Republic v. Nurdin Akasha [1995] TLR 227. case brief.

 

Title and Citation

Republic v. Nurdin Akasha [1995] TLR 227.

 

Facts of the Case

Republic v. Nurdin Akasha[1] is a criminal case law happened during 1995 where it discussed three criminal offences which are, “unlawful importation of dangerous drugs”, “unlawful possession of dangerous drugs”, and “corruption”. Nurdin Akasha Alias Habab a Kenyan, was a branch director of Akasha Transport Limited, a transport company incorporated in Kenya with its headquarters at Mombasa and a branch duly registered and operating in Tanzania. The Tanzania branch’s office was located at Msasani Village area in Dar-es-salaam in the same building which was used as residence of the accused and his family which consisted a wife, children and a mother. The Tanzania branch of which accused was a director had a fleet of ten lorries which were used in transporting goods from Dar-es-salaam to Zaire, Zambia and Malawi. The lorries had a minor repair done in Dar-es-salaam but the major repairs were done at the company’s head office in Mombasa Kenya.

 In diverse dates between January and February 1993, the accused sent the lorries to Mombasa for repairs. The trucks were supposed to carry goods on its way to Mombasa but that was not possible due to disagreement between parties on hiring rates hence the trucks travelled empty from Dar-es-salaam through Nairobi then Mombasa[2]. The accused visited Nairobi and Mombasa and made a follow-up on the trucks. It took two months to have lorries repaired and they were driven back home arriving on different dates again without carrying visible cargo. The first truck arrived on 2^nd July, 1993 followed by other trucks; the last truck arrived on 19^th July 1993. On 20^th July 1993, the police officers acting on secret information received, went to search accused’s office at Msasani area where they discovered and 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 accused’s premises.

It was alleged that, during search, the accused panicked and trembled with fear of being found in possession of drugs and he pleaded the police to stop search and he bribed them a tone of 918,200 which was a corruption. As result of search and discovery of those hidden drugs, the accused was arrested and kept in police custody. On the same day following the arrest of the accused, the mother of the accused ordered some vehicles to be removed from their usual parking at Msasani to a remote parking at Temeke area Dar-es-salaam. Basing on information received, the police officers ordered the three vehicles to be brought for them to inspect, three cars were inspected and over 2100 packets of the same drugs were found and seized. The drugs were hidden in the inner parts of the vehicles hence officers were forced to cut some parts so as to discover those drugs. The total of drugs discovered at accused premises and from trucks was 1,147,591 kilograms valued at over 4,997,500,000 Tzs.

Nurdin as an only accused, arraigned before District court where he was charged with three counts to say, “unlawful importation of dangerous drugs”, “unlawful possession of dangerous drugs”, and “corruption”. which were offences against Dangerous Drugs Ordinance[3], Prevention of Corruption Act[4] and The Economic Organized Crimes Control Act[5]. Nurdin acquitted on first and second count on grounds of insufficient evidence and on the third count on ground of lack of consent by Director of Public Prosecution. The prosecution aggrieved by decision of District Court appealed to High Court where respondent found guilty on two first counts and sentenced to 5- and 10-years imprisonment to run concurrently. Nurdin who was respondent before High Court aggrieved by the decision of the court appealed before Court of appeal, his appeal failed and court proceeded to dismiss it accordingly.

Issues

i.                    Whether appellant imported dangerous unlawful drugs?

ii.                  Whether appellant was in possession of dangerous unlawful drugs?

iii.                Whether one piece of evidence can support more than one count?

 

Decisions and Opinions

On the issue whether appellant imported and was in possession of dangerous unlawful drugs, the court found that, an appellant imported drugs in Tanzania due to his conducts and follow-up of trucks in Mombasa. The judge had an opinion that, fixing new fuel tanks needed a lot of expertise, expenses and time and this activity could not have been done by drivers without knowledge and consent of the appellant. The judge adds more that, he saw the trucks himself and places where tanks were fixed, the tanks were fitted in a way that it is very difficult to open even when police discovers that there are drugs in it, and he believes that, all that particular activity requires time and expertise hence cannot be done without consent of the appellant.

On the issue whether appellant was in possession of dangerous unlawful drugs, the court found that, the appellant was in possession of drugs because the drugs were found in his residential premises and he had control of the store where drugs were hidden. It was alleged that, during search, it was the appellant who opened the premise with a key he took from his wife hence he had control of the store and his claims that the drugs were hidden by one Mohamed Abdulrahman was a lie because Mohamed would not have risked leaving his expensive commodity without knowledge of the appellant. It was concluded that, the drugs were either hidden by an appellant himself or by Mohamed Abdulrahman with the consent of the appellant.

On the issue whether one piece of evidence can support more than one count, the court held that, one piece of evidence can support more than one offence and The Evidence Act[6] has no any provision which prohibit using one piece of evidence in two different counts. The 918,200 Tsh/= which was a bribe from appellant to police officers was an exhibit which used to prove corrupt transactions by an accused before District Court which the same exhibit used later before High Court to prove that the accused had knowledge of hidden drugs that’s why he tried to bribe police officers.

Legal rules discussed in the case and its relevance to Corporate Law Topics

This case law discussed the issue of “piercing corporate veil” in case of commission of criminal offences or debt caused by members or directors of the company. A corporate veil is a legal concept separating the actions of the organization from that of its shareholders. It safeguards the shareholders from being guilty of the actions of the company, the court has a right to remove that particular protection and charge the investors for crimes, debts and liabilities. In the case of Nurdin Akasha, the accused was a director of the company but the court of law lifted-up corporate veil so as to punish an offender on a crime committed. What we learn from this is, a concept of corporate veil applies only when issues of the company are at stable state, but when company enters into serious debts that cannot be easily paid, or when the company members commit serious criminal offences, corporate veil will be lifted up.

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[1] Republic v. Nurdin Akasha [1995] TLR 227.

[2] Tanzanianweb, “Nurdin Akasha Alias Habab vs Republic () [1995] TZCA 19 (12 September”, available at https://www.tanzanianweb.co.tz/2022/03/nurdin-akasha-alias-habab-v-republic.html accessed November 30, 2022

[3] Dangerous Drugs Ordinance [Cap 95]

[4] Prevention of Corruption Act of 1971

[5] The Economic Organized Crimes Control Act of 1984

[6] The Evidence Act [Cap 6 R; E 2019]