CRIMINAL APPEAL NOMOHAMED HASSAN ABDALLAH NEWNEWNEW 3

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA CRIMINAL APPEAL CASE NO 99 OF 2023 (Originating from Criminal Case No 157 of 2022 . in the District Court of Masasi at Masasi) MOHAMED HASSANI ABDALLAH......... ..... APPELLANT VERSUS < ( THE REPUBLIC..... ...... .............................. RESPONDENT JUDGMENT Date oflast Order: November2023 Date ofJudgment: 25“ November2023 .■ LALTAIKA, J. > J The appellant, herein, MOHAMED HASSANI ABDALLAH was arraigned in the District Court of Masasi at Masasi charged with two counts of 1. Burglary c/s 294(l)(a) of the Penal Code Cap 16 RE 2022. (2) Stealing c/s 258 and 255 of the Penal Code Cap 16 RE 2022. It was the prosecution's story that on 6/8/2022 at around 24:00 (midnight) at Wapiwapi Area, Masasi District in Mtwara Region, the appellant did break into the house of one Mussa Salum Chimpele with the intention of Page 1 of 8 committing an offence therein. It was alleged further that on the same day and place, having broken and entered into the house of one Mussa Salum Chimpele the appellant stole 12 plastic chairs make CELLO, one plastic table make CELLO, one plastic water drum Make JAMBO, and one port all valued at TZS 309800 property of one PILLY MFAUME. ,;■■■ -J... "£■ When the charge was read oyer and explained tothe appellant (then accused) he pleaded guilty. The trial court convicted him as per his own plea of guilty and sentenced him to serve three years in prison. Dissatisfied, the appellant has appealed to this court by way of a petition of appeal containing five grounds. For reasons that will become apparent soon, I choose not to reproduce them. When the appeal was called for hearing, the appellant appeared in person, unrepresented. The respondent Republic, on the other hand, appeared through Mr. Melchior Hurubano, learned State Attorney. The appellant informed the court that he had nothing more to add to his expounded grounds of appeal. He requested that the learned State Attorney is allowed to proceed so he could come in for a rejoinder if the need arose. Page 2 of 8 Taking up the floor, Mr. Hurubano, the learned State Attorney, initially presented objections to the appeal. However, as he projected a deeply reflexive face, he was not sure whether to support or object the appeal. The learned State Attorney stated that he became aware that the charge indicated that the appellant faced two counts, as narrated earlier. However, on page 7 of the proceedings, the appellant was convicted under section ■'k * 258 and 265, indicating the second count of theft. The sentence stipulated that the accused should serve a term of 14 years imprisonment for the first count and three years for the second count, with all sentences running concurrently. Mr. Hurubano highlighted that although the appellant was convicted of one count of stealing, the sentence was for both counts, characterizing it as an irregularity. He expressed his opinion that, considering the absence XL V of a section citation on sentencing, he sought the court's directives on whether such a sentence was proper. He clarified that he meant sentencing for two counts when only one was pleaded guilty to. Mr. Hurubano suggested that the appellant be taken back to the trial court for proper plea-taking. Page 3 of 8 The appellant, in his rejoinder submission, explained that he had been selling chicken, and the complainant operated a grocery and bar. The complainant suggested that they team Up, promising to pay the appellant TZS 110,000 per month. After seeking advice from his wife and receiving her agreement, the appellant began working with the complainant. However, after two months without payment, the appellant took 12 plastic chairs from the complainant's place in broad daylight, explaining that financial constraints due to his Wife's pregnancy led him to lake this action to force .. payment. When the complainant came to the appellant's home, he was not present, but his wife informed him about the visitor. The appellant then instructed his wife that the complainant must give her money to retrieve the C ? " chairs. The complainant then gave the appellant's wife TZS 220,000, v'" and the chairs were returned. The following day, the appellant was arrested by two people in the market. He was taken to Masasi Police Station, and du ring the evening, he requested they notify his wife, but they refused. Later the appellant was taken to court. Page 4 of 8 Looking rather perplexed but honest, the appellant acknowledged that he probably made a mistake by not informing any government authority about the salary owed to him. He prayed for the court to consider his detailed grounds and allow him to go back to take care of his family, especially since his wife had given birth while he was in jail. He shared that he had never attended school, lost his father at a young age, and was. raised by his grandmother. He highlighted his move to Masasi town in 2017, seeking work at Luiindi, and his transition from working as a casual laborer to starting his own business. / I have dispassionately considered the grounds of appeal, and keenly scrutinized the trial court's records. As alluded to earlier, my role as the first appellate court is to re-evaluate the evidence tendered in the trial court and come up with my own findings if necessary. See LEORNARD MWANASHOKAV. REPUBLIC Crim Appeal No 226 of 2014 CAT. y-': ,.r There is a saying in Kiswahili "Dawa ya deni ni kulipa" (the solution to indebtedness to pay one's debts). Noteworthy, it is not always easy to draw a line between permissible acts of demanding debt payment and outright criminality. In this judgement I reconsider the evidence to find out Page 5 of 8 whether the trial court's conviction was due inability to draw a line between criminal liability and a civil matter between partners in fade. But first, some essential background on arraignment and the lower court's trial. Truth be told, my immediate reaction is that this trial court was in unimaginable hurry. The impugned judgement was most likely written in a haste leading to, as rightly pointed out by Mr. Hurubano,an irregularity in recording conviction. In that regard, I find it is an Opportune moment to remind our learned Magistrates of the Maxims for Magistrate. The tenth of these ten maxims provides as follows: \ "Never hurry; take your time. You will not impress the public by anxious haste, but you will do so by ’is •b’ a dignified deliberation in your proceedings." „ ' (Emphasis mine) 5;-; £ Having compared the appellant's rejoinder with the trial court's records, it appears to me, and I say this With due respect to the learned trial Magistrate, he slipped into error by inability to comprehend the story. The appellant's plea of guilty was an honest expression that he had indeed taken the chairs (and other items) from his business partner as a way of demanding payment for his labour. By the time he was arrested and Page 6 of 8 arraigned in court, such items were already returned, and the full debt paid. The demeanor of the appellant (then accused) should have acted as a signal to the learned trial Magistrate. There is no doubt that this was not supposed to be a criminal case in the first place. The leaned trial Magistrate was probably aware of this as he did not convict the appellant for burglary as charged. He was probably alive to the fact that even if the items were yet to be returned to the complainant, the line between criminal liability and a civil claim remained blurry. -4.^ h S:- Since conviction and subsequent sentences were based on the (purported) plea of guilty, I consider it futile to go into the details of the court records to weigh out the evidence and determine whether an order for retrial is warranted.,The criminal court allowed itself to try a purely civil matter which, worse still, had already been settled amicably by the appellant and the (alleged) complainant. Premised on the above, I allow the appeal. I quash the conviction, set aside the sentence, and hereby order that the Appellant MOHAMED HASSAN I ABDALLAH be released from prison forthwith unless he is being held for any other lawful purpose. Page 7 of 8 It is so ordered. This judgement is delivered under my hand and the seal of this Court this 29th day of November 2023 in the presence of Mr. Steven Aron Kondoro, learned State Attorney for the respondent and the respondent who has The right to appeal to the Court of Appeal of Tanzania is fully explained. Page 8 of 8