20161115 TZHC Mbeya2

d

IN THE HIGH COURT OF TANZANIA

AT MBEYA CRIMINAL APPEAL NO. 140 OF 2016 (Originated from the District Court of Kyela at Kyela, Criminal Case No. 10312016) ANON s / o F'ESTO ................................................APPEIJL.ANT

VERSUS 'I'}IE REPtJBI.11C ......... .............. .............................RESPONDENT

JUDGMENT Date of last Order: 0911112016 Date of Judgment: 15/11/2016 A.F. NGWALA, J. The appellant had been convicted of Aiding or Abetting Illegal Immigrants c/s 31 (1) (p) and (2) of the Immigration Act, Cap.54 R.E.2002 as amended by the Written Laws Miscellaneous Amendment, Act No. 2 of 2016. They were both sentenced to pay a fine of Tshs.20,000,000/= or in default serve 20 years imprisonment. It was further ordered that the vehicle with Registration No. T. 589 BNW make Noah black in colour be forfeited to be a government property. Aggrieved by the conviction and sentence the appellants have filed separate vide Criminal Appeals Nos. 139 of 2016 and 140 of 2016 which have been consolidated. Their respective grounds of appeal contain similar number of paragraphs and content. They read as follows:- Page 1 of 8 That the trial magistrate erred both in law and facts when he convicted the appellants based on the plea which was equivocal. That the trial magistrate erred both in points of law and facts when he convicted the appellants on a charge of aiding or abetting illegal immigrant, while in the Judgment they were not proved as illegal immigrants and That the trial magistrate erred in law and in facts in convicting the appellants without considering doubts in the prosecution evidence. When the appeal was called for hearing Mr. Namkambe the learned Senior State Attorney

represented the Republic. The appellants were unpresented. They prayed the Court to adopt their grounds of appeal. Mr. Namkambe submitted that the appellant's grounds of appeal are similar. He specifically pointed out that the second and third grounds of appeal are to the effect that there was no evidence to prove the offence charged. The centre of the appeal lies on the point that the appellants were convicted and sentenced on a plea which was equivocal. The learned State Attorney submitted the words 'ft is true' and 'the facts are correct' uttered by the appellants when they were asked to plead do not amount to unequivocal plea in law. He was therefore in agreement with the appellants that the plea was equivocal. Page 2 of 8 Regarding the appellant's prayer, that this court should allow the appeal and quash the conviction and set aside the order of forfeiture of the motor vehicle with Registration No. T. 589 BNW, Mr. Namkambe had no objection, save that the Court orders the Kyela District Court to proceed to hear criminal case no. 103 of 2016 by taking the appellant's plea afresh and expeditiously. He cited the case of Sita s/o Pawa v. Republic, Criminal Appeal No. 11 of 2013, the Court of Appeal of Tanzania (Tabora) (unreported) and the case of Ngassa Madina v. Republic, Criminal Appeal No. 157 of 2005, the Court of Appeal of Tanzania at Mwanza (unreported) to that

effect. In their rejoinder the appellants insisted on their prayer that the appeal be allowed, instead of going back to Kyela District Court for trial denovo. Upon perusal of the record of the trial court. I concur with both the appellant and the respondent's Counsel. The trial court mishandled the proceedings by entering a plea of guilty to an equivocal plea of guilty. The position of the law where a person has entered a plea of guilty is clear. Section 360 (1) o the Criminal Procedure Act, CAP. 20 R. E. 2002 reads:- "No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence." Page 3of8 The appellants were convicted on their own plea of guilty by the subordinate court. Their appeal to this court is not only against the sentence but the whole of the Proceedings, Judgment and Sentence. Under Section 360 (1) of the Criminal Procedure Act CAP. 20 R. E. 2002 (Supra) which is a general Rule, they are not entitled to appeal. The exceptions however, to the General Rule has been provided in the land mark case of Laurence Mpinga v. Republic [1983] T.L.R. 166 at page 168. One of the exceptions provided is to take into consideration that the plea was imperfect, ambiguous or unfinished. It is for this reason that the lower court erred in law in treating

the plea of guilty as an unequivocal plea of guilty when it was not on the following reasons. Page 1 of the typed proceedings of the trial court reads in part:- "Charge read over to the accused person who is asked to plead thereto. 1St Accused: It is true 21d Accused: It is true Court: Entered as a plea of guilty to the charge sheet in respect of the 1st and 21d accused persons. Sgd. R. M. Ngimilanga - DRM 1910912016" Thereafter the prosecution prayed to proceed with the Preliminary Hearing. The appellants admitted all the facts. In the proceedings the following is noted. Page 4 of 8 ID "FACTS OF THE CASE As per facts sheet. 1st paragraph: 1st Accused - Admitted 2nd Accused - Admitted" This trend is noted in all the eleven paragraphs. The court asked the appellants about the facts of the case and they replied 'it is correct'. Thereafter the court proceeded to convict the appellants on the allegedly plea of guilty. As correctly submitted by Mr. Namkambe, learned State Attorney the words 'it is true' and 'the facts are correct' do not amount to an unequivocal plea as held in the case of Khalid Athumani v. Republic, Criminal Appeal No. 103 of 2005 the Court of Appeal of Tanzania at Arusha (unreported), the Court quoted with approval the procedure explained by Spry V.P. in Aidan v. Republic (1973) EA 445 at page 446, where a person pleads guilty. The procedure is laid down in the

following terms:- "When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingredients of the offence charged. If the accused then admits all those essential elements, the Magistrate should record what the accused has said as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the Pages of 8 4, prosecutor to state the facts of the alleged offence and when the state inent is complete, should give the accused a chance to dispute or explain the facts or to add any relevant facts..." In the instant case, when the facts were read to the accused persons (now the appellants), their reply was not recorded in their own words. It is simply recorded as 'Admitted'. This is wrong. In Juma Mohamed v. Republic, Criminal Appeal No. 272 of 2011, the Court of Appeal of Tanzania (Arusha) (unreported), explaining how an unequivocal plea of guilty should be taken, the Court had this to say at page 9 of the Judgment:- "As correctly submitted by Mr. Elisaria, it was not enough for the appellant to merely say, "I admit the charge that it is true that I raped the said title girl" after the charge was read over and explained

to him and consequently asked to plead thereto. It was expected that he would go a step further and state the name of the girl he was alleged to have raped." In similar vein, when the facts were read over to him it was not expected that in response thereto he would say merely that:- "I admit the facts as true and correct. Rather it was expected that he would go further and state exactly what he admitted." Page 6 of 8 1 In view of the cited authorities, it is clear that the appellant's plea at the trial court was equivocal. It was wrong for the court to enter a plea of guilty to the charge as submitted by both parties. For the said reasons, the appeal has merit. Accordingly all the Proceedings, Judgment and Order of attachment and seizure of the motor vehicle with Registration No. 1.589 BNW Make Noah are quashed and set aside. Since the erroneous order of conviction and sentence has been quashed, it is hereby ordered that the District Court at Kyela should proceed with hearing Criminal Case No. 103 of 2016 by taking a fresh plea of the accused persons expeditiously in accordance with the law. The same should be done by another Magistrate not later than seven (7) days from the date of this Judgment. The appeal has been allowed with the above directions. Order Accordingly. % lj~m A.F. NGWALA

JUDGE 15/11/2016 Page 7of8 4' Date: 15/11/2016 Coram: Hon. A.F. Ngwala, J. 1st Appellant: Present 2nd Appellant: Present For the Republic: Mr. Stambuli (State Attorney) B/C: M. Mihayo Court: Judgment deliveredin in Court in the presence of the appellants and Mr. Stambuli the learned State Attorney for the Republic/Respondent Court: Right of Appeal to the Court of Appeal of Tanzania explained. - - - ---- ,', -.-;:;- "I " .Y ' 2 A.F. NGWALA I,-

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