Okwudili Nnaman Agu vs Republic (Criminal Appeal No. 822 of 2023) [2025] TZCA 1315 (29 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM I CORAM: WAMBALL J.A.. KAIRO. J.A. And NANGELA, J.AQ CRIMINAL APPEAL NO. 822 OF 2023 OKWUDILI NNAMAN .....................................................................APPELLANT VERSUS THE REPUBLIC........................................................................ . ......RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mruma, J.^ Dated the 26th day of November, 2021 in Criminal Sessions Case No. 141 of 2015 JUDGMENT OF THE COURT 3rd October & 29th December, 2025 WAMBALI. J.A.: The High Court of Tanzania (the trial court) sitting at Dar es Salaam, convicted the appellant Okwudili Nnaman Agu of the offence of Trafficking in Narcotic Drugs contrary to section 16(b) of the Drugs and Prevention of illicit Traffic in Drugs Act, Cap. 95. The conviction of the appellant followed the finding by the trial court that he pleaded guilty to the information which was read over and explained to him in the language he understood. Subsequently, the appellant was sentenced to twenty (20) years imprisonment and a fine of TZS. 343,896,000.00 was imposed. The trial court also ordered that 71 pellets containing narcotic drugs should be destroyed after the expiry of the prescribed period of appeal. i The particulars in the information placed before the trial court revealed that, on or about 29th December, 2013 at Julius Kambarage Nyerere International Airport area within Ilala District in Dar es Salaam Region, the appellant did traffic in narcotic drugs namely, Heroin Hydrochloride weighing 1273.69 grams and valued at TZS. 114,632,000. Initially, after the appellant was committed for trial to the High Court, during the plea taking and preliminary hearing he pleaded not guilty after the information was read over and explained to him. He also pleaded not guilty on the first day on which the trial commenced before Khamis, J (as he then was). Consequently, the trial started until 19th June, 2019 when it was adjourned to a date to be fixed by the Registrar of the High Court. Before the adjournment, three prosecution witnesses had testified and five exhibits had been tendered and admitted in evidence as exhibits PI to P5. According to the record of appeal, the trial of the appellant resumed on 26th November, 2021 after more than two years. On that date, the record of proceedings indicates that the appellant pleaded guilty to the information regarding the offence of trafficking in narcotic drugs. However, the appellant contests the findings by the trial court that he pleaded guilty, the conviction and the sentence, hence the current appeal. To demonstrate his dissatisfaction, the appellant lodged a substantive and supplementary memoranda of appeal comprising of four grounds of appeal. 2 Nevertheless, in his written submissions the appellant abandoned the third ground of appeal in the substantive memorandum of appeal. However, having scrutinize his complaints, we are of the view that the respective grounds of appeal should be compressed and paraphrased into two; one, that the trial judge wrongly found that his plea was unequivocal, and two, that the trial judge imposed an excessive sentence without considering the period he had spent in custody since his arrest. Indeed, at the hearing of the appeal, the major ground was whether the appellant's plea was unequivocal. The appellant lodged in the Court written submissions in support of the appeal and appeared in person at the hearing of the appeal. It is noteworthy that earlier on, we adjourned the hearing of the appeal because the appellant had indicated his intention to engage an advocate to represent him. However, at the hearing, he informed us that he had abandoned his intention to engage an advocate. Therefore, he urged us to consider his written submissions in determining the appeal. In the end, as he did not wish to offer any further clarification, he pressed us to allow the appeal and set him free. In support of the first ground of appeal, through the written submissions, the appellant argued that the plea of guilty he is recorded to have entered is equivocal. The appellant supported his contention on the following reasons. One, that he pleaded guilty because of misapprehension and mistake as throughout the trial he had maintained a plea of not guilty. Two, that the record of proceedings of that date indicate clearly that he pleaded guilty twice while the words which he is taken to have stated are different. In his submission, firstly, he is recorded to have said; "it is true. I plea guilty '. Secondly, he stated that; "My lord I plea guilty to the charge. It is timd'. (We note that the word "time"\s a typing error as the original file shows "tru e * % The appellant therefore maintained that, apart from being recorded to have pleaded guilty twice and the plea of guilty was accordingly entered by the trial court, it is not clear why the words he is alleged to have stated during the said pleas differs. In his submission, the trial judge wrongly concluded that his plea is unequivocal contrary to the laid down guidance which has to be observed in reaching such a decision. To support his stance on the circumstances under which the alleged unequivocal plea of guilty can be challenged, he made reference to the decisions in Laurent Mpinga v. The Republic [1983] T.L.R. 166, Kalos Punda v. The Republic, Criminal Appeal No. 153 of 2005 (unreported), Safari Deemay v. The Republic, Criminal Appeal No. 269 of 2011 4 (unreported) and Michael Adrian Chaki v. The Republic, Criminal Appeal No, 399 of 2019 [2021] TZCA 454 (9 September 2019 TANZLII). The appellant contended further that the trial judge did not record what really transpired in court to show what he stated as guided by the defunct Eastern African Court of Appeal in Rex v. Yonasani Egalu and Others (1942) 9 EACA 65 at 67. Three, that even if it may be taken that the appellant pleaded guilty, the facts which he alleged to have admitted to be true and correct are not apparent in the proceedings of the particular date. The appellant contended that the record of proceedings only shows that the typed facts were read over to him. However, those facts are not apparent in the record of appeal. Four, that the record of proceedings shows that only some exhibits were tendered on that date while others were tendered during the trial. In this regard, the appellant argued that the said admission of all the facts included the alleged five exhibits which were tendered during the trial but was not witnessed by him and the trial judge. The appellant's contention was premised on the fact that on the particular date, only the cautioned statement and the certificate of value of the drugs were tendered by the Senior State Attorney and admitted collectively as exhibit P6 by the trial judge. Moreover, the appellant stated that, it was his counsel who is 5 recorded to have stated that he had no objection the admission of those exhibits. In the circumstances, the appellant argued that considering the irregularities in the proceedings of the trial court, it cannot be safely concluded that his plea was unequivocal as it is not clear to which facts he admitted to be correct and true contrary to the finding of the trial court. On the adversary side, Mr. Tito Ambangile Mwakalinga and Mr. Phoibe Magili, learned Senior State Attorneys appeared for the respondent Republic. In response to the appellants submission, initially, Mr. Mwakalinga strongly contested the appeal and argued that the trial court properly found the plea of the appellant unequivocal. The learned Senior State Attorney submitted that the appellant pleaded guilty freely and admitted the facts which were read over and explained to him together with the exhibits placed before the trial court. Mr. Mwakalinga's stance on the alleged admitted facts was premised on the facts of the case which were prepared by the prosecution prior to that date and are in the record of appeal. However, the I alleged admitted facts are not part of the trial court's proceedings recorded on 26th November, 2021. In this regard, having noted that the said typed facts in the record of appeal were admitted on 16th June, 2016 during the preliminary hearing of the case, he quickly changed his stance and supported the appeal. He therefore conceded that, in the absence of the facts which were recorded to have been read over, it cannot be concluded that the appellant properly admitted that the facts and the exhibits were correct and true. In the circumstances, he agreed with the submissions of the appellant and urged the Court to allow the appeal on the strength of the first ground of appeal that the plea was equivocal. The learned Senior State Attorney therefore implored the Court to nullify the proceedings dated 26th November, 2021, quash the conviction and set aside the sentence. Nonetheless, he submitted that instead of discharging the appellant as prayed, the Court should remit the file to the High Court for continuation of the trial from where it ended before the tainted proceedings. In rejoinder, the appellant graciously welcomed the stand taken by the learned Senior State Attorney to support the appeal. However, he reiterated his prayer that as he has been in custody for more than thirteen years, he should be set at liberty. Having heard the parties, we are of the view that to appreciate our deliberation, we have to reproduce the relevant part of the proceedings recorded by the trial court on 26th November, 2021 thus: "Court: Accused is reminded o f the charge against him Sgd: Hon, A. R. Mruma 7 Judge 26 / 11/2021 Court: Charge sheet is read over and property explained to the accusedperson who is asked to plead thereto: Sgd: Hon. A. R. Mruma Judge 26 / 11/2021 Accused's olea: It is time (sic). I plea guilty. Court: Entered as a piea ofguilty to the charge Sgd: Hon. A. R. Mruma Judge 26 / 11/2021 Miss Mkononao: Accused has pleaded guilt to the charge. We pray to read the facts o f the case. Court: Prayer is granted. Facts o f the case (typed) is read over to the accused person by Ms. Clara Chawe, Senior State Attorney. Sgd: A. R. Mruma Judge 26 / 11/2021 Court: Accused person is asked if he admits facts read to him. 8 Accused. I admit the facts. They are code vision (sic) of what transpired on that day. Court: The facts admitted by the accusedperson constitute the offence charged. As the accused has pleaded guilty to the charge and now, he has admitted the facts constituting that charge, I find the accused guilty. Section 299(1) of the CPA has been complied with. Sgd: Hon. A. R. Mruma Judge 26/11/2021 Court: Accused is reminded of the charge against him and he is required to plead thereto. Accused's Plea: My lord I plead guilty to the charge. It is time, (sic) Sgd: Hon. A. R. Mruma Judge 26/11/2021 Court: Entered as a piea o fguilty to the charge. Sgd: Hon. A. R. Muruma Judge 26/11/2021 Miss Mkononao. Senior State Attorney: My Lord, the accused has pleaded guilty to the charge. We have the facts we pray to read them. Ms. Clara Chawe will read them. Court: Prayer is granted. Facts of the case (typed) are read over to the accused person by Ms. Clara Chawe, Senior State Attorney. Ms. Clara Chawe: We pray to tender the following exhibits to form part o f evidence. Other exhibits were tendered by Amour Khamis, J at the time of the trial o f the case. 1. Cautioned statement o f the accusedperson. 2. The certificate o f value o f the drugs issued. Mr. Musa Mhaaama: We have no objection to the admission o f the said cautioned statement and certificate of value o f the drugs. Court: Certificate of Value of narcotic drugs and psychotropic substances dated 4hAugust, 2014 and cautioned statement o f the accused are admitted and marked as exhibit P6 collectively. Sgd: Hon. A. R. Mruma Judge 26/11/2021 Court: 10 Exhibit P6 (Certificate of Value) is read aloud in open court. Sgd: Hon, A. R, Mruma Judge 26/11/2021 Court: Exhibit P6 (Cautioned Statement o f the accused is read aloud in open court. Sgd: Hon. A. R. Mruma Judge 26/11/2021 Miss Clara Chawe That is all. Court: Accused is asked if he admit the facts. Accused: The facts are correct. Court: The facts admitted by the accused constitute the offence charged. Because the accused has pleaded guilty to the offence o f trafficking in narcotic drugs and because now he has admitted the facts constituting the charged offence, this court find that the accused person Okwudili Nnamani Agu, is guilty of the offence o f trafficking in narcotic drugs C/S 16 (1) (b) of the Drugs and Prevention of Illicit Traffic in Drugs Act [Cap 95 RE 2002] as amended by the li Written Laws (Miscellaneous Amendmentj (No. 2) Act No. 6 of 2012. Sgd: Hon. A. R. Mruma Judge 26/11/2021 ff # i f i At this juncture, the crucial question for our consideration is whether the appellant's plea is unequivocal. It is settled that before the court convicts an accused on plea of guilty, it must be satisfied without doubt that, the facts adduced by the prosecution establish or disclose the requisite elements of the offence upon which he is called upon to plea and has actually admitted. In Rex v. Yonassani Egalu and Others (supra), the Eastern African Court of Appeal stated: "In any case in which a conviction is likely to proceed on a plea of guilty (in other words when an admission by the accused is to be allowed to take place or otherwise of the necessary strict proof of the charge beyond reasonable doubt by the prosecution) it is most desirable not only that every constituent of the charge should be explained to the accused but also he should be required to admit or deny every constituent and that what he says should be recorded in a form which will satisfy an appeal court that he fully understood the charge and pleaded to every element of it unequivocally". 12 More importantly, the Court has laid some criteria which may be considered before concluding that the accused's plea is unequivocal. In Adrian Chaki v. The Republic (supra), the Court made reference to several decisions including Lawrence Mpinga v. The Republic (supra), a decision of the High Court which was cited with approval in Khalid Athuman v. The Republic, Criminal Appeal No. 103 of 2005 (unreported) and Karlos Punda v. The Republic (supra) where it was stated that: "An accused person who had been convicted by a court of an offence on his own piea o f guiity, may appeai against the conviction to a higher court on the following grounds: 1. That taking into consideration the admitted facts his piea was imperfect, ambiguous or unfinished andf for that reason , the lower court erred in law in treating it as a piea ofguilty; 2. That he pleaded guilty as a result of a mistake or misapprehension; 3. That the charge laid at his door disclosed an offence not known to law; and 4. That upon the admitted facts, he could not have been convicted of the offence charged". Having made that reference, the Court then remarked as follows: "Closely examined, the above criteria suggest that there cannot be an unequivocal piea on which a 13 valid conviction may be founded unless these conditions are conjunctively met: 1. The appellant must be arraigned on a proper charge. That is to say, the offence section and the particulars thereof must be properly framed and must explicitly disclose the offence known to law. 2. The Court must satisfy itself without any doubt and must be dear in its mind, that an accused fully comprehends what he is actually faced with, otherwise injustice may result ; 3. When an accused is called upon to plead to the charge, the charge is stated to him and fully explained to him before he is asked to state whether he admits or denies each and every particular ingredient o f the offence. This is in terms of section 228(1) of the CPA. 4. The fact adduced after recording plea o f guilty should disclose and establish all elements o f the offence charged. 5. The accused must be asked to plead and must actually plead guilty to each and every ingredient of the offence charged and the same must be properly recorded and must be dear [see Akbara/i Damji v. R T L R 137 cited by the court in Thuway Akoonay v. Republic (1987) T.L.R. 92]. 6. Before conviction on a plea o f guilty is entered, the court must satisfy itself without any doubt that the 14 facts adduced disclosed or established all the elements of the offence charged" Indeed, in several decisions of the Court, including Bahati Pastory @ Gwanchele and Peter John v. The Republic (Criminal Appeal No. 133 of 2015) [2016] TZCA (26 May 2016, TANZLII), references were made to the decision of the defunct East Court of Appeal in Adan v. Republic [1973] EA regarding the procedure to be followed by the trial court where conviction is likely on a plea of guilty by an accused. For emphasis, we deem it appropriate to recite the relevant part of the judgment: 'When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accusedperson all the essential ingredients of the offence charged. I f the accused then admits all those essential elements, the magistrate should record what the accused has said, and then formally enter a plea o f guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. I f the accused does not agree with the statement o f facts or asserts additional facts which, if true, might raise 15 a question as to his guiit, the magistrate should record a change ofpiea to "not guilty" and proceed to hold a trial. I f the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement o f facts and the accused's reply must, of course , be recorded" . Applying the expounded procedural aspects and the criteria set out in the cited decisions above, we entertain no doubt that in the case at hand, it cannot be concluded that the appellant's plea is unequivocal. On the contrary, it is equivocal. We hold this firm view because; firstly, it is not clear why the appellant was called upon to plead twice and, on both occasions, he allegedly unequivocally pleaded guilty though the recorded statement concerning his plea differed. Secondly, it is apparent in the record of appeal that the facts of the case were read over to the appellant twice though the alleged typed facts are not part of the record of proceedings of the trial court on the particular date. Admittedly, the only difference is that on the second occasion, during the alleged narration of facts, the prosecution tendered two exhibits, that is, the cautioned statement of the appellant and the certificate of value of the narcotic drugs which were admitted collectively as exhibit P6. Surprisingly, the learned Senior State 16 Attorney simply informed the trial court that the other exhibits, which were not mentioned as part of those facts on that date were tendered and admitted during the trial before the then trial judge. In this regard, it is certain that exhibits PI to P5 were not only not made known to the appellant and the trial court but also that they were not made part of the proceedings dated 26th November, 2021. It follows that as there were only two exhibits which were admitted collectively as P6, the nature of other exhibits was not disclosed to the appellant and the trial court. In the circumstances, the record of the trial court that the appellants admitted to the facts which were read over, including the unreproduced exhibits, cannot be a correct statement to establish that the appellant admitted that he committed the offence charged based on the alleged facts. In the event, we agree with the appellant and the learned Senior State Attorney that the plea is equivocal. We therefore allow the first ground of appeal and hold that the appeal has merit. In this regard, we do not intend to determine the second ground of appeal. Consequently, we nullify the proceedings dated 26th November, 2021, quash the conviction and set aside the sentence imposed on the appellant. As for the way forward, we are alive to the appellant's prayer that we should discharge him because he has been in custody for more than thirteen 17 years. However, considering that the trial of the appellant had commenced whereby three prosecution witnesses had testified and five exhibits were admitted in evidence, we agree with the learned Senior State Attorney that we should remit the file to the trial court for continuation of the trial. Ultimately, we order that the file in Criminal Sessions Case No. 141 of 2015 be remitted to the trial court for continuation of the proceedings from where it stopped on 19th June, 2019. Meanwhile, the appellant should remain in custody pending continuation of the trial. DATED at DODOMA this 29th day of December, 2025. Judgment delivered this 29th day of December, 2025 in the presence of the appellant in person/Unrepresented, Ms. Judith Kyamba, learned counsel for the respondent/Republic, via virtual Court and Ms. Jasmin Kazi Court Clerk; is hereby certified as a true copy of the original. F. L. K. WAMBALI JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL 18