Court name
High Court of Tanzania

Munisi Marko Nkya vs Republic () [1989] TZHC 15 (24 April 1989);

Law report citations
1989 TLR 59 (TZHC)
Media neutral citation
[1989] TZHC 15
Coram
Msoffe, PRM-E.J.

J.H. Msoffe, PRM - E.J.: On 4/11/88, the appellant appeared before the District D Court of Hai at Hai, on a charge of unlawful possession of Government trophy c/s 67 (1) (2) (a) of the Wildlife Conservation Act No. 12/74. When the charge was read over and explained to him as is the usual practice, he is recorded to have pleaded guilty E in the words "it is true". A plea of guilty was accordingly entered by the trial court, and facts read out and admitted by the appellant. He was accordingly convicted. It was not until 9/11/88 however, that a sentence of 2 (two) years imprisonment was pronounced against him. He is now appealing against conviction and sentence, alleging among other things that his plea was equivocal. F
The facts before the trial court were briefly as follows: That on 9/9/88 One Kulasauko Faraji Kimaro was found selling eland meat at Kwasadala village. On being asked by a G Game officer, one Siyael K. Mosha, as to how he came to possess the same, he mentioned the appellant as the person who brought him the meat in question for sale purposes. The Game officer went to report with the police at Bomang'ombe Police Post. Accordingly he was accompanied back by some policemen. Before the police, H the said Kulasauko Faraji Kimaro, who then had only 5 kilogrames, worth 350/= of the meat remaining, maintained his earlier story that the meat had been brought to him by the appellant. The appellant was, on the basis of this information, arrested and charged in court.
Mr. Alute, learned State Attorney who appeared for the Respondent Republic before I me, has urged that the conviction is not sustainable on the ground that the appellant's plea was equivocal.

JH MSOFFE PRM - EJ
I agree. It is clear now that according to the proceedings when the charge was read A over to the appellant he pleaded "It is true". This court had always held that an accused's plea should as near as possible be recorded as the accused has said. A plea of "It is true" without amplifications is certainly unsatisfactory as it may not amount to an B admission of every constituent element of the charge(s). Indeed this was the same point emphasized by this court in Bujukuno v R. [1971] H.C.D. no. 446 where Makame, J. (as he then was) said, and I quoted:
In my view the appellant did not admit every constituent of the charge and the record does not C show that he pleaded guilty to every element of it unequivocally.
Mr. Alute, learned State Attorney raised another issue for consideration by this court, D and this is whether the appellant's plea was remedied by the appellant's admission of the facts after they had been read over to him by the prosecution. I was referred to the case of Sebastian Gilberty v R. [1970] H.C.D. no. 281 where Mnzavas, Ag. J. (as he then was) had this to say, and I quote: E
The appellant having admitted the facts the final question to be decided is whether admission of the facts remedies the equivocal plea of guilty. In Paul Mathias v R. [1970] HCD 209. Georges, C.J. when dealing with the question whether the accused plea was F unequivocal said: Quite often an equivocal plea ... can be remedied by a full statement of all the facts needed to constitute the offence, and an admission by the accused person that these facts are true.
In our case, the appellant admitted that the facts were correct as narrated by the G prosecution but the issue for consideration is whether the facts as narrated disclosed an offence against the appellant. With respect to the trial magistrate, the facts did not disclose that the appellant was found in unlawful possession of government trophy i.e. H the eland meat. On the contrary the facts disclosed that another person by the name of Kulasauko Faraji Kimaro was the person found in possession of the eland meat which he was selling. The appellant, therefore, should not have been convicted of unlawful possession of government trophy, notwithstanding his admission of the facts. I

JH MSOFFE PRM - EJ
Mr. Alute, learned State Attorney again invited this court to look at the sentence A imposed on the appellant, and consider if it is in conformity with usual practice of the courts in sentencing. A look at the record will show that the trial magistrate was minded to fine the appellant if he was able to show an ability to pay a fine. As it turned out to B be, the appellant said he was not in a position to pay any fine; and was accordingly sentenced to the 2 year term of imprisonment. To appreciate the point being advanced here in full the relevant trial court's proceedings of 9/11/88 are reproduced hereunder thus: C
Date: 9/11/88
Coram: S. Musa - District Magistrate
Insp. Mwanga for pros.
Massawe B/C.
Accused present D
FINDING AS TO FINANCIAL POWER
Accused: I will not tell as to what salary I am receiving per month. If a fine of 3,000/= could be E imposed against me I could not pay. I could not pay a fine of 20,000/= or 30,000/= either. I leave everything to the court to decide.
SENTENCE F
Accused is a first offender and the meat was possessed due to poaching, the act which is ceased in Tanzania. The offence therefore is at an increase in Tanzania, hence different sentence is looked for. I inquired into, as to the accused's means to pay the fine and I am G satisfied he cannot pay the fine, the thing I cannot do because he cannot pay the fine. However, I find no special circumstances to be lenient to an accused. Accused to serve a term of imprisonment for two years. H
Sgd: Musa,
District Magistrate,
9/11/88
With respect the learned trial District Magistrate adopted a rather unusual approach. I Having convicted the appellant, surely there

JH MSOFFE PRM - EJ
was nothing wrong in investigating into his financial capability to pay a fine. But it is A clear here that the magistrates, who does not say in so many words, was prepared to impose a fine if the appellant had the capability to raise money for one.
If that was so, then he should not have changed the nature of the sentence by aggravating it simply because the appellant could not pay a fine. I appreciate that s. B 67(1)(2)(a) of the Wildlife Conservation Act No. 12/74 under which the charge and conviction is based, is couched in mandatory terms, and the magistrate felt he had to impose the maximum term of imprisonment now that the appellant had said he could not pay a fine. But, with respect, if the learned trial magistrate had carefully researched, C he would have actually found that it was wrong in the first place to charge and convict the appellant under s. 67(1)(2)(a) of the said Act. It is clear from the evidence that the trophy the subject of the charge is "eland meat". Eland is a trophy which falls under part II of the First Schedule to the Wildlife Conservation Act No. 12/74. The D proper charge therefore ought to have been preferred under s. 67(1)(2)(c)(i) of the same Act. If the trial court had invoked this latter provisions, no doubt, it would have been left with the duty to impose a sentence less than the 2 year term of imprisonment. E Better still, if the trial court was minded to find special mitigating factors i.e. small value of the meat (350/=), the appellant being a first offender etc. it could have invoked the provisions of s. 79 (1)(b) of the same Act, and commit him to the High Court for sentencing with recommendation for leniency and the grounds thereto; and no wonder F the appellant could have ended up at the end of the day with a far more lighter sentence.
In the final result the appellant's conviction cannot be upheld. It is accordingly quashed and sentence set aside. The appellant is to be released from prison forthwith unless he G is otherwise lawfully held therein.
Appeal allowed.

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