CRIMINAL APPEAL NO 11264 OF 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA CRIMINAL APPEAL NO. 11264 OF 2024 (Originating from the decision of the District Court of Lindi at Lindi in Criminal Case No. 361 of2023) WADHIFA BAKARI KUNGULWE............................ APPELLANT

VERSUS THE REPUBLIC....................................................RESPONDENT

JUDGMENT 12? August & 18h September 2024 MPAZE, J.: In the District Court of Lindi at Lindi, the appellant, Wadhifa Bakari Kungulwe was arraigned and charged with two counts. In the first count, he was charged with Trafficking in Narcotic Drugs contrary to section 15A (1) and 2(c) of the Drugs Control and Enforcement Act (Cap 95 R. E 2019). It was alleged that on 10th day of August 2023 at Namkongo village within the District and Region of Lindi the appellant was found in possession of 67.70 kilograms of Cannabis Sativa commonly known as 'Bhangl. In the second count, the appellant was charged with unlawful possession of prohibited seeds contrary to section 11 (1) (b) of the Drugs i Control and Enforcement Act (Cap 95 R. E 2019). It was alleged that on 10th day of August, 2023 at Namkongo village within the District and Region of Lindi, the Appellant was found in unlawful possession of cannabis sativa seeds. When the charge was read over and explained to the appellant, he pleaded not guilty thus compelling the prosecution to parade a total number of eight witnesses namely; Eliutheri Andrew Hhary (PW1), A/INSP Dickson Dominic Kajagi (PW2), Hamisi Mohamed Mkova (PW3) WP 8755 D/CPL Ritha (PW4), G213 D/CPL Hezron (PW5), Delphina Everest Kimath (PW6), H. 9733 D/CPL Manifred (PW7) and E3805 D/SGT Sheni (PW8). The prosecution also tendered the following Exhibits; Submission Form DCEA

001 (Exhibit Pl), Laboratory Examination Report Form DCEA 009 (Exhibit P2), six sulphate bags containing cannabis, one of which included both cannabis and cannabis seeds (Exhibits P3, P4, P5, P6, P7, and P8), Certificate of Seizure Form DCEA 003 (Exhibit P9), Exhibit Register PF 16 (Exhibit P10), Extra-judicial Statement (Exhibit Pll), and a Sketch Map of the scene (Exhibit P12). 2 In his defence, the appellant provided testimony without calling any witnesses or submitting any exhibits to support his case. The facts giving rise to this appeal can be summarized as follows; On 10th August 2023 at night PW2 and a team of his fellow police officers including PW7 were in patrol at Namkongo village Mipingo ward. While, on patrol, PW2 received a call from an informant informing him that the appellant was involved with the prohibited business of selling and buying 'bhangf. Upon receiving that information, they quickly looked for the village chairman Hamisi Mohamed Mkova (PW3) who also sought a famous old man Issa Ismail Nguliche together led them to the appellant's house. Upon reaching the appellant's house, they knocked and the appellant came out, it was alleged that when he was told that the search needed to be conducted in his house due to the information received by the police officers, he admitted it was true he was involved in the illegal business of buying and selling '

bhangf. He then led them to the left side room where five big sulphate bags containing dry leaves suspected to be bhangi and one small sulphate bag 3 containing dried leaves suspected to be 'bhang! mixed with seeds suspected to be 'bhang! seeds were retrieved (Exhibit P3 to P8 respectively). The Certificate of Seizure (Exhibit P9) was filled and signed by PW2 and the appellant while PW3 and Issa Ismail Nguliche signed as witnesses. The sketch map of the scene (Exhibit 12) was also drawn by PW7. Thereafter, the appellant and Exhibit P3 to P8 were taken to Lindi Police Station. Upon arrival at the station, a case file with IR NO. LIN/IR/771/2023 was registered and placed on each sulphate bag containing dry leaves suspected to be 'bhang! and seeds suspected to be 'bhangi' seeds. PW2 handed over the appellant to the CRO in charge and Exhibits to the Exhibit Keeper (PW5) using a chain of custody. Upon receiving the Exhibits, PW5 stated that he registered them in the Exhibit register PF16 (Exhibit PIO) with Entry No. 14 of 2023 and stored them in the Exhibit room. On 30th August 2023, he handed over the Exhibits to PW4 to take to the Government Chemist for analysis using the chain of custody. PW4 testified that, she took the Exhibits along with the submission forms to the Government Chemist's office where she was received by PW1. 4 Upon receiving the Exhibits, PW1 weighed the leaves

mixed with seeds and got a total weight of 67.70 kilograms. After recording the weight, he took samples of dry leaves from each sulphate bag and seeds for laboratory analysis. He registered the samples with Laboratory Number SZ023-00123 and then returned the leaves and seeds to sulphate bags. He labelled each bag with a Lab Registration Number and sealed them with the GCLA label. He then handed the six sulphate bags to (PW4) on the same day and proceeded with his analysis using preliminary and confirmatory tests. He explained that both methods confirmed that the leaves in the six sulphate bags were indeed 'bhang/ and the seeds were 'bhang/ seeds. After analysis, he prepared an Analysis Report (Exhibit P2) and recorded his findings. After the sulphate bags were returned from the chemist to Lindi by PW4, they were handed over to PW5 using a chain of custody. PW5 registered the Exhibits in PF16 with entry number 16 of 2023 and stored them in the Exhibit room. He stored the Exhibit until 19th October 2023 when he handed it over to D/CPL Kibibi using chain of custody to be tendered at the trial court. 5 In his defence, the appellant denied being found in possession of the cannabis sativa and the seeds as charged. He denied his house to be searched and that's not enough the police officers did not know his house but rather they arrested him on the road on his way to his relative's

hut because he did not obey their orders to take them to the Mchinjidi area. Upon a full trial, the trial court was satisfied the appellant was guilty as charged. Consequently, he was convicted and sentenced to serve 30 years imprisonment for the 1st count and 30 years for the 2nd count. The sentence was ordered to run concurrently. Dissatisfied with the conviction and sentence, on 25th April, 2024 the appellant lodged his petition of appeal on the following grounds; 1. That the trial court erred in law and fact in convicting and sentencing the appellant as the appellant pleaded not guilty when the charge was read over to him.

2. That the trial court erred in law and fact in convicting and sentencing the appellant in failing to realize that there was huge contradiction within the prosecution evidence in respect of various aspect. 6 3. That the trial magistrate erred in law and fact by relying on the seizure certificate which resulted from search that was conducted in the violation of the law.

4. That the trial magistrate erred in law and fact in convicting the appellant without considering that the search was not lawful for its being conducted without a search warrant and also conducted illegally at night without permission.

5. That the trial magistrate erred in law and fact in convicting without considering that PW2 and PW7 had no legal authority to conduct the search which was not under emergency.

6. That the trial magistrate erred in law and fact in convicting appellant without considering that search and seizure were irregular because the appellant were not issued receipt acknowledging to the search.

7. That the trial magistrate ought not to relied on the seizure certificate that did not indicate that search was at the appellant's house.

8. That the trial court erred in law and fact in convicting and sentencing the appellant without considering that the case was planted to the appellant. 7 9. That the trial court erred in law and fact in convicting and sentencing the appellant by failing to appraise objectively credibility of the prosecution evidence.

10. That the trial court erred ii law and fact in convicting and sentencing the appellant by failing to evaluate properly the evidence brought before the court as result arrived at a wrong conclusion.

11. That the trial magistrate erred in law and fact to convict and sentence the appellant without taking into account that the prosecution evidence was unjustified and uncorroborated.

12. That the trial court erred in law and fact to con vict and sentence the appellant while the prosecution side failed completely to prove the charge beyond a reasonable doubt.

13. That the trial court erred in law and fact to con vict and sentence the appellant basing on the weakness of the defence rather than the strength of prosecution evidence of accepting everything put on him without cautioning itself whether the appellant when cross examined understood the nature of questions put on him. Later on, 25th June, 2024 The appellant filed additional grounds of appeal, consisting of the following grounds; 8 1. That the trial magistrate erred in both law and fact by convicting and sentencing the appellant for incurable admitted the evidence adduced by PW1 while he did not neither oath or affirmed as required under section 198 (1) of the CPA.

2. That the trial magistrate erred in both law and fact by convicting and sentencing the appellant while the prosecution witnesses were contradicted and in corroborated.

3. That the trial magistrate erred in both law and fact by convicting and sentencing the appellant while there is variance between the charge and prosecution evidence.

4. That the trial magistrate erred in both law and fact by convicting and sentencing the appellant based on Exhibit P3, P4, P5f P6, P7 and P8 while the chain of custody was not established.

5. That the trial magistrate erred in both law and fact by convicting and sentencing the appellant while the prosecution failed to observe requirement of section 38(3) of the CPA.

6. That the trial magistrate erred in both law and fact by convicting and sentencing the appellant without legal search as per section 38(1) of the CPA. 9 At the hearing of this appeal, the appellant was unrepresented while Ms. Florence Mbamba appeared for the Republic/ respondent. When invited to submit in support of his grounds of appeal, the appellant prayed his grounds of appeal to be adopted and form part of his submission. He let the State Attorney submit first while reserving his right to rejoin if necessary. In response, Ms. Florence argued the 1st, 8th, 9th, 10th, 12th, and 13th initial grounds of appeal conjoined with the 3rd and 4th additional grounds, concerning the failure to prove the case beyond a reasonable doubt. Then, the 3rd, 4th, 5th, 6th, and 7th initial grounds of appeal conjoined with the 5th and 6th additional grounds, related to the search. Then, the 2nd and 11th of the initial grounds conjoined with the 2nd additional ground, addressed contradictions. Lastly, the 1st and 4th additional grounds were argued separately. Starting with the first group, regarding the prosecution's failure to prove the case beyond a reasonable doubt, she opposed this argument, stating that the prosecution successfully demonstrated that the appellant was found in possession of cannabis sativa with its seed. io To support her position, she cited Section 5 of the Penal Code [Cap

6 R.E 2022], which defines 'possessiori as being found with the item in question or having knowledge of its existence. She also referred the case of Moses Charles Deo v. R, [1987] TLR 134, which clarified that possession can be either actual or constructive, with knowledge and control being key elements in proving possession. Ms. Florence referred to pages 26 to 34 of the trial proceedings, where PW2 described the appellant's arrest with cannabis sativa and its seeds. She stated that the records show PW2, accompanied by an independent witness, testified that the appellant admitted to drug trafficking and led them to the room where the drugs were stored. This testimony was corroborated by PW3, who witnessed the search and signed the certificate of seizure. Ms. Florence added that PW2 was not cross-examined on this issue, highlighting that the appellant's failure to question PW2 implied agreement with his testimony. Ms. Florence further contended that during cross-examination, the appellant admitted that a search had indeed taken place, confirming that the search was conducted in the presence of an independent witness (PW3). li According to Ms. Florence, signing the certificate of seizure confirmed that the drugs were found in the appellant's house, as detailed on page 31 of the trial court proceedings. She noted that although the appellant objected to not receiving a receipt, he

did not dispute signing the certificate. Additionally, she pointed out that during PW2's cross-examination, the appellant did not question whether the search had taken place at his home on that day. To support her position, she cited the case of Papaa Olesikaladai @ Lendemu & Another v. R (Criminal Appeal No. 47 of 2020) [2023] TZCA 51 (20 February 2023), where the Court held that signing the certificate of seizure confirmed the items listed were indeed found in the accused's possession. Ms. Florence pointed to PWl's testimony, recorded from pages 7 to 22 of the trial court proceedings, which established that the items brought to court were cannabis sativa and prohibited cannabis sativa seeds. To further affirm that the prosecution proved the charge beyond a reasonable doubt, she argued that there was no break in the chain of custody. She referenced PW2's testimony, which showed that after seizing 12 the six bags of cannabis sativa, he prepared the certificate of seizure and handed the exhibit to PW5, the exhibit keeper. She urged the court to refer to pages 26 to 34 of the proceedings. Ms. Florence referred to PW5's testimony on pages 46 to 50, which confirmed that on 10th August, 2023 he received the Exhibit from PW2, with the handover documented through the chain of custody form and exhibit register. He further testified that on 30th August, 2023 he transferred the exhibit

to PW4 for delivery to the chemist, also documented. The same day, PW4 returned the exhibit to PW5, who then handed it to Kibibi a police officer on 19th October, 2023 for presentation in court. She added that the trial magistrate thoroughly evaluated the evidence, finding that the testimonies of all witnesses from PW1 to PW8 were consistent and credible, citing Goodluck Kyando v. R [2006] TLR 369. Ms. Florence argued that the appellant's claim of fabricated evidence is unfounded, as the witnesses' testimonies corroborated each other. Ms. Florence also opposed the appellant's claim that the trial magistrate shifted the burden of proof onto the appellant. Instead, she argued that the magistrate evaluated and analyzed the evidence from both 13 sides, concluding that the prosecution had discharged its burden of proof. The conviction was not based on the appellant's weak defence. She urged the court to refer to pages 37 and 47 of the judgment, where it is evident that the conviction was based on the strength of the prosecution's watertight evidence, not the appellant's defence. Ms. Florence argued that the claim of a variance between the charge and the evidence is unfounded. She pointed out that the court records show a request to amend the charge from 68 kilograms to 67.70 kilograms was made and granted. Also, the trial magistrate's judgment, as stated on the first page, confirmed

that the appellant was charged with possession of 67.70 kilograms of cannabis sativa, and all witnesses referred to this amount. Thus, she claimed this ground has no merit. Turning to the second ground in both the initial and additional grounds, where the appellant claims the prosecution's evidence was contradictory, Ms. Florence rejected this argument. She pointed out that PW2, PW3, and PW7, who witnessed the search, the appellant's arrest, and the sketch map of the scene, provided consistent testimony without any contradiction. She also noted that the evidence from PW2, PW3, PW4, and PW5 regarding the movement of Exhibits P3 to P8, which passed through 14 their hands, was uniform and clearly documented, without any discrepancies. Regarding the discrepancy in the search date mentioned by PW2 and PW3, PW2 stated 10th August, 2023 while PW3 said 10th March, 2023 Ms. Florence observed that handwritten records consistently show both PW2 and PW3 stated the date as 10th August, 2023. She argued that this complaint is unfounded and requested that it be dismissed. Regarding the 3rd, 4th, 5th, 6th, and 7th grounds of the initial appeal and grounds 5 and 6 of the additional appeal, which concern the search, Ms. Florence argued that searches in drug-related cases are governed by Section 48(2)(ii)(b) of the DCEA. She pointed out that PW2's testimony on pages 26 to 34 of the trial

proceedings detailed the proper procedures followed before and after the search. Referring to Islem Shebe Islem v. R (Criminal Appeal No. 187 of 2020) [2023] TZCA (18 September 2023), which outlines the proper conduct of a search, Ms. Florence asserted that all requirements were met; the appellant was informed of the reason for the search, the certificate of seizure was completed and signed after the search, and the appellant was arrested 15 and taken to the police immediately. Therefore, she maintained that the search was conducted properly and was valid. The appellant argued that no search warrant was used. Ms. Florence contended that PW2's evidence on page 26 shows the search was an emergency search, so a warrant was not needed. She also addressed the claim that PW2 and PW7 lacked authority, highlighting that Section 2 of the DCEA grants them such authority. Therefore, she deemed this complaint unfounded. Regarding the appellant's complaint that the trial magistrate erred by relying on the certificate of seizure, which did not indicate the search location was the appellant's home, Ms. Florence argued that the complaint is unfounded. She explained that the certificate of seizure is a prescribed form and was completed correctly, including the location, but it is not necessarily to specify the appellant's home. Therefore, she considered the complaint baseless. The appellant

claimed that the search did not comply with Section 38(3) of the CPA, asserting that he was not given an acknowledgment receipt. Ms. Florence argued that this complaint is similar to ground no. 6 16 and is unfounded. She explained that the search used form DCEA 003, as per Section 48(2) of the DCEA, which does not require the arresting officer to provide a receipt. Therefore, she maintained that the complaint lacks merit. Based on all the submissions provided regarding the search, Ms. Florence maintained that the entire procedure was conducted in full compliance with the law, with no violations. Therefore, she prayed that all complaints related to how the search was conducted be dismissed. In conclusion, Ms. Florence prayed this appeal be dismissed for lack of merit. In the short rejoinder, the appellant insisted that the evidence provided by PW2 and PW3 reveals inconsistencies. Specifically, he pointed out that during cross-examination, PW3 stated that the cannabis sativa was found in 'Majabaya Maji'xa^ox than in sulphate bags, as initially reported. He also highlighted a contradiction in the time of receiving the exhibit. PW2 claimed he handed it over at 08:00 hours, while PW5 stated it was received at 11:00 hours. 17 Additionally, the appellant questioned why the certificate of seizure did not specify the house where the search took place, given that the police were able to

draw a map. He further criticized the failure to call the witness who accompanied PW3, suggesting this omission raises doubts about the validity of the search. The appellant also noted that PW7 failed to explain the map he drew and argued that PW8 could not name the leaders who conducted the search, despite claiming their presence. In conclusion, the appellant requested that the court review the evidence, asserting that it is not credible and seek his release. Having considered the arguments of the parties and the trial court record in light of the grounds of appeal, I am now in a position to determine the merit of this appeal. Before dwelling on the main issue for determination, I wish to highlight that, in criminal trials, the prosecution bears the burden of proving the charge against the appellant, and the standard required is proof beyond a reasonable doubt, unless otherwise stipulated by law. This principle is clearly laid out in section 3(1) of the Evidence Act [Cap 6 R.E 2022] (the TEA). See 18 also the case of George Mwanyingi v. Republic Criminal Appeal No 335 of 2016 (Unreported). Section 28 of the DCEA constitutes an exception to the general rule, which places the burden of proof on the prosecution. Instead, this section requires the accused to demonstrate that any possession, dealing, trafficking, selling, cultivation, purchasing, use, or financing was

conducted under a valid license or permit granted by the DCEA. When this burden of proof shifts to the accused, the standard required is on a balance of probabilities, as established in the case of Hemed v Republic [19871 TLR 117. I am mindful of the legal principle that a first appeal is in the form of a re-hearing and as such, this being the first appellate court, it is duty bound to re-evaluate the entire evidence on record by reviewing it collectively and subjecting it to a critical scrutiny and if necessary arrive at its own conclusions of fact. Accordingly, I shall assess the merits of this appeal in accordance with the standard expected of a first appellate court. With these legal principles in place, I now proceed to address the appeal. Upon examining the appellant's grounds of appeal and carefully 19 considering the submissions made by both parties, I have distilled three key issues central to this appeal, namely; 1. Procedural irregularities related to the search and the certificate of seizure.

2. The prosecution's failure to prove the charges beyond a reasonable doubt.

3. The trial magistrate's improper evaluation of the evidence, leading to an erroneous conclusion. On the complaint concerning procedural irregularities, the appellant argued that the search and the certificate of seizure did not comply with the law. Specifically, he raised three issues; first, that the search was conducted without a warrant; second, that PW2 and PW7 lacked the authority to conduct the search at his home; and third, that he was not provided with a receipt acknowledging the search. In response to the complaint that the search was not properly conducted due to the absence of a search warrant and a receipt, as alleged by the appellant. Ms. Florence countered by highlighting that the procedure for searches in drug-related offences is regulated under section 48 of the 20 DCEA, and asserted that in this case, the proper procedures were adhered to as the search was deemed an emergency under section 42 of the Criminal Procedure Act [Cap 20 R.E 2022] (CPA). In the case of Shabani Kindamba v, R (Criminal Appeal No. 390 of 2019) [2021] TZCA 221 (2 June 2021) where a similar complaint was raised, the Court disagreed with the State Attorney's claim that section 48(2) governs searches in drug-related cases. The Court elucidated that; 'Reading some ofthe provisions ofthe DCEA leaves us in no doubt that it was not intended that that legislation would replace the CPA. Rather,

it is dear from provisions such as Section 32(4) and (5) that the DCEA is subject to the CPA.' The Court went further that; 'In our view, the relevant provisions in search and seizure are sections 38 (1) and (3) of the CPA and 32 (7) of DCEA. Sub section (1) of section 38 of the CPA provides that a search warrant has to be issued where it is not an emergency, and sub section (3) of section 38 of the CPA provides that after the seizure a receipt must be issued' According to this case, it clearly stipulates that a search warrant is required unless the search is emergent. Section 42(1) of the CPA allows a 21 police officer, under circumstances of seriousness and urgency, to enter any premises without a warrant to search and seize anything connected to an offence. For clarity, the provision articulates that; '(1) A police officer may­ a) search a person suspected by him to be carrying anything concerned with an offence; or (b ) enter upon any land, or into any premises, vessel or vehicle, on or in which he believes on reasonable grounds that anything connected with an offence is situated, and may seize any such thing that he finds in the course of that search, or upon the land or in the premises, vessel or vehicle as the case may be- (i) if the police officer believes on reasonable grounds that it is necessary to do so in order to prevent the loss or destruction of anything

connected with an offence; and (ii) the search or entry is made under circumstances ofsuch 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' (Emphasis supplied). On numerous occasions, the Court of Appeal has addressed complaints about searches conducted without a warrant by examining the circumstances that led to the search. The Court determines whether the search qualifies as an emergency search based on whether the evidence 22 shows that prior information was unavailable and that it was impossible to secure a search warrant in accordance with section 38(1) of the CPA. For instance, see the cases of Marceline Koivoqui v. Republic Criminal Appeal No. 469 of 2017 [2020] TZCA 252 (26 May 2020) and Mirzai Pirbakhshi © Haji © Ally Mizrai & Others v. Republic (Criminal Appeal No. 490 of 2022) [2024] TZCA 454 (13 June 2024). The crucial question to consider is whether the search conducted in the case at hand qualifies as an emergency search. PW2 and PW7 testified that during their patrol, they received information indicating the appellant was involved in trafficking narcotic drugs. Immediately upon receiving this information, they sought out the VEO (PW3) and accompanied him to the appellant's residence. These circumstances clearly demonstrate that the police did not have

the time to prepare for a formal search, thus making an emergency search unavoidable under this circumstance. Upon determining that the search conducted was an emergency search, the complaints that the search was illegal due to the absence of a search warrant, the failure to issue an acknowledgment receipt, or the claim that the police officer who conducted the search lacked authority, are all without merit and are therefore dismissed. 23 In addition to concerns about the search procedure, the appellant also objected to the certificate of seizure, arguing that it was incomplete because it did not specify that Exhibits P3 to P8 were found at his residence. I have examined the certificate of seizure, Exhibit (P9). It is true that the certificate does not specify that the search was conducted at the appellant's residence; it only states "Namkongo Village? in the section for location. However, Page 2 of the form shows that the name of the person searched, Wadhifa Bakari Kungulwe (the appellant), is recorded along with his signature. This confirms that, although the certificate does not explicitly state that the search occurred at the appellant's home, the items listed were not found on someone else but on the appellant, as indicated on Page 2. Therefore, the lack of a precise address does not invalidate the certificate's assertion that Exhibits P3 to P8 were in the appellant's

possession. Additionally, when the certificate of seizure was requested to be tendered in court as an exhibit, the appellant's objection was solely that he did not receive an acknowledgment receipt and neither did he dispute his signature nor inform the court that the certificate itself does not indicate that Exhibit P3 and P8 was found at his home. Therefore, I consider this complaint as an afterthought. 24 It is trite law that, the act of signing the certificate of seizure, the appellant acknowledges to be found with cannabis sativa. See the case of Song Lei v. The Director of Public Prosecution and others (Consolidated Criminal Appeal No. 16 of 2016) [2019] TZCA 265 (30 August 2019) and Papaa Olesikaladai @ Lendemu & Another v. R (supra) Aside from procedural irregularities, I now address the appellant's claim that the prosecution failed to prove the case beyond a reasonable doubt. The appellant argued that the prosecution's case was not proved beyond a reasonable doubt on several grounds, that the chain of custody was not established, there were inconsistencies in the evidence, the witness who accompanied PW3 was not called, PW8 failed to name the accompanying leaders, and PW7 did not describe the sketch map of the scene. The State Attorney denied these claims, asserting that the case was proven beyond a reasonable doubt. Beginning with the claim that the chain of custody

was not established, determining whether the chain of custody was proven requires examining the entire process of the Exhibit's movement from seizure to its presentation in court, including how it was handled and transferred between one person 25 to another. The Court of Appeal has consistently emphasized the importance of maintaining a clear chain of custody. For instance, in Allan Duller v. Republic (Criminal Appeal No. 367 of 2019) [2021] TZCA 689 (23 November 2021), the Court stated; 'We consider it well established in law that the movement of exhibits from the time of their seizure, through investigation, and production in court must be managed in a way that eliminates concerns about tampering.' In this appeal, prosecution witnesses PW1, PW2, PW4, and PW5 provided detailed accounts of the chain of custody. PW2 testified that after seizing the Exhibits, he transported them to Lindi Police Station, where they were registered under IR No. LIN/IR/771/2023, with labels on each sulphate bag. He then handed the Exhibits to PW5, the Exhibit Keeper, who recorded them in Exhibit Register PF176 with entry number 14 of 2023. PW5 retained the Exhibits until 30th August 30, 2023, when he transferred them to PW4 for delivery to the Government Chemist. PW1 confirmed receiving the Exhibits from PW4. After completing the analysis, PW4 returned the Exhibits to PW5, labeling them with the

GCLA seal and assigning Lab No. SZ023-00128. PW5 then assigned a new 26 number, 16 of 2023, and stored the exhibits in the Exhibit room. On 19th October, 2023, PW5 handed the Exhibits to D/CPL Kibibi for presentation in court, and the same day, PW1 submitted the exhibit to the court. Exhibit PIO details the handling of the exhibits at the police station until they were tendered in court. Based on the witnesses' testimonies and Exhibit PIO, both the oral evidence and the paper trail confirm that the chain of custody was properly maintained, with no evidence of any break in the chain. Therefore, I find this complaint to be baseless. In addressing the alleged inconsistencies in the evidence, the appellant focused on the testimonies of PW2, PW3, and PW5. He said PW2 testified that Exhibits P3 to P8 were found in a sulphate bag, while PW3, during cross­ examination, stated that the drugs were found in "Majaba ya Maji" Examining PW3's testimony in cross examination, it is evident that he stated some of the drugs were found in sulfate bags and others in "Majaba ya Maji." This response does not convince me that there is a fundamental inconsistency affecting the core of the case. The essential issue is the discovery of the narcotic drugs, and all witnesses consistently testified to 27 finding these drugs. The fact that some were found in "Majaba ya MajT does not undermine the overall

finding concerning Exhibits P3 to P8. Concerning the discrepancy between PW2 and PW3, the issue centers on the timing of the handover of Exhibit P3. PW2 stated during cross­ examination that he handed over the exhibit to PW5 at 11:00 hours, while PW5 claimed to have received it at 08:00 hours. However, upon re­ examination, PW5 acknowledged he could not recall the exact hour but confirmed it was around 08:00 hours. This discrepancy in the hour does not affect the core of the case, as it does not undermine the fact that PW2 and PW5 transferred the exhibit to PW5 for safekeeping. Therefore, I consider this inconsistency minor and not central to the case. Another issue raised was the failure to call Issa Ismail Nguliche, who was said to have accompanied the police after being sought by the VEO, a local resident. Issa Ismail Nguliche also signed the certificate of seizure. Despite this, his absence does not affect the credibility of the prosecution's case. It is pertinent to note that section 143 of the TEA states that no specific number of witnesses is required to prove a fact. Court decisions have 28 emphasized on the credence of the witness testimony unless there is cogent reason for not believing a witness. It was said in the case of Shaban Daudi v, R Criminal Appeal No. 28 of 2001 (Unreported) that; 'In that regard, every witness is entitled to credence and must be believed

and his testimony accepted unless there are good and cogent reasons for not believing a witness.' The reasons for not believing a witness, as highlighted in the case of Goodluck Kyando v. R [2006] TLR 363, include instances where the witness has given improbable or implausible evidence, or when the witness's testimony has been materially contradicted by another witness or witnesses. This principle was also stated in Mathias Bundala v. R, Criminal Appeal No. 62 of 2004 (Unreported). In light of this, this court finds that the failure to call Issa Ismail Nguliche does not weaken the prosecution's case beyond a reasonable doubt. As testified by PW2, PW3, and PW7, Issa Ismail Nguliche accompanied the police to the appellant's home and witnessed the search and seizure. Even if he had testified, it is uncertain what additional information he could have provided beyond what PW3, an independent witness, already confirmed. 29 Based on the evidence provided by PW2, PW3, and PW7,1 find no reason to doubt their credibility, as their testimonies are consistent and without any indication of unreliability. Therefore, I do not see how his absence could adversely impact the prosecution's case. Similarly, complaints that PW8 failed to name the accompanying leaders and PW7 did not read the sketch map are also unsubstantiated. The record shows that PW7 was able to read the sketch map after it was

admitted as Exhibit (12). As for PW8's failure to name the leaders, it does not detract from the overall evidence presented. In light of the above, I concur with the State Attorney that they have proven the charge against the appellant beyond any reasonable doubt. PW1 confirmed that Exhibits P3 to P8 are cannabis sativa and prohibited cannabis seeds. Additionally, PW2, PW3, and PW7 identified the appellant as the person found with Exhibits P3 to P8, and Exhibit P9, the certificate of seizure, corroborates this. Regarding the chain of custody, I previously established that it was properly maintained. Given this, there is no basis to fault the trial magistrate's decision, as the prosecution successfully proved their case 30 beyond a reasonable doubt. Consequently, I find this complaint to be unfounded and dismiss it. As for the complaint that the trial magistrate failed to evaluate the evidence, I have carefully examined the trial court's judgment and found that the magistrate thoroughly examined, evaluated, and analyzed the evidence presented by both sides. Ultimately, the magistrate concluded that the prosecution had proven its case beyond reasonable doubt after rejecting the appellant's defence. Consequently, this complaint lacks merit. Having said that, I find that the appeal lacks merit and therefore I dismiss it in its entirety. It is so ordered. Dated at Mtwara this 18th September 2024. 31 Court: Judgment delivered today in the presence of Ms. Florence Mbamba State Attorney and the appellant. Judge 18/9/2024 32