Joseph Njiku vs Republic (Criminal Appeal No. 220 of 2022) [2024] TZCA 1285 (13 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: LILA. J.A.. MURUKE, J.A. And MDEMU, J.AQ CRIMINAL APPEAL NO. 220 OF 2022 JOSEPH NJIKU.........................................................................APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) (Mambi, J.1 dated the 17th day of May, 2022 in Criminal Appeal No. 160 of 2021 JUDGMENT OF THE COURT 29th November & 13th December 2024 LILA, 3.A.: The appellant, Joseph Njiku, was charged before the Resident Magistrates' Court of Singida at Singida and convicted on his own plea of guilty of the offence of unlawful trafficking in narcotic drugs contrary to section 15A (1) and (2) (c) of the Drugs Control and Enforcement Act No. 5 of 2015 as amended by section 9 of the Drugs Control and Enforcement (Amendment) Act, 2017 (the DCEA). His first appeal to the High Court failed hence the present appeal. l

The allegation by the prosecution in the charge as explained in the particulars of the offence was this; on 4/6/2020, the appellant, while at Mafea Hamlet, Tumaini Village, Isuna Ward, Ikungi Division within Ikungi District in Singida Region, was found in unlawful possession of dried cannabis sativa leaves (bhangi) weighing 15 kilograms. When he was arraigned in court on 16/6/2020, he pleaded guilty to the charge leading the prosecution to narrate facts on how the offence was committed during which time four exhibits, namely; seizure certificate dated 4/6/2020 (exhibit P2), a letter from Weight and Measures Agency with reference No. GA. SGD/142/271/OIC/1012 of 5/6/2020 (exhibit P3), accused's cautioned statement of 4/6/2020 (exhibit P4) and dried cannabis sativa leaves in a blue water drum and in white nylon weighing 15 kilograms (exhibit PI), were tendered. He admitted the facts as being true. Satisfied that the facts sufficiently established the offence charged, the trial magistrate proceeded to convict him and sentenced him to the statutory sentence of thirty (30) years' imprisonment. The conviction and sentence aggrieved the appellant triggering him to appeal to the High Court fronting four grounds of complaints two of which challenged the conviction. They are couched thus: -

"1. That, before the trial court I did admit about particulars (Name, Age, Tribe and where I resides) but not the particulars o f the alleged offence. 2. That, none o f the prosecution witnesses appeared before the trial court to prove the allegation that the alleged 15 Kgs were o f narcotic drugs, in this case bhangi, as it was not taken to the Government Chemist to prove their allegation and it is well known that bhangi is not among things that court take judicial notice." In its judgment, the High Court found the trial magistrate, in recording the appellant's plea, properly complied with the requirement of section 228 of the Criminal Procedure Act (the CPA) as interpreted in Adan v. Republic [1973] EA 445 and cited in the case of Khalid Athumani v. Republic, Criminal Appeal No. 103 of 2005 (unreported) hence the appellants' plea was unequivocal, that following such an admission, there was no need to call witnesses and that the appellant, under section 360 (1) of the CPA, is barred from appealing against conviction when it preceded his own plea of guilty. The learned presiding Judge, for those reasons, sustained the trial court's decision and dismissed the appeal.

Still aggrieved, the appellant, believing to be innocent and determined to pursue the course of justice by exercising his right of appeal, is now before the Court challenging the High Court decision on five grounds of grievances. Upon our serious consideration of those grounds, like Mr. Paschal Marungu, learned Principal State Attorney, who represented the respondent Republic at the hearing of the appeal assisted by Ms. Nuru Chiwalo, learned Senior State Attorney, we are of the firm view that only complaints in grounds 1, 2 and 3, which comprehensively revolve around the issue that the appellant's plea was not unequivocal, are decisive. The complaints, paraphrased, are: - "1. That, the purported plea o f guilty is marred by procedural irregularities which make the whole plea a nullity. 2. That, both the trial court and the 1st appellate court convicted the appellant basing on an equivocal plea. 3. That, mandatory requirements for convicting on own plea o f guilty were not followed." Before us, the appellant appeared in person without legal representation. As hinted above, Mr. Paschal Marungu learned Principal State Attorney assisted by Ms. Nuru Chiwalo, learned Senior State

Attorney, appeared for the respondent Republic. They supported the appeal. Appearing a layperson in legal matters, the appellant had very little to tell in respect of his grounds of appeal. Actually, instead of expounding or elaborating his grounds of appeal, he denied committing the offence and stated that he was taken to the trial court, convicted and sentenced without knowing what he had done. In his submission, Mr. Marungu who appeared composed and well prepared for the hearing, he was brief and focused. After prefacing the essence of the appeal, he out rightly opined that the learned 1st appellate Judge was in error to agree with the trial court and find that the appellant's plea of guilty was unequivocal. He first explained the cardinal principle in criminal justice that the duty to prove the charge beyond reasonable doubt rests on the prosecution. In trials, he insisted, the prosecution has a duty to prove all elements of the offence charged. Addressing the grounds of appeal, he argued that as the charge was founded on unlawful possession of bhangi weighing 15 kgs, at least two crucial elements ought to have been established by the facts narrated by the prosecution to the trial court which fact were in lieu of the prosecution evidence. He named them as being found in unlawful possession and that

the substance found was bhangi weighing 15 kgs. While referring to the facts found at pages 4 to 6 of the record of appeal, he argued that, they fell short of proving the two crucial elements. In being very particular, he said neither the facts narrated nor the exhibits tendered and admitted established that the dried leaves allegedly found in possession of the appellant was bhangi. Referring to section 29(2) of the DCEA, Mr. Marungu came out clearly that such confirmation would normally come from a Government Analyst (the GA) by way of report which is final in identifying the nature and kind of the substance send to him. The absence of such report meant that the prosecution failed to send the dried leaves to the GA, he insisted. According to him, there was therefore no proof that the appellant was found in unlawful possession of bhangi. In view of the deficiency in the facts narrated, Mr. Marungu argued, the learned presiding Judge should have treated the case as an exception to the general rule that under section 360(1) of the CPA, an appellant cannot appeal against conviction emanating from his own plea of guilty because a valid conviction could not be grounded on the facts narrated by the prosecution. He cited to us the cases of Frank Mlyuka v. Republic, Criminal Appeal No. 404 of 2018 and Adam Abdallah Ramadhani v. Republic, Criminal Appeal No. 372 of 2020 (both

unreported) to fortify his position. He ultimately concluded that the appellant's plea was equivocal on which a valid conviction may not arise. He supported the appeal without proposing that a retrial be ordered. Before resting his case, we drew Mr. Marungu's attention and sought his view over what transpired during trial that the dried leaves were sent to the Weight and Measure Agency for determination of the actual weight. His quick response was that it was improper to do so because in drug cases, in terms of section 29(2) of DCEA, that mandate is vested on the Government Analyst only. In our deliberation of this appeal, we propose, to restate the legal position governing plea of guilty. A general rule as imbedded in section 360(1) the CPA, is that a conviction arising out of an accused's own plea of guilty, cannot be challenged on appeal. However, cognizant of errors committed during the conduct of piea of guilty proceedings, over time, the Court realised and outlined circumstances under which a conviction on own plea of guilty may successfully be challenged in Court. The history can be traced back to the case of Rex v. Folder (1923) 2 KB 400 when the criteria or circumstances which may make a piea equivocal were noted and were followed by the High Court in Laurent Mpinga v. Republic [1983] TLR

166. Then the decision was followed with approval in Karlos Punda v. Republic, Criminal Appeal No. 153 of 2005 (unreported) in which these four factors or circumstances were set out: -
167. That even taking into consideration the admitted facts, the plea was imperfect, ambiguous or unfinished and for that reasonf the lower court erred in law in treating it as a plea o fguilty;
168. That the appellantpleaded guilty as a result o f mistake or misapprehension;
169. That the charge laid at the appellant's door disclosed no offence known to law; and
170. That upon the admitted fads the appellant could not in law have been convicted o f the offence charged. In the present case, Mr. Marungu has argued, the circumstances that obtained falls squarely in the third circumstance. We entirely agree with him. As was rightly argued by Mr. Marungu, the appellant admitted the facts narrated as being true but, standing alone, no valid conviction can be grounded because they did not establish all the elements of the offence charged. For clarity, we are compelled to hereunder reproduce the relevant facts as found on pages 4 to 6 of the record of appeal. "Facts of the case Accused person Joseph Njiku, 25 years, Christian, Nyaturu and resident o f Tumaini Village in Ikungi District.

Before the court, accused stand charged on unlawful trafficking in Narcotic drugs c/s 15 A (1) and (2) (c) o f the Drugs Control and Enforcement Act No. 5/2015 as amended by S. 9 o f DCEA (AMENDMENT) Act 2017. On 4/6/2020, accused person was at his home at Mafea hamlet, Tumaini village, Isuna Ward, Ikungi division, within Ikungi District in Singida Region. While at the home, police officers arrived as led by the Village Chairman, led by Joseph Nkuwi, and as they arrived, they searched the accused person and upon search, accused was found with dried bhangi leaves, which were in blue water drum, and nylon bag (white). After searching, certificate o f search was filled where the accused signed with his thumb with the witnesses, the village executive officer, Joseph Nkuwi. Report on certificate o f seizure indicates that bhangi in one water drum n jaba" blue in colour, and another in a white nylon bag were found in accused person's house. After the certificate was filled, accused was taken to Ikungi Police Station and his statement recorded in cautioned form, where accused was interrogated on 4/6/2020 by WP 11401 DC Paskalina.

After being given his iegai rights, accused admitted to have been searched by the village chairman, Joseph Nkuwi and was availed the chance to search the police officers who searched him, and they got in the house without any weapon. He admitted that the blue water drum with bhang and the bhang in the white nylon bag was found with him; that he planted the bhang in his farm next to his house and was selling to different people, who he did not know and was also transporting it to Puma for sell, thereby obtaining income from the business. Accused admitted to have been found with leaves o f bhang in his house. After being interrogated, with F. 7175 DcAthuman did go to the Weight and Measures Agency and they measured the bhang which was found to be 15kg. They were given a letter signifying the weight thereof as confirmed by Willy J. Amos who is the Deputy Manager - Weight and Measures Agency Singida Region. The measurement o f the bhang was witnessed by the officer-F. 7175 D/CAthuman who also singed on the letter as witness as well as the accused person who put his thumb print signature.

The letter from Weight and Measure had Reference No. GA.SGD/142/271/01c o f 5/06/2020. Today 16/06/2020 accused was brought charged and he admitted by entering a plea o f guilty. I pray to tender the following exhibits.

1. Seizure certificate dated 4/6/2020.
2. Letter from Weight and Measure Agency o f Re. No. GA.SGD/142/271/01C/1012 o f 5/6/2020.
3. Accused cautioned statement o f4/6/2020.
4. The dried cannabis sativa leaves in a blue water drum and in a white nylon - a total o f 15 kg, if no objection from defence side. Accused: I have no objection. The bhangi is the one I was found with. I have no objection over the documents as weli. Court: Bhang - 15kg is accepted as PI. Seizure certificate is accepted as court exhibit P2. Letter from Weight and Measures Agency is accepted as P3. Accused cautioned statement is accepted as P4. That is all. Court: Accused is addressed in respect o f the facts narrated and replies: li

Whathas been said against me is true and correct,, I admit the facts and exhibits as true and correct. Accused Signature: Signed R7P16/6/2020. P.P.: Signed 16/6/2020. Sgd. C.P. Singano, RM 16/6/2020 Court findings Accused person have admitted charge, facts and exhibits as true and correct. In absence o f any qualification , accused is found guilty o f being found in possession o f narcotic drug - bhangi c/s 15 A (1) and (2) (c) o f DCEA, No. 5/2015 on his own plea, he is convicted and will be punished accordingly. It is so ordered. Sgd. C. P. Singano, RM 16/6/2020" Mr. Marungu was right that even where an accused person pleads guilty or admits the charge, the facts narrated, which are ordinarily a summary of the evidence that would be led by the prosecution if the prosecution by calling witnesses was to proceed, must establish the offence charged beyond reasonable doubt. Such is the stance restated by the Court in the case of Michael Adrian Chaki v. Republic, Criminal Appeal No. 339 of 2019 (unreported) citing with approval a highly

persuasive decision of the High Court, in Salehe Mohamed v. R [1971] HCD No. 176 which cited the decision of the defunct East African Court of Appeal in Kato v. R. [1971] E. A. 542. The latter case held that a conviction on a plea of guilty can only arise where an accused person admits all the ingredients constituting the offence charged. In Kato v. R. (supra), a portion of the decision of the erst while Court of Appeal of East Africa of R. v. Ynasani Egau [1942] 9 E.A.C.A. 65 at 67 was quoted that:- 7/7 any case in which a conviction is likely to proceed on a plea o f guilty (in other words, when an admission by the accused is to be allowed to take the place o f the otherwise necessary strict proof o f the charge beyond reasonable doubt by the prosecution) it is most desirable not only that every constituent o f the charge should be explained to the accused but that 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 guilty to every element o f it unequivocally ." In the present appeal, as correctly submitted by Mr. Marungu, there was no proof that the dried leaves were cannabis sativa (bhangi). Apart from the facts narrated not being able to establish that the dried leaves

were cannabis sativa (bhangi), even the documentary evidence (exhibits PI, P2, P3, P4) could not salvage the situation for the law on drugs (the DCEA), under section 29(2), clothes with mandate to resolve controversies relating to the weight, type of chemical and other matters of similar nature on the GA. That section is couched thus: - "(2) Where there is any inconsistence in matters relating to weight, type o f chemical concerned or any other matter o f similar nature provided in this section, the weight, ty p e o f chemical or that other matter determined by the Government Analyst shall prevail." The provision, apart from vesting powers to the GA of identifying types of chemicals, it treats, as final and conclusive, a report by GA on the type of chemicals. Although there was no controversy raised in the present case, in a bid to establish beyond reasonable doubt that the dried leaves were cannabis sativa (bhangi), the prosecution ought to have had, as Mr. Marungu rightly submitted, sent the said leaves to the GA for verification of the weight and type who would prepare a report. Such report has to be tendered in court at the time of narrating the facts of the case. The significance of the report was underscored by the Court in the case of Adam Abdallah Ramadhani v. Republic, (Criminal Appeal No. 372 of 2020) [2024] TZCA 193 where the Court held: - 14

"A conviction on a piea o f guilty for trafficking narcotic drugs mustbe supported by evidence that the substance in question is indeed a narcotic drug. Mere admission by the accusedf without a government analyst's report on the substance's nature, is insufficient to sustain a conviction." In the circumstances, we agree with Mr. Marungu that the facts adduced did not establish the offence the appellant stood charged with and, notwithstanding his plea of guilty, the facts were unable to ground a conviction. His plea was therefore equivocal. Had the learned Judge addressed himself on the requirement to prove the type of substance, he would have not sustained the trial court's finding that the appellant's plea was unequivocal and sustain his conviction. That said, the appellant's conviction should, as we hereby do, be quashed and the sentence meted out set aside. Ordinarily, we would have ordered the record of the trial court be remitted back for the appellant to stand trial, but we understand why Mr. Marungu did not propose so. It is obvious that during the time the facts of the case were narrated, the prosecution had no Government Analyst Report. If trial is ordered, the prosecution will seize the opportunity to fill

that gap to the prejudice of the appellant. The spirit underlying the holding in Fatehali Manji v. R. (1966) E. A. 344 will be defeated. For the foregoing reasons, we allow the appeal, quash the appellant's conviction and set aside the sentence. With immediate effect, we order the appellant be released from the prison if not held for another lawful cause. DATED at DODOMA this 13th day of December, 2024. S. A. LILA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 13t h day of December, 2024 in the presence of the Appellant in person and Ms. Rose Ishabakaki, State Attorney for the Respondent/Republic is hereby certified as a true copy of the oriainal W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL