abdallah izihaka abdallah vs republic 2023 tzca 17645 22 september 2023

IN THE COURT OF APPEAL OF TANZANIA

AT MOSHI fCORAM: MUGASHA. 3.A., MWANDAMBO. J.A., And MAIGE, J.A^ CRIMINAL APPEAL NO. 286 OF 2020 ABDALAH IZIhAKA @ ABDALLAH .......... ...... ......... ......... APPELLANT

VERSUS THE REPUBLIC ............................................................... . RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) I Mwenemoazi. J/l dated the 1st day of June, 2020 in Criminal Appeal No. 64 of 2019

JUDGMENT OF THE COURT 20* & 22ndSeptember, 2023 V f MAIGE. J.A.: At the District Court of Moshi (the trial court), the appellant was charged with and convicted of an offence of rape contrary to section 130(1) and (2) (e) and 131(1) of the Penal Code. He was as a result sentenced to thirty (30) years imprisonment. The appellant's conviction was on account of his own plea of guilty. The accusation in the charge sheet was that, on 3rdday of May, 2019 at or about 22:00 hours at Majengo- Kifaru village within Mwanga District in Kilimanjaro Region, the appellant raped a girl of 13 years old who shall be herein after referred to as "the victim" without her consent. Aggrieved, the appellant appealed to the High Court of Tanzania faulting both the conviction and sentence. The appeal was however not successful and hence the instant appeal. In the memorandum of appeal, the appellant has raised five grounds. In the first ground, which in our view, is capable of disposing of the appeal, the appellant is faulting the two courts below in not holding that the appellant's plea of guilty was equivocal. During the disposal of the appeal, the appellant appeared in person and without representation. Ms. Revina Tibilengwa, learned Principal State Attorney assisted by Ms. Eliainenyi Njiro, learned Senior State Attorney, represented the respondent Republic. In his submissions, the appellant adopted

the grounds of appeal in the memorandum of appeal and urged us to allow the appeal. Ms. Njiro who presented the submissions for the respondent supported the appeal to the extent of the first ground. She submitted that; though in accordance with section 360 (1) of the Criminal Procedure Act (the CPA), an appeal would not lie in respect of an accused who pleaded guilty except to the extent of legality of the sentence, such general rule does not apply where the plea was not an unequivocal. Making reference to our decision in Joseph James v. R ., Criminal Appeal No. 316 of 2010 (unreported), she contended that the plea appearing at page 10 of the record of appeal was so imperfect and ambiguous that, it could not in law amount to unequivocal plea -of guilty. She prayed, therefore that, the appeal be allowed to the extent of the first ground and the sentence and conviction be set aside. On the way forward, she urged us to remit the record to the trial court for retrial. The appellant entirely agreed with the said submissions. As we said above, the conviction of the appellant at the trial court was based on his own plea of guilty. In terms of section 360 (1) of CPA, therefore, an appeal would ordinarily not lie against conviction. It would only be allowed to the extent of the legality of the sentence- However, as rightly submitted for the respondent, the rule under the respective

provisions applies only if the plea was unequivocal. It does not apply where the plea was so imperfect or ambiguous that a prudent magistrate or judge would have treated it as a plea of not guilty. [See Ramadhani Haima v. R. Criminal Appeal No. 213 of 2009 (Unreported)]. Besides, it cannot apply where the appellant did not appreciate the nature of the charge or did not intend to admit that he was guilty. [See Joseph James v. R (supra)]. In this case, when the charge was read over, the appellant entered a plea in the following words: "It is true I had sex with her but only this once it is her father who does this always we had an agreement" Basing on the above statement, the trial magistrate entered a plea of guilty. He invited the prosecution to read the facts of the case and in reaction, the appellant stated "I admit all facts are true and correct she came home and we had sex." Eventually, the trial magistrate entered a conviction and sentenced the appellant accordingly. The conviction was upheld by the first appellate court. Addressing the issue of whether the plea was unequivocal, the first appellate Judge observed at page 25 of the record of appeal as follows: "The piea was very dear in fact the words used by the accused indicates that the charge read to him was very dear. The accused understood the charge that is why he went saying that they had an agreement with the

victim. He knew what he did was wrong but he justified his act by saying he only did once". In our view, in a situation where the charge alleges that the appellant committed the offence without the victim's consent, the qualification in the plea that there was a prior agreement between the appellant and the victim, raises uncertainty if the appellant appreciated the nature of the charge. Equally so, if the appellant intended to admit that he was guilty of the offence. In view of the foregoing discussions we agree with the learned Senior State Attorney that, the plea on the basis of which the appellant was convicted was not unequivocal. We thus allow the appeal to the extent of the first ground of appeal. We find it irrelevant to consider the other grounds of appeal. We accordingly quash and set aside all proceedings, conviction and sentence of the trial court sustained by the first appellate court and the trial court. We remit the record to the trial court for retrial before another magistrate. In the meantime, the appellant shall remain as a remand prisoner until ordered otherwise by the trial court. DATED at MOSHI this 21st day of September, 2023. S. E. A. MUGASHA

JUSTICE OF APPEAL L. J. S. MWANDAMBO

JUSTICE OF APPEAL IJ. MAIGE

JUSTICE OF APPEAL The Judgment delivered this 22nd day of September, 2023 in the presence of Appellant in person and Ms. Revina Tibilengwa, learned Principal State Attorney assisted by Ms. Eliainenyi Njiro, learned Senior State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. /'/* ; r . v T \ D-R- LYIMO (( sA DEPUTY REGISTRAR I !’ I *f COURT OF APPEAL