Elisante Jackson vs Republic (High Court Criminal Appeal No. 83 of 1990) [1990] TZHC 295 (15 October 1990)

IN THE HIGH COURT OF TANZANIA AT lillUSHA APPELLATE JURISDICTION HIGH COURT _CR2MINAL APPEAL N0.83 OF 1990 ORIGINAL CRD1INAL CASE NO .. 49 OF 1990 OF THE DISTRICT COURT OF HAI DISTRICT AT HAI BEFORE J.R. NJOROyEiEsq, DISTRICT MAGISTRATE ELIS.ANTE J .\ CKSON •••••••••••••••••• ; .• ;APPELL.ii.NT VERSUS ' THE REPUBLIC ••••••••••• · ••• : ••••••••••• RSPONDENT. / U. D GM ENT •. M.D. NCH.ALLA, J. ,, • The appellant/accused ,as · charged with unlawful p,cssession of Gongo c/s 30 is.rt v Act No. 62/1966;; Th charge w'as·',read over. ·d ;xplained to • • . ' ' . · • J ·- the appellant/accused to which he pleade-d in the foll9wing words: "It is true that:r w caught with 30 litres of piwa: 0 Th~ tial magistrate entered a plea of guilty to the qharge. The facts of the charge were :narrated; which the accused admitt_ed as correct and true, thereby the trial ID.]gistrate convictE!d th appelia.11.t/&ccsed with 'the charge on his own plea·of gui°lty. ·The appellant has appealed. to tbis' cburt against conviction. Appellant's min fortress ori appeal i$ that there wa~ no expert evidence and proof that th8 substance or stuff in pas.session of which the ap:,;iellanc was found was actually mo.Ehi and. no·f lin~.hlri~ else. Appellant argued that this omission is fatal to the cge, d henc the conviction. In his admission minute j.n thitt appeal, his lordship, Mr. Justice Mroso,.made the following cori:ia-:mti "tistrict Rgistrar Admi ttGd to consider ;i;hei;her ·V:1ere was an unequivocal plea of guilty to an offence under S, '30 of .. t. 62/66. Does the law k_o ossccribe the possession of 11 gongo 11 ? 1 · 1 . "" ,,.;;The appeal was heard· in· the absence of the appellant who did not Wi1:3h t,o appear. The Republif Wa.';3 represG:nted by Mrs.• Lyimo, learned State Attorney, who did not supp,..,:t the conviction, and hence conc?4ed to the appeal. Mrs. Lyimo did not elab0ratG. ·,, ··········/2 l ,.

r . - 2 In my declsion I have only the grounds of appeal to consider with the judge's minute on admission. . .. With regard to, the appellant_'e groimd of appeal which is on a point, that the substance the subject of· the offencG iri this case was not examined by an expert to ascertain whether or not the same was moshi; / I quite agreG that that ground is of substance. Indeed, it was necessary~ for the prosecution to have sent the said stuff to a Government chemist for examination and analysis, to confirm that the same was moshi. This was not done, ·so the con-efic"tibn cann·o·( be left to stand. This court has held time and again, that in a criminal charge concerning unlawful possession of moshi, or any substance whose nature and 4 uality cannot be ascertained.' l}y the naked eye of a lay man, it is imperative that the same be referred to an_ expert for examinati_on·. and ai:lalysis, to confirm substance i~; really what .the prosecution allege to ?e• ·Failure to do so is fatal to a 99nvicttor1·; even . where the accu~ed hcid pleaded ~ilty to the cha.rge •. This fi:nfng lone would have s·ettled the dJcisiori of this appeal. .. :- . . : ~:. However. for the benefit of the trif-rna:gis·tate in this case and, probably, for ·the benefit of the general pbli"c r'deem it·n~cessary for this court to consider and make:a pecific finding on the_ issues raised in the judge's minute on achnissio. Firstly, I have ·to oohsider whether the appellant's plea was w{quivoea.l r not. ·The a:ppella).t admitted to ha been in possession of piwa. One would wish to know whete piwa is one and the same stuff as moshi; which is the .stuff contempla.ted under section:· 30 Act 62/66. ~t can be convincingly argued that Ei,,;a is not moshi. If piwa were moshi·,. then the legislature would ha.ve clearly stated so in the Act creating this offence. Sfrice the Act does not define moshi to roGan and include piwa, then reasonable doubt exists whether'that is ~o, The said doubt has inevitably to be resolved in favour of the appellant/ accused. Secondly, ·there is the issue whether Act 62/66 proscribes the ion of Gongo. The position is not any d:i.fferent from the ror-going argument whether mos hi,·. as conte)llplat9d by the Act, means and includes songo •. If that was the .-cas:e th·'. statute would hve specificaliy stated;'.s. Sinse the Act does not state tht moshi Jllffcl.l1S arid includes Q,, then. ~ •• j •" asonabl.e doubt. exists whi.ch has to be :eolved in the favour -i•., ·.·- 1 •,. •• • • .•. • o. '•• ..

' ... 3 - of the appellant/accused. This means; it is doubtful whether or not Act 62/66 proscribes possession of gongo as it does in respect of unlawful possession of moshi contrary to section 30 of the Act. These two legal issues also vitiate the conviction in this case. This court takes this opportunity to instruct and warn that, charges should be properly and accurately drafted, so that the statement and particulars of the offence contain as nearly as posl:lible, the· words used by the statute creating the offence~ And where.legal technical terms are as involved,· the same have to be used and stated in the chargey appear in the parent statute, without translation or the use of synonyms.· Having said and found as I have done, I allow this appeal in its entirety. I hereby quash the conviction and set aside the sentence that were entered atid passed by the t·rial subordinate court. I order the immed- iate release of the appellant from prison, unless further held thereat for another lawful cause. Appeal allowed. 15/10/90 Coram : MoD• Nchalla; '• if.D. NCH.ALLA, JUDGE. 10/10/1990. For Appellant - Absent, does not wish to appear For Respondent - Mr.·Mwidunda, State Attorney. C.C. Meriodi. Cou:at: .. Judgment delivered· in court at Arusha, in the presence of the State Attorney» this the 15t1 dayrctober, 1990. Right of appeal explained. /J,/J'i. ,n ~~ M .• D. NCH.:\LLA, . JUDGE.' 1;/10/ 1990. MDN/MM.