Jdg Cr

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 21166 OF 2024 (Arising from Economic Case No. 18995 of 2024 from District Court of Simanjiro at Orkesumert) FATUMA SHABANI………………………………..APPELLANT VERSUS REPUBLIC…………………………………………………….RESPONDENT JUDGMENT 10th October & 11th December, 2024 Kahyoza, J.: Fatuma Shabani, a younger woman, is behind the bar serving a sentence of twenty years. She was found in possession of firearm; to wit a pistol without a licence. She pleaded guilty to the charge and the trial court found her guilty, convicted and sentenced her. Aggrieved by both conviction and sentence, Fatuma appealed to this Court. This prosecution opposed the appeal contending that Fatuma’s plea of guilty was unequivocal, hence, she can only appeal against the sentence. The respondent supported the sentence on the ground that sentence imposed was the minimum sentence, the law provided for offence. The issues raised by the appeal are as follows- 1. Was the plea unequivocal? 1 2. Was the sentence excessive? The appellant raised four grounds of appeal and submitted that she filed additional grounds of appeal, which I could not trace. The appellant complains that the trial court did not explain the ingredient of the offence, she pleaded guilty out of misapprehension of facts, that the charge was defective and that she was of tender age. Ms. Blandina, learned stated attorney, who appeared for the Republic opposed the appeal. She contended that the appellant who was upon her own plea of guilty, can only appeal against sentence but not conviction. She referred the Court to Josephat James v R. Criminal Appeal 316/2010 Tanzlii [2012] TZCA 156, where the Court of Appeal stated conditions under which a person who was convicted upon plea of guilty may appeal. The first condition is that the plea must have been equivocal. Looking at the appellant’s plea was unequivocal. As to the second condition that an appeal may be entertained where an appellant pleaded guilty as a result of a mistake or misapprehension. She contended that the appellant knew very well what she was doing. She added that looking at the charge sheet, it was no defective. Hence, the third ground for entertain an appeal originating from a plea of guilty was not established. 2 She stated further that facts adduced in court proved that the appellant possessed the firearm unlawfully. As to the appellant’s contention that she was 16 years old. The appellant’s age was not an issue before the trial court, the state attorney submitted that charge sheet indicated that the appellant was 20 years of age. There was no dispute as to her age which would have compelled the trial court to inquiry into the appellant’s age. She concluded that the appellant’s contention that she was a child aged 16 years is an afterthought. It is should not be considered. To determine whether the appellant’s plea was unequivocal, I decided to consider first, the appellant’s complaint that the charge sheet was defective. For sake of clarity let me reproduce the charge sheet- “Charge Statement of the Charge “Unlawful possession of firearm; contrary to section 20(1)(b) of the firearms and Ammunition Act, No. 2 of 2025 read together with paragraph 31 of the First Schedule to, and section 57(1) and 60(2) of the Economic and Organized Crime Control Act, [Cap. 200 R.E 2022]. Particulars of the offence 3 Fatuma Shabani, on the 24th day of June, 2024 at Kilala-Makumira area within Arumeru District in Arusha Region, was found in possession of one firearm make Pistol Fath-13 black in colour without authorization”. I do not find any defects. The charge sheet stated the section of Act creating the offence and the penal section, that is, it specifies the statement of the offence. It also provided particulars of the offence. Section 132 of the CPA provides that contents of the charge sheet as follows- “132. Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” The only issue raised by the charge sheet that while the offence was committed in Arusha Region and the appellant was charged in Simanjiro Babati District within Manyara Region. The prosecution did not offer explanation why the prosecution charged the appellant in Manyara and not in Arusha, the fact, which raised the jurisdiction issue of the trial court. I invited the parties to address me on the matter. The appellant had nothing to submit and it was obvious as the issue raised was technical one. Ms. Blandina, the learned state attorney submitted that since the offence was committed in Kilala- Makumira area within 4 Arumeru District in Arusha Region, Simanjiro district had no jurisdiction to determine the matter. She referred the Court to section 40(1) (a) of the Magistrates’ courts’ Act, [Cap. 11 R.E. 2019] (the MCA). Indeed, the jurisdiction of the district court is creature of the law and the court has jurisdiction in criminal matters as provided by law as stated under section 40(1) (a) of the MCA. The section states- “40.-(1) A district court shall have and exercise original jurisdiction- (a) in all proceedings of a criminal nature in respect of which jurisdiction conferred on a district court by any such law for the time being in force.” The CPA provides for the territorial jurisdiction of a criminal court under sections 180 and 181. In short, the court having jurisdiction to try or inquiry into the offence is the court within the local limits of whose jurisdiction the offence was committed or the accused person was apprehended. Sections 180 and 181 of the CPA stipulate that- “180. Subject to the provisions of section 178 and to the powers of transfer conferred by sections 189, 190 and 191, every offence shall be inquired into and tried, as the case may be, by a court within the local limits of whose jurisdiction it was committed or within the local limits of whose jurisdiction the accused person was apprehended, or is in custody on a charge for the 5 offence, or has appeared in answer to a summons lawfully issued charging him with the offence. 181. Where a person is accused of the commission of any offence by reason of anything which has been done or of any consequence which has ensued, the offence may be inquired into or tried, as the case may be, by a court within the local limits of whose jurisdiction any such thing has been done or any such consequence has ensued.” It is on record that police from Simanjiro district searched the appellant and found her in unlawful possession of a firearm, to wit a pistol. The appellant was searched at Kilala- Makumira area within Arumeru District in Arusha Region. Obviously, if the appellant committed any the offence, she committed it within Arumeru district in Arusha region. She was also apprehended within Arumeru district in Arusha region. I could not find any reason why the police charged the appellant in Simanjiro district. I understand that section 180 of the CPA allows a person to be charged to the court whose local jurisdiction, that person is in custody on a charge of the offence. There is no evidence that the appellant was in custody in charge of an offence but the evidence is that she was searched, found in unlawful 6 possession of a pistol, arrested in Arumeru district, and charged before Simanjiro district court. I find no convincing reasons why the appellant was charged before Simanjiro district court. Thus, based on the facts of the case, Simanjiro district court had no jurisdiction to try the appellant. Much as the appellant pleaded guilty, I am of the settled view that a person my plead guilty to a competent court and not otherwise. The Court of Appeal insisted in Luhinda Njemu vs Republic (Criminal Appeal No. 300 of 2012) [2013] TZCA 169 (25 March 2013) that, a valid plea of guilty must be made before the competent court. It stated thus- “Once it is shown, as in this case, that the accused person pleaded guilty to a charge properly drafted, before a competent Court and the facts adduced disclose the offence of which he was charged, normally a conviction entered will not be easily disturbed by the higher court.” I find that the trial court was not competent to trial the appellant for want of local jurisdiction as provided under section 180 of the CPA. However, that error or irregularity is curable under section 387 of the CPA. Section 387 of the CPA stipulates that- 7 “387. No finding, sentence or order of any criminal court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong region, district or other local area, unless it appears that such error has in fact occasioned a failure of justice.” (Emphasis added) Given the facts on record, I am of the firm view that the irregularity did not occasion any injustice. Having found that the charge was not defective, I now consider the merit of the appellant’s complaint against her plea of guilty. The record depicts clearly that, the appellant pleaded guilty to the offence of unlawful possession of firearm. Following the appellant’s plea of guilty, the court convicted her and sentenced her to serve a sentence of 20 years imprisonment. For that reason, she could appeal against the sentence only and not against conviction. Section 360 of the Criminal Procedure Act, [Cap. 20 R.E. 2022] (the CPA) stipulates that “an appeal shall not be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence”. 8 Notwithstanding the provision of section 360 of the CPA, an appellate court may interfere with conviction entered upon a plea of guilty when any of the criteria stated in Lawrence Mpinga v. Republic [1983] TLR 166 is established. The Court of Appeal in Lawrence Mpinga v. Republic stated that- “(a) An appeal against a conviction based on an unequivocal plea of guilty generally cannot be sustained, although an appeal against sentence may stand; (b) an accused person who has been convicted by any court of an offence “on his own plea of guilty” may appeal against the conviction to a higher court on any of the following grounds; i. That, even taking into consideration the admitted facts, his plea was imperfect, ambiguous or unfinished and, for that reason the lower court erred in law in treating it as a plea of guilty. ii. That he pleaded guilty as a result of mistake or misapprehension; iii. That the charge laid at his door disclosed no offence known to law; and iv. That upon the admitted facts he could not in law have been convicted of the offence charged. Section 228 (1) and (2) of the CPA and the Court of Appeal in Khalid Athumani v R. [2006] TLR 79 provides the procedure which must be 9 followed to when an accused person pleads guilty. Section 228 (1) and (2) of the CPA provides that- ''228.-(1) The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge. (2) where the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary.” The Court of Appeal in Khalid Athumani v R. (supra) approved the procedure for plea of guilty which was pronounced in Adan v Republic [1973] EA 445 that- “When a person is charged, the charge and the particulars should be read out to him, so far as possible, in his own language, but if that is not possible, then in a language he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential legal elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should 10 give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts of asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of plea to “not guilty” and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to the sentence. The statement of facts and accused’s reply must, of course, be recorded.” As the record bear testimony, the trial court read and explained the charge to the appellant. The appellant replied- “Accused: “Ni kweli nilikutwa na silaha ya moto pistol na sina kibali cha kimiliki” The trial court following the appellant’s plea, entered a plea of guilty and called upon the prosecutor to narrate the facts. The prosecutor narrated the facts, and tendered the certificate of seizure and chain of custody without objection. The facts were explained to the appellant who relied that- “Accused: The facts are all true, the firearm was found in my handbag along with the money. I did sign on the certificate of seizure, I have no permit to possess the firearm, pistol.” 11 After the appellant admitted the facts the prosecution advanced, the trial court made a finding that the facts the appellant admitted proved the ingredients of the unlawful possession of a fire arm. It, then, convicted her. The trial court was convinced that the facts the prosecution adduced, which the appellant admitted, established the elements of the offence. Thus, the trial court found that, the accused plea was unambiguous. It is settled that “an accused can only be convicted on his own plea of guilty if the court is satisfied that his plea is unequivocal.” See Emmanuel Ambrous V. R., Court of Appeal Criminal Appeal No. 555 Of 2017 CAT (Unreported). The facts narrated by the prosecution are as follows- 1. That, the accused personal particulars are as per charge sheet. 2. That, on 24.6.2024 the OC – CID ASP Hosea Mwaipopo, received information that the person involved in hijacking a vehicle, in case OKT/IR/276/2024 opened at Orkesumet police station and MIR/IR649/2024 at Arusha mining area, within Simanjiro District was seen at Mirerani area. He went to Mirerani and meet police detectives at Mirerani police station, they were informed the suspect had left there hearing to KIA area. When they reached KIA they asked bodaboda drivers, they were told the suspect had gone to Kilala area where he lives at a house owned by Haika George. When they arrived they did not find the suspect called Salim Mussa, 12 instead they must meet his wife called Fatuma Shabani, who is his wife. 3. That, the police searched the house, in the presence of the accused and found in the accused’s handbag a pistol Fath-13 black in colour with Numbers T0620-11J00409. Also found two long swords, five small mobile phones. Also in the accused handbag, an empty magazine was found and money Tzs. 230,000/=. The accused had on permit to possess the firearm. 4. That, ASP Mwaipopo filled in a certificate of seizure, which was signed by the accused Fatuma Shabani by writing her signature and affixing her thumb print. The certificate was also signed by witnesses, Jane Dies Bishota and Margerth Simbo Mushi. 5. That, the accused was taken to the police station, she had her statement taken by D/CPL Rehema whereby, the accused stated her husband possession of the firearm and would hide it in his socks and clothes. 6. That, the accused today had been arraigned in court and has pleaded guilty to the charge. The record depicts that the trial court did comply with the procedure for plea of guilty and the appellant admitted the facts establishing all elements of the offence of unlawful possession of firearm, I have no reason to hold that the plea was equivocal. I, like the trial court, find that the 13 appellant plea of guilty was unequivocal. I have no reason to interfere with the appellant’s conviction based on her own plea of guilty. Was the sentence excessive? The respondent’s state attorney submitted that the sentence was not excessive as she was sentenced to the minimum sentence under the law. The trail court convicted the appellant with the offence of unlawful possession of firearm contrary to section 20(1) (b) of the Firearms and Ammunition Act, No. 2 of 2015 read together with paragraph 31 of the First Schedule to and sections 57(1) and 60 (2) the Economic and Organized Crime Control Act, [Cap. 200 R.E. 2022] (the EOCCA). Thus, the appellant was convicted with an economic offence. The minimum sentence for an economic offence provided under section 60 (2) of EOCCA is 20 years’ imprisonment. Section states- “(2) Notwithstanding provision of a different penalty under any other law and subject to subsection (7), a person convicted of corruption or economic offence shall be liable to imprisonment for a term of not less than twenty years but not exceeding thirty years, or to both such imprisonment and any other penal measure provided for under this Act; 14 Provided that, where the law imposes penal measures greater than those provided by this Act, the Court shall impose such sentence.” She stated during the hearing of the appeal that she did not comprehend what was going on in court and that she was 16 years old. The charge sheet depicted that the appellant was 20 years old. The issue of age did not arise before the trial court. It a settled position of the law that this appellate court canvass on matters not raised before the trial court. I concur with the learned state attorney that, the appellant’s contention that she was a child aged 16 years is an afterthought. I, therefore find that the sentence imposed was justifiable as it is the minimum sentence provided under the law. The sentence is not excessive, I uphold it. In the end, I find that the appeal meritless and dismiss it in its entirety. I uphold the appellant’s conviction and sentence. I order accordingly. Dated at Babati this 11th day of December, 2024 John R. Kahyoza Judge 15 Court: Judgment delivered in the absence of the parties as they could not connect to the virtual court. B/C. Mr. Shadrack (RMA) present physically. The appellant has a right to further appeal after lodging a notice of intention of appeal within 30 days and filing the memorandum of appeal with 21 days from date of receipt of the records of appeal. John R. Kahyoza Judge 11.12.2024 16