, reserving his right to rejoin if necessary. In response, Ms. Florence, at the outset, declared her position of not supporting the appeal. In her submission, she addressed the 1st and 3rd grounds of appeal jointly, which concerned the prosecution's failure to prove the case beyond a reasonable doubt. Additionally, she argued the 5th and 7th grounds together, emphasizing issues related to the chain of custody. The remaining grounds were addressed separately. Addressing the 1st and 3rd grounds of appeal concerning the prosecution's alleged failure to prove the case beyond a reasonable doubt, Ms. Florence opposed this contention, asserting that it is baseless. To substantiate her argument, she cited section 5 of the Penal Code [Cap 6 R.E. 2022], which defines possession as being found with the item in question or having knowledge of its existence. She further referred the case of Moses Charles Deo v. R [1987] TLR, which clarified that possession can be either 5 actual or constructive, with knowledge and control being essential elements in establishing possession. Ms. Florence pointed to pages 24 to 26 of the trial proceedings, where PW1 detailed the appellant's arrest with Exhibit Pl in the presence of PW2, who was an independent witness. She highlighted that PW1 had questioned the appellant about the ownership of the gallons, to which the appellant admitted that they were his. She emphasized that the testimonies of these two witnesses sufficiently established that the appellant had both knowledge of and control over the 'gongo.' She further argued that the appellant's act of signing the Certificate of Seizure reinforced the fact that the 'gongo'was found in his possession, as indicated on page 25 of the proceedings. She emphasized that when PW1 sought to tender the Certificate of Seizure, the appellant was explicitly asked if he had any objections to its admission, and he raised none. Accordingly, she prayed for the dismissal of the 1st and 3rd grounds of appeal. Before addressing the remaining grounds, I opted to pause and critically assess whether the prosecution had met the standard of proving the case beyond a reasonable doubt. 6 This assessment necessitated a thorough examination of the charge sheet under which the appellant was charged, in conjunction with the evidence provided, to determine if the prosecution had successfully discharged its burden of proof. The charge sheet under which the appellant was charged stated the following; 'CHARGE STA TEMENT OF THE OFFENCE Unlawfully possession of Traditional Liquor contrary to section 30 of the Traditional Liquor (Control of Distillation) Act [Cap 384 R.E 2002]. PARTICULARS OF THE OFFENCE Swalehe S/O Saium Chibwana charged on 7th day of July, 2023 about night hours at Tupendane Street within Newala Town Council in Mtwara region was found in unlawful possession of 5 liters of a prohibited liquor known as 'Gongo.' When these particulars of the offence were read to the appellant, he denied them. However, the records indicate that on 9th August, 2023 when the matter came up for the preliminary hearing, the preliminary hearing 7 commenced immediately. The relevant part of the record for that day reads as follows; 'Date: 09/08/2023 Coram: A. M. Bushiri Pros: Mr. Credo G. Rujaju SSA & Clement Masua SA S/A: For the prosecution, and we are ready for hearing Accused Person: I am ready to... PRELIMINARY HEARING OF FACTS Court: Section 192 (2) of the CPA Cap 20 R.E2022 C/W FACTS The accused person particulars as follow: Namely Salumu Chibwana, Muslim, 47yrs old, peasant, Resident of Tupendande, within Newaia, Mtwara Region... That's all MEMORANDUM OF FACT NOT IN DISPUTE/AGREED FACTS That accused person admitted all facts narrated by public prosecutor. Accused Signature S/A Signature 8 Sgn 9/8/2023 Order: Public Prosecutor remind accused person its Charge. Court: The charge is read over to the accused person and well explained to him on language understood by him and asked to plea thereto Accused Person's Plea Ni kweli waHnikuta na pombe ya aina ya Gongo Uta 5 kwenye eneo langu (it is true) Accused signature Court: EPG to the charge Sgn 9/8/2023 S/A: After the accused person plead guilty to the charge, we pray to produce the brief facts of the case which constituting ingredients of the offence Court: Prayer Granted. BRIEF FACTS OF THE CASE That the particulars of the accused is swalehe sa/umu Chibwana, 47 years old, Makonde by tribe, muslim, peasant and resident of Tupendane street within Newala town council ZMtwara Region. 9 That on 7th day ofJuly, 2023 during the night hours, police officers conducted search in accused person home accompany by independent witness one se/emani Hakika Mussa and found into unlawfully possession of5 liters of tradiona! liquor commonly known as "Gongo' That we pray to tender 5 liters of Said Traditional liquor to form exhibit in this case Accused person: No objection Court: 5 liters of Traditional liquor admitted and marked PEI That accused person arrested and sent to Newala Police Station for further criminal Investigation That's all Sgn 9/8/2023 Court: The brief facts of the case is read over and well explained to the accused and reply as follows; Accused Person Reply The Facts narrated by Public Prosecutor is not Correct Court: Since the accused person denied the brief facts of case to be not correct and true, hence court change the plea of accused person to a plea of not guilty. Accused Signature io S/A signature Sgn 9/8/2023 I have decided to present this in detail to clarify what transpired in the trial court records. After the appellant denied the facts as untrue, his plea was changed from guilty to not guilty, following which the case was scheduled for a full trial. When examining the particulars of the offence with which the appellant was charged, the prosecution had the duty to prove that the appellant was found in unlawful possession of five liters of the prohibited liquor known as 'gongo'. During the full trial, after the appellant denied the facts of the case, the five litres of 'gongo'were never tendered as an Exhibit. It seems that both the prosecution and the trial court assumed that the Exhibit had already been admitted during the narration of the facts, leading them to conclude that it was unnecessary to tender it again. 11 As the records indicate, that initially, the appellant appeared to plead guilty, and during the narration of the brief facts, the liquor was tendered as an exhibit without objection. However, upon the appellant's denial of the accuracy of the facts, the court appropriately entered a plea of not guilty. The appellant's denial of the accuracy of the facts resulted in a change of his plea to not guilty, which necessitated that the case proceed to a full trial. During this trial, it was incumbent upon the prosecution to establish all elements of the charge, including possession. It is important to note that when the appellant denied the facts as presented by the prosecutor, any prior admission, including the admission of the liquor as an Exhibit, became ineffective for the purpose of proving the charge. This denial effectively nullified the Exhibit's status as previously admitted. Consequently, it was the duty of the prosecution to tender the alleged liquor during the full trial to adequately establish the accused's possession. The prosecution's failure to tender the 5 litres of 'gongo'during the full trial left a critical gap in proving possession. The exhibit's prior admission without objection could not carry over into the full trial once the appellant 12 contested the facts. Thus, the trial court could not rely on the previously admitted Exhibit, which was no longer valid for evidentiary purposes after the appellant denied the facts. In accordance with established legal principles, the burden of proof rests with the prosecution to establish all elements of an offence. This burden includes the production of physical evidence, such as the liquor in the case at hand, to effectively demonstrate the appellant's possession. The initial admission of the Exhibit without objection does not absolve the prosecution of its obligation to tender it, particularly in light of the appellant's change of plea. Failure to do so undermines the prosecution's case, as the charge of possession remains unproven in the absence of the prohibited liquor. Based on the preceding discussion, I concur with the appellant's assertions that the prosecution failed to prove its case beyond a reasonable doubt, particularly considering that the liquor in question, namely the prohibited 'gongo', has never been tendered in court as an Exhibit to substantiate the claim of possession. 13 For this reason, I see no need to further address the remaining grounds of appeal, as this specific ground is sufficient to resolve the entire appeal. As a result, I hereby allow the appeal and order the immediate release of the appellant from custody unless he is lawfully detained on other charges. It is so ordered. Datectat Howard'on the 5th day of November, 2024. M. B. Mpaze .v I Judge Court: Judgment is delivered today in the presence of Mr. Edson Mwapili Learned State Attorney for the Republic and the appellant. M. B. Mpaze Judge 05/11/2024 14