Karoli Masumbuko Massawe vs Republic (Criminal Appeal No 6 of 2016) [2017] TZCA 320 (12 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MJASIRI, J.A.. MWARIJA, J.A., And MWANGESI. J.A.) CRIMINAL APPEAL NO. 6 OF 2016 KAROLI MASUMBUKO MASSAWE................................................APPELLANT VERSUS THE REPUBLIC.....................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Sumari, J.) Dated 5th day of November, 2015 in DC. Economic Criminal Appeal No. 1 of 2014 JUDGMENT OF THE COURT 8th & 12th Dec. 2017 MJASIRI, J.A.: In the District Court of Rombo District at Mkuu, the appellant was charged with unlawful possession of government trophy contrary to section 86 (1) (2) (c) (ii) of the Wildlife Conservation Act (Act No. 5 of 2009), (the Wildlife Act), read together with paragraph 14 (d) of the First Schedule to, and section 57 (1) and 60 (2) of the Economic and Organised Crime Control Act [Cap. 200 R.E. 2002]. He was convicted on his own plea of guilty and was sentenced to twenty (20) years imprisonment.

Being dissatisfied with the decision of the trial Court, he appealed to the High Court. His appeal was unsuccessful hence his second appeal to this Court. The appellant presented a three point memorandum of appeal, and subsequently filed a supplementary memorandum of appeal. The grounds of appeal are summarized as follows:-

1. The first appellate Court erred in fact and law in convicting the appellant on an equivocal guilty plea.

2. The first appellate Judge failed to fulfil her obligation in conducting the appeal knowing that the appellant was unrepresented.

3. The first appellate Judge erred in fact and law by failing to explain to the appellant every constituent of the charge in order to satisfy itself that the appellant fully understood the charge. The supplementary grounds of appeal, presented by the appellant are summarized as follows:

4. The first appellate Judge erred in fact and law by failing to note the discrepancies between the charge sheet and the evidence.

5. That the sentence meted out to the appellant is excessive. It was the prosecution case that on 25th day of March, 2011 at Ibukani Village within Rombo District in Kilimanjaro Region, the appellant was found in unlawful possession of 5 pieces of elephant skin, three pieces of hyrax skin, one piece of chameleon skin, one piece of hedgehog skin, aard vaak bear, one piece of mongoose skin, ant bear, one green mamba, one piece of wildcat skin, one tusk of red buck, one tusk of grant gazelle, two tusks of bush bucks, with a total value of Tshs. 5,214,000 the property of the United Republic of Tanzania. At the hearing of the appeal, the appellant appeared in person and had to fend for himself and the respondent Republic had the services of Ms. Rose Sulle, learned State Attorney. At the outset, the learned State Attorney supported the conviction and sentence. She submitted that the appellant's plea of guilty was unequivocal and the appellant can therefore only appeal in respect of sentence. She stated that the record shows that the appellant understood 3

the charge read out to him and the offences alleged to have been committed were clearly set out. She stated further that before the appellant was sentenced, he stated as follows in mitigation:- 7 am the first offender your honour. I have pleaded guilty so that I cannot waste the time of this Honorable Court for a thing I believe I have done." According to her, this clearly demonstrate that the appellant pleaded guilty to the offence in full understanding of the charges, he was facing. As far as the sentence is concerned Ms. Sulle stated that the sentence imposed was the mandatory minimum under section 86 (2) c (ii) of the Wildlife Act. She asked the Court to dismiss the appeal. The appellant on his part did not have much to say. He stated that he is leaving everything in the hands of the Court.

We on our part, after a careful review of the record, are of the considered view that the main issues for consideration and decision are as follows:-

1. Whether or not the appellant's plea of guilty was unequivocal.
2. Whether the sentence meted out to the appellant was excessive. Section 360(1) of the Criminal Procedure Act [Cap 20, R.E. 2002,], the (CPA) provides as follows:- "No appeal shall be allowed in the case o f 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 o f the sentence '' In relation to the first issue, we are inclined to agree with the learned State Attorney. A close scrutiny of the record shows that the charge was read out to the appellant who entered a plea of guilty. The charge was very clear. The facts read out to him clearly spelt out that the appellant was found in unlawful possession of government trophy, and the facts read 5

out to him were very clear and unambiguous. He admitted to have been in possession of the same. When he was asked whether he admits the facts stated by the prosecution, the appellant had this to say on page 11 of the record 7 admit the facts your honour. It is true I was found in possession o f the mentioned things (government trophies.)" In mitigation the appellant was forthright in stating that he cannot waste the court's time for a thing he believe he had done. The law is settled. In Laurence Mpinga v. Republic [1983] TLR 166, Samatta, J as he then was, held that:- "(1) An appeal against conviction based on an unequivocal plea o f guilty cannot be sustained, although an appeal against sentence may stand." According to the Laurence Mpinga case (supra) an accused person who has been convicted by any court of an offence on his " own plea of guilty" may appeal against conviction to a higher court on or any of the following grounds:- 6

"1. That even taking into consideration the admitted facts, his piea was imperfect\ ambiguous or unfinished, and, for that reason the lower court erred in law in treating it as a plea o f guilty. 2. That the plea of guilty was 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 admitted facts he could not in law have been convicted o f the offence as charged." See - Saidi Mswaje @ Mwanalushu v. Republic, Criminal Appeal No. 464 of 2007; Ruth Alex v. Republic, Criminal Appeal No. 294 of 2015; Kalos Punda v. Republic, Criminal Appeal No. 155 of 2005; John Samwel @ Kabaka and Another v. Republic, Crminal Appeal No. 58 of 2005 and Samson Kitundu v. Republic, Criminal Appeal No. 195 of 2004 (all unreported). On a careful scrutiny of the record, and going through the charge and its particulars and the facts given by the prosecution, we are satisfied that they clearly revealed and established the essential ingredients of the offence. We are equally satisfied that the appellant's admission of the said

facts amounted to an unequivocal plea of guilty. We have nothing from the record of proceedings in the trial Court nor from the grounds of appeal before us which would bring this case under the four special circumstances spelt out from the case of Laurence Mpinga (supra) under which an appeal can be entertained from a plea of guilty. The appeal against conviction, therefore is barred by section 360(1) of the CPA. It is accordingly dismissed. On the issue of sentence, we are again in full agreement with Ms. Sulle, that the sentence imposed by the trial court is the mandatory minimum under the Wildlife Act. Section 86(2) c(ii) provides that:- "(ii) where the value of the trophy which is the subject matter of the charge exceeds one million shillings/ to imprisonment for a term of not less than twenty years but not exceeding thirty years and the Court may, in addition thereto, impose a fine not exceeding five million shillings or ten times the value o f the trophy, whichever is larger amount" 8

Given the fact that the sentence imposed on the appellant is the mandatory minimum, the hands of the Court are tied and the Court cannot reduce it. Given the circumstances we have no reason to default the decision of the two courts below. We accordingly dismiss the appeal in its entirety as it is devoid of merit. Order accordingly. DATED at ARUSHA this 9th day of December, 2017. S. MJASIRI JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 9