AZIZI ABDALAH v REPUBLIC 1991 TLR 71 (CA)

 AZIZI ABDALAH v REPUBLIC 1991 TLR 71 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JJA, Ramadhani JJA and Mapigano Ag JA

16 May, 1991 E

Flynote

Evidence - Corroboration - Whether deficient, suspect or incredible evidence may be corroborated.

Criminal Practice and Procedure - Prosecution - Failure to call a witness - When an adverse inference may be drawn.

Headnote

The appellant was convicted by the High Court exercising its economic crimes jurisdiction on four counts charging attempted unlawful exportation of certain valuables. It was alleged that the appellant was acting in league with a Lebanese called Nazeem who was also arrested but abused his bail. On appeal the appellant argued that the evidence of PW. 7 was suspect and could not be corroborated. In addition the appellant invited the court to draw an adverse inference against the prosecution for failure to call KLM witnesses.

Held:

(i) Since PW.7 was not worthy of belief his evidence could not be corroborated.

(ii) the purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect I or incredible but only to confirm or support that which as evidence is sufficient and satisfactory and credible;

(iii) the general and well known rules is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution.

(iv) this was not a case which befitted the drawing of an adverse inference since the KLM plane took off C soon after Nazeem was nabbed.

Case information

Appeal dismissed.

Marando, for the appellant.

D Kamba, for the respondent.

[zJDz]Judgment

Mapigano, Ag. J.A., Makame and Ramadhani, JJ.A.: On July 20, 1990 at Dar es Salaam, the appellant Aziz Abdallah was convicted by the High Court (presided over by Lugakingira, J.) exercising its economic crimes E jurisdiction on four counts charging attempted unlawful exportation of certain valuables. The subject-matters of the charges were six kinds of notes which are legal tender in other territories, bills of exchange (US dollars in travellers cheques), gold and diamonds, whose certified total value was Shs. 36,021,788/70. He was sentenced to F imprisonment for a substantive term of twelve years, the Court taking a very serious view of the offence. He has appealed against the decision.

A Lebanese called Kazeem figures prominently in this case. The allegation was that Aziz was acting in league with G the said Kazeem who intended to smuggle out the moneys and the minerals in the evening of March 19, 1989. Kazeem had been in Dar es Salaam staying with his relatives who resided there and carried out certain business. He wanted to fly to Amsterdam on that evening on a KLM plane. He checked-in at the Dar es Salaam H International Airport (DIA) Terminal II at around 10.p.m. and he was the last passenger to do so. He had nothing in his hand except a passport and a jacket when he showed up at the customs checkpoint.

Aziz was a around when Nazeem was checked in and PW.5 inspector Mussa Halfani Mayagila was one of the I persons he exchanged greetings with. Aziz was a pilot with the Air Tanzania Corporation (ATC) and lived at Mindu in Dar es Salaam. He was off duty that evening but he had his identification A card with him, displayed on the breast of his shirt.

In due course Aziz left the checking-in hall and went upstairs where the departure lounges are situated. He had a black briefcase with him. A while later Nazeem was found in possession of a briefcase of the same colour, just B when the KLM plane was about to take off. That briefcase had not been checked by Customs. On suspicion Nazeem was apprehended and the briefcase seized. The briefcase was opened in the office of a customs officer, PW.7 Conrad Luyenga, thereby exposing the moneys and the minerals.

Nazeem was taken into custody. The same with Aziz, on the ground that he had knowingly to a criminal enterprise and done an overt act for the purpose of enabling or aiding Nazeem to evade customs check and traffic the goods. Nazeem and Aziz were not strangers to each other, and according to Aziz, he had business dealings with Nazeem's kinsmen in Dar es Salaam. Charges were later brought against the two but months later Nazeem abused his bail and went missing.

All the foregoing were not in dispute: the allegation was that the briefcase was passed on to him by Aziz, and that it was the very briefcase that Aziz was seen carrying from the checking-in hall.

We now proceed to revisit the testimony of PW.7 who was the prime witness for the prosecution. He was one of the customs officers who checked-in the KLM passengers. The passengers then proceeded to the security and F immigration checkpoints and thence to the International Departure Lounge.

Nazeem was the last passenger to check-in and when PW.7 was through with him he noticed Aziz, whom he knew before, heading for the Domestic Departure Lounge upstairs carrying a briefcase, but Aziz said he was then going to the International Departure Lounge. He became curious because there was no more domestic flights in that night. He approached PW.5 who was also on duty at the place and talked with him about Aziz. PW.5 told him that Aziz intended to travel to Kilimanjaro by a Fokker Friendship, and in his testimony PW.5 confirmed that Aziz  had told him so, a thing denied by Aziz.

A short moment later he saw Aziz heading for the KLM tube (which was also called gangway or bridge) still carrying the briefcase. The KLM passengers proceeded from the departure lounge to the plane through that tube. I This compounded his curiosity and he instantly set out to investigate what Aziz was up to. He went into the tube using the outside stairs. Two DIA security officers, that is PW.2 Richard Martin and PW.3 Salehe Juma, followed him. It was around 10.15p.m. then.

When he went into the tube he came face to face with Aziz and Aziz who still had the briefcase saluted him, telling B him that he was waiting for a telex from an acquaintance. Aziz admitted that he met with PW.7 and saluted him but he denied that he still had the briefcase. He went and entered the plane, looked around and then came out. He found Aziz standing at a table, the briefcase lying thereon. When the High Court visited the scene PW.7 indicated that the table in question was standing seven paces from the door of the plane. He walked on and met Nazeem who was being hurried along the tube to the plane by two KLM ground hostesses. He turned and followed Nazeen behind.

His suspicion was rendered valid. When Nazeem reached the table he stopped and exchanged farewells with Aziz D and at the same time Aziz handed over the briefcase to him, which was vehemently denied by Aziz. At that point he pounced upon the briefcase and stopped Nazeem from boarding the aircraft.

There were vain appeals made to him to let Nazeem board the place and proceed with his journey, Nazeem saying E that he was in a hurry and that he, PW.7, could talk with Aziz about the briefcase, and Aziz alleging that Nazeem's father had passed away in Lebanon.

The drama moved to his office downstairs wherein Nazeem eventually yielded and opened the briefcase. But that F was after Aziz had again pleaded with him to let Nazeem proceed with his journey and offered to go bail for Nazeem and even making a point of brandishing his identification card, and after PW.7 had stuck to his guns and insisted on the opening of the briefcase. This was confirmed by PW6. S.P. Placid Chaka, but denied by Aziz. G PW.6 added that at one point PW.7 called upon Aziz to disclose what was inside the briefcase "since it was he who had given the briefcase to Nazeem".

That was the substance of PW.7's evidence. It is to be noted, however, that there was a striking inconsistency on his part in regard to the place where the exchange and seizure of the briefcase took place. It was not in dispute that in his first information report, exhibit D.3, he had first stated that Aziz passed on the briefcase to Nazeem at the door of the aircraft. He immediately then vacated that allegation and stated that the events took place deep inside I the aircraft. As shown above,in the witness-box he reverted to the story he had retracted in exhibit D.3, and he hardly explained that turn-back.

Nazeem and Aziz were detained at the DIA Police Station. On the following morning PW.5 who had not witnessed the seizure and the opening of the briefcase was surprised to find Aziz in the lock-up. He inquired of Aziz, rather quizzically, how came that he was there and not at the Kilimanjaro. Aziz replied that he too was surprised and then broke down and wept.

The evidence of the two security officers PW.2 and PW.3 showed that they had just knocked off and were outside on the tarmac near where the KLM plane had taxied when PW.7 passed by walking with a fast pace and C ascended into the tube. They had been standing by a motor vehicle waiting for their other workmates so that the vehicle could ferry them home. Out of curiosity they decided to follow PW.7, PW.3 taking the lead.

When they stopped into the tube they saw a black briefcase lying on a table near the plane, a table which was D usually used by such airlines for their own checking. Aziz, whom they knew before, was standing nearby. He was dressed in full ATC uniform except for the cap and epaulette, again a thing denied by Aziz. Next Aziz asked PW.3 whether he had seen Yahaya (a DIA officer) and the answer was in the negative. Before long Nazeem came from E the direction of the departure lounge, and as he was about to embark the plane Aziz took the briefcase from the table and handed it over to him. Like PW.7, their curiosity was vindicated: PW.7 intervened and caught the briefcase. According to PW.3, PW.7 asked what was inside the briefcase and Nazeem and Aziz replied that there F was nothing, Aziz being the first to do so.

In his defence, Aziz stated that he went to the DIA that evening to see off an old friend, one Nassoro Khalifa Magogo, who was travelling to Dubai on an ATC flight. It was common ground that there was such a flight in that G evening and that the ATC plane took off at around 10 p.m. The black briefcase he had in the checking-in hall belonged to the said Magogo and he handed it over to Magogo soon after Magogo had paid the airport tax. He then went upstairs to the International Departure Lounge and from there he escorted Magogo right up to the ATC plane.

On his way back and just when he emerged from the ATC tube he saw the KLM passengers proceeding to their plane. He also went into the KLM tube searching for Yahaya Lweno who was travelling to Brussels on that plane. I He was not carrying any briefcase. He wanted to ask Yahaya to buy a Mercedez Benz spare part for him. That Yahaya Lweno actually travelled on that flight was confirmed

by PW.8 John Njawa.

He then saw PW.2 and PW.3 in the tube and approached them. He asked PW.2 whether he had seen Yahaya Lweno and he received a negative reply. As we have seen, according to PW.3, this question was put to him and B not to PW.2, but that matters for nothing. Then, as he was standing ten feet from the plane waiting for Yahaya Lweno to pass, he saw PW.7 coming out of the plane and walking towards the departure lounge. A short while later he saw him coming back to the plane followed by Nazeem and some KLM hostesses.

Next he saw PW.7 emerging out of the plane holding the offensive briefcase, Nazeem following him, and the two proceeded to the Customs Office. As he had not succeeded to meet Yahaya he entrusted a written message to one of the KLM crew to pass on to Yahaya. That done, he followed PW.7 and Nazeem. PW.7 asked him to be a witness and he agreed and subsequently wrote a statement, exhibit D.2. He maintained that he was a mere witness to the incident.

In his judgment the presiding judge reviewed the material evidence and analyzed the same. He then came to the E following conclusions. First, that it is true that the offensive briefcase was given over to Nazeem by Aziz; second, that Aziz's story that he had gone to the aircraft to search for Yahaya Lweno was false and an afterthought; third, that Aziz was privy to the contents of the briefcase; and lastly, that at law Aziz's act of handing over the briefcase F to Nazeem in those circumstances constituted an attempt on his part to exporting the moneys and the minerals unlawfully.

The appeal was brought on ten grounds. But two grounds i.e. 7th and 10th which related to the sentence were G abandoned at the hearing, no doubt upon realizing the futility involved in pursuing the same. Mr. Marando, learned advocate, appeared for the appellant, while Mr. Kamba, learned State Attorney, represented, the respondent, the Republic.

The first ground is that the learned judge erred in fact in accepting, as if unchallenged, the allegation that the H appellant had told PW.5 that he was waiting for a Fokker Friendship to fly to Kilimanjaro, and that such acceptance of the allegation made the judge prejudiced against the sincerity of the appellant.

We dismiss this ground. In his address Mr. Marando relied on what appears at page 52, paragraph 2, of the I record. It is manifestly clear to us that what was said by the judge in that passage was merely in the course of reviewing the evidence that was adduced by the prosecution, as he next did the defence case. The judge's finding on the point came much later.

It was common ground that PW.5 met and conversed with the appellant in the DIA checking-in hall on 19/3/89 in the evening. It was also common ground that the two met again on the following morning at the lock-up when PW.5 made the allusion that the appellant was supposed to be at Kilimanjaro rather than in the police cell. As mentioned, B it was PW.5's evidence that the appellant had told him on the previous evening that he intended to fly to Kilimanjaro, a thing denied by the appellant. Later on, when he had recapitulated and assessed the whole evidence, the judge preferred the version of PW.5, and in our view the judge was entitled to do so. If PW.5 was a liar, it is difficult to see the motive, nor was any suggested by the appellant.

The second ground is that the learned judge erred in fact in accepting that PW.7 had checked-in Nazeem and at D the same time preceded him to the departure gangway. It was contended that under normal circumstances Nazeem must have rushed far ahead of PW.7.

We also dismissed this ground, for two reasons. First,under the circumstances that prevailed at the DIA Nazeem must have stopped at two other points for immigration and security checking. Secondly, the appellant himself stated E in his evidence that he saw PW.7 in the KLM tube before he saw Nazeem.

The third ground is that the learned judge erred in fact in stating that PW.7 had testified that the appellant had moved and stationed himself next to the plane's door as Nazeem was entering the plane. We pause here to observe that the precise place where and the moment when the appellant is said to have handed over the briefcase to Nazeem was a subject which generated some arguments in the High Court. In dealing with G this ground our task is only to refer to the evidence on record to see whether that complaint is justified.

We content ourselves with the evidence of the appellant himself. He stated, in effect, that he was standing ten feet from the plane when Nazeem was apprehended. Now whether ten feet cannot be termed next to the plane's door H seems to us to be less of a meaningful argument and more of a splitting of hairs. This ground is accordingly dismissed. But mark this: we are at this moment not expressing any view on the veracity of the evidence of PW.7 or, for that matter, of PW.2 and PW.3, simply because as worded this ground does not call upon us to go into that I matter.

We reserve the fourth ground for later. We turn to the fifth ground and it is well and convenient to consider it together with the sixth ground. The fifth ground is that the learned judge erred in failing to make a finding on the credibility of PW.7 and in failing to B hold that the glaring difference between his testimony in court and his statement to the police indicated that the new story narrated in court "between" PW.2, PW.3 and PW.7 was made up.

And the sixth ground is that the judge erred in law and in fact in holding that the testimonies of PW.2 and PW.3 corroborated that of PW.7, an in failing to find that PW.2 and PW.3 were not independent witnesses.

As the trial judge correctly observed, the prosecution case depended very substantially upon the evidence of PW.7, PW.2 and PW.3. Little wonder that the considerable burden of the submissions made by Mr. Ismail, who advocated for the appellant in the High Court, was levelled at the credibility of those three witnesses.

The impungement of PW.7's testimony pertains to his puzzling turn-back which we have already demonstrated. Mr. Marando has branded PW.7 as double-tongued and ink that there is some justification in that attack. Quite E clearly that turnback was the most unsatisfactory feature of the prosecution case, and it was significant and substantial.

This inconsistency did not escape the trial judge's attention and he devoted a few words to it. He however found F the evidence of PW.2 and PW.3 to be corroborative of PW.7's testimony on the point. But he did so without pronouncing on whether PW.7 was credible or not. Mr. Marando argued that the judge erred in failing to do so.

It seems that Mr. Marando's submission has the support of the law. By what the Court of Appeal for East Africa told us in Uganda v Shah and Two Others [1966] EA 30. it was essential for the judge to approach the matter in two stages: first, to decide whether in the light of all the evidence PW.7 was worthy of belief; secondly - and only if PW.7 was found credible - to look for the existence of credible evidence, independent of PW.7, which support the evidence of PW.7 in a material particular.

The reason, a sound one, was state in D.P.P. v Hester [1973] AC 296, 315 and it is this: The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm or support that which as evidence is sufficient and satisfactory and credible.

Lord Hailsham gracefully stated the same in D.P.P. v Kilbourne (1973) AC 729, 745 D, to wit:

If a witness's testimony fails of its own inanities the question of his needing or being capable of giving corroboration does not arise. We cannot but agree that the inconsistency of PW.7 eroded his credibility to some extent. In fact there is an C oblique suggestion by the trial judge to the same effect.

The judge remarked thus:

I have no doubt that the passage from Exhibit P.3 fundamentally contradicts what PW.7 stated in Court. The witness acknowledged the difference and stated that the police statement was wrong on this aspect but his evidence in Court is correct. I think, with respect, that if witnesses were allowed to tell the court when they are wrong and when they are correct and get away with it, they could easily take the court for a ride.

An apt and pleasant reflection indeed. But this was all the judge said in that regard. Sequel to that it was submitted that the judge erred in holding that the evidence of PW.2 and PW.3 were not F independent witnesses, that they had conspired with PW.7 to incriminate the appellant, and that they were present at the scene by design and not fortuitously. The questions were posed why did the two witnesses hang about at the place when they had already knocked off; and why, being security officers, didn't they seize the briefcase.

The trial judge dealt with the matter in his judgment. He was satisfied that PW.2 and PW.3 were independent witnesses and "not persons dancing to the tune of PW.7". He rejected the conspiracy theory and was of the opinion that in general the witnesses gave the court a true account of the incident.

We have no reason to think that the judge was wrong. We see no tangible evidence of conspiracy between PW.7 and PW.3. The explanation that PW.2 and PW.3 gave as to why they hanged about the place, namely that they I were waiting for their colleagues so that a motor vehicle could ferry them together, was convincing one.

And it is understandable why they did nothing about the briefcase in the tube, considering the circumstances of the moment. They had been given to suppose that a momentous episode was in the offing, and we take the view that the instinct of the average man would have adopted a wait-and-see attitude. Now in relation to Nazeem's receipt of the briefcase from the appellant the accounts of PW.2 and PW.3 were, in our view, also first-hand, and the credence of the prosecution case was to be judged not on the evidence of PW.7 alone but on all the materials on record. So in the final analysis we dismiss the two grounds, notwithstanding the trial judge's failure to decide on the credibility of PW.7's evidence in that respect.

We pass to the eight ground and we will take it along with the fourth ground. The fourth ground is that the learned judge erred in law in holding that the whole case stood or fell on the basis of credibility, and that he failed to appreciate that sufficiency of evidence was equally important. The eighth ground is that the judge erred in law in not drawing an adverse inference against the prosecution for their "deliberately" failing to call the KLM crew as witnesses.

E Mr. Ismail did touch on the non-calling of the KLM crew in his final submissions in the High Court and the judge agreed with him only up to a point. The judge expressed the view that if the KLM crew had been called their evidence would have been useful like that of PW.2 and PW.3, but that the absence of that evidence did not diminish in any degree the value of the evidence of the two witnesses.

The appellant's contention is that the judge was wrong and Mr. Marando has submitted that the said crew would have been impartial witnesses and that the failure by the prosecution to call them should have given rise to an inference that their evidence would have been unfavourable to the prosecution. In support Mr. Marando cited Section 122 of the Evidence Act 1967. Against such submission Mr. Kamba argued briefly that in principle the H prosecution is not bound to call all the witnesses bearing upon the charges.

The general and well-known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify to material facts. If such witnesses are I within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution. But the practical application of this rule perhaps calls for some exposition.

In the first place it should be stressed that the inference referred to in that rule is only a permissible one and is normally drawn in obvious cases, where, upon viewing the matter objectively, the court is satisfied that the B inference will not result into a miscarriage of justice.

Secondly, and this is probably what Mr. Kamba had in mind, it is not the duty of the prosecution to adopt an attitude of non-committal. It is a wrong idea that the prosecution is under obligation to call and examine all witnesses who are acquainted with the facts of the case irrespective of consideration of time (and, for that matter, consideration of willingness of the witnesses to speak to facts). The prosecution are expected to be always concerned with the shortening of trials. So where there is evidence that a large number of witnesses could have deposed about the incident, the absence of some of them from the list of witnesses does not generally created a doubt whether the prosecution version is to be believed.

Thirdly, even where the adverse inference is properly drawn, that does not necessarily ruin the prosecution case. The Court must judge the evidence as a whole and arrive at its conclusion accordingly taking into account the E persuasiveness of the evidence given in the light of such criticisms as may be levelled at the absence of possible witnesses.

It would appear that the KLM crew were not in the list of the prosecution witnesses. It is to be borne in mind that the KLM plane took off soon after Nazeem was nabbed, and it is by no means certain whether the police were F minded to trace those people and take statements from them.

Having pondered over the matter in the light of the considerations we have set out above, we hesitate to say that  this is a case which befitted the drawing of the adverse inference. Accordingly, we dismiss the two grounds.

We come to the last ground, the ninth, namely that the learned judge erred in fact in holding that it was the appellant who carried the briefcase to the gangway. There is no force in this ground. In our judgment the judge was justified to make that finding. We have come to that conclusion on the basis of what we have stated above about the evidence of PW.2, PW.3 and PW.7, and in view of other items of evidence borne by the record that went some way to corroborate the evidence of those three witnesses.

The first item was the appellant's lie that he intended to fly to Kilimanjaro in that evening. The second was his persistent pleadings with PW.7's office and we are given the distinct impression that those pleadings were calculated to mislead PW.7 and prevent the investigation and detection of the crime.

The third item was his allegation, which was a lie, that he went into the KLM tube to look for Yahaya Lweno. This allegation is missing in his statement, exhibit D.2. We are aware that his ascertain was that he wrote the statement as a witness and not as a suspect. But that cannot be true, for there was evidence from PW.6, which was not challenged, that there was a moment when PW.7 accused the appellant of having passed the briefcase on to Nazeem and demanded of him to disclose what the briefcase contained. We are satisfied that in such circumstances the appellant must have known from the start that he was a suspect in the crime, and that when he wrote the statement he fully apprehended that was not a moment for fibbing. He clearly understood that he owed PW.7 an explanation as to why he happened to be in the tube and why criminal proceedings should not be taken against him.

This ground too is dismissed.

We have been invited to wonder how the appellant could have passed on such an offensive briefcase to Nazeem in the full view of PW.2, PW.3 and PW.7 whose position he knew. This fact is hard to explain only at first sight. The plausible and short answer is that Nazeem was about to fly and there was hardly any better alternative for the F appellant than staking all on a small chance, and we should allknow that risk-taking or a sense of confidence has woefully betrayed many a criminal.

Finally, there was the fascinating insinuation made by Mr. Ismail in the High Court that PW.7 knew before hand that an attempt would be made to smuggle out the moneys and the minerals. That is a perception one may have and thus a possibility that cannot be dismissed out of hand. But we have failed to grasp the purpose for which this suggestion was canvassed. Because even if the court were minded to go along with that suggestion we do not see how that could have tainted the evidence of PW.7, let alone precluded the convictions. On the contrary, we think that it would probably have rebounded to the prosecution's advantage.

For the reasons we have stated we find that there is no ground for interfering with the convictions. This appeal is I accordingly dismissed.

Appeal dismissed.

1991 TLR p83

A