Juma Said@ Dogo Janja vs Republic (Criminal Appeal 94 of 2021) [2022] TZHC 15473 (21 December 2022)

Key Facts

Issues

• Exhibits PE1, PE2, PE3, PE4, PE5, and PE6 were illegally obtained as prescribed by law, according to Ground 2.
• The trial magistrate erred in finding the prosecution proved the case beyond reasonable doubt, as per Ground 4.
• The search was conducted at night without a warrant or court permission, violating Section 40 of the Criminal Procedure Act.
• The statement of Adam Omari was tendered without proper notice, violating Section 34B of the Evidence Act.
• The prosecutor assumed the role of a witness, violating procedures under Section 34B of the Evidence Act.
• Contradictions in the evidence of multiple prosecution witnesses (PW1, PW2, PW3, PW4, PW5, PW6, PW7) were not adequately resolved by the trial court.
• The charge sheet was incurably defective for violating Sections 132 and 135(f) of the Criminal Procedure Act, as per the case Amiri Juma Shabani & Others Vs R.
• Testimonies of PW2 and PW3 were contradictory and not given under oath, as highlighted in Ground 6 and Ground 8.
• The trial magistrate's 30-year sentence did not require confirmation by the High Court Judge under the Drugs Control and Enforcement Act.
• The prosecution failed to establish a proper chain of custody for the exhibits, particularly PE1, with no evidence of special marks, sealing, or secure storage.

Holdings

• The court confirmed that the chain of custody for exhibit PE1 (bhangi) was maintained, with clear evidence of custody and transfer from seizure to court. Prosecution witnesses detailed the sequence of custody, and the appellant failed to demonstrate any discrepancies. The court noted the physical nature of the exhibit and the absence of tampering.
• The court ruled that the search conducted without a warrant was lawful under Section 41(1)(b)(i) and (iii) of the Criminal Procedure Act, as it was an emergency based on information received during a patrol. The court emphasized that the seriousness and urgency of the situation justified the immediate search, aligning with the precedent in Nyerere Nyague Vs Republic.
• The court found no procedural irregularities in the charge sheet, as it provided sufficient details about the date, location, and nature of the offense, including the date of the incident (09/12/2019), the location (Mathias area, Kibaha District), and the subject matter (20 ketes and leaves of bhangi weighing 121.1 grams). The court held that the charge sheet met the legal requirements under Sections 132 and 135(f) of the Criminal Procedure Act.
• The court upheld the 30-year sentence, ruling it did not require confirmation by the High Court Judge. Section 2 of the Drugs Control and Enforcement Act grants subordinate courts exclusive jurisdiction over charges under Section 15A, including sentencing, and the trial magistrate had authority to impose the sentence.
• The court held that exhibits PE1, PE2, PE3, PE4, and PE5 were tendered and admitted according to legal procedures. The appellant did not object to their admission, and they were read out in court after being tendered. The court found no procedural violations in their handling.
• The court determined that contradictions and inconsistencies among prosecution witnesses (e.g., PW1, PW2, PW3, PW5) were minor and did not prejudice the appellant's case. Citing Dickson Elia NsambaShapwata Vs R, the court held that such discrepancies do not corrode the prosecution's case when the conviction is otherwise justified.

Remedies

• The appeal was dismissed and the conviction and sentence of the trial court were upheld.
• The High Court upheld the trial court's conviction and 30-year imprisonment sentence for trafficking in narcotic drugs under Section 15A (1) (2) (c) of the Drugs Control and Enforcement Act.

Legal Principles

• The legality of an emergency search conducted without a warrant was upheld under Section 42(1)(b)(i) and (iii) of the Criminal Procedure Act. The court determined the search was justified due to the urgency and seriousness of the situation.
• The court confirmed the admissibility of exhibits and statements, including the statement of Adam Omari under Section 34B of the Evidence Act. It emphasized that proper notice was given and procedures followed, ensuring the evidence was lawfully tendered.
• The court clarified that the Magistrate's sentencing authority under the Drugs Control and Enforcement Act (Section 15A) did not require High Court confirmation, affirming the Magistrate's exclusive jurisdiction for such cases.
• The prosecution must prove the case against the accused beyond reasonable doubt, as emphasized in the court's analysis of the evidence. The court concluded that the prosecution satisfied this standard, and contradictions among witnesses did not undermine the conviction.
• The court addressed the sufficiency of the charge sheet under Sections 132 and 135(f) of the Criminal Procedure Act, holding that it contained necessary details of the offence. This principle is not explicitly listed in the facet options.

Precedent Name

• Hai District Counsel & Another Vs Kilempu Kimoka Laizer
• Mohamed Said Matula Vs R
• DPP V Shiraz Mohamed Sharif
• Jeremiah Shemmeta Vs R
• Nyerere Nyague Vs Republic
• Shabani SaidKindamba VR
• Michael Haishi Vs R
• DPP Vs Bahati John Mahenge & Others
• DPP Vs Stephen Gerald Sipuka Paulo Maduka & Others
• Vumi Liapenda Mushi Vs R
• Republic Vs Francis Lijenga
• Sgt Benjamin Holela Vs R
• Shaban Hamis Vs R
• Shabani Hamisi Vs R
• Ezekiel Kwihuya Vs Republic
• Bakari Ahmad @ Nakamo & Another Vs R
• Dickson Elia NsambaShapwata & another Vs R
• Zainab nassoro @ Zena Vs R
• Samwel Kibundali Mgaya Vs R
• Jabril Okash Ahmed Vs Republic
• DPP Vs Ophant Monyancha
• Amiri Juma Shabani & Others Vs R

Cited Statute

• Criminal Procedure Act, Cap. 20 R.E 2022
• Criminal Procedure Act, Cap. 20 R.E 2019
• Drugs Control and Enforcement Act, No. 5 of 2015
• Evidence Act, Cap. 6 R.E 2022

Judge Name

Passage Text

• The prosecution adduced sufficient evidence to establish that Exhibit PE1 presented at the trial court is the same exhibit that was in possession or taken from the appellant. In the circumstances, the record speaks by itself that there were a clear link or chain of custody...
• In the above analysis, I have found that the appeal is without merits. It is hereby dismissed. Conviction and sentence of the trial court against the appellant is upheld.
• It is on record that Exhibits PE1, PE2, and PE3, PE4 and PE5 were tendered and the appellant did not object them and the same were read out after its admission.