Emmanuel Sweetbert vs Republic (Criminal Appeal No. 125 of 2022) [2025] TZCA 1064 (10 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA f CORAM: KOROSSO, J.A.. KENTE, J.A., And KHAMIS J.A.l CRIMINAL APPEAL NO. 125 OF 2022 EMMANUEL SWEETBERT ..........................................................APPELLANT VERSUS THE REPUBLIC ................................. ............................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) fManvanda, J.l Dated the 13th day of August, 2021 in Criminal Appeal No. 37 of 2021 JUDGMENT OF THE COURT V 29th September & 10th October, 2025 KOROSSO, JA.: The appellant, Emmanuel Switbert, was charged in the District Court of Ilemela at Mwanza with two counts of offences under the Drugs Control and Enforcement Act, Cap 95 (the DCEA). In the first coilint, he was charged with Illicit Trafficking of Narcotic Drugs contrary to section 15A and 2(c) of the DCEA and in the second count for unlawful consumption of narcotic drugs contrary to section 18(a) of the DCEA, In the first count, i

it was alleged that on 11/1/2021 at Nyasaka-Msumbiji area within Ilemela District, City and Region of Mwanza, the appellant was found in unlawful possession of 1362.53 grams of narcotic drugs, commonly known as bhang, whereas, in the second count, the appellant and one Gamaliel Hans Mkaro (not a party to this appeal) on 11/1/2021 at the same location as in the 1st count, unlawfully consumed narcotic drugs, commonly known as bhang. The appellant was found guilty and convicted on his own plea of "guilty" in both counts and upon confirmation of the facts read over to him thereafter. In consequence, he was sentenced to thirty (30) years imprisonment in respect of the first count and three (3) years imprisonment or a fine of Tshs. 1,000,000/= in default for the second count. The sentences were to run concurrently. Dissatisfied, he appealed to the High Court but was unsuccessful. Still disgruntled, he has now knocked the doors of this Court armed with two memoranda of appeal totaling five grounds of appeal which we find no need to reproduce. In the memorandum of appeal filed on 5/4/2022, the 3 grounds of appeal therein essentially front the following two grievances: One, faults the first appellate court for failure to determine that the appellant's plea of guilty to the offence charged was not unequivocal as the appellant did not understand the meaning of such

a plea. Two, faults the imposed sentence as one that did not consider obtaining circumstances. The two grounds found in the supplementary memorandum of appeal filed on 4/10/2024 address one complaint; that, the charge was defective as it only showed the date but did not specify the specific time when the charged offences were committed as revealed in the stated facts supporting the charges and referred to by the first appellate court. On the day the appeal was scheduled for hearing, the appellant, fending for himself, appeared in person, while Ms. Safi Kashindi Amani, learned Senior State Attorney, appeared for the respondent-Republic, assisted by Ms. Bitunu Yunusi Msangi, learned State Attorney. When accorded leave to amplify his grounds of appeal, the appellant adopted the same and prayed for the learned State Attorney for the respondent Republic to respond first and he retained the right to rejoin thereafter. Ms. Amani, who took the lead submitting for the respondent Republic, commenced praying the Court disregard the 3rd ground in the memorandum of appeal being a new ground that was neither canvassed nor addressed by the first appellate court nor was it a point of law and thus contravening section 9(7)(a) of the Appellate Jurisdiction Act, Cap

141 (the ADA). She contended that under those circumstances, the Court has no jurisdiction to determine it. Furthermore, she urged us to disregard the 2n d ground in the supplementary memorandum of appeal, arguing that it was not a proper ground since it essentially faulted the prosecution for not proving the offence charged while the matter subject to the appeal was finalized with the appellant's plea of guilty and did not go to full trial. Confronting the 1st and 2n d grounds in the memorandum of appeal regarding the propriety of the appellant's guilty plea, the learned Senior State Attorney who initially resisted the appeal however, upon further reflections, in the midst of her submission, she opted to abandon her earlier stated position, and submitted that, the plea in the first count was not unequivocal since the appellant had affirmed as correct the facts read by the prosecution while the contents narrated lacked all the essential ingredients of the offence charged. She contended that, had the trial and first appellate courts carefully assessed the facts, particularly the fact that the 1362.53 grams of narcotic drugs alleged to have been found in the appellants possession were not clearly stated, they would not have held that the plea by the appellant in the first count was unequivocal. Furthermore, she contended that the actual weight of narcotic drugs in the narrated facts by the prosecution side was crucial to establish the 4

offence charged against the appellant. Ms. Amani referred us to the case of Adan v. Republic [1973] 1 EA 445, which held that facts must establish the ingredients of the offence. She thus urged us to find the ground to have merit. About the second count, the learned Senior State Attorney argued that, the plea was unequivocal as the facts read to and agreed by the appellant as correct, clearly established the ingredients of the offence of unlawful consumption of narcotic drugs, known as bhang. On the sentence imposed upon conviction on the second count, she found nothing to challenge it, arguing that it was proper since it was founded on the applicable law. She thus beseeched us to find the complaint in the first count meritorious and dismiss the complaint on the part of the second count. Rejoining, the appellant implored us to consider the grounds in the memoranda of appeal filed, his appeal be allowed and he be set at liberty. Having heard and considered the oral submissions, the record of appeal and the presented authorities, we shall commence with the 3rd ground in the memorandum of appeal and 2n d ground in the supplementary memorandum of appeal which are said to be new grounds neither considered and determined by the first appellate court nor

regarded as points of law. This Court has on numerous occasions addressed this issue establishing that in the second appeal, usually the Court will not look at matters which were not raised and determined by the trial or first appellate court unless it involves a. point of law (see, Julius Josephat v. Republic (Criminal Appeal 3 of 2017) [2020] TZCA 1729 TANZLII and Adam Shango v. Republic (Criminal Appeal No. 149 of 2020) [2020] TZCA 821 TANZLII). In consequence, we refrain from determining the stated grounds. In determining the 1st and 2n d grounds of the memorandum of appeal where the appellant's complaint is essentially that he was convicted on a plea of guilty which was not unequivocal, we find it pertinent to venture into the terrain of the requisite law. In the instant appeal, the appellant was convicted on two counts on his own plea of guilty to the offence charged. In terms of section 360 (1) of the Criminal Procedure Act Cap 20 RE. 2019, in such circumstances, an appeal lies only to the extent of the legality of sentence but not against conviction, unless it is shown that the plea of guilty was equivocal. In the case of Laurence Mpinga v. Republic [1983] TLR 166, it was held that an appeal against a conviction of an unequivocal plea of guilty cannot be sustained except against the sentence. That an accused person who has been convicted on

his own plea of guilty may appeal against conviction on the following grounds: "1. That, even taking into consideration the adm itted facts, his plea was imperfect, ambiguous or unfinished and, for that reason, the low er court erred in law in treating it as a plea o f guilty; 2. that he pleaded guilty as a result o f mistake or misapprehension. 3. that the charge laid at his door disclosed no offence known to law; and 4. that upon the adm itted facts he could not in law have been convicted o f the offence charged . " The above position was reiterated in Khalid Athumani v. Republic [2006] TLR 79, the Court stating that: "The Courts are enjoined to ensure that an accused person is convicted on his plea where it is certain that he/she really understands the charge that has been laid at his/her door, discloses an offence known under the law and that he/she has no defence to it; A plea o fguilty having been recorded, a Court may entertain an appeal against conviction if it appears; that the appellant did not appreciate the

nature o f the charge or did not intend to adm it that he was guilty o f it, or that upon the adm itted facts he could not in law have been convicted o f the offence charged " Flowing from the above position of the law, plainly, the underlying issue before us is whether the plea of guilty by the first appellant to the offence charged in both counts warrants consideration of this Court. The appellant urged us to find that the plea of "guilty" was not unequivocal in both counts for the reason that the facts did not fully disclose the ingredients of the offence charged. The learned Senior State Attorney conceded, arguing that, the appellant's plea of guilty in the first count was not unequivocal for reasons advanced by the appellant but urged us to find the plea in the second count to have been unequivocal/having fulfilled all the requirements of the law. Upon concession by the learned Senior State Attorney on the anomalies in the first count pleaded, to warrant the plea to be equivocal, since all the essential elements of the offence were not disclosed to the appellant, we find no need to differ, and thus hold that, the plea of guilty in the first count is not unequivocal since the narrated facts of the case did not assist the appellant to appreciate the nature of the charge. We are thus of the firm view that, had the trial court fully considered that not 8

revealing the weight of the narcotic drugs negated proof of all the ingredients related to the charge the appellant faced in the first count. For the foregoing, we find the appellant's complaint to be merited. We therefore quash the conviction against the appellant on the first count and set aside the sentence meted. On the second count, when called to plead the appellant stated: "Ni kw eli miikutwa natumia bangi" The trial court then convicted the appellant and called upon the prosecution side to present the facts. We reproduce the relevant part to the second count which was as follows: "That the accused person lives a t Nyasaka whose landlord Is called Vemela Said. That on 11/10/2021 at around 18.00 hours, an accused person herein Emmanuel Sweetbert while a t his home In his room at Nyasaka Msum blji with his fellow s including Gamaliel Hans Mkaro and two others who are not charged, were found consuming (smoking) bhang. Whereas the smokes em itted outside the room where the Landlord together with the street chairman managed to lock them inside the room and they reported the incident to police officers 9

where on around 17.00 hrs, police officers arrived thereat and managed to arrest Emmanuel Sweetber and Gam aliel Hans Mkano with other two fellows. Upon searching them in the prem ises in the presence o f the Landlord and the street chairman where they found two packets with leaves therein... After the search, a ll accused persons were taken to Kirumba Police station for being in possession o f narcotic drugs and consuming narcotic drugs. As they were brought a t a Police station, on 13/01/2021 accused persons were taken to the Government Chemist for examination including Emmanuel Sweetbert where their urine sample were tested and Emmanuel Sweetbert was found to have been consuming narcotic drugs make o f bhang." Thereafter, the report from the government chemist that analyzed the appellant's urine samples; the certificate of seizure and the report of the analysis of the leaves found in the appellant's Tshirt and trousers when arrested were admitted without objection as exhibits PO-l, PO-2 and PO-3 respectively. When questioned on the veracity of the facts stated, the appellant replied: 10

"Ni kw eli mheshimiwa haya maelezo n i sah ih i” Meaning that, the facts narrated are correct. In the case of Chacha Makonge @Mwansi v. Republic (Criminal Appeal No. 501 of 2020) [2024] TCZA 587 TANZLII, the Court observed that: "For the facts, in a plea o f guilty proceedings, to secure a conviction, they should establish every constituent (elements) o f the charge for they take the place o f the otherwise necessary strict proof o f the charge beyond reasonable doubt by the prosecution calling witnesses to testify." In the second count, the appellant was charged for contravention of section 18(a) of the DCEA, which states: "A person who— (a) smokes, inhales, sniffs, injects or otherwise uses any narcotic drug or psychotropic substance; commits an offence, and upon conviction shall be sentenced to a fine o f not less than one m illion shillings or to imprisonment for a term o f three years or to both ." Therefore, what is required is proof of a person smoking, inhaling, sniffing or injecting or otherwise uses any narcotic drug or psychotropic

substance. The presented facts against the appellant clearly established that he was found smoking bhang, a narcotic drug. We are thus of the view that finding the facts to be correct, facts which showcased the ingredients of the offence, meant that the appellant, unequivocally pleaded guilty to the offence charged. We agree with the learned Senior State Attorney that the plea of "guilty" to the offence charged in the 2n d count was unequivocal. We also agree with the learned Senior State Attorney that the sentence imposed on the appellant upon conviction in the second count is within the confines of the law, neither too lenient nor too excessive, and therefore find no need to disturb it. We thus dismiss the appellant's complaint, as it is unmerited. As regards the 1st ground of appeal found in the supplementary memorandum of appeal filed on 4/10/2022 faulting the trial and first appellate court for finding that the appellant was found consuming the narcotic drugs as charged on 11/10/2021 at 18.00 hours while this fact was not included in the charge against the appellant, as contended by the learned Senior State Attorney, we find such an omission not to have gone to the root of the matter or occasioned any injustice to the appellant. While it is true that both counts only refer to the date of commission of 12

the offence, that is, 11/10/2021 with no mention of the hour, the record of appeal does not show that at any time the trial magistrate referred to 18.00 hours. The first appellate Judge at page 51 stated: "The facts reveals that on the fateful day 11/10/2021 a t 18.00 Hours the appellant was found in his rented room, consuming bhang." We find that the trial court had referred to the time having gathered it from the facts of the case presented at the trial found at page 22 of the record of appeal. While it is true that the time is not found in the charge sheet, we find that, it does not affect the rights of the appellant in any way, particularly since there is nowhere where the first appellate Judge showed that it was pertinent for the determination of the appeal. The complaint is thus dismissed. All in all, for avoidance of doubt, having quashed the conviction and set aside the sentence on the first count, we uphold the conviction and sentence imposed to the appellant on the second count. Furthermore, in light of the fact that the appellant was convicted and sentenced in 2021, and thus, has been in custody for around four (4) years now, we think that he has essentially served the sentence imposed in the second count to meet the ends of justice. Given the circumstances, 13

he should be immediately released from custody, unless held for some other lawful purpose. The appeal is thus partially allowed to the extent shown above. DATED at MWANZA this 8th day of October, 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 10th day of October, 2025 in the presence of the Appellant in person Mr. Adam Murusili, learned State Attorney for the Respondent/Republic, connected virtually and Miss Harida Hamisi, the Court Clerk; is hereby certified as a true copy of the original. 14