Tilian Mwaigaga vs Republic (Criminal Appeal No. 141 of 1997) [1998] TZHC 2290 (26 December 1998)

I IN TRE HIGH COURT OF TANZANIA I T NYA &?GA C A?PE LLATE JIJRI SDI CTI ON (ivIYA REGISTRY) CRIMINAL .APPBAL NO. 141 OF 1997 (Driginal,orimina1 Case Nó..7. of 1997 of the District Oourt'of.Mbeya District •. at Mbeya) Be 1ore: B. H. Mandawa, Re sident Magistrate) lLIAN ... RJS THE REPUBLIC, . . , . . . . . . JGE1YFNT - MWLPOPO, J. The charge sheet contained particulars of offence which eta -'- that the afDpeliant Tiliaris/O Mwaigaga on 2/4/97 at Nozvwe area Mbeya Municipal was found in unlawful possession of 2 muz1 1oadin guns without licences. He pleaded guilty and the facts given thereafter mentioned him as being found with only one muzzle loading gun without a permit. Due to the disparity in number of muzzle guns found with him from 2 guns mentioned in the statement of offence and the one muzzle gun mentioned in the facts presented by the prosecutor,.. it has been argued by the learned Mr. .Mwakolo advocate of theappel1ant that then plea of guilty was an ecjuivocal plea which vitiated the conviction and sentence of 3 years imprisonment imposed on him. The learned Mr. Mwákolo further prayed that the court should not direct anothar trial de novo because the appellant has stayed in piriso for 5- months up to now for he was convicted on 5/12/97.

2 The learned. Mr. Boniface ($.A.) has opposed the appeal again conviction' for he argued thaVh'plea' was unequivocal and unassailable, The one meirtioned in the particulars of offence were sufficient to' make the plea he entered unequivocal. The plea of guilt,r and thefacts given about the appellant having been fouid witTi'- only one muzzle gun which the appellant found them - e be correct sufficed jto make the plea of guilty of the appellant totally uz.e'quivocal. ': conviction, therefore was properly enté&' bj the learned Ir..Mandawa As to sentence," t'here' 'houJ been, no .e,liberation on it j':;becuse the learned Lr. Mwakolo withdrew his appeal grounds touching on sentence, on the 'r'ea'óns e 'gave that since the maximum term of imprisonment was 10 years there was no error in sentencing' the appellanf' - 'fb 3 years imprisonment.. The learnet' Mr. Boniface.(S.A.) held a different view that zge the statutor punishment for this offence attracts a maxirnuni fine of shs.l00,00 or imprisonmeht fo± 10 years impiisonxent or both thecourt had a discretion to impose a fine inste,adofimpri'sonmentdte to the • spe cial mitigating factors" surroun,j.ng the appellant. • The court is prepared to consider the severity of the senten" • if in the circumstances ,there was justification to opt out of the fine punishment. The muzzle gun found with., the aiii,' - defective •' . .. . , was quite1 and so it couJ4 not be used illegally for poaching, L • . z self defence gr armed robbery. , The trial court imposed the impri onment: term on reasons given that.. 'there are a lot of violer d'f •. offences done un.de:r the threat firearms. .This'is a valid reason as a general observation. But, i..t could not apply subaectively tc the appellan"t,for his muzzle gun was defective sO as to render

3 - totally harmless to anybody 4 When he was found with this muzzle gun by D/S/Sgt. Salua, D/Sgt, Zawadi. and. WI' Clementina on searching his house they round ii cenge. .. the same muzzle gun had expired firearmeLin the name of Mbeyanae s/o Msangwale of Santilya Village. The appllant ex']Laiiêd that. he had inherited it and never bothered to seek for a lawful licence to possess it in his own name, The last licence issued was for the 1989/90. The moment. h&Iftherited the gun he sbou)4 have applie1 for licence to own it failtu'é of which he should have sold it to sothe one with a licence or surrendered it to the police. Instead he kept it unlawful under his bed until when he was exposedby the jocolice. •, S . These factors mitigate the sentehce to a certain degree warranting this court to 'èdu'ce the sentence from 3 years to 6 months impisor2ment togetherwith a fine, of shs,50 1 0001= or 1 year.: imprisonment in default of fine, He is further ox'dered to pay the lawful firearm licence fees he would have been liable to:'pay.for the 'eriôd:.of July 1990 until December 1997 which fees he caused. the government to. suffer loss, The Regional Police Command shall calôulate the lawfulfirearm fees for renewal of licence of a muzzle gun he was liabre to payfor the 7 years, Failure to pay the fees arrears distress to, issue and if he has no property to attach sale then he shall serve 4 months in prison in default of the firearms licence - fees arrears. Since, he was imprisoned on 5/12/97 the 6 months imprison ent substituted hereinabove shall be..treated as having been fully served. I order for his immediate release from prison. *.. .. ./4