ALFANI MLAPONI AND ANOTHER v REPUBLIC 1990 TLR 104 (HC)

 

ALFANI MLAPONI AND ANOTHER v REPUBLIC 1990 TLR 104 (HC)

Court High Court of Tanzania - Mtwara

Judge Maina J

B 22 August, 1990

Flynote

Criminal Practice and Procedure -Appeal - Conviction based on a plea of guilty -

Whether appealable - S. 360 Criminal Procedure Act 1985.

C Criminal Practice and Procedure - Mitigation - First offenders - Mitigating factor.

-Headnote

The Appellants, Alfani Mlaponi and Said Laki Saidi were charged with, and convicted

on their own pleas of guilty D of unlawful possession of two gallons and two bottles

of Moshi c/s 30 of the Moshi (Manufacture and Distillation) Act, 1966. They were

each sentenced to 18 months imprisonment although they were first offenders.

Subsequently they appealed against the conviction, alleging further that they were

beaten up, hence, their own pleas of guilty.

E Held: (i) There can be no appeal against conviction on a plea of guilty;

(ii) the pleas were clearly unequivocal and the conviction was inevitable;

(iii) where the quantity of liquor found with the offender is such that he must

have been a distributor, a prison F sentence would seem to be correct, even for a first

offender.

Case Information

Appeals dismissed.

G Hyera, for the respondent.

[zJDz]Judgment

Maina J.: The two appellants were jointly charged with, and convicted of unlawful

possession of "Moshi" contrary to section 30 of the Moshi (Manufacture and

Distillation) Act, No.62 of 1966. They were each sentenced to H eighteen months

imprisonment. They were convicted on their own pleas of guilty. The appeals are

against conviction.

As Mr. Hyera, learned State attorney, rightly pointed out, there can be no appeal

against conviction on a plea of guilty. (See section 360 of the Criminal Procedure Act,

1985.) The question here is whether the pleas were I unequivocal. If they were, then

there can be no appeal against the convictions. When the charge was read over to the

1990 TLR p105

appellants, each one of then admitted and said "It is true". Then the facts were read

showing that they were found in A possession of fifteen litres of the illicit local

liquor known as "Moshi". This comprised two gallons and two bottles. The appellants

admitted the facts, and they were accordingly convicted and sentenced. They now say

that they were beaten up and that they were not found with moshi. That is an

afterthought. When they appeared before the B trial court, the charge was read over

and explained to them and they admitted the charge and the facts which were later

outlined by the prosecution. The pleas were clearly unequivocal and the conviction

was inevitable.

As regards sentence while it is true that both appellants are first offenders, the

quantity of moshi found in their C possession was such that it must have been

intended for sale and not personal consumption. As Georges, C.J. said in the case of

Hadija do Omari v R. [1970] HCD n. 158:

Where the quantity of liquor found with the offender is such that they must have

been a distributor, a prison sentence D would seem to be correct, even for a first

offender.

With respect, I agree with the learned Chief Justice. It must also be pointed out that

under the old Ordinance, the E maximum penalty was a fine of Shs. 1,000/= or three

months imprisonment. But the present legislation provides a maximum of five years

imprisonment for the offence. This reflects the seriousness with which Parliament

views this type of offence. I agree with the trial magistrate that a sentence of

imprisonment was appropriate, in the F circumstances. The sentences are confirmed.

Appeal dismissed. G

1990 TLR p103

H