Court name
Court of Appeal of Tanzania

Nurdin Akasha Alias Habab vs Republic () [1995] TZCA 19 (12 September 1995);

Law report citations
1995 TLR 227 (TZCA)
Media neutral citation
[1995] TZCA 19

Kisanga, JA delivered the considered judgment of the court.
H The appellant, Nurdin Akasha alias Habab, was charged in the district court with three counts. Counts one and two alleged unlawful possession of dangerous drugs and unlawful importation of dangerous drugs, respectively, both being offences under the Dangerous Drugs Ordinance (Cap 95) and the Economic and Orga- I

nised Crime Control Act, 1984 as amended by Act No 13 of 1988. The third count A alleged corrupt transaction, being an offence under the Prevention of Corruption Act, 1971 and the Economic and Organised Crime Control Act above cited. At the conclusion of the trial, the appellant was acquitted on all the counts. The acquittal on counts one and two was on grounds of insufficiency of evidence, while that on count three was for lack of consent by the Director of Public Prosecutions to B prosecute. However, dissatisfied with the acquittals, the Director of Public Prosecutions appealed to the High Court which convicted the appellant on counts one and two and sentenced him to concurrent prison terms of five and 10 years respectively. The Republic did not wish to pursue the appeal against the acquittal on the third count of corrupt transaction. It is against the convictions and C sentences imposed in respect of counts one and two that this appeal has been preferred. In this appeal the appellant is represented by Dr Lamwai, learned advocate, while Mr Sengwaji, learned principal State attorney appears for the respondent, Republic.
The facts of the case are fairly complex, but they may be summarised briefly as D follows: The appellant was a branch director of Akasha Transport Ltd, a transport company incorporated in Kenya with its head office at Mombasa and a branch duly registered and operating in Tanzania. The branch office in Tanzania was situated at a house in Msasani Village area in Dar-es-Salaam which house also served as Eresidence for the appellant, a Kenyan national and his family consisting of wife, children and mother. The Tanzania branch of which the appellant was the director had a fleet of 10 lorries, some of which had trailers. The fleet was used for transporting goods from Dar-es-Salaam to Zaire, Zambia and Malawi. The lorries had their minor repairs done in Dar-es-Salaam but major repairs were done at the company's head office in Mombasa. F
During January and February 1993 the appellant sent the fleet to Mombasa for repairs. The trucks went via Nairobi where it was hoped they would be hired to transport goods but this was not done because the parties concerned could not G agree on the hiring rates. The trucks therefore travelled all the way with no cargo from Dar-es-Salaam to Nairobi and ultimately to Mombasa where they were repaired. The appellant visited Nairobi and Mombasa and made a follow up on the trucks. It took about two months to have the trucks repaired at Mombasa. After the H repairs the trucks were driven back to Dar-es-Salaam, arriving on different dates and again without carrying any visible cargo on them. The first contingent of these trucks arrived back on 2 July 1993, only two days after the appellant's return here from Mombasa, while the last batch arrived back on 19 July 1993. I

A On 20 July 1993 the police, acting on information, went to search the appellant's office cum residence at Msasani village area where they seized 105 packets of methaqualone (mandrax) drugs. The drugs were stuffed in two motor vehicle tyres kept in a room used as a store on the appellant's premises. It was alleged that B during the search the appellant panicked and trembled, that he and his family pleaded with the search party to stop the search and that the appellant gave them Shs 918,200/= as a bribe.
As a result of the search and the discovery of the dangerous drugs, the appellant was arrested and kept in police custody. On the same day, following the C appellant's arrest, the appellant's mother ordered some motor vehicles of the appellant's fleet to be removed from their usual parking yard at Tirdo in Msasani area to the CCM parking lot in Temeke area. These were among the appellant's fleet of 10 lorries which had returned from Mombasa. Acting on information, the D police searched two of the trucks so transferred from Tirdo and a third one which had remained at Tirdo but which they ordered to be brought to them for search. From the three motor vehicles the police recovered over 2,100 packets of drugs similar to those seized from the appellant's premises; the said packets also contained mandrax drugs. The drugs were hidden in metal containers fitted inside E the fuel tanks of the lorries and their trailers such that they could not be detected upon ordinary inspection of the motor vehicles. The police had to cut open the fuel tanks using welding equipment in order to reach the said metal boxes inside containing the mandrax drugs. The amount of drugs recovered both from the F appellant's premises and from his motor vehicles came to a total of 1,147.591 kgs which according to the charge sheet is valued at well over US$8,994,000 or well over Shs 4,997,500,000/=. This amount was also said to be a record haulage of dangerous drugs ever intercepted at any one time in Tanzania. G
Following these investigations charges were preferred against the appellant, as shown above, who vehemently denied them. In his defence he explained that the mandrax drugs recovered from his premises were found in a store room which was under the charge of one Mohamed Abdarahaman, alias Kipara, a Kenyan H citizen. The appellant maintained that he had no knowledge of the dangerous drugs found in the said store room and, therefore, he could not be said to have been found in possession of them. He denied giving a bribe of Shs 918,200/= to the search party and explained that the search party had merely seized that amount in the course of their search of the premises. I

As regards the drugs found in his motor vehicles, his position was that the three A trucks from which the drugs were recovered were among the trucks which he had left undergoing repairs in Mombasa. As these vehicles arrived in Dar-es-Salaam about three weeks after he himself had left Mombasa, he was not in a position to say who meddled with the trucks and fitted them with those boxes containing the Bcontraband. In those circumstances therefore, the appellant contended that he could not be said to have been found in possession of the drugs in question, nor could he be held responsible for their importation into the country.
As stated before, at the conclusion of the trial the appellant was acquitted by the C district court on all the counts, but on appeal by the Director of Public Prosecutions the High Court found him guilty on the counts of unlawful possession and unlawful importation of dangerous drugs.
In this appeal Dr Lamwai filed and argued 14 grounds of appeal plus a further two D grounds filed in a supplementary memorandum of appeal. All of these grounds, however, essentially raise the issue of the insufficiency of the evidence in support of the charges. Counsel rightly pointed out that the appellant's conviction was based solely on circumstantial evidence. However, he contended that such E evidence, as there was, did not pass the test for circumstantial evidence before conviction could be had on it. The evidence relied on to convict the appellant did not irresistibly point to the appellant's guilt. That evidence was not water tight; it left room or gaps such that a proper scrutiny of it leads to the view that the offences alleged were, or may have been, committed by person or persons other than the appellant. F
In finding the appellant guilty on the charge of unlawful possession of dangerous drugs, the High Court relied on the evidence that the appellant had access to the key to the store room where the drugs were hidden. For, he opened the door to G that store in order to allow the search party access to it; he used the key which he took from his wife to open that door. However, counsel argued that although the appellant had access to the store room in question there was no evidence to show that he knew that those drugs were in there. Dr Lamwai submitted that those drugs H may have been hidden there by one Mohamed Abdarahaman who, according to the appellant, was the person in charge of the store. Counsel emphasised, and indeed rightly so in our view, that proof of knowledge on the part of the appellant was essential. But since, in his view, there was no evidence that the appellant knew of the presence of I

A those drugs in the store room, then the charge of possession could not be sustained.
Mr Sengwaji for the respondent Republic conceded that there was no direct evidence to prove knowledge on the part of the appellant but that there was circumstantial evidence to prove such knowledge. Learned counsel submitted that B the appellant's assertion at the trial that the store room was under the charge of one Mohamed Abdarahaman was an afterthought because the two prosecution witnesses (PW2 and PW4) who were among the team conducting the search testified that they did not hear the appellant say that Mohamed Abdarahaman was the person in charge of the store room. The High Court judge accepted that C evidence but Dr Lamwai criticised him for so doing. This raises the issue of credibility of witnesses which we propose to deal with later on, but for the moment suffice it to say that we see no good reason why the Court should have preferred D the appellant's word to that of the two prosecution witnesses. If it were true that the store room was under the charge of Mohamed Abdarahaman and that the appellant was not aware of the drugs found therein, one would certainly expect the appellant to disclose this immediately the search party discovered the drugs. But once it is found that he made no such disclosure, then as submitted by Mr E Sengwaji, his subsequent disclosure was an afterthought, and the only reasonable inference to be drawn is that at least he was aware of the presence of those drugs in the store.
F This view is reinforced by the evidence that the appellant, his mother and wife pleaded with the search party to stop the search. The question is: If the appellant did not know of the presence of those drugs in the store why should he plead with the team to stop the search? Once again the only conclusion to be drawn is that he implored the team to stop because he knew that the search would lead to the discovery of the contraband. G
This view is further supported by the evidence that the appellant gave the search party a bribe of Shs 918,200/= in order to settle the matter there and then and not to proceed with it further. Dr Lamwairaised a number of arguments concerning this piece of evidence. First, he claimed that this was a mere fabrication by H prosecution witnesses in an attempt to falsely implicate the appellant with the offences charged. The police, he submitted, were interested in securing a conviction which would earn them financial reward and/or promotion. With due respect to the learned counsel we can find no substance in this submission. PW4 was a member of the search party who testified to the giving of the bribe by the appellant. He I

was a ward executive officer and a justice of the peace. It is not apparent how the A appellant's conviction could earn him any gain in terms of financial reward or promotion in his employment.
Counsel criticised the High Court judge for failing to hold that the prosecution evidence regarding the alleged bribe was contradictory and hence of no value, and that the learned judge resolved such contradiction by engaging in conjecture. PW4 B and PW11 testified that the bribe money was counted at the appellant's premises. On the other hand PW2 stated that the money was counted at the police station. In evaluating the evidence, the learned judge found that the money was counted both at the appellant's premises and at the police station. At first Dr Lamwai charged that PW2 was lying when he claimed that the money was C counted at the police station. Because, in his view, it was inconceivable that money given as a bribe should have been counted at the police station instead of at the appellant's premises where it was allegedly given as a bribe. He therefore D urged us to find that not only was PW2 telling lies but that the contradiction between the evidence of this witness and that of PW11 was so material as to render worthless the prosecution's allegation of a bribe. However, when it was pointed out to counsel that his client supported the evidence of PW2 that the E money was counted at the police station, counsel turned round and submitted that in those circumstances the High Court judge should have found that, consistent with his client's testimony, the money was counted only at the police station. That, F counsel contended, would render the prosecution case most improbable and, indeed, highly suspect because it was simply incredible for bribe money to be counted at the police station and not at the appellant's premises where it is alleged to have been given.
As stated earlier, two witnesses, PW4 and PW11 gave evidence that the bribe money was counted at the appellant's premises where it was given. PW4 was a G ward executive officer and a justice of the peace. As such he was a responsible officer and an independent witness who was not shown to have any apparent cause to tell lies. It is true that PW2 testified in his examination in chief that the money was counted at the police station. But he was not asked in H cross-examination whether or not the money was counted at the appellant's premises. Had he been so asked, his answer might well have been in the affirmative. For, like Dr Lamwai, we think that it would be incredible that money alleged to be a bribe should be counted at the police station only and not at the place where it is said to have been given. In the circumstances, therefore, Dr Lamwai I

A has not made out a case of any real contradiction in the prosecution evidence on this aspect. On the other hand the learned High Court judge was perfectly justified to find, as he did, that the bribe money was counted both at the appellant's premises, as testified to by PW4 and PW11, and also at the police station as testified by PW2 and supported by the appellant. It would appear that the counting B at the police station was done because the appellant had asked for it. For, in his evidence the appellant said:
   'The money was taken and counted at the police station, that was what I wanted.' C
In other words, if the appellant had wanted to have the money counted at the police station, the police had to oblige, notwithstanding that there had been an earlier count at his residence.
D In yet another endeavour to attack the evidence relating to bribing the search party, Dr Lamwai strenuously contended that that piece of evidence ought to be expunged from the record because it had been adduced in support of the count of corrupt transaction which was dismissed for want of the Director of Public Prosecution's consent to prosecute. He severely criticised the High Court judge for E accepting and acting on that evidence to convict the appellant on the count of being in unlawful possession of dangerous drugs. Elaborating on this, counsel said that the evidence relating to bribery had been adduced in support of the count F of corruption. The appellant understood it so, and had that charge been valid, he would have prepared his defence accordingly if he so wished. But when at the end of the day that charge was dismissed for want of consent to prosecute, that meant that in law there had been no charge of corrupt transaction and, counsel G contended, the evidence purportedly adduced in support thereof cannot now be used to support the charge of unlawful possession of drugs. The reason for his argument is that the appellant was not made aware that the evidence relating to bribery was adduced also in support of the count of unlawful possession of drugs H so that he might have prepared himself accordingly to challenge it in the course of his defence on that count. In support of this submission counsel referred to the case of King v R (1).
We have given due consideration tot he submission by counsel, but we could not be persuaded. We are prepared to hold that when the count of corrupt transaction was dismissed for want of the Director of Public Prosecution's consent to prosecute, this meant I

that in law the appellant had not been tried at all on that count. It is as if nothing had A happened. But the appellant's trial was otherwise valid in respect of the remaining two counts which were charged in the same information. The evidence adduced at such trial is admissible to support the charge on any of the remaining counts provided that such evidence is relevant. Section 11 of the Evidence Act provides that: B
   'Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact C was transacted, are relevant in so far as they are necessary for that purpose.'
The evidence relating to bribing the search party was also relevant to the charge of D unlawful possession. The prosecution was alleging that the appellant had knowledge of the drugs being present on his premises, and that is why he was doing all he could, including bribing the search party, to stop the search and to settle the matter there and then with them. Indeed such evidence would have been E properly adduced to support the charge of unlawful possession, even if the count of corrupt transaction had not been included, and it seems there could have been no valid ground of complaint. We can find no justification for the objection F based as it was, merely on the ground that that evidence supported a count which was dismissed for lack of consent to prosecute. We are of the view that where, as in this case, the evidence was capable of supporting more than one count in the charge, such evidence can be used in support of any count in the information, notwithstanding that such evidence supported some count or counts which were G found to be invalid or void.
The case of King v R cited by counsel is not of much assistance because as Mr Sengwaji pointed out, the facts there were distinguishable. In that case the appellant and a co-accused were jointly charged with murder. The whole trial had proceeded on the basis that the co-accused was being accused of killing the H deceased, while the appellant was being accused of being accessory before the fact to such killing. At the conclusion of the trial the co-accused was acquitted but the appellant was convicted of murder on the basis of being accessory before the fact to the killing of the deceased by I

A person or persons other than the co-accused. On appeal the conviction was set aside on the ground that the charge on which the conviction was based had introduced an element of surprise. All along the appellant had defended himself against the charge of murder in the context of being accessory before the fact where the alleged killer was an identified person i.e. his co-accused, while the B conviction was for murder on the basis of being accessory before the fact where the alleged killer or killers were unidentified. He was afforded no opportunity to prepare his defence in respect of the latter.
C In the instant case, however, the facts and circumstances are different. The appellant was arraigned on the charge of being in unlawful possession of dangerous drugs. Therefore he knew the case which he was going to meet at the trial. He had the opportunity to prepare his defence and indeed, he did defend D himself against the charge and in the light of evidence adduced in support of the count of being in unlawful possession of dangerous drugs. He was not in any way taken by surprise. The prosecution adduced evidence in relation to the charge as a whole covering the three counts set out in the information. In our view it would be impracticable, and indeed idle, to demand that when the prosecution adduces E evidence, it should specify which evidence relates to which count in the information. It seems plain to us that once the appellant knew that he was charged with unlawful possession of dangerous drugs, it must have been clear to him that the evidence of bribery was intended to prove his knowledge of the drugs which F knowledge prompted him to give out the bribe in order to get the search party to stop investigations or stop taking further steps in the matter. In our view, therefore, the learned judge rightly accepted and acted on it in convicting the appellant on the count of unlawful possession of dangerous drugs. Unlike in King's case cited by G counsel nothing transpired in the present case which could be said to have introduced an element of surprise to the appellant.
There was also evidence that the appellant panicked and trembled during the search. Again Dr Lamwai sought to have this piece of evidence discounted as H being unreliable because it involved inconsistencies as to when exactly the appellant panicked or trembled. Our own view of the evidence is that the inconsistency involved here was only minor; it did not go to the root of the matter. PW2 and PW4 were consistent in saying that the appellant was shocked and that he panicked and trembled. The variation on whether the appellant displayed such conduct immediately upon the search I

party entering on the appellant's premises or on entering the store room where the A drugs were kept is, in our view, of no consequence.
On the evidence therefore, the High Court judge was entitled to find that in the course of searching the appellant's premises, the appellant was shocked, that he panicked and trembled and that he pleaded with the search party and bribed them B in an attempt to get them to stop the investigation or to have the matter settled there and then. Mr Sengwaji submitted that such conduct clearly indicates that the appellant had knowledge of the drugs and that there could be no other explanation for it. In response thereto, however, Dr Lamwai contended that such conduct, C although suggestive of crime, was not conclusive of guilt. In this connection learned counsel referred to a passage in Sakar On Evidence (13th ed) at 86 which reads:
   'Different persons are differently constituted and some accused even though innocent D deliberately abscond rather than face the ordeal of a criminal trial and some other innocent accused do equally foolish things as make a false admission of guilt or pay off the amount said to have been stolen or embezzled. Such subsequent conduct dispenses the guilt, the burden of which is on the prosecution.' E
Counsel submitted that the appellant may have conducted himself the way he did for a variety of reasons, such as, the mere scare of the police searching his premises, or fear in connection with some misconduct connected with his business as a transporter but unrelated to the offences in question. In any event, F counsel went on, the appellant should not be convicted on the weakness of the defence but on the strength of the prosecution case.
We have carefully considered this argument, but we think it lacks merit. PW4 in his evidence said, inter alia, that: G
   '... the accused gave the bribe of Shs 918,200/=. The accused said this is because of hunger. I will destroy the drugs. I will not repeat.'
This statement cannot by any stretch of imagination be said to be consistent with H the appellant being unaware of the drugs found in his house. He gave the explanation of 'hunger' as the reason for his engaging in the drug business and promised to destroy the drugs found in his possession and to stop dealing in drugs in the future. He placed himself right at the centre of things, so to speak. If he had no knowledge of the drugs he could not have associated himself with them so closely as he did. I

A Dr Lamwai repeatedly submitted that the drugs found in the appellant's store room were hidden there by Mohamed Abdarahaman who, according to the appellant, was the person in charge of the store. There was evidence that the said Mohamed Abdarahaman, a Kenyan, was staying in Mombasa, that he never lived in that room and he was last seen in Dar-es-Salaam two days before the store B was searched and that during police investigations following the appellant's arrest he could not be traced. Our view is that if the drugs were introduced into the store by the said Mohamed Abdarahaman, this must have been with the knowledge and approval of the appellant. It is highly unlikely that Mohamed Abdarahaman would C have risked leaving such a valuable commodity in the store at a time when he had no control over it as he spent his nights elsewhere and stayed away for some days. Whether the drugs were hidden in the store by the appellant himself or by the said Mohamed Abdarahaman with the appellant's knowledge and approval, the D appellant was in possession of those drugs and the learned High Court judge rightly so found.
The foregoing analysis and conclusions related to the dangerous drugs recovered from the appellant's premises. As regards the drugs found hidden in the three of E his fleet of lorries, it was common ground at the hearing of this appeal that the drugs were imported from Kenya into this country. The only question is who did the importation. The High Court found that it was the appellant, but Dr Lamwai disagreed sharply.
F According to the evidence the three trucks on which the drugs were found were among the motor vehicles which the appellant had left behind in Mombasa undergoing repairs. Those motor vehicles arrived in Dar-es-Salaam a little over a fortnight after the appellant himself had done so. Dr Lamwai therefore contended G that the drugs must have been fitted on the motor vehicles after the appellant had left for Dar-es-Salaam, in which case he would not know anything about them. In his view a number of people might be concerned with the fitting of those drugs on the motor vehicles. There was evidence that the appellant and his father were involved in arranging for the repairs of the lorries at Mombasa. Dr Lamwai, H therefore, took the view that the drugs might have been fitted on the trucks by the appellant's father after the appellant's departure for Dar-es-Salaam. Again there was evidence that on the very day the appellant was arrested following the discovery of the drugs at his premises, his mother ordered the removal of two motor vehicles from Tirdo where they used to be parked, to the CCM parking I

lot in Temeke. Subsequently mandrax drugs were recovered from these vehicles. A Learned counsel submitted that the importation of those drugs into the country must have been an arrangement between the appellant's father in Mombasa and the appellant's mother in Dar-es-Salaam, but without the appellant's knowledge. In other words the appellant's father decided to conduct the illegal drug business B behind the back of their son while the son continued to manage the legitimate business of Akasha Transport. We are not at all impressed by this. There was overwhelming evidence showing that the appellant played an executive role in the management of the Tanzania branch of Akasha Transport. It is he who ordered the C movement of the fleet of lorries from Dar-es-Salaam to Nairobi and thence to Mombasa. At Nairobi the purchase of spare parts for the repair of the motor vehicles to Mombasa for major repairs, all had to await his arrival even though his father was in Nairobi at the time. Likewise after the fleet arrived in Mombasa the D decision as to which vehicles should be taken to which garages for what repairs had to await his arrival from Nairobi. It is the appellant who at all times had the control over the movement of the motor vehicles and what cargo they carried. In those circumstances it is unthinkable that the appellant's father would take only the E appellant's mother in confidence and with her engaged in drug trafficking using the company's motor vehicles without the knowledge of the appellant who had the control of those vehicles. Furthermore, Dr Lamwai when advancing mitigation on the appellant's behalf before the High Court, disclosed that the appellant's father F and mother were divorced. It is inconceivable that the appellant's father would confide in his estranged wife knowledge of such a valuable thing or transaction to the exclusion of his son who was also a senior business partner and co-director.
Equally unimpressive is Dr Lamwai's contention that the drugs might have been G fitted on the trucks by the drivers of those vehicles. First of all the whole exercise involved fitting a new fuel tank at least on one of the motor vehicles. There was evidence, for instance, that motor vehicle KTU 052 with trailer No ZA 8202 was fitted with a new additional fuel tank which was found to contain mandrax drugs. The tank was easily seen by anyone looking at the vehicle. A driver would not dare H fit such an extra tank because the appellant would easily see it and demand explanation for it. Not only that. The evidence shows that the whole operation was very skillfully done. Indeed the trial magistrate who had the advantage of viewing the exhibits said: I

A    'I have seen all the three lorries and the places where the tanks had been fixed. I have also seen the tanks themselves. I have no doubt in my mind that a lot of labour and time was required in that exercise. I am also satisfied that a lot of expertise and sophisticated machinery were needed in the job.'
B And the learned High Court judge found that:
   '... the tanks in which the drugs were found on the three lorries had been expertly constructed and sealed as to make it very difficult even to the police to have them removed and opened when they discovered such drugs. That in my view could not be the type of work that could have been undertaken by the drivers and turn boys of their own.' C
We entirely agree with the courts below and add that such a job was costly such that the drivers could not afford to pay for it. There was evidence that so soon after D the appellant's arrest the drivers of these trucks, who were all Kenyans, said that they were leaving because there was nobody to give them subsistence. If they had problems with finding mere subsistence, it would be impossible for them to finance an expensive operation such as the one in this case.
E Thus having regard to Dr Lamwai's submission, our own view is that if the appellant's father or mother or the drivers had a hand at all in the importation of the drugs, they must have done so with the knowledge and approval of the appellant. Of course, apart from mere speculation, there is no evidence that the appellant's father or the drivers did anything to import or facilitate the importation of the drugs. F As for the appellant's mother, however, there was the evidence that on the same day the appellant was arrested following the recovery of the mandrax drugs at his premises, she ordered the removal from Tirdo to Temeke of the trucks which had on board huge quantities of the same drugs. That shows that she had knowledge G of the drugs. It is therefore possible that she participated in the commission of the offence or offences charged, but that does not absolve the appellant from liability.
H On the evidence we are satisfied that the drugs found on the appellant's three motor vehicles were imported into the country by the appellant or with his knowledge and approval. Therefore the learned High Court judge was perfectly justified to find the appellant guilty of unlawful importation of the drugs found on the three motor vehicles, and of unlawful possession of the said drugs plus those which were recovered from his house. In the result the appeal fails and we dismiss it accordingly. I

A