CRIMINAL APPEAL NO 248 OF 2022 WOLFGANG SLYVESTER LWAMTONGA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARI3A. 3.A.. MAIGE. J.A. And KHAMIS. 3.A.) CRIMINAL APPEAL NO. 248 OF 2022 WOLFGANG SYLVESTER LWAMTONGA...................................... APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania, Corruption and Economic Crimes Division at Dar es Salaam) (Luvanda, 3.) dated the 19th day of May, 2022 in Economic Case No. 7 of 2021 JUDGMENT OF THE COURT 22ndApril & 1st August, 2024 MWARIJA, J.A.: The appellant, Wolfgang Sylvester Lwamtonga was charged in the High Court of Tanzania, Corruption and Economic Crimes Division at Dar es Salaam with the offence of trafficking in narcotic drugs contrary to section 15 (1) (b) of the Drug Control and Enforcement Act, Chapter 95 of the Revised Laws and paragraph 23 of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, Chapter 200 of the Revised Laws. It was alleged that, on 22nd July 2018 at Julius Nyerere International Airport, within Ilala District in Dar es i Salaam Region, the appellant was found trafficking in narcotic drug known as heroin hydrochloride weighing 2.49 kilograms. When the information was read over to the appellant, he pleaded not guilt and as a result, the prosecution called a total of six witnesses to testify. For the defence, the appellant was the only witness who testified on his own behalf. Having considered the evidence adduced by the prosecution witnesses and the defence, the High Court (Luvanda, J.) was satisfied that, the case against the appellant had been proved beyond reasonable doubt. He was thus found guilty, convicted and sentenced to twenty-five years' imprisonment. Aggrieved by the conviction and sentence meted out on him, the appellant has preferred this appeal. The background facts of the case may be briefly stated as follows: on 22/7/2018, the appellant, who was holding passport No. AB912838 was intending to travel from Dar es Salaam to Antananarivo, Madagascar. He reported at Julius Nyerere International Airport, Terminal II and, as is procedure, went through a screening test before he could go to the departure lounge. He could not, however, go through because, the official of the Tanzania Airports Authority (TAA), Steven Mwaisela Kagosi (PW3) who was on duty operating the screening machine, suspected that a bag which allegedly belonged to the appellant had suspicious images on its two edges. The said official informed his fellow security officer, Said Adam Magohe (PW4) who, in turn conducted a physical check up of the suspected bag. He removed all the clothes from the bag and took it back to the x-ray machine but the suspicious images still appeared. At that stage, the matter was reported to the shift in-charge who directed that the police be informed. Consequently, PW4 went to report the incident to the police at their outpost (police outpost), not far from the Airport's departure area. Following that information, ASP Khalid Abdulah Muhumbila (PW2) who was by then of the rank of an Inspector went to the screening machine area and upon repetition of the screening process of the suspected bag and after confirming that it had suspicious images, took it together with the appellant to the police outpost. The screening of the bag was repeated in the presence of the appellant and the abovenamed TAA officials as well as Evance Liganga (PW5), Lutengano Mwakisalu and D/C Rapso Mosha. The screening gave the same result and so a thorough physical search was conducted. 3 When the bag was opened, it was found to have a small bag affixed in it. That small bag was inspected and nothing suspicious was found in it. As for the large bag however, it had an extra fabric lining sewed inside it with the intention of covering parts of the original fabric lining appearing to have been stitched after those parts of the bag were cut open. Some suspicious substance was found to have been inserted beneath the original fabric lining on two edges of the bag. The substance, which was in the form of powder contained in two packets wrapped with brown sellotape, was suspected to be illicit drug. The appellant was, as a result, arrested and sent to JNIA police station where between 07:16 and 09:01 hrs, he was interrogated and his cautioned statement taken by E370 D/Sgt. Jesias (PW6). According to PW6's evidence, after having informed the appellant of his rights among others, that he was at liberty to give his statement voluntarily and to require the presence of his advocate, relative or friend, the appellant volunteered to do so without the presence of any person. The witness averred that, the appellant confessed to the effect that, he was found with the bag which contained the suspicious substance. The suspected substance was sent to the Chief Government Chemist and upon examination, was found to be heroin hydrochloride. Shimo Peter Shimo (PW1) the official of the Chief Government Chemist who analyzed the substance testified that, after having received the substance from the police, on 23/7/2018 he assigned it a lab. number, that is No. 2070/2018. He told the trial court that, after having analyzed it, he confirmed that, it was heroin hydrochloride. Whereas the substance was tendered and admitted in evidence as exhibit PI, the report of his analysis was admitted in evidence as exhibit P2. As for PW3, he testified that, on the material date, while on duty, he scanned, among others, the appellant's bag. He noticed from the x- ray machine that, inside the bag were suspicious images. He informed his colleague, PW4 who, after the appellant had picked the bag, took it and conducted a physical check up in it in the presence of the appellant. On his part, PW4 testified that, he physically inspected the bag by removing all the clothes from it but could not find anything suspicious. He passed it again in the scanning machine and the suspicious images still appeared. He therefore sought the assistance of the shift incharge who in turn, informed PW2 who took the bag for further inspection at the police out post. It was PW4's evidence that he was one of the persons who witnessed the search, the outcome of which was the presence in it of exhibit PI as stated by PW2 in his evidence. The other person who witnessed the search was Evance Gang Liganga (PW5). According to him, on the material date while on duty at the office of the Tanzania Revenue Authority (TRA), Julius Nyerere International Airport, he was called by the police and requested to witness the search. He agreed and after the search and discovery of the substance suspected to be illicit drug (exhibit PI) he signed the seizure certificate (exhibit P4). As intimated above, the appellant denied the charge. Testifying as DW1, his evidence was to the following effect: on 27/7/2018, he intended to travel from Dar es Salaam to Madagascar on his business venture as a model. He had a black bag, air ticket and his passport. While in the queue at the Airport's scanning machine waiting to be inspected, one person, who was not known to him, approached and asked to go with him. They ended up at the police station where he found many people. He was led to one of the rooms where his bag was taken by one Lapson Mosha. The said person took out all the items which were in it and placed them on the floor. He then proceeded to 6 thoroughly search the bag but did not find anything suspicious. The appellant was thereafter taken to the scanning machine where his body was scanned but, again, was not found with any suspicious image. From there, he was taken to the police lockup where he stayed between 01:45 and 07:00 hrs. From the lockup, he was taken to another room with many people, all men. He went on to state that, while in that room, he was severely beaten and forced to sign a document, the contents of which were unknown to him. He was then returned back to the lockup and on 27/7/2018 his black bag was returned to him but did not contain all his belongings. It only had his prayer's clothes (Msuli) and prayer's mart (Mswala). He was finally taken to Kisutu Resident Magistrate's Court and charged as shown above. He tendered a black bag containing the stated clothes and a mart. The bag was admitted in evidence as exhibit D4. He challenged the prosecution evidence contending; first, that the chain of custody of the alleged narcotic drugs was not established, secondly, that the evidence of PW3 and PW4 on how the information regarding the incident was reported to the police, was contradictory. He contended that, the evidence of PW5 contradicted with that of other witnesses as regards the colour of the powdery substance found in the bag which allegedly belonged to him. He also challenged sufficiency of the evidence adduced against him on account of the prosecution's failure to tender the bag from which exhibit PI was allegedly found. In his judgment, the learned trial Judge found that, the evidence of PW3 and PW4, established that, the appellant was found with two bags in addition to the back pack which was returned to him after the same had been inspected and found to have nothing suspicious. He found also that, the omission by the prosecution to tender the bag which contained the suspicious substance did not affect the weight of the prosecution evidence. On the chain of custody of exhibit PI, the learned trial Judge found that, the same did not breakdown from seizure to the time when the same was tendered in court. Regarding different description of the colour of exhibit PI by PW2, PW3, PW4 and PW5, that it was white, milk, cream and brown, the learned trial Judge was of the view that, the contradiction was minor. On the complaint that the search was not witnessed by an independent witness, he found that, PW5 not being a police or Airport Security Officer, was an independent witness. As stated above, the appellant was dissatisfied by the decision of the High Court and thus preferred this appeal. In his memoranda of appeal, he has raised a total of eleven grounds of appeal, nine in his memorandum of appeal filed on 15/7/2022 and two grounds contained in his supplementary memorandum dated 19/4/2024. He also filed his written arguments in support of the appeal. For reasons which will be apparent herein, we do not find it necessary to reproduce all the grounds of appeal. At the hearing of the appeal, the appellant appeared in person, unrepresented while the respondent Republic was represented by Ms. Flora Massawe, learned Principal State Attorney assisted by Mr. Job Mrema, learned Senior Sate Attorney and Ms. Edith Mauya, learned State Attorney. In the 1st ground of his memorandum of appeal, the appellant contends as follows: "1. That■the trial High Court misdirected itself in taw by admitting in evidence exhibit PI (two packets o f narcotic drugs) and used the same to convict the appellant while it was neither mentioned nor listed as prosecution exhibit at the committal proceedings which is contrary to section 246 (2) o f the CPA Cap. [20] R.E. 2019". When he was called upon to submit in support of his appeal, the appellant who, as stated above, did not have the services of a counsel, did not have any oral submissions to make. He adopted his grounds of appeal which were argumentative. We ignored the defect, having considered that the appellant was an unrepresented layman. We took a similar approach in the case of Issa Said Kumbukeni v. Republic, Criminal Appeal No. 147 of 2002 (unreported). In that case, the Court observed that; "The memorandum o f appeal to this court was obviously drafted by a lay person, containing what appears to be arguments and puts it in the verge o f contravening rule 65 (2) o f the Court Rules, 1979 [now rule 72 (2) o f the Rules] which forbids inclusion o f arguments or narrative in a memorandum o f appeal. We have, however, taken a lenient view of that apparent transgression". With regard to that ground of appeal, his written arguments were that, the trial court wrongly admitted in evidence exhibit PI because the same was not listed during the committal proceedings as one of the exhibits which was intended to be tendered by the prosecution. It was 10 his contention therefore, that by admitting the said exhibit in evidence, the trial court breached the provisions of section 246 (2) of the Criminal Procedure Act, Chapter 20 of the Revised Laws (the CPA). He concluded by stating that, because his conviction was based on that exhibit, it should be found that it was erroneously arrived at. In reply, Ms. Massawe admitted that, exhibit PI was not listed during the committal proceedings as one of the exhibits which would be relied upon by the prosecution at the trial. She went on to argue however, that, although that was a mandatory requirement under section 246 (2) of the CPA, the omission did not render the exhibit invalid on account that, the same did not prejudice the appellant, the reason being that, the exhibit was mentioned during the preliminary hearing. The learned Principal State Attorney intimated to the Court that, she was alive to the Court's decisions in the cases of Remina Omary Abdul v. Republic (Criminal Appeal No. 189 of 2020) [2022] TZCA 118 and Islem Shebe Islem v. Republic (Criminal Appeal No. 187 of 2020) [2023] TZCA. In those cases, the Court held that, the omission to comply with section 246 (2) of the CPA renders the admitted exhibit ii invalid. She argued however, that these cases are distinguishable in that, in the case at hand, the appellant was not prejudiced. Section 246 (2) of the CPA on which the appellant has based his 1st ground of appeal states that: "246- (1)... (2) Upon appearance o f the accused person before it, the subordinate court shall read and explain or cause to be read to the accused person the information brought against him as well as the statements or documents containing the substance o f the evidence o f witnesses whom the Director o f Public Prosecutions intends to cai! at the trial". [Emphasis added]. The above provision is similar to rule 8 (2) of The Corruption and Economic Crimes (Division) Rules, GN. No. 267 of 2016 (the CECD Rules) which are applicable in respect to committal by a subordinate court, of an accused person charged with Economic and Organized Crime cases. That rule provides as follows: " 8 (1)... 12 (2) Upon appearance o f the accused person before itf the district or resident magistrate's court shaii read and explain or cause to be read and explained to the accused person or if need be, interpreted in the language understood by him; the information brought against him as weii as the statements or documents containing the substance o f the evidence o f witnesses whom the Director or Public Prosecutions intends to call at the trial". [Emphasis added]. Although the above cited provision speaks of explaining to the accused person the documents containing the substance of the evidence of the witnesses intended to be called by the prosecution, when interpreting the provisions of section 246 (2) of the CPA, the Court made it dear that, the requirement includes explaining to the accused person the substance of evidence of real exhibits. In the case of The Director of Public Prosecutions v. Sharif s/o Mohamed @ Athuman and 6 Others, Criminal Appeal No. 74 of 2016 (unreported), the Court observed that, there are four types of evidence; real, demonstrative, documentary and testimonial. In essence therefore, the admissibility of each type of the evidence in the cases covered by the procedure of 13 committing an accused person to the High Court by a subordinate court for trial, must be subject to the requirements stated under section 246 (2) of the CPA or ruie 8 (2) of the CECD Rules. Thus, in the case of Remina Omary Abdul v. Republic (Criminal Appeal No. 189 of 2020) [2024] TZCA 118 in which, like in this case, the substance in the form of flour (a physical exhibit), was neither brought to the knowledge of the accused person nor listed as one of the exhibits intended to be tendered at the trial, the Court had this to say on the prosecution's failure to meet that requirement: "...Courts not only read and list potential prosecution witnesses but also read/explain the contents o f documents and then list down documentary and physical exhibits the prosecution would rely on during committal and we endorse the view by Mr. Nkoko that it is a mandatory requirement" See also the cases of Said Shabani Malikita v. Republic (Criminal Appeal No. 523 of 2020) [2023] TZCA 17302 and Michael Maige v. Republic (Criminal Appeal No. 222 of 2020 [2023] TZCA 54. In fact, vide the Written Laws (Miscellaneous Amendments) Act No. 1 of 2020 which came into effect before the holding of committal 14 proceedings in this case, section 289 was amended by introducing sub­ section (4) which recognizes physical or real exhibit as the kind of evidence covered by the requirements of section 246 (2) of the CPA. It is common ground that, in the case at hand, exhibit PI; the two packets which contained the substance found to be narcotic drug, was neither explained to the appellant nor listed during the committal proceedings as an exhibit which the prosecution intended to tender in court. As shown above, the omission contravened the provisions of rule 8 (2) of the CECD Rules. The argument by Ms. Massawe was that, such a failure did not prejudice the appellant because the exhibit was listed during the preliminary hearing and therefore, the non-compliance was not fatal. With respect to the learned Principal State Attorney, we are unable to agree with her. The purpose of the requirement to comply with section 246 (2) of the CPA and for that matter, also rule 8 (2) of the CECD Rules, was stated in the case of Grace Teta Gbatu v. Republic (Criminal Appeal No. 84 of 20190 [2023] TZCA 17516. In that case, the Court observed as follows: 15 "...The purpose o f section 246 (2) o f the CPA... is to let the accused person know before hand the substance, kind and nature o f the evidence the prosecution intends to lead against him at the triai...". Similarly, in the case of Republic v. Raymond Adolf and 6 Others, Economic Case No. 1 of 2017 (unreported), commenting on rule 8 (2) of the CECD Rules, the High Court, Corruption and Economic Crimes Division, interpreted that provision in the following words, which we subscribe to: " When one carefully reads rule 8 (2) o f the Economic and Organized Crimes Control (The Corruption and Economic Crimes Division) (Procedure) Rules, 2016 GN. 267 o f 2016, the purpose o f reading the evidence to the accused in committal proceedings is to avail the accused [persons] with the substance o f the prosecution evidence against them and in effect enable them to device a defence against the accusations". Since it is mandatory for the prosecution to disclose, at the committal proceedings stage of the case, the evidence which it intends to rely on at the trial, it is obvious that failure to do so deprived the 16 appellant of the opportunity to know the nature of the case he was facing and therefore, it cannot be said that the non-compliance did not prejudice him. The fact that an exhibit was listed during the preliminary hearing would not amount to compliance with that requirement. Section 289 of the CPA prohibits admission of evidence of inter alia a, tangible object; in this case, exhibit PI, unless the substance of that evidence was explained to the accused person at the committal proceedings. The exhibit may be admitted upon compliance by the prosecution with section 289 (1) of the CPA by giving a notice to the accused person. Sub-sections (1) and (4) of that section provides as follows: "289 (1) A witness whose statement or substance o f evidence was not read at the committal proceedings shall not be called by the prosecution at the trial unless the prosecution has given a notice in writing to the accused person or his advocate o f the intention to call such witness. (2)... (3)... (4) For the purpose o f this section; substance o f evidence includes substance contained in a 17 document, record or any other tangible object'' [Emphasis added]. In the light of the above stated position, we do not find merit in the argument of the learned Principal State Attorney that, the omission by the prosecution, to explain to the appellant at the committal proceedings, the substance of exhibit PI and list it as one of the exhibits to be tendered at the trial was not a fatal irregularity. The irregularity rendered the tangible object inadmissible in terms of section 289 (1) of the CPA and the remedy is to expunge it from the record. There is a long list of authorities to that effect including the cases of Remina Omary Abdu v. Republic and Islem Shebe Islem v. Republic (supra). Other cases are Michael Maige v. Republic (supra) and Joachim Ikechukwu Ike v. Republic (Criminal Appeal No. 432 of 2019) [2024] TZCA 195, to mention but a few. In the circumstances, we allow the ground of appeal and hereby expunge exhibit PI from the record. Since exhibit PI was the subject matter of the charge, and thus the basis of the appellant's conviction, its expungement renders the remaining evidence insufficient to sustain the conviction. Because the 18 determination of the 1st ground of appeal in the manner shown above suffices to dispose of the appeal, the need for considering the other grounds of appeal does not arise. As a result, we allow the appeal, quash the appellant's conviction and set aside the sentence. He should be released from prison forthwith unless he is otherwise lawfully held. DATED at DAR ES SALAAM this 29th day of July, 2024. A.G. MWARIJ A JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 1st day of August, 2024 in the presence of the appellant appeared in person and Mr. Nasoro Katuga, learned Senior State Attorney for the respondent/Republic both appeared via virtual Court; is hereby certified as a true copy of the original. 19