juma kindamba another vs republic 2023 tzhc 19884 30 june 2023

THE UNITED REPUBLICOF TANZANIA.

JUDICIARY

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY)

AT MTWARA CONSOLIDATED CRIMINAL APPEAL NO 91 & 94 OF 2022 (Originating from Ruangwa District Court at Ruangwa in Criminal Case No. 17 of2022) JUMAKINDAMBA:,,.. ...... APPELLANT AWESA MOHAMEED @ MNCLEJE............................ 2nd APPELLANT

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

JUDGMENT 16th & 3(R June 2023 LALTAIKA, J. The appellant herein JUMA KINDAMBA and AWESA MOHAMEED @ MNOLEJE husband and wife, were arraigned in the District Court of Ruangwa at Ruangwa charged with the offence of Being found with prohibited plant c/s U(l)(a)(c) (d.) of the Drug Control and Enforcement Act Cap 95 RE 2019. When the charge was read over to the appellants (then accused), they pleaded guilty. The trial court convicted them on their own plea of guilty and proceeded to sentence them to serve a thirty-year imprisonment term. Page 1 of 6 Dissatisfied, they have filed this appeal on 8 grounds. Later they added 4 grounds. When the appeal was called on for hearing, the appellants appeared in person, unrepresented. The respondent republic, on the other hand, was represented by Mr. Melchior Steven Aron Kondoro, learned State Attorney. The appellants had no substantive issues to add to their written grounds of appeal. They agreed that the two appeals filed by each of them be consolidated into one as I hereby do, Upon taking the podium, Mr. Kondoro announced that the respondent Republic was in support of both conviction and sentence of the lower court. He proceeded to ma ke the following submission in opposition to the grounds of appeal. Mr. Kondoro stated that upon going through ail the grounds of appeal, the complaints could be grouped into two. The first ground was that the

trial court had erred in relying on the exhibit of the seizure certificate, which indicated that the alleged bangi was found with the appellants. The appellants argued that the evidence should have been proved through a certificate of seizure, as required by Section 38(3) of the Criminal Procedure Act Cap 20 RE 2019. He emphasized that the appellants claimed that they were never given a receipt to show that they were found with the bangi. They believed that the absence of a receipt invalidated the evidence. Mr. Kondoro referred the court to the case of BAM.ADHANIIPOI MCHAFU V, R. CRIM APPEAL 328 OF 2019, where it was addressed that even if the seizure certificate was not acknowledged with a receipt, it could still be sustained, and the seizure Page 2 of 6 receipt was not feta! to annul the seizure certificate of the search warrant. Therefore, Mr. Kondoro prayed for the dismissal of this ground. On the second and last ground, the complaint was about the equivocality of the plea. Mr, Kondoro argued that the plea of the appellants was not equivocal as they had both agreed to plead guilty. He referred to the case of MICHAEL ADRIAN CHAKI V. REPUBLIC CRIM APPEAL NO 309 OF 2019, which explained the nature of pleas and the difference between equivocal and unequivocal pleas. He presented the six conditions for an unequivocal plea as outlined in the case. Mr, Kondoro stated that

the respondent Republic had satisfied itself through the proceedings of the Ruangwa District Court that the plea was entered properly, and the appellants had committed the offence. He requested that this ground be dismissed. In rejoinder, the first appellant stated that they were never found with the da/7p/and. that they were only arrested by the police. They claimed to have been heavily beaten and accepted the charges due to the pain. The first appellant mentioned the dates of their arraignment and how they initially denied the offense but later pleaded guilty. He explained that they were tricked into entering a plea of guilty, as the police had asked his wife about their whereabouts and waited for them to arrive. The second appellant mentioned that the police arrived when her husband was not at home. They asked her about her husband, and when he arrived shortly after, they took them both to Ruangwa. The second appellant was later discharged but continued to visit her husband until they were Page 3 of 6 informed that he was taken to court. She claimed that the exhibit was never tendered in court and that they quickly pleaded guilty and were sentenced, expressing their fear and terror during the process. The second appellant expressed sadness that her son from another marriage, whom he suspected as working as a police informer, hated her unew" husband (the first

appellant herein) and such hate might have been the cause of the false accusations. I have dispassionate Uy considered the grounds of appeal and the rival submission by the learned State Attorney, The entire record of the lower court including the purported plea of guilty leaves a lot to be desired. The appellants were arrested in their home place and taken to the police station on different occasions. I need to put it dear that it is highly advisable for trial courts to avoid accepting on face value a plea of guilty for offences that attract longer sentences like the current one. There is a procedure put in place to prosecute drugs related cases including submitting forensic examination results. It is getting quite worrisome that instead of discharging their duty to prove criminal allegations beyond reasonable doubt as required by law, the prosecution have started going for "low hanging fruits" by influencing or eve outrightly forcing perpetrators to plead guilty. This brings difficulties in the appellate level because the scope of appealable issues narrows down significantly upon conviction based on one's plea of guilty. The case cited by the learned State Attorney MICHAEL ADRIAN CHART V. REPUBLIC (supra) clearly provides for conditions to be observed for determining unequivocal plea in our jurisdiction. I take the liberty to reproduce the Page 4 of 6 relevant part as I

hereby do. CRIMINAL APPEAL NO 399 OF 2019 at page 7, the CAT "There cannot be unequivocal plea on which a valid con viction may be founded unless these conditions are conjunctively met. T. The appellant must be aligned on a proper charge. That is to say, the offence, section and particular thereof must be property framed, and must explicitly disclose the offence known to the law. 2, The Court must satisfy itself without any doubt and must clear 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 plea 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 term of section 2.28(1) of the Criminal Procedure Act (supra). 4,. The facts adduced after recording a- plea of guilty should disclose and establish all the elements of the offence charged.

5. The accused must be asked to plea and must actually plead guilty to each, and every ingredient of the offence charged and the same must be property recorded and must be dear.// I have doubts on the second requirement namely that "The Court must satisfy itself without any doubt and must clear its mind that an accused: fully comprehends what he is actually faced with, otherwise injustice may result." It appears that the appellants were arrested on the same day, but the second appellant was temporarily discharged and kept assisting her husband by bringing him some food while in the police cell. No sooner had the police allegedly recorded the first appellant's statement than they arrested his wife, and both were arraigned in court and sentenced as alluded to above hence this appeal. I have difficulties in accepting that the trial court warned itself sufficiently before accepting the plea of guilty given the above background information. Page 5 of 6 In the upshot, I allow the appeal. I hereby quash the conviction and sentence of the lower court. I order that JUMA KIN DAM BA and AWESA MOHAMEED @ MNOLEJE be released from prison forthwith unless he is being held for any other lawful reason(s) E.T.4JALTAIKA

JUDGE 30.06.2023 _ . X'-'i Court This Judgement is delivered under my hand and the seal of this court this 30th day of June 2023 in the presence of Mr. Melchior Hurubano, learned State Attorney and the appellant who has appeared in person, unrepresented. m A V- VI,

ALTAIKA

JUDGE 30.06.2023 Court: The right to appeal to the court of appeal of Tanzania fully explained.

LALTAIKA Page 6 of 6