FRANCIS FROLENT Judgment on 28

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA JUDICIARY BUKOBA SUB REGISTRY AT BUKOBA CRIMINAL APPEAL NO. 31946 OF 2024 (Arising from criminal case No 243 of 2022 in the District court of Karagwe at Kayanga delivered on 17 th November ,2022 Before Hon.E.J.Bingasila-Srm) FRANCIS FROLENT… ............................................................... APPELLANT VERSUS THE REPUBLIC………………………………………………………………..RESPONDENT JUDGMENT OF THE COURT Date of last order: 18/2/2025 Date of Judgment: 28/2/2025 BEFORE G.P. MAL ATA, J The appellant, Francis Florent, appealed to this court against conviction and sentence by Karagwe District Court in criminal Case No 243 of 2022 for unlawfully possession of small quantity of narcotic drugs c/s 17(1) (b) of the Drugs Control and Enforcement Act, cap 95 R.E.2019. The appellant was convicted and sentenced upon his own plea of guilty. Page 1 of 9 The accused was sentenced to serve fifteen (15) years imprisonment. Dissatisfied thereof, the Appellant preferred the present appeal armed with six (6) ground of appeal, namely; 1. THAT, the trial court erred in law and facts to convict and sentence the appellant basing on equivocal plea of guilty. 2. THAT, the plea was imperfect ambiguous and unfinished for that reason the lower court erred in law in treating it as plea of guilty. (Ref.Josephat James V.Republic, Criminal Appeal No.316 of 2010 TZCA [unreported]). 3. THAT, the trial magistrate erred in law and fact to convict and sentence the appellant who had pleaded guilty as a result of mistake and misapprehension. 4. THAT, upon the admitted facts the appellant could not in law to have been convicted for the offence charged with. 5. THAT, the trial magistrate erred in law and facts convicted the appellant basing on exh.P1 to exh.P5 whereas not read out after being admitted. 6. THAT, the sentence of fifteen (15) years imprisonment on the appellant was excessive in the circumstance of the case. On 18/2/2025, the appeal came for hearing and the appellant appeared in person whereas the Republic appeared through Ms. Elizabeth Twakazi learned State Attorney. Page 2 of 9 The appellant being layman submitted that, there was tortured, equivocal plea of guilty and excessive sentence. In reply thereof, Ms. Elizabeth Twakazi learned State Attorney informed this court that the republic was supporting the appeal on the grounds, one, the plea was equivocal in the sense that, upon the charge being read over and explained to the accused, the accused stated that, "Ni kweli” the word is ambiguity as they don’t know what he replied against. To bolster the position, he referred to the case of Hussein Abas @ Mkuvasa Vs R criminal appeal No.10/2022 Tanzil, 2024 where similar word was used and the court of appeal principled that, the plea was equivocal one. Two, the facts read over and explained to the accused did not disclose elements of offence. Being found in possession of bhang, weight and type of bhang. There were no exhibits of bhang produced in court. Three, the Government Chemist report confirming that, the said product was a bhang confirming that the plea of guilty was really in respect of verified bhang. Ms. Elizabeth Twakazi learned State Attorney stated that, the failure tender report was in contravention of principles stated in the case of Abdallah Ramadhan Vs R Criminal Appeal 372 of 2020, Tanzil 2024 and in Joseph Njiku Vs R, Criminal Appeal No.220/2022 where the court held that; Page 3 of 9 “Going by the above position of the Court, it must be plain that, in order for a conviction on a plea of guilty to a charge of trafficking narcotic drugs to be sustained, in addition to proving that the plea was unequivocal, it must also be established that, the substance which the accused was trafficking was indeed narcotic or psychotropic. The inescapable conclusion from the foregoing observation is that, a mere admission by the accused person that he was trafficking narcotic or psychotropic substance without a report of a Government analyst regarding the nature of the said substance, is not sufficient to ground a conviction upon one's plea of guilty”. Also, in the case of Mwinyi Bin Zaid Mnyangatwa v. Republic [1960] EA 218, the Court insisted that, the prosecution in the offences related to narcotic drugs has a duty to submit expert analysis evidence which is mandatory as its result is final, conclusive and it provides checks and balances that warrant convicting. The above position was insisted in the case of Abdallah Ramadhan Vs R, where the court stated that; We should as well insist that, at any rate, the above stated position of the law cannot be said to be as outdated as a manual typewriter as one might be tempted to think. Even after all these many years, the requirement for forensic analysis of the impugned substance still holds true and continues to be a good law. (See also Charo Said Kimilu v, Republic, Criminal Page 4 of 9 Appeal No. I11 of 2015 and Aldo Kilasi v. Republic, Criminal Appeal No. 466 of 2019 (both unreported). As to the sentence, Ms. Elizabeth Twakazi learned State Attorney stated that, the accused was found in possession of 7.4 grams of Bhang, this is a small quantity, section 17 (1) (a) of the Drugs Control and enforcement Act, Cap 95 R.E.2019. Section 17 (3) defined small quantity should not be above 50grams, the sentence is five years, the sentence was excessive and against the law. Having read parties’ submissions and trial court’s record, this court noted that; one, in reply to the charge read and explained to him, he stated that, Accused: Ni kweli Court: Entered a plea of guilty Subsequently, after the prosecutor read out the facts of the case the appellant replied as follows: - “Accused: I admitted the fact stated above are correct and true” The word “Ni Kweli” considered by the court as admission of guilty was imperfect, ambiguous and unfinished. The words “Ni Kweli” it appears to demand some more description as to what appellant was admitted against. It is the duty of learned Magistrate to inquire further to understand what the appellant meant by stating, “Ni kweli” and record the accused’s plea with perfection while Page 5 of 9 eliminating likelihood of having more than one interpretation. See the case of Hussein Abas @ Mkuvasa Vs R criminal appeal No.10/2022 Tanzil, 2024 Two, there was no Government Chemist report tendered in court in support of plea of guilty as stated in the case of Mwinyi Bin Zaid Mnyangatwa v. Republic [1960] EA 218, Abdallah Ramadhan Vs R Criminal Appeal 372 of 2020, Tanzil 2024 and in Joseph Njiku Vs R, Criminal Appeal No.220/2022, thus the plea was not in respect of the scientifically confirmed narcotic drug. Three, the accused appealed to this court challenging the pleads guilty to the offence, convicted and sentence accordingly. In the case of Laurence Mpinga Vs Republic (1983) T.LR 166 which has been cited with approval in a number of Court decision including the case of Hussein Rashid Jumanne Vs Republic criminal appeal no 55 of 2020 CAT, Msafiri Mganga Vs Republic, criminal Appeal No 57 of 2012, Josephat James Vs Republic , Criminal Appeal No 316 of 2010 and Samson Marco and another Vs Republic, Criminal Appeal No 446 of 2016. The court set grounds upon which accused who was convicted and sentenced upon his own plea of guilty can rely on. The grounds can be; 1. 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; 2. that he pleaded guilty as a result of mistake or misapprehension; Page 6 of 9 3. that the charge laid at his door disclosed no offence known to law and 4. that upon the admitted facts he could not in law have been convicted of the offence charged" On the other hand, the court of appeal has highlighted some conditions for unequivocal plea of guilty as stated in the case of Michael Adrian Chaki v. R, Criminal Appeal No. 399 of 2017 (unreported), where it stated that, an unequivocal plea is grounded on: - 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 must explicitly disclose the offence known to law; 2. The court must satisfy itself without any doubt and must be dear 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 offence charged; Page 7 of 9 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 dear; 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 aforesaid observation, it is crystal clear that, the conviction and sentence were illegally entered against the accused as correctly submitted by both parties herein. That said and done, this court finds that, the plea of guilty was equivocal and that, the prosecution case failed to tender Government Chemist report which is mandatory in all cases involving narcotic drugs even in plea of guilty incidences. In the event, I hereby allow the appeal, quash conviction and set aside sentence imposed by the trial court. Consequently, it is ordered that, the appellant herein be release immediate from prison unless detained lawful for any other genuine cause. ORDER ACCORDINGLY. DATED at BUKOBA this 28th day of February, 2025. G.P. MALATA JUDGE 28/2/2025 Page 8 of 9 JUDGEMENT delivered at BUKOBA this 28th February, 2025 in the presence of all parties. G.P. MALATA JUDGE 28/02/2025 Page 9 of 9