omary issa lilungo goti vs republic 2023 tzhc 19780 28 june 2023

THE UNITEO REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA- CRIMINAL APPEAL NO 49 OF 2022 (Originating from Nanyumbu District Court at Nanyumbu in Criminal Case Mo. 84 of 2022) OMARY ISSA LILUNGO @ GOT! ............... .......... ............APPELLANT THE REPUBLIC.................... ...RESPONDENT

JUDGEMENT fr and 28" June 2023 LALTAIKA,.J« The appellant herein OMARY ISSA LILUNGO @ GOTI was arraigned in the District Court of Nanyumbu in Criminal Case No 84 of 2022 charged with "Unlawfur Cultivation of Prohibited Plant" C/S 11(1) (a) of the Drug Control and Enforcement Act NO 95 RE 2019. When the charge was read over, and explained to the appellant (then accused) he pleaded guilty to the offence. The learned magistrate proceeded to convict him on his own plea of guilty and sentenced him to 30 years in prison. Page l of 7 Dissatisfied, the appellant has appealed to this court on three grounds. I take the liberty to reproduce them hereunder: (1) That the plea was unequivocal (2) The trial court did not conduct a, trial within trial (3) The mitigation on being a first offender was not taken into consideration. When the appeal was called on for hearing, the appellant appeared in person, unrepresented. The respondent Republic, on the other hand, entered appearance through Mr. Steven Aron Kondoro. Unlike other appellants who would choose not to speak first, the appellant herein appeared extraordinarily motivated to argue his appeal. He looked confident as he pleaded innocence. The appellant stated that the trial court had not provided sufficient evidence to prove that the plants in question were indeed cannabis sativa (bangi). He further explained that he did not tell the truth

during the proceedings at the trial court due to severe physical abuse inflicted upon him by the arresting police officers. In other words, he was telling the court that his plea was equivocal. According to his account, he described the incident where police officers passed through his farm while on their way to another village. When they called him out, he hesitated to comply as their presence in the farm seemed unusual to him. Subsequently, the officers arrested him, handcuffed him, and transported him to the police station. The appellant clarified that while he primarily resides in Masasi Town, his farm area is located in Ntalikachao village, and it was given to him by his mother-in-law. He mentioned that the officers confiscated the plants from his farm and Page 2 of 7 presented them as evidence in court. However, he asserted that the plants were not proven to be cannabis. As a result, he appealed to the court to grant him freedom. The appellant mentioned that he was prepared and ready to proceed. He informed the court that he had appealed against the judgment of the District Court.of Nanyumbu in Nanyumbu. He explained that he was arrested on his farm while holding a hoe. According to the appellant, the police officer accused him of cultivating "bhangi" (marijuana), although the officer could not identify the substance. The appellant was then taken to court on the first day

and the following day, he was sentenced: to 30 years in prison. The appellant shared that he was informed that he would find out more details while in prison. He received advice to file an appeal. The appellant highlighted that the alleged marijuana was not weighed, and nobody knew its weight in kilograms. He expressed his prayer for his grounds of appeal to be accepted and included as part of his submission. After the appellant had given his best attempt, Mr. Kondoro took the floor. He stated that he would address the grounds of appeal raised by the appellant, focusing oh the 1st and 3rd grounds, Regarding the 1st ground, the appellant complained that his appeal was equivocal, alleging that the offence was technical. Mr. Kondoro objected to this ground, stating that there was no indication that the appellant was unable to understand the offence with which he was charged. He referred to page 1 of the lower court's proceedings, which showed that when the Page 3 of 7 charge was read to the accused and explained, he pleaded guilty without any challenge. Mr. Kondoro quoted the appellant's response, where he admitted to cultivating marijuana without permission. He argued that the appellant fully understood the nature and consequences of his plea, making it easy for the court to reach its decision, which the appellant was dissatisfied with. Mr. Kondoro referred to the Criminal

Procedure Act, specifically section 360(1), which states that an appeal based on a plea of guilty is generally not allowed, except for issues regarding the extent or legality of the sentence. He also cited the CAT case of Michael Adrian Ch'aki v. Republic and the case of Akbarali Damji v, Republic, which explained the conditions for a plea to be considered unequivocal. Mr. Kondoro concluded that the appellant's plea was unequivocal and prayed for the dismissal of the 1st ground of appeal. Moving on to the 2nd ground, the appellant complained that the lower court did not consider his status as a first offender during sentencing. Mr. Kondoro agreed with the appellant that this ground was valid. However, he noted that the appellant failed to raise this issue as part of his mitigation in the lower court. He referred to the trial court's proceedings, where only the prosecution mentioned the appellant's lack of previous criminal records. Despite this, the trial court sentenced the appellant to 30 years of imprisonment based on the mandatory sentence imposed by the law. Mr. Kondoro prayed for the dismissal of this ground and the appeal in its entirety. Regarding the unaddressed ground concerning the trial within a trial on the entered plea, Mr. Kondoro stated that it hinged on something that does Page 4 of 7 not exist in procedural laws. The learned Sate Attorney prayed that

the appeal in its entirety be dismissed for lack of merit. I have dispassionately considered the grounds of appeal and the response by the learned State Attorney. I have examined the lower court records as well. The 30 years sentence imposed upon the appellant by the trial court is a tough statutory sentence for illegal possession of prohibited plants. It has been argued several times that although the standard of proof is the same in all criminal cases, courts must be extraordinarily careful when dealing with offences that attract longer sentences. In other words, a plea of guilty should be taken sparingly. No one in their senses is expected to walk into a court of law and suddenly declare, that he had committed the offence and invite the court to sentence him to thirty years imprisonment. Before I come to the ground on unequivocal plea, I am inclined to comment albeit in passing the issue of technicality of the offence. The appellant had complained that the offence with which he was arrested is a "technical offence". In ordinary language, a technical offence is "an action which is prohibited by law, but for which no blame can be attached to the person who. commits it." (See-The Collins English Dictionary, Online) The appellant does not dispute that he was arrested in his farm with plants. His argument is that the plants were not bhangi. It is my considered opinion that the

trial court took the plea too lightly. It appears that the prosecution wanted a shortcut out. It is highly advisable to ensure that the procedure provided by law on including forensic examination Page 5 of 7 and at least taking photographs of the alleged prohibited plant is done to avoid overcriminalization. The landmark Court of Appeal case of MICHAEL ADRIAN CHAKI V. REPUBLIC CRIMINAL APPEAL NO 399 OF 2019 provides the following pointers for assessing a plea of guilty. (See page 7) "There cannot be unequivocal plea on which a valid conviction may be founded unless these conditions are conjunctively met.

1. The appellant must be aligned on a proper charge. That is to say, the offence, section and particular thereof must be properly framed and must explicitly disclose the offence known to the law.

2. The Court must satisfy itself without any doubt and must dear 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 228(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 actuallyplead guilty to each, and every ingredient of the offence charged and the same must be properly recorded and must be dear " Considering all circumstances pertaining to the present appeal, I am so much in doubt about fulfilment of the second condition above. According to his account, the appellant described the incident where police officers passed through his farm while on their way to another village, When they called him out, he hesitated to comply as their presence on the farm seemed unusual to him. Subsequently, the officers arrested him, handcuffed him, and transported him to the police station. It appears also that the appellant appeared in court on 30/03/2022 and sentenced almost straight away. Page fiof 7 I have no other choice but to go by the timeless wisdom of William Blackston (back in 1765): "it is better that ten guilty persons escape than one innocent man convicted" quoted by the Court of Appeal of Tanzania in DAUDI ANTHONY MZUKA v. R. (Criminal Appeal 297 of 2021) [2023] TZCA 165 (30 March 2023). Premised on the above, the appeal is hereby allowed. I quash the conviction, set aside the sentence and order that the appellant OMARY ISSA LILUNGO @ GOTI be released out of prison forthwith unless he is being held for another lawful! cause. A LTAl KA delivered on this 28th day of June 2023 in the presence of Mr. rubano , learned State Attorney and the appellant.

LTAIKA

JUDGE 28.06.2023 The right to appeal to the Court of Appeal of Tanzania fully explained. .1. LALTAIKA

JUDGE 28.06.2023 Page 7 of 7