shija ramadhani

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (TABORA SUB-REGISTRY) AT TABORA DC. CRIMINAL APPEAL NO. 55 OF 2023 (From the District Court Of Nzega in Original Economic Case No. 06 of2022) SHIJA RAMADHANI @ ABDALLAH @ SHIJA BUNDU ............ . APPELLANT VERSUS THE REPUBLIC............................... .............. ......... . RESPONDENT JUDGMENT Date of Last Order: 27/05/2024 Date ofJudgment: 17 & 24/06/2024 KADILU, J, In the District Court of Nzega, the appellant was charged with unlawful possession of a firearm contrary to Section 20 (1) (a) (b), (2) of the Firearms and Ammunition Control Act, 2015 read together with paragraph 31 of the 1st Schedule to and Sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [Cap. 200 R.E. 2022]. The prosecution alleges that on 24/07/2022 at Ipumbuli Village in Isanzu Ward within Nzega District in Tabora Region, the appellant was found in possession of a muzzle loader gun, commonly referred to as "Cobone "without a permit. When the charge was read over and explained to the appellant, he pleaded guilty, which moved the trial court to invite the prosecution to read out the facts substantiating the charged offence. The prosecutor read out the facts of the case and the trial court asked the appellant if the facts were true and correct, to which he replied in affirmative. The court convicted the appellant forthwith as required by the law. It invited the prosecution to state if they had any records about the appellant's previous conviction, to which i they replied that they had none. When the appellant was permitted to mitigate, he requested the trial court to forgive him as he was unaware that it is illegal to possess a firearm without a permit. The court punished him with a minimum statutory sentence of twenty (20) years imprisonment. Irritated by both the conviction and sentence, the appellant is now challenging the trial court's decision premising his grievances on the following grounds: Z. That, the case for the prosecution was notproved against the appellant beyond reasonable doubt as required by the /aw. 2. That, the alleged plea ofguilty by the appellant was ambiguous and equivocal. 3. That, the facts of the case as put to the appellant by the prosecutor allegedthe firearm to have been found in the room which the appellant had no control as it was occupied by another person namely, his nephew, so the appellant could not be convicted. 4. That, the certificate ofseizure was not tendered in court as an exhibit to support the allegations against the appellant. 5. That, the firearm subject of the charge was not exhibited in court. 6. That, the sentence imposed upon the appellant was manifestly excessive. The appellant implored this court to allow the appeal, quash the conviction, set aside the sentence, and order his release from prison. On the date of the hearing of the appeal, the appellant was unrepresented, whereas the respondent (Republic) was represented by Ms. Suzan Barnabas, and Ms. Joyce Nkwabi, the learned State Attorneys. The appellant requested the learned State Attorney to submit first tp help him grasp the substance of his grounds of appeal. Ms. Suzan started her submission with the 2nd ground 2 of appeal in which she stated that the appellant's plea was very clear because the charge was read to him in the language he understood and he replied by admitting to the offence loudly. When the facts constituting the charged offence were read to him, he admitted that all were true and correct. According to her, there is no way the plea can be considered equivocal or ambiguous. She referred to the case of Paschal Kamala v. R., Criminal Appeal No. 457 of 2018 where the Court of Appeal at Arusha dealt with a similar issue. Concerning the 3rd ground of appeal, the learned State Attorney discredited the appellant's allegation that the firearm seized from him was not his. Ms. Suzan argued that the appellant did not raise this concern during the preliminary hearing in which he went further and explained that he got the said weapon from his brother Ramadhani Maganga. According to her raising this complaint now is an afterthought that cannot be entertained. The learned State Attorney argued the 4th and 5th grounds jointly. She submitted that it is not the law for the prosecution to tender the seized exhibits and a certificate of seizure after the accused pleads guilty. She cited the case of Mathias Barua vs. R., Criminal Appeal No. 105 of 2015, Court of Appeal at Tanga. Concerning the 6th ground of appeal, Ms. Suzan submitted that twenty (20) years imprisonment meted upon the appellant is the minimum sentence for the offence with which he was convicted. Therefore, the trial court could not impose a sentence lesser than 20 years imprisonment. She finally urged the court to dismiss the appeal allegedly because the case against the appellant was proved by himself after having pleaded guilty. 3 When the appellant was given the floor, he submitted that he admitted the offence and pleaded guilty in the trial court because he was beaten severely. He maintained his stance that the weapon was not his as it was found in Masanja Leonard's house. He prayed for the court to consider his grounds of appeal and allow it. I have examined the records, grounds of appeal, and submissions by the parties and found there is only one crucial issue that calls for determination in the instant appeal, which is whether the plea entered by the appellant in the trial court was unequivocal. To begin with, I reproduce verbatim, the provisions of Section 228 (1) and (2) of the Criminal Procedure Act (CPA) [Cap. 20 R.E. 2022] that deal with pleas and that are relevant for the determination of this appeal.- "(1) The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge. (2) If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon dr make an order against him; unless there appears to be sufficient cause to the contrary. " As the appellant was convicted based on his plea of guilty, he cannot complain that the case against him was not proved beyond reasonable doubt. After he admitted that he was found in possession of a firearm without a license, the trial Magistrate was justified in convicting him under Section 228 of the CPA. In my view, the appellant's plea of guilty had no ambiguity as he understood the charge and responded clearly that he committed the charged offence. He went further and admitted all the facts constituting the offence. Before the sentence, he requested for court's 4 forgiveness because he did not know that he needed a permit for him to possess a firearm. In the circumstances, I am unable to agree with the appellant that his plea was ambiguous and equivocal. Therefore, the 1st and 2nd grounds: of appeal are devoid of merit and I dismiss them. In the 6th ground of appeal, the appellant complains that the sentence meted upon him was excessive. It is pertinent to point out that having pleaded guilty unequivocally, the appellant had no general right of appeal to this court. Section 360 (1) of the CPA stipulates that an appeal should not be allowed in the case of 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 of the sentence. Thus, the appellant could only challenge the legality or degree of the sentence, not a conviction. Nevertheless, the appellant has appealed against the conviction and sentence even though he pleaded guilty to the charge. In Josephat James v. R.f Criminal Appeal No. 316 of 2010, it was held that: "An accused person who has been convicted by any court of an offence on his own plea ofguilty may appealagainst the conviction to a higher court on any of the following grounds: (a) that, even taking into consideration the admittedfacts, 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; (b) that he pleaded guilty as a result of mistake or misapprehension; (c) that the charge laid at his door disclosed no offence known to law; and (d) that upon the admitted facts he could not in law have been convicted of the offence charged." 5 From the above authorities, this court has to examine the extent of the sentence meted out to the appellant. Section 60 (2) of the Economic and Organised Crime Control Act provides: "Notwithstanding the provision of a different penalty under any other law and subject to subsection (7), a person convicted of corruption or economic offence shall be liable to imprisonment for a term of not less than twenty years but not exceeding thirty years, or to both such imprisonment and any other penal measure....." The lowest punishment for the offence with which the appellant was convicted is 20 years imprisonment, Therefore, I agree with the trial Magistrate that after the conviction, he could not condemn the appellant to serve a penalty that is lesser than the minimum statutory sentence. I thus, dismiss the sixth ground of appeal for being baseless. About the complaint by the appellant that the exhibit seized from him and the certificate of seizure were not exhibited in the trial court, I find it to be unfounded because tendering of exhibits where conviction is based on a plea of guilty is not a legal requirement. In the case of Matia Barua v R., Criminal Appeal No. 105 of 2015, the Court of Appeal held that tendering an exhibit be it an object or a document after an accused person has pleaded guilty to the charged offence, is not a legal requirement though it is desirable to do so. For this reason, I hold that in the circumstances of this case, an omission to tender exhibits was not fatal as it did not prejudice the appellant in any way. Whether or not the prosecution proved the case against the appellant beyond reasonable doubt, is a question that this court cannot determine at this stage because no evidence was presented in the trial court after the 6 appellant pleaded guilty. As hinted, where the accused person pleads guilty to the charged offence, the prosecution is not bound to present evidence to prove the charge against him. Section 228 (2) of the CPA is clear that where the accused person admits the truth of the charge, the Magistrate should convict him forthwith and pass a sentence against him. This is also the legal requirement under Section 282 of the CPA. As such, this was irrelevant ground of appeal in the circumstances of the instant case. I am holding the same in respect of the 3rd ground of appeal in which the appellant asserts that the alleged firearm was not his since it was found in a room where he could not exercise control. This is a matter of fact that could be proved or otherwise by leading evidence during the trial if the appellant had not pleaded guilty as charged. That said and done, I find the appeal by the appellant devoid of merit and dismiss it in its entirety. The right of appeal is fully explained to any party aggrieved by this decision. Order accordingly. ± 1 KADILui MJ. JUDGE 24/06/2024. 7 Court:- Judgment delivered in open court on the 24th Day of June, 2024 in the presence of the appellant and Mr. Steven Mnzava (State Attorney) for the Respondent. G.P. NGAEJE AG. DEPUTY REGISTRAR 24/06/2024 Court:- Right of appeal fully explained. G.P. NGAEJE AG. DEPUTY REGISTRAR 24/06/2024 8