JUDGMENT BAKARI LUKA ELIAKIMU

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY

AT MBEYA DC. CRIMINAL APPEAL NO. 18621 OF 2024 CASE REFERENCE NO. 202407072000018621 (Originating from Criminal Case No. 16994 of 2024 in the district court of Mbeya) Between BAKARI LUKA ELIAKIMU .......................................................... APPELLANT

VERSUS THE REPUBLIC ....................................................................... RESPONDENT

JUDGMENT 25th November 2024 & 17th February 2025 NONGWA, J. Bakari s/o Luka Eliakimu was convicted and sentenced on his own plea of guilty with the offence of trafficking in narcotic drugs contrary to section 15A (1)(2) (c) of the Drug Control and Enforcement Act [Cap 95 R. E 2019] as amended by the Written Laws (Miscellaneous Amendments) Act No. 5 of 2021. It was alleged that on 14th day of June, 2024 at Nsoho, Idunda Street, within the District and Region of Mbeya the appellant was unlawfully found in possession of Narcotic Drugs to wit; one sulphate bag and one backpack containing dry leaves of Narcotic Drugs known as Cannabis Sativa commonly known as ‘Bhangi’ weighing 6.96 Kilograms. 1 After the charge was read over and explained to the appellant, he admitted them and the trial court accordingly recorded his reply as follows: "It is true that I was found trafficking drugs that is cannabis sativa’’. The following facts of the case containing substance of evidence was read; • That the accused person’s names, offences and address are as stated in the charge. • That the offence occurred on 14th June 2024 at Nsoho and Idunda street Mbeya. • That the accused was found with a sulphate bag and one hand bag having cannabis sativa where certificates of seizure were filled and signed. • Samples of the cannabis sativa was sent to the national chemistry offices for measurements. • That

the report proved it was cannabis sativa plant (dry leaves and seeds). • That, accused person was arrested and sent to the police station where upon interrogations by police officers admitted the offence. • That, the accused is in this court today and admitted the offence he stands charged with. Accused; I admit the facts to be true and correct. The prosecution then prayed to tender the report, a caution statement and sulphate bag having cannabis sativa. On the basis of the above facts and exhibits tendered the appellant was sentenced to imprisonment of thirty years. 2 Aggrieved has preferred petition of appeal on five grounds one, that the trial court erred in law when convicted and sentenced the appellant without taking into consideration that the admitted facts were imperfect and unfinished and for that reason the trial court erred in law in treating as a plea of guilty; two, that the trial court erred in law when convicted and sentenced the appellant without taking into account section 228(2) of the CPA Cap 20 R.E 2022 as the plea from the one who claimed to be the accused was recorded in English language the unknown language to the appellant; three, the trial court erred in law when convicted and sentenced the appellant without giving the appellant the chance to admit or deny by his language to every ingredients read by the prosecutor; four, that the trial court erred in

law when convicted and sentenced the appellant without taking into account that failure of the prosecution to mention the true weight of such exhibit PE1 the plea of the appellant was the result of Misapprehension; and five, that the trial court erred in law when convicted and sentenced the appellant without giving appellant the chance and opportunity to dispute or to explained the facts and any relevant facts this means that the plea of the appellant was the result of mistake. On the hearing day the appellant appeared in person, whereas Mr. Lordgard Eliamani, State Attorney appeared representing the 3 respondent. The appellant adopted his grounds of appeal and had nothing more. In reply, Mr. Lordgard supported the appeal, he submitted that facts of the case read to the accused did not disclose weight of the drug which is essential and the determinant in setting sentence. Further that the record is silence if the appellant was given chance to object to tendering of analytic report and the same was not read to him. With the pointed shortcoming prayed the appeal be allowed and retrial ordered. He supported the stance with the case of Omary Joachim vs Republic, Criminal Appeal No. 536 of 2016 [2019] TZCA 436 (10 December 2019; TanzLII). I have considered the submission of both sides. A general rule as per section 360(1) of the Criminal Procedure Act [Cap 20 R: E 2022] is that a

conviction arising out of an accused's own plea of guilty, cannot be challenged on appeal. However, cognizant of errors committed during the conduct of plea of guilty proceedings, over time, the court realised and outlined circumstances under which a conviction on own plea of guilty may successfully be challenged in appeal The exceptions were set in the case of Laurence Mpinga vs Republic [1983] TLR 166 and advanced in the case of Michael Adrian Chaki vs Republic, Criminal Appeal No. 399 of 2019 [2021] TZCA 454 (9 September 2021; TanzLII) 4 in which the court laid the following conditions to be met cumulatively for plea of guilty to stand. These are; 1. The appellant must be arraigned on a proper charge. That is to say, the offence, section and the particulars thereof must be properly framed and explicitly disclose the offence known to law.

2. The court must satisfy itself without any doubt and must be clear in its mind, that an accused fully comprehends what he is actually faced with, otherwise injustice may result; 3. When the accused is called upon to plead to the charge, the charge is stated and fully explained to him before he is asked to state whether he admits or denies each and every particular ingredient of the offence. This is in terms of section 228(1) of the CPA; 4. The facts adduced after recording a plea of guilty should disclose and establish all the elements of the offences charged; 5. The accused must be asked to plead and must actually plead guilty to each and every ingredient of the offence charged and the same must be properly recorded and must be clear; and 6. Before a conviction on a plea of guilty is entered, the court must satisfy itself without any doubt that the facts adduced disclose or establish all the elements of the offence charged.’ From the above, where an accused pleads guilty to the charge, before conviction, the law is that, the prosecution is duty bound and it must audibly and understandably narrate facts establishing the offence 5 as alleged in the statement and particulars of offence. That is, the prosecution must explain clearly and adequately the circumstances in which and how the offence was committed in specific and intelligible terms. In practice, facts narrated must

detail the substance of what would be evidence and where applicable tender documentary and any other exhibits, all meant to ensure that the accused clearly understands without any doubt, what is it that he is alleged to have done wrong and contrary to law. The appellant was charged under section 15A(1)(2) of the DCEA, it provides; ‘15A.-(1) Any person who traffics in narcotic drugs, psychotropic substances or illegally deals or diverts precursor chemicals or substances with drug related effects or substances used in the process of manufacturing drugs of the quantity specified under this section, commits an offence and upon conviction shall be liable to imprisonment for a term of thirty years. (2) For purposes of this section, a person commits an offence under subsection (1) if such person traffics in- (a) narcotic drugs, psychotropic substances weighing two hundred grams or below; (b) precursor chemicals or substance with drug related effect weighing 100 litres or below in liquid form, or 100 kilogram or below in solid form; (c) cannabis or khat weighing not more than fifty kilogram.’ 6 For the offence under the above provision to stand, it must be proved beyond reasonable doubt that first, the substances suspected to be drugs are as such, this is by analytic report from Chief Government Chemist. Two, the weight of the substance is not more than fifty kilograms. I agree with

the learned State Attorney that the weight of the substance alleged to be drug is crucial in establishing the offence and it determine the court jurisdiction. At hand, in the facts narrated by the prosecution, no weight of the drug was stated. Thus item 3, 4 and 5 in the Michael Adrian Mchaki’s case (supra) was not complied with. In John Faya vs Republic, Criminal Appeal No. 198 of 2007 [2011] TZCA 226 (11 February 2011; TanzLII) the Court emphasized that; ‘In every case in which a conviction is likely to proceed on a plea of guilty, it is most desirable not only that every constituent of the charge should be explained to the accused but that he should be required to admit every constituent of the offence and that what he says should be recorded and in the form in which will satisfy an appeal court that he fully understood the charge and pleaded to every element’. As weight of the substances alleged to be bhang was not narrated and explained to the appellant in facts of the case, that was unlawful, and the plea of guilty entered cannot be held to have been unequivocal upon which to ground a valid conviction. 7 From the above given reasons, I find merit in this appeal and proceed to allow it. Consequently, the trial court's plea of guilty order and the conviction are quashed and the sentence is set aside. As there was no trial of the appellant, I direct that the trial court should proceed with hearing of Criminal Case No. 16994 of 2024 by taking the plea of the appellant afresh before another magistrate. V.M. NONGWA

JUDGE 17/2/2025 Dated and Delivered at Mbeya this 17th Day February 2025 in presence of Mr. Dominic Mushi, Ms. Atuganile Kaponda and Mr. Denis Lazaro – State Attorneys for the Respondent and the Appellant in person. V.M. NONGWA

JUDGE 8