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IN THE COURT OF APPEAL OF TANZANIA AT MTWARA (CORAM: KEREFU. 3.A.. RUMANYIKA. J.A.. And MGEYEKWA. J.A.^ CRIMINAL APPEAL NO. 51 OF 2022 JUMA HASSAN TEKA....................................................................APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania) At Mtwara) (Muruke, 3.) dated the 18th day of February, 2022 in Criminal Appeal No. 59 of 2021 JUDGMENT OF THE COURT 7th & 13th June, 2024 MGEYEKWA, 3.A. This is a second appeal. The appellant, Juma Hassan Teka, was charged in the District Court of Mtwara with an offence of unlawful possession of prohibited plants contrary to section 11 (1), (d) of the Drugs Control and Enforcement Act (the DCEA). i It is essential, at the outset of this judgment, to look at what transpired during the appellant's arraignment on 14th April, 2021. It was alleged that on 18th March, 2021 at Magomeni area within the Municipality and Region, the appellant was found in unlawful possession of prohibited piants to wit; Five Hundred (500) grams of Cannabis Sativa commonly known as "Bhangi". When the charge was read to the appellant, he pleaded not guilty. Then, the matter was adjourned and the trial court scheduled a date of conducting preliminary hearing. According to the record of the appeal, on 10th June, 2021 when the preliminary hearing was conducted, the appellant was called upon to plea on the charge which was read and explained to him, he pleaded:" 'It is true that they found me possessing prohibited plants -bhangi unlawful. ''The trial court entered a plea of guilty. When the appellant was asked by the trial Resident Magistrate, if he was admitting the facts which substantiated the charges read over to him, he willingly and in no uncertain terms stated "All facts are true and correct." 2 After that, the trial court adjourned the hearing at the instance of the prosecution's prayer, intending to bring the exhibits and tender them in court. On 11th June, 2021 the trial court reconvened so that the exhibits could be tendered. Before the exhibits were yet to be tendered, the trial court asked the appellant if he still maintained his earlier plea of guilty. The appellant responded as herein: "Your Honour, I am still maintaining that they found me possessing prohibited plant unlawful." After the facts were narrated, the prosecution prayed to tender the exhibits to corroborate the commission of the offences. The trial court admitted the tendered exhibits by the prosecution without objection from the appellant. These were a certificate of seizure (exhibit PI), fifty hundred (500) grams of bhang (exhibit P2), and a report of the examination from the laboratory of a Government Analyst (exhibit P3). The trial court asked the appellant if he had any objection. The appellant said he had no objection on those three exhibits. Then, the prosecution read out the contents of the said exhibits in court. On the strength of the unequivocal plea of guilty by the appellant and the facts of the case read over to him, the Resident Magistrate convicted the appellant as charged and sentenced him to the statutory sentences as hinted above. The appellant unsuccessfully challenged the convictions and sentences meted out to him in the High Court of Tanzania at Mtwara. Still undaunted, the appellant has come to the Court in a second and final appeal premising his grievance on ten (10) grounds. However, for the reasons which will be apparent shortly, we deem not appropriate to reproduce them herein. When the appeal was called on for hearing, Mr. Issa Chiputula, learned counsel represented the appellant while Mr. Wilbroad Ndunguru, learned Principal State Attorney represented the respondent Republic. Before he could start to argue the grounds of appeal, Mr. Chiputula prayed for leave of the Court to abandon the first, second, third, fourth, eighth, nine and tenth grounds of appeal, the prayer which was granted. He prayed to argue the fifth, sixth and seventh grounds of appeal which can conveniently be paraphrased as follows; one, the sentence was too excessive and in contravention of the law; two, the appellant's plea of guilty was a result of mistake or misapprehension and three, the reply of the appellant was not invited during tendering and admission of exhibits PI, P2, P3. Starting with the second ground, Mr. Chiputula began by stating that, in terms of section 360 (1) of the Criminal Procedure Act (the CPA), no appeal lies against a conviction grounded on a plea of guilty except under certain circumstances, such as illegality of a sentence and if the appellant's plea was improper or ambiguous. Fortifying his submission, he referred us to our earlier decision in Masanja Misalaba v. Republic, Criminal Appeal No 363 of 2016 [2019] TZCA 626 (11 December 2019 TanzLII). Relying on the above-cited authority, Mr. Chiputula submitted that, the appellant's plea was equivocal and so he was improperly convicted and sentenced. Mr. Chiputula's challenge on the plea of guilty purported to have been entered by the appellant was founded on the fact that there was variance of dates contained in the charge sheet and the material facts and the name of region where the crime was committed was not featured in the charge sheet. Expounding, he argued that the charge sheet states that the alleged offence was committed on 18th March, 2021 while the material facts reveal that the offence was committed on 16th March, 2021. Upon being.probed by the Court as to whether the material facts show that the offence was committed on 16th March, 2021, he was quick to respond that the material facts states that on 16th March, 2021, the appellant was at his house. It was Mr. Chiputula's further submission that it is apparent, at page 10 of the record of appeal that, on 10thJune, 2021, when the material facts were read out, the appellant admitted all the facts as correct to the offence charged. He added that, however, the record is silent on whether the ingredients of the offence were explained to the appellant. He did not end there; he faulted the trial court for recording the plea in English instead of recording it in the language known to the appellant. Therefore, in his view, the appellant did not understand the charge against him. To reinforce his submission, he referred us to the case of Masanja's case (supra). Submitting on the third ground, Mr. Chiputula was very brief and straight to the point, he contended that the exhibits were tendered but the same were not read out in court. He clarified that despite the fact that the court allowed the State Attorney to read out the contents of the exhibits but the trial court did not record if the exhibits were read out in court. 6 On the first ground, Mr. Chiputula argued that, the sentence meted out on the appellant was excessive. He faulted the trial court for failure to consider the appellant's mitigating factors, and argued that had the trial court considered the appellant's mitigating factors, it would not have imposed on him the sentence of thirty (30) years imprisonment. Upon being probed by the Court on whether there is a lesser sentence than thirty (30) years imprisonment as per section 11 (1) (d) of the DCEA, Mr. Chiputula submitted that, the minimal sentence under the said section is thirty (30) years imprisonment. In conclusion, he implored us to allow the appeal and exercise the Court's revisionary powers by quashing the proceedings of the lower courts and remit the file to the trial court for retrial. In his riposte, the learned Principal State Attorney stoutly resisted the appeal. Starting with the second ground, Mr. Ndunguru argued that, the plea of guilty by the appellant was unequivocal. This was so on account that, the appellant willingly pleaded guilty to the charge when it was read over to him and plea was recorded according to section 228 of the CPA. He further submitted that, the facts were given in detail by the prosecution to 7 clarify the commission of the offence and the appellant admitted that all facts are true and correct. To support his submission, he referred us to pages 9 and 10 of the record of appeal. He, therefore implored us to find this ground devoid of merit. On the complaint regarding variance of charge and the material facts, Mr. Ndunguru admitted that, the date when the offence was committed varies from the date stated in the material facts. He also admitted that the charge sheet did not state the region where the offence was committed. However, the same did not crack Mr. Ndunguru's stance in supporting conviction. He argued that the defects are innocuous typographical errors which did not prejudice the appellant, and the same are curable under section 388 (1) of the CPA as held in the case of Josephat James v. Republic, Criminal Appeal 316 of 2010 [2012] TZCA 159 (1 October 2012 TanzLII). With respect to the third ground which relates to the issue of tendering exhibits, Mr. Ndunguru argued that the exhibits were tendered, admitted and read out in court and the appellant did not object, neither add nor subtract anything from the facts which were read out before him. He added that the trial court before convicting the appellant at page 13 of the record of appeal, stated clearly that the appellant did not object to all exhibits tendered before the court. Therefore, in his view, there was no any reason for the first appellate court to fault the trial court since the exhibits were read out and properly admitted in court. In the alternative, Mr. Ndunguru was of the view that in case the court finds that the exhibits were not properly read, that ipso facto cannot render the plea of quilt equivocal because tendering of exhibits where conviction is based on a plea of guilty, is not a legal requirement. To reinforce his submission, the learned Principal State Attorney referred us to the case of Joel Mwangambako (supra). On the complaint regarding sentence, the learned Principal State Attorney resisted the proposition advanced by his learned friend by submitting that the sentence of thirty (30) years imprisonment was statutory thus rightly imposed. In support of his submission, he referred us to the stipulation under the provisions of section 11 (1) (d) of the DCEA, and argued that thirty (30) years imprisonment is the minimum sentence. On the strength of the above submission, he implored us to dismiss the entire appeal for lack of merit. In his rejoinder, the appellant's learned counsel reiterated his submission in chief. He stressed that the plea of the appellant was equivocal. He thus, implored us to allow the appeal and order retrial. We have profoundly gone through the record of proceedings on the date the appellant was formally arraigned before the District Court of Mtwara and dispassionately considered the contending submissions by the learned counsel to the proper sieve they deserve. We now turn to determine the grounds of appeal in the same manner as presented and argued by both parties. Addressing the second ground, the crucial issue is whether the appellant's plea of guilty was unequivocal to warrant conviction on plea of guilty. At the onset, we find that as the law stands now it does not permit any appeal on one's own plea of guilty, except as to the extent or legality of the sentence. This is the gist and import of the provisions of section 360 (1) of the CPA. For ease of reference, we reproduce the section as hereunder: 10 "360 (1) No appeal shall be allowed in the case o f 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 o f the sentence" However, as rightly submitted by Mr. Chiputula, we are keenly aware that notwithstanding a conviction resulting from a plea of guilty, under certain circumstances an appeal arising thereof, may be entertained by an appellate court for both conviction and sentence. These would include situations where the plea was imperfect, ambiguous, or unfinished, appellant pleaded guilty as a result of a mistake or misapprehension, the charge levelled against the appellant disclosed no offence known to law, and upon the admitted facts, the appellant could not in law have been convicted of the offense charged. This position was well elaborated by the Court in a plethora of authorities to that effect. See amongst others, Rex v. Forde (1923) KB 400 at 403, Josephat James (supra) and Frank MIyuka v. Republic, Criminal Appeal 404 of 2018 [2020] TZCA 1738 (20 August 2020 TanzLII). li What transpired in the trial court that has culminated to the instant appeal is well indicated on pages 9 through' 13 of the record of appeal which we reproduce hereunder: "Court: Charge read over and explained to the accused person who is asked to piea thereto: Accused pleads: "7t is true that they found me possessing prohibited plant - bhang unlawful" Court: plea o f guilty entered. Accused: Signed SgdL.M. Nyang'andu, RM 10/06/2021" After having recorded the pleas of the appellant as indicated above, the prosecution narrated the facts of the case which went as follows: That on 16.03.2021 at about 11:00 hours accused was at his home. Thereafter police officers came due to information that he ? is suspected to deal with narcotic drugs. Accused's home was searched which leads to reveal narcotic drugs. The said drugs were seized and seizure certificate was prepared in which among others accused person signed. Thereafter accused with the seized drugs was taken to Mtwara Central Police. Which at police accused was interrogated and recorded caution statement in 12 which he confessed to be found in unlawful possession o f the said bhang. On 14.04.2021 accused was charged before this court. Accused: All facts are true and correct. Accused: signed , Thereafter, the prosecution prayed for the court to read over the facts of the case since the appellant had pleaded guilty. The court adjourned at the instance of the prosecution to bring the documentary exhibits and when reconvened the appellant having been asked if he still maintains his plea of guilty, he replied: Accused: Your honour I am still maintaining that they found me possessing prohibited plant unlawful." In the view of the facts borne out from the proceedings as shown above, we find that the appellant understood the charge that was facing him as well as the facts of the case when they were narrated to him. There was no confusion since he. was given more than one opportunity to plea, yet he maintained his plea in nearly the same words he had previously pleaded. Therefore, we agree with Mr. Ndunguru that the appellant's plea was unequivocal and the statement of facts as reproduced above dearly disclosed and established all the essential ingredients of the offence of unlawful possession of the prohibited plant. Therefore, with profound 13 respect, we could not discern any sentiment of merit by the appellant's counsel of faulting the trial court to have found that the appellant's plea was unequivocal. The issue concerning the language used in proceedings at the trial court, we are firm that this contention will not detain us since it is plain that, the languages of the court are English and Kiswahili. Therefore, as long as the appellant's response was detailed and the charge was read out more than one time, we believe he understood the language which was used during the preliminary hearing. With respect to Mr. Chiputula's argument on variance of dates contained in the charge sheet and material facts, we hold that there is no any variance of the dates between the charge sheet and the material facts. The words in the material facts are very clear contrary to Mr. Chiputula's submission, on 16th March, 2021, the appellant was at his home, which does not mean that the offence occurred on that particular date. Therefore, this issue is misconceived. For the sake of clarity, we have read the case of Masanja Misalaba (supra). In that case, the issue for discussion was the charge sheet lacked an ingredient of the use of a dangerous or offensive weapon which is an integral part to make an offence of armed robbery, therefore, 14 the Court found that the appellant was prejudiced. Unlike in the cited case of Masanja (supra), in the present case, the charge sheet contained different name of the place where the offence was committed. In our considered view, as rightly submitted by Mr. Ndunguru, we find that, the said defect is nothing but innocuous typographical error that did prejudice the appellant. The same is curable under section 388 (1) of the CPA. See Jamali Ally @ Salum v. Republic, Criminal Appeal No.52 of 2017 [2019] TZCA 32 (28 February, 2019 TanzLII). We, therefore reiterate that, the appellants plea to the charge, the facts of the case, the admission of the truthfulness of the said facts in respect to the nature of the offence charged, and the procedure followed by the trial court, were clear and complete. Therefore, we find this ground of appeal devoid of merit. Next to our consideration, is ground three. It is apparent, at pages 12 and 13 of the record of appeal that, the trial court admitted the tendered exhibits without objection from the appellant and the same were read out in court. The exhibits were 500 grams of bhangi, a certificate of seizure, and a report of examination from the laboratory of a Government Analyst. After that, the prosecution prayed to read out the exhibits, and the court accordingly granted the prayer. Our examination of the tendering of exhibits as alluded to above, assures us that the exhibits were read out in court. Therefore, with profound respect, we cannot fault the trial court for failure to record that f 1 theexhibits were read out in courtbecause before convicting the appellant, it made clear that the same were red out. For ease of reference, we find apt to reproduce what the trial court stated at page 13 of the record of appeal: Court: As the accused has pleaded guilty to the charge, admitted all facts as it was read by the State Attorney, raised no objection to all exhibits, tendering before this court of which all in total constitutes the offence he was charged with, this court is finding him guilty and hereby convict him as provided for under section 11(1) (d) o f the Control and Enforcement Act (supra). From the above excerpt, we find that the complaint by Mr. Chiputula that the exhibits tendered in evidence were not read out to the appellant, is unfounded because the record speaks by itself. We agree with Mr. 16 Ndunguru that even if the exhibits were not read out, still it was not fatal because tendering of exhibits where conviction is based on a plea of guilty, is not a legal requirement. The Court was confronted with a similar situation in the case of Frank Mlyuka (supra) and Joel Mwangambako (supra). Turning to the first ground, the issue for our determination is whether the sentence imposed on the appellant by the trial court was excessive, the answer is in the negative in view of the clear provisions of section 11 (1) (d) of the DCEA. For ease of reference, we reproduce it hereunder: "11.- (1) (d) Any person who- produces, possesses, sells, purchases, transports, Imports into Mainland Tanzania, exports, use or does any act or omits to do anything in respect o f prohibited plants which act or omission amounting to contravention o f the provisions o f this Act, commits an offence and upon conviction shall be liable to imprisonment for a term of not less than thirty years." [Emphasis added] Going by the above provision of the law, it is apparent that the words of the statutes are plain, as rightly submitted by Mr. Ndunguru, the sentence of thirty (30) years imprisonment in respect to the offence 17 charged upon the appellant is a minimal sentence. Therefore, there was no way the trial court could have gone out of the sentence lane and impose a lesser sentence. This ground is devoid of merit. It, therefore fails. In the upshot, this appeal is dismissed in its entirety for want of merit. It is so ordered. DATED at MTWARA this 12th day of June, 2024. R. J. KEREFU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 13th day of June, 2024 in presence of Mr. Rainery Norbert Songea who took brief for Mr. Issa Issa Chiputula, learned counsel for the Appellant and Mr. Justus Revocatus Zegge, learned State Attorney for the Respondent/Republic is hereby certified as a true A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL