MUNISI MARKO NKYA v REPUBLIC 1989 TLR 59 (HC)

 

MUNISI MARKO NKYA v REPUBLIC 1989 TLR 59 (HC)

Court High Court of Tanzania- Arusha

Judge JH Msoffe PRM (Extended Jurusdiction)

24 April, l989 B

Flynote

Criminal Law - Wildlife Conservation - Government trophy - Whether eland meat is

Government trophy - Wildlife Conservation Act, l974 (Act No. 12/1974).

Criminal Practice and Procedure - Plea of "It is true" - Whether an equivocal plea of

guilty - Admission of facts read over by prosecution - Whether makes a plea

unequivocal. C

Criminal Practice and Procedure - Sentencing - Practice - Ability to pay fine -

Mitigating factors - Whether material in sentencing -Committal to High Court for

sentencing. D

-Headnote

One Kulasauko Faraji Kimaro was found selling eland meat. On being asked by a

Game Officer as to how he came to possess the same, he mentioned the appellant as

the person who brought him the meat to sell. The appellant was, on the basis of this

information arrested and charged in court. In the District Court the appellant was E

charged with the offence of unlawful possession of Government trophy contrary to

section 67(1)(2) of the Wildlife Conservation Act, 1974. When the charge was read

over and explained to him he is recorded to have pleaded guilty in the words "it is

true". A plea of guilty was accordingly entered by the trial court, and facts read out

and F admitted by the appellant. Appellant was convicted and a sentence of 2 (two

years) passed against him. He is appealing against conviction and sentence, alleging

that his plea was equivocal.

Held: (i) An accused's plea should as near as possible be recorded as the accused G

says it. A plea of "It is true" without amplifications is unsatisfactory as it may not

amount to an admission of every constituent element of the charge(s). (see Bujukuno

v R. [l97l] HCD n 446);

(ii) appellant's plea was not remedied by the applicant's admission of the facts

H read over to him by the prosecution because the said facts did not disclose that the

appellant was found in unlawful possession of Government trophy, i.e. eland meat;

(iii) the facts read over to the appellant disclosed that another person by the

name of Kulasauko Faraji Kimaro was the person found in possession of eland meat I

which he was selling;

1989 TLR p60

JH MSOFFE PRM - EJ

(iv) the appellant should not have been convicted of unlawful possession of A

Government trophy, notwithstanding his admission of the facts;

(v) having convicted the appellant, the trial District Magistrate should have

investigated the financial capability of the appellant to pay a fine; B

(vi) it was wrong in the first place to have charged and convicted the appellant

under s. 67(1)(2)(a) of the Act No. 12 of 1974. Eland is a trophy which fall under part

II of the First Schedule to the Act. The charge ought to have been preferred under s.

67(1)(2)(c)(i). Appellant's conviction quashed and sentence set aside. C

Case Information

Appeal allowed.

[zJDz]Judgment

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.

1989 TLR p61

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

1989 TLR p62

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

1989 TLR p63

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.

1989 TLR p64

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