12 March 2018

Tanzania: DPP Wins Appeal Against High Court Order

THE Director of Public Prosecutions (DPP) has won his appeal against refusal by the High Court to admit into evidence three boxes containing Heroin Hydrochloride and Cocaine Hydrochloride, weighing 96,268.18 grammes valued at over 3.36bn/-, in a drug case facing four businessmen.

This follows decision of the Court of Appeal to allow the appeal lodged by the DPP to fault the decision given on November 2, 2016 by the High Court in Dar es Salaam during the trial of Mirzai Pirbakhshi, Aziz Juma Kizingiti, Said Mashaka Mrisho and Abdulharman Mtumwa Lukongo.

Justices Bernard Luanda, Richard Mziray and Jacobs Mwambegele agreed with grounds advanced by the DPP in support of the appeal to the effect that the trial judge erred in law and facts when he rejected to admit the three boxes as exhibits on the grounds of incompetence.

In the ruled the subject of the appeal, the High Court judge had decided that the first prosecution witness from the Chief Government Chemistry was not the right and competent to tender the boxes said to have containing the drugs in question as she was not custodian of the same. However, in the judgment delivered recently, the justices of the appeals court noted that a person who at one point in time possessed anything, a subject matter of trial is not only a competent witness to testify but he could also tender such thing.

"In her evidence she has tendered so far shows that she had come into contact with the boxes by seeing, touching, analysing the contents therein and finally wrote a report. So, what she intended to produce is something which is within her knowledge and possession at one point in time," they said. "It is our view that it is not the law it must always be tendered by a custodian as initially contended by (defence counsel).

The test of tendering exhibit therefore, is whether the witness has knowledge and he possessed the thing at some point in time, albeit shortly," the justices said. They said that a possessor or a custodian or an actual owner or alike are legally capable of tendering the intended exhibits provided he has the knowledge of the thing in question. The justices, therefore, agreed with the submissions by the prosecution that the intended exhibits were wrongly rejected.

"The appeal has merit. The same is allowed. We quash and set aside the ruling of the trial judge and remit the record to the High Court for admission of the boxes. We further direct the trial to proceed before the same judge unless there are reasons for not doing so," the justices declared.

It is alleged in the charge sheet by the prosecution that the four businessmen committed the offence on or about September 7, 2011 at Africana Mbuyuni area within Kinondoni District in the city of Dar es Salaam.

The businessmen allegedly trafficked in narcotic drugs, namely Heroin Hydrochloride weighing 65,730.67 grammes valued at 2,300,573/- and Cocaine Hydrochloride weighing 30,537.51 grammes valued at 1,068,812,850/-, all total value at 3,369,386,300/-.

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