Florian Totnand

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CRIMINAL APPEAL NO. 32446 OF 2024 FLORIAN TOTNAND WELLA @GASTON @GASTON TOTNAND WELLA APPLICANT VERSUS THE REPUBLIC RESPONDENT Date of Last Order: 14.02.2025 Date of Judgement: 17.03.2025 JUDGEMENT MAGOIGA. J. The appellant, FLORIAN TOTNAND WELLA @GASTO@GASTON •i. TOTNAND, was charged before District Court of Kilombero (the trial court) for two counts namely: unlawful possession of Government trophies contrary to section 86(1), (2) (a) and (3) of the Wildlife Conservation Act, [Cap 283 R.E. 2022] read together with paragraph 14 of the First Schedule to and sections 57(1) and 60 (2) of the Economic and Organized Crimes Control Act, [Cap 200 R.E.2022] and unlawful possession of weapons within the National park contrary to section 17(1) (b) and (2) of The National Parks Acts,[Cap 282 R.E 2022]. The particulars of the charge which constitute facts of the case are that on 13*^^ day of October, 2022 at Machipi area which is within Udzungwa Nationai Park within Kiiombero district in Morogoro region, the appellant was found with unlawful possession of Government trophy to wit one red duiker meat valued at 250 USD equivalent to TZS.583,227.50 the property of the United Republic of Tanzania without permit from the Director of Wildlife. Further facts on the second count were that on the same date and place, the appellant was found in unlawful ppssession of weapons within the Nationai Parks to wit: one panga, one knife and one spear without permit of the Director of Wildlife. The trial court record shows that on 20^^ October, 2022,the appellant appeared in court and on his ^own plea of guilty to both counts was consequently convicted vand-sentenced To pay a fine^ in ; tune :0f Tshs.5,800,Q00/= or in default to serve twenty (20) years imprisonment. The appellant did not pay fine and is 'Currently serving custodial imprisonment. - Aggrieved with both conviction and sentence the appellant preferred this appeal to this honorable Court armed with six grounds of appeal couched in the following language, namely: - 1. That, the Hon. Trial magistrate erred in Jaw and in fact to convict and sentence the appellant without considering that the appellant's piea was not in connection to the offence. a. The appellant on the first count he pleaded on being found in possession ofanimai caiied Dik Dik (in Swahiii Digi Digi) while the charge sheet was in respect to be found in uniawfui with one red duiker(in Swahiii Funo Mwekundu). 2. That, the iearned triai magistrate erred in law and in fact for faiiure to record the answers in the words the appeiiant uses when the facts ofthe case were read over and explained to him which is against the instructions given by the court ofappeal in different decisions. 3. That, the facts of the case were read over and explained to the appeiiant in the language he did not understand that is English as cieariy indicated atpage 3ofthe proceedings. 4. That, the triai court violated the mandatory requirement of section 33(1)ofthe Economic and organized Crime ControlAct (Cap.200 R.E. 2022) when faiied/omitted to read over to the appeiiant his admission ofthe charge after it recorded his piea. 5. That, the appeiiant was convicted oftwo counts butthe sentence meted out to the appeiiant did not state under which provision has been echoed from and it is not dear in respect to which count 6. That, the triai Magistrate erred in iaw and fact to convict and sentence the appeiiant without observing if the appeiiant's piea ofguiity was voiuntary or invoiuntary as a. The appeiiant was not arraigned in court within prescribed time C/S 29(1) of the Economic and organized Crime controi Act(Cap 200 R.E2002) which require the accused to be taken to court within forty-eight hours(48 hours). After arrest but in this case, he was taken seven days hence his mind was affected. b. Appeiiant was under poiice custodyfor more than seven days without any expianation from the prosecution side which raises doubt on the piea he rpade at the court. When this appeal was called on for hearing, the appellant appeared In person and unrepresented and: was ready to proceed. The respondent, the Republic had the services of one Ms. Veronica Chacha, learned Senior State Attorney. The appellant had nothing useful to submit but urged the court to consider his grounds of appeal and allow the appeal and consequently set him free. Ms. Chacha, on the other hand opposing the appeal had the opportunity to respond. Ms. Chacha, retorting to the first ground of appeal argued that the appellant admitted to have been found with ''dig dig/' while the charge sheet referred to "red duiker." According to the learned Senior Attorney, dik dik belong to the same speciesi with the red duiker and names are just semantic, hence, according to her, this ground lack merits. Further, the learned Senior Attorney added that the trial court proceedings when facts were narrated confirmed that the appellant admitted to be possession of the red duiker also known as 'dig dig' in the cornmon language. The difference between "digidigi" and "red duiker" is considered semantic and does not invalidate the prosecution's case. Also, other exhibits, including the certificate of seizure were tendered, which the appellant signed, admitting that he was found with red duiker in his possession. The learned Senior State Attorney pointed out that the appellant did not object to this evidence in the trial court as such it cannot be said that the plea was equivocal. An inventory of the destroyed animal was also presented and explained in court, insisted the learned Senior Attorney. Cementing on this ground Ms. Chacha, argued that Section 360(1) of the Criminal Procedure Act (CPA) clarifies that appeals on pleas of guilt are only permissible against the sentence, not on other grounds. The first ground, therefore, is unmeritorious and urged this court to dismiss it. Ms. Chacha, arguing the second and third grounds of appeal together, propounded that in recording of the plea in a language different from the appellant's response and referred to section 13 of the Magistrates' Courts Act, [Cap 11 RE 2019], which requires the language of the court to be Kiswahili or English which the same was adhered to, and looking at the typed proceedings duly confirm that the facts were read to the appellant, and he admitted to theiji, thus, she urged this court find that these grounds lack merit. Ms. Chacha opposing the Tourth ground of appeal, which main complaint was that Section 33(1) of the> Economic and Organized Crimes Act (EOCA) was not complied with, as the confession was not properly read and explained to the appellant. The learned Senior Attorney argued that, this is solely not true for the section was complied and this ground is, therefore, baseless. In response to the sixth ground of appeal which was that the appellant has complained of being brought to court late. However, the learned Senior Attorney argued since the conviction was based on a plea of guilty and not evidence, this ground does not affect the conviction. There was no evidence on record suggesting any violation of Section 360(1)of the Criminal Procedure Act[Cap 20 R.E 2019]and cited the case of Shabani Vs Republic, Criminal Appeal Np. 519 of 2021 to support her stance. Ms. Chacha on the fifth ground of appeal whose main complaint was that the sentence Imposed, contending that he was convicted of two offences but was not sentenced separately for each count. The learned Senior Attorney admitted that There was, that flaw In the proceedings regards on sentencing but she was quick to request that this court to Intervene, correct and Impose the proper sentence as per the law. In this she cited the case of Stanley Mrithi Mwaura v. Republic, Criminal Appeal No. 144 of 2019,to support her assertions. And added that the appellant should have been sentenced to two years'Imprlsonrnent for the offence unlawful found with weapons In the National Parks. Eventually, Ms. Chacha prayed this court to dismiss this appeal and Impose correct sentence as per fection 312(2) of the CPA. Ms. Chacha as ■ well pointed out that should the court agree with the appeilant on the first ground of appeai, she prayed the file may be returned for a new plea and retrial. This marked the end of this hearing. Before I deive myseif into the merits of this appeai, I wish to remark that it is a weii-estabiished principie of iaw in our jurisdiction that an appeai cannot be entertained on conviction of a guiity piea of guiity save for iegality of the sentence. See section 360(1) of the Criminai Procedure Act, [Cap 20 R.E.2019]. This principle has been reaffirmed in severai decisions, inciuding Laurent Mpinga v Republic[1983]TLR 166 and Laurent Mkundi v Republic[2003]TLR 111, where it was heid that a person who has pleaded guilty cannot appeal against the conviction except on specific grounds, such as: the plea was equivocal; the piea was entered through mistake or misunderstanding; the piea was made as a result of inducement or duress; or the charge does not disclose an offence. There is no doubt that in the present appeai, the appellant was convicted on his own piea of guilty and as such therefore legally barred from appealing save on few exceptions as noted above. And therefore. the issue for determination is whether the appellant's plea was unequivocal and unambiguous In the circumstances of this appeal. Upon thorough examination trial court proceedings which were the subject of this appeal, and In particular, the plea of the appellant, I find with due respect to the learned Senior State Attorney that the plea of the appellant In this appeal was completely equivocal and ambiguous. I will explain and the record of the trial court will assist me to explain more. The record of the trial court as found on page 2 had this In place. Accused plea Count: '^ i- VW" kweU nUikutwa kwenye hifadhi ya Udzungwa nikiwa na mnyama mmoja aitwaye digidigi' No doubt that the charge sheet subject of this appeal yyas referring to the 'Ved duiker" In Swahl|l "Funo_mwekundu'' but the appellant admitted to have been found with 'dig dig,' The Immediate question Is, can It be said the plea was unequivocal and unambiguous In the circumstances we have here. The learned Senior State Attorney argued that the words 'red duiker' and 'dig dig' refers to the same species of animal and urged this court to find that it Is matter of semantic and found the plea to be unequivocal and unambiguous. I have carefully considered this rivaling stance on this issue and with due respect to the learned Senior State Attorney, in my respective opinion, the plea before trial court in this appeal was not unequivocal and unambiguous. I will explain. One, the charge sheet which is the foundation of the criminal charges was referring to a different animal altogether and upon the words of the appellant, a prudent prosecutor would have asked for amendment of the charge to reflect the exact animal and not species of animal. Two,the trial court would have entered a plea of not guilty because the charge was very specific that it was red duiker and not dig dig. But this was not done. Three, the arguments by the learned Senior State Attorney that the namqs'Red Duiker' and -Did Dig' refers to one and same animal sound good but are not supported by the record because the facts read by the prosecutor nowhere gave such an explanation and this court cannot rely on submission from the bar to say that'Dig Dig' is the same as'Red duiker'. On the foregoing reasons, I find the pleia iby. the appellant on the first count was wanting and was equivocal and ambiguous. Having found so,the next stage is the way forward. The learned Senior State Attorney urged this court to remit this case file to the trial court to take a proper plea and trial started afresh. 10 I have given due consideration of the prayer by the iearned Senior State Attorney and after considering the whole circumstances of this appeal, I am constrained to decline the root suggested by the iearned Senior State Attorney. I will explain why I am taking this stance. One, the appellant so far has served more than three years and the second count which the learned Senior State Attorney admits there are disturbing features in sentencing as such if allowed will give ropm for the prosecution to drag him twice and may occasioned double jeopardy on the appellant. Two, allowing a fresh plea to be taken may allow for the prosecution to fill in gaps such arraignment of the accused person on the same facts by substituting the charge and drag him to another trial at the detriment of the appellant such as 85 snares in the exhibit PEl (certificate of seizure) which were not mentioned by the prosecution as instruments for aiding the commission of the offence. See the case of Director of Public Prosecutor Vs. Daudi Pete[1993]TLR 22. In the final analysis, I allow:the appeal, quash the conviction and set aside the sentence in respect to the 1?^ count and much as:the second count has already been served, I order that interest of justice demands that the appellant be immediately released from prison unless otherwise held for lawful causes. 11 It is so ordered. Dated at Morogoro this 17^^ day of March, 2024 ■ Q e> -7. S.M. MAGblGA •Li 'rO r > JUDGE 17.03.2025 COURT: Judgement delivered in chambers at Morogoro in the presence of the appellant and Ms. Paulina Masawe, learned state Attorney for the respondents today on Day q IC 2025. -I' ::: T' LU JUDGE X > V-- 17.03.2025 COURT: Right of appeal fully explained O'JHT 0^ C -1. ■5: UJ X -w* Vl\^ V V S.M. MAGOIGA JUDGE 17.03.2025 12