NURDIN AKASHA alias HABAB v REPUBLIC 1995 TLR 227 (CA)

 

NURDIN AKASHA alias HABAB v REPUBLIC 1995 TLR 227 (CA)

Court Court of Appeal - Dar Es Salaam

Judge Kisanga JJA, Mfalila JJA and Lubuva JJA

Criminal Appeal No 221 of 1994 B

September 12, 1995

(From the decision of the High Court of Tanzania at Dar es Salaam, Mwaikasu, J) C

Flynote

Evidence - Relevance and admissibility - Evidence adduced in support of a charge

which is dismissed for want of consent to prosecute - Whether relevant and

admissible to support any other charge in the same information - Section 11 of the

Evidence Act, 1967. D

Evidence - Circumstantial evidence - Knowledge of presence of drugs - Whether may

be inferred from the circumstances obtaining.

Criminal law - Unlawful possession of Dangerous drugs - Drugs hidden with

knowledge and approval of a person - Whether the person with knowledge and

giving approval is in possession of those drugs. E

Evidence - Unlawful importation of Dangerous drugs - Drugs imported into Tanzania

- Drugs found in expensive and expertly constructed and sealed devices fitted to

disguise - Whether knowledge and approval of owner of trucks can be inferred. F

-Headnote

The appellant was charged in a District Court with three counts and was acquitted on

all three the counts. Count one alleged unlawful possession of dangerous drugs, count

two alleged unlawful importation of dangerous drugs and count three alleged corrupt

transaction. Acquittal on counts one and two was grounded on insufficiency of

evidence. The appellant was acquitted on count three for lack of requisite consent of

the Director of Public Prosecutions. G

The Republic appealed to the High Court against acquittals on counts one and two

only. The learned High Court judge found that there was sufficient circumstantial

evidence to support a conviction on counts one and two. The learned judge also relied

on the evidence adduced in respect of the count which was dismissed for want of the

DPP's consent to support the conviction. H

On appeal to the Court of Appeal of Tanzania the appellant attached the decision of

the first appellate court arguing that the court erred in finding that there was

sufficient circumstantial evidence to ground a conviction because there was no

evidence to prove that the appellant I

1995 TLR p228

KISANGA JA

A had knowledge of and/or approved the importation of the drugs into Tanzania. It

was also argued that the learned judge was wrong to use the evidence in respect of the

dismissed count on corrupt transaction to convict the appellant on the other counts.

Held:

B (i) Where, as in this case, the evidence was capable of supporting more

than one count in the charge, such evidence could be used in support of any count in

the information, notwithstanding that such evidence supported some count or counts

which were found to be invalid or void;

C (ii) Though the count of corrupt transaction was dismissed, meaning in law

that the appellant had not been tried at all on that count, the evidence adduced at the

trial was admissible to support the charge on any of the remaining counts provided

that such evidence was relevant;

(iii) The evidence relating to bribing the search party (i.e. corrupt

transaction) was relevant to the charge of unlawful possession of dangerous drugs;

D (iv) Whether the drugs were hidden in the store by the appellant himself or

by another person with the appellants' approval, the appellant was in possession of

those drugs;

(v) On the evidence, the drugs found on the appellant's three motor

vehicles were imported into the country by the appellant or with his knowledge and

approval;

E (vi) 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.

Case Infomation

F Appeal dismissed.

Case referred to:

(1) King v. R [1987] LRC (Crim) 153

G M R M Lamwai for the appellant.

M Sengwaji for the respondent.

[zJDz]Judgment

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

1995 TLR p229

KISANGA JA

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 E

residence 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

1995 TLR p230

KISANGA JA

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

1995 TLR p231

KISANGA JA

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 B

contraband. 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

1995 TLR p232

KISANGA JA

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 Lamwai raised 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

1995 TLR p233

KISANGA JA

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

1995 TLR p234

KISANGA JA

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

1995 TLR p235

KISANGA JA

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

1995 TLR p236

KISANGA JA

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

1995 TLR p237

KISANGA JA

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

1995 TLR p238

KISANGA JA

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

1995 TLR p239

KISANGA JA

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

1995 TLR p240

KISANGA JA

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

1995 TLR p241

A