norasko wolfgangi nungu vs the republic 2023 tzhc 20225 18 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SONGEA

AT SONGEA CRIMINAL APPEAL NO. 24 OF 2023 NORASKO WOLFGANGI @NUNGU ………………………………………. APPELLANT

VERSUS THE REPUBLIC ……………………………………….……..……………… RESPONDENT (Originating from the decision of the District Court of Namtumbo at Namtumbo in Criminal Case No. 19 of 2023)

JUDGMENT 7th and 18th August, 2023 KISANYA, J.: Before the District Court of Namtumbo, the appellant, Norasko Wolfagangi @Nungu stood charged with one count of unlawful cultivation of prohibited plants contrary to section 11(1) of the Drugs Control Enforcement Act, Cap. 95, R.E. 2019 (the DCEA). It was alleged that, on 10th March, 2023, at Nambunju area, Kitanda village within Namtumbo District in Ruvuma Region, the appellant unlawfully cultivated prohibited plant to wit 73 plants named cannabis commonly known as bhangi. Upon the charge being read over and explained to the appellant, the appellant’s reply was follows: “It is true that I did cultivate bhangi on my farm at Mbungululu” 1 The learned trial magistrate recorded that the appellant had entered a plea of guilty. She went on inviting the public prosecutor to read over the facts of the case. Thereafter, the public prosecutor read over the following facts to the appellant: “- An accused is named Norasko s/o Wolfgagi @ Nungu, 28 years old, Christian, peasant of Kitanda, Namtumbo. - On 10th day of March, 2023 at Nambuju area that is situated at Kitanda village within Namtumbo District in Ruvuma, did cultivate 73 plants of cannabis commonly known as bhangi. - On 10th day of March, 2023 at Kitanda Police Station, an accused person was interrogated and confessed to have cultivated 73 plants of bhangi on his farm.” When he was

called upon to address the District Court on the said facts, the appellant had this say: “All facts about cultivating 73 bhangi plants are true and correct” After considering the appellant’s response to the charge and the facts in support of the charge, the District Court convicted the appellant on his own plea of guilty for the unlawful cultivation of prohibited plants. In 2 consequence, the appellant was sentenced to serve thirty (30) years imprisonment. Before this Court, the appellant has fronted three grounds of appeal which may be summarized as follows: One, that the District Court erred in law and fact to convict the appellant basing on unequivocal plea. Two, that the District Court failed to comply with the provisions of section 192(2) and (3) of the Criminal Procedure Act, Cap. 33, R.E. 2022 (the CPA). Three, that, the District Court erred in law and fact to convict the appellant while the prosecution failed to tender any exhibit in relation to the offence. On the date of hearing of this appeal, the appellant appeared in person, while the respondent was represented by Mr. Alfred Maige and Madundo Mhina, learned State Attorneys. The appellant prayed for this Court to consider the grounds of appeal. He contended that he did not commit the offence and that he was convicted while an exhibit related to the case at hand was not tendered. Mr. Maige resisted the appeal. On the

first ground of appeal, he submitted that the appellant was convicted basing on an unequivocal plea as mandatorily required by section 228 of the CPA. The learned counsel 3 contended that the facts which the appellant admitted to be true were to the effect that he (the appellant) was cultivating prohibited plant commonly known as bhangi at Nambuja Village as stated in the charge sheet. Reacting to the second ground of appeal, Mr. Maige submitted that there was no need of complying with section 192 of the CPA because the appellant pleaded guilty to the offence. As for the third ground of appeal, the learned State Attorney argued that, it was not necessary for the prosecution to tender the exhibits owing to the fact that the appellant pleaded guilty to the offence. To reinforce his argument, he referred this Court to the case of Mathias Barua vs R, Criminal Appeal No. 105 of 2015 (unreported). That said, Mr. Maige urged the Court to dismiss the appeal for want of merit. In alternative, he prayed for the matter to be remitted to the District court for trial, if this Court arrives at a finding that the appellant’s plea was equivocal. 4 I have gone through the record and considered the grounds of appeal and the submission made by the parties. The grand is whether the appeal is meritorious. I prefer to start with the second ground of appeal in which the District Court is faulted for

failure to comply with section 192 of the CPA. This ground should not detain me. The provision of section 192 of the CPA provides for preliminary hearing which is conducted with a view to ascertaining matters which are not in dispute. As stated afore, the appellant was convicted after pleading guilty to the offence. That being the case, there was no need of conducting a preliminary hearing under section 192 of the CPA. I dismiss this ground for want of merit. Moving to the third ground, the District Court is faulted for failure to consider that the prosecution failed to tender any exhibit in relation to the offence. It is settled position that where the accused person pleads guilty to the offence unequivocally, the prosecution is not mandatorily required to tender the exhibit. This stance was taken in the case of Mathias Barua (supra) which was referred to me by Mr. Maige. In that case, the Court of Appeal underlined that: 5 “We wish to point out that once it is shown on record that the accused person on his own free will pleaded guilty to the offence unequivocally then that is enough to support the charge with which the accused is charged. Tendering of exhibit be it an object or document is not a legal requirement though is desirable to do, to ground conviction.” Being guided by the above position, I agree with the learned State Attorney that there was no need of tendering the

exhibit in the circumstances of this case. Thus, the third ground lacks merit as well. Reverting to the first ground, the issue for consideration is whether the appellant’s plea was unequivocal. It is trite law that, unequivocal plea must meet the following conditions: First, the accused person must be arraigned on a proper charge. Second, the court must satisfy itself that an accused fully understands what he is actually faced with. Third, upon being invited to plead to the charge, the appellant must be asked to state whether he admits or denies each and every particular ingredient of the offence as provided for under section 228(1) of the CPA. Fourth, the facts adduced after recording a plea of guilty must disclose and establish all the elements of the offence charged. Fifth, the accused person must be asked 6 to plead and must plead guilty to each and every ingredient of the offence charged and the same must be properly recorded and must be clear. Six, the court must satisfy itself without any doubt that the facts adduced establish all the elements of the offence charged. The said conditions were well stated in the case of Michael Adrian Chaki vs R, Criminal Appeal No. 399 of 2017 (unreported). It was underlined in that case; all condition must be met cumulatively. In our case, the charge read over to the appellant shows that the appellant was cultivating bhangi at Nambuju

area while this plea was related to cultivation of bhangi at Nambululu area. In the circumstances, the District Court ought to have considered that the appellant’s plea was not related to the charge read over to him. I agree with Mr. Maige the facts which the appellant admitted to be true shows that the appellant was cultivating bhangi at Nambunju area. However, the appellant did not admit facts as to the said area. That aside, the appellant was charged with offence of unlawful cultivation of prohibited plants. It was further stated in the particulars of the offence that the appellant unlawfully did cultivate prohibited plaint to 7 wit 73 plaints namely cannabis. Thus, the prosecution was required to prove, among others, that the cultivation of prohibited plant was unlawfully. This is so when it is considered that section 12(1)(i) of the DCEA empowers the Drugs Control and Enforcement Authority to grant permit and regulate cultivation of cannabis plant. As it can be glanced from the facts reproduced herein, the public prosecutor did not state whether the appellant was unlawfully cultivating the cannabis plant subject to the charge preferred against him. In other words, the facts in support of the charge did not disclose and establish all the elements of the offence charged. Consequently, the appellant’s plea was equivocal for want of the fourth, fifth and sixth conditions

outlined in Michael Adrian Chaki (supra). It is settled law that a conviction based on an equivocal plea is an unsound conviction in law. [See the case of Julius Charles @ Sharobaro and 2 Others vs R, Criminal Appeal No. 167 of 2017 (unreported)]. Thus, I uphold the first ground of appeal. That said and done, I allow the appeal basing on the first ground of appeal. I accordingly, quash and set aside the conviction and the sentence of the District court. In lieu thereof, the case file is remitted to the District court for it to take a fresh plea and proceed with the case according to the 8 law. In case the appellant is convicted in the subsequent proceedings, the time he spent in prison from 21st March, 2023 up to the date of this judgment should be deducted from the sentence to be imposed upon him. In the meantime, the appellant shall be detained in prison as a remandee pending his trial. It is so ordered. DATED at SONGEA this 18th day of August, 2023. S.E. KISANYA

JUDGE 18/08/2023 Judgment delivered this 18th day of August, 2023 in the presence of the applicants and Messrs Alfred Maige and Frank Sarwat, learned State Attorneys for the Respondent. Right of appeal explained S.E. KISANYA

JUDGE 18/08/2023 9