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Drug dealer suspect appeal dismissed

THE Court of Appeal has dismissed the appeal by drug dealer suspect, Joel Mwangambako, who was sentenced to 30 years’ imprisonment for cultivating cannabis sativa, commonly known as bhang, estimated at a value of 5m/-, in his farm.

Justices Augustine Mwarija, Gerald Ndika and Mwanaisha ruled against Mwangambako, the appellant, after holding that his appeal against findings of the High Court was without a semblance of merit.

According to court records, the appellant was convicted by the trial court on his own plea of guilty and sentenced accordingly, a decision which was confirmed by the High Court, holding that the charge was unblemished and the appellant's plea of guilty explicit and unequivocal.

But during hearing of his appeal to the Court of Appeal, the appellant contended that the charge against him was defective for failure to disclose any offence and that he did not understand the charge because it was read over and explained in a language he did not understand, since he was only fluent in Kinyakyusa.

The appellant also complained that his plea of guilty to the charge was not unequivocal; the admission of the cautioned statement containing a purported confessional statement was improper and that the charged offence was not established.

When deliberating the appeal, the justices agreed with the prosecution that the general rule made under section 360 (1) of the Criminal Procedure Act (CPA) bars allowance of an appeal against a conviction based on a plea of guilty except to the extent or legality of the sentence.

However, according to them, they were keenly aware that an appeal against conviction may be entertained notwithstanding the plea of guilty if established that it was imperfect, ambiguous or unfinished and, for that reason, the lower court erred in law in treating it as a plea of guilty.

Other principles to be considered includes whether he pleaded guilty as a result of mistake or misapprehension;  the charge laid at his door disclosed no offence known to law and that upon the admitted facts, he could not in law have been convicted of the offence charged.

Looking at the grounds of complaint raised by the appellate, the justices noted that he attempted to fit his quest within the parameters of the said principle.

"However, we would hasten to say that the second ground of appeal (relating to failure to understand the charge as it was read over and explained in a language he did not understand) is a new ground and, therefore, cannot be entertained by the Court," they said.

According to the justices, it was settled that the Court will generally not look at issues or matters that were neither raised nor decided either by the trial or the High Court on appeal unless they were pure matters of law.

"For the sake of argument, we would add that apart from that complaint being plainly an afterthought as the appellant had obviously no good cause to raise the matter so belatedly, it flies in the face of record, which leaves no doubt (he) understood not just the charge but the proceedings that followed," they said.

As regard to the defective nature of the charge, the justices agreed with the prosecution submissions that the statement and the particulars of the offence charged were essentially faultless and that the appellant was sufficiently notified that he faced the offence of cultivating a prohibited plant, namely, cannabis sativa.

They noted that in compliance with the requirement of section 135 of the CPA on the mode of charging, the charge was laid under section 11(1) (a) and (c) of the Act and that it was stated, with sufficient particularity, that the appellant was found cultivating the prohibited plant in his farm at Masoko village.

"Admittedly, the charging provisions appear to have been erroneously stated as "section 11 (1) & (a) C" of the Act but we think this was an innocuous typographical error that did not occasion any failure of justice, hence curable under the provisions of section 388 (1) of the CPA," they said.

The justices said that looking at the appellant's plea to the charge, the narrated facts of the case and his admission of the truthfulness of the said facts; they took the view that the appellant appreciated the charged offence and its seriousness.

On the contention that the appellant's plea of guilty was equivocal, they pointed out that he unreservedly admitted the truthfulness of the said narrative. "We find without demur that he was rightly convicted as his plea was unequivocal and unmistakable," the justices said.

On whether the charge was proved or not, the justices had this to say, "There was no need of proof as the appellant's conviction was soundly based upon his own unequivocal plea of guilty."

It was alleged that on February 22, 2017 at 18:00 hours at Masoko village within Mbozi District and Songwe Region, the appellant was found cultivating in his farm the bhang, the estimated value of which being 5m/-.

ZANZIBAR President Hussein Mwinyi ...

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Mwandishi: FAUSTINE KAPAMA

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