JUDGMENT NYIBE JOHN MATONDO VS REPUBLIC

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA CRIMINAL APPEAL NO. 5195 OF 2024 (Originating from the District court of Chunya at Chunya in Criminal Case No.123/2023) NYIBE JOHN MATONDO…………………………………………………. APPELLANT VERSUS THE REPUBLIC…………………………………………………………. RESPONDENT JUDGEMENT Date of last Order: 24th June, 2024 Date of Judgment: 8th July, 2024 KAWISHE, J.: The appellant being aggrieved by the decision of the District Court of Chunya at Chunya in Criminal Case No. 123/2023, filed an appeal before this court. The appellant was charged with the offence of publication of false information in the computer system contrary to section 16 of the Cyber Crimes Act, No. 14 of 2015. It was alleged that, the appellant on 14th October, 2023 at Lualaje Village within Chunya District in Mbeya Region, through his facebook 1 account namely; Mama Samia Tanzanian Fans with intent to mislead the public did publish information to wit: “Nkasu Lualaje Chunya Mbeya surua imeshika kasi kwa kiwango 78% kila mji hukosi mgonjwa wa surau...watu wanapoteza Maisha kwa kukosa pesa ya kujihudumia.” While the appellant knowing that, the said information is false. The said publication annoyed and mislead the public. The expertise investigated the matter and found out the information and publication were false one. During trial the charge was read to the appellant and explained in Kiswahili language and he admitted to have committed the said offence. He stated that, “Ni kweli nilitoa taarifa za uongo kwenye mfumo wa kompyuta kupitia akaunti yangu ya facebook na kusababisha taharuki kwa Tanzania.” Therefore, it was written that, the appellant entered a plea of guilty to the charge. The facts of the case were read and explained to the accused person and the appellant admitted that “All facts read over and explained to me are true, correct and I admit them all.” The prosecution tendered the cautioned statement of the appellant, it was not objected the same was admitted as exhibit PE1. Having admitted the charge and facts that constitutes the elements of 2 the offence he was charged with, the appellant was convicted and sentenced to pay fine of Tshs. 5,000,000/= (five million) or to serve three years imprisonment in jail. The appellant being aggrieved by the said decision filed an appeal in this court with three grounds of appeal. Which are: 1. That, the trial court erred in law when convicted and sentenced the appellant without taking into consideration that failure to the prosecution to tender the said computer or mobile phone with its massage the plea of the appellant is imperfect and unfinished as per law. 2. That, the trial court erred in law when convicted and sentenced the appellant without taking into consideration that if none of an expert written document tendered to the court the plea of the appellant was the result of misapprehension and mistake. 3. That, the trial court erred in law when convicted and sentenced the appellant without regarding that when the cautioned statement read to the appellant no any were shows that the appellant was given a chance to object or admit it this means that the plea of the appellant was the result of mistake. The appeal was scheduled for hearing. Appeal was argued by a way of oral submissions. The appellant appered in person unrepresented whereas, the respondent/Republic was represented by Mr. Salmin Zuberi, learned State Attorney. 3 When the appeal was called for hearing, the appellant he prayed to the court his grounds of appeal to be adopted. That, the court accept his ground of appeal and set him free. In his reply the respondent’s learned State Attorney, Mr. Salmin argued that, they object the three grounds adduced by the appellant. He stated that, on 26th October, 2023 when the appellant was before the court. That, the appellant pleaded guilty when the facts were read and explained before him by the learned State Attorney Ms. Mwajabu Tengeneza. The learned counsel cited the case of Jack Mahembega vs. R, Criminal Appeal No. 369 of 2020, CAT which quoted the decision of Laurence Mpinga vs. R (1983) TLR 166 where it was stated that, an appeal based on equivocal plea cannot be sustained. He added that, in the three grounds of appeal advanced by the appellant, there is no ground defaulting the sentence. He insisted that, a person who challenges the plea of guilty has to challenge on the validity of the plea. That, the appellant in this case is not challenging the plea he entered. That, his appeal is against the decision of Jack Mahembega(supra). The learned State Attorney responded on the first ground that, the computer and mobile phones were not tendered. He submitted that, the message was published on the social media, Facebook, where any 4 person can access the same. That, it is not legal requirement to bring social media before the court. He prayed that the court disregard the ground. On the second ground that, the prosecution has failed to bring an expert to tender a document. The learned counsel argued that, it is not a legal requirement. That, the prosecution is statutorily required to bring an expert. That, the court considers the circumstances of the case and not the expert’s opinion. On the third ground that, he did not hear and object the cautioned statement. The learned counsel argued that, at page 4 of the typed proceedings of the trial court, the appellant stated that “I have seen the cautioned statement, I have no objection, let it be accepted as an exhibit.” The court admitted it and marked it as exhibit PE1. Thus, the ground has no merit. Therefore, since the appellant pleaded guilty and his plea has no ambiguity and the facts were read in Kiswahili and he accepted them all, he prayed that, for the interest of justice to dismiss the appeal and the decision of the trial court be upheld. The appellant, did not have much on rejoinder. He prayed for his appeal to be allowed. 5 Having heard the submission made by both parties, there is one issue to be determined as to whether the appellant plea of guilty is valid. The position of the law when there is an appeal basing on conviction arising from a plea of guilty is considered under the provisions of section 360(1) of the Criminal Procedure Act [Cap 20 R.E 2022] (CPA) which provides that: 360(1) “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”. The law prohibits an appeal when there is plea of guilty. In certain circumstances an appeal may be entertained where the appellant did not appreciate the nature of the charge or where he did not intend to admit he was guilty of the relevant charge. There are other elements mentioned in a number of cases where an accused may appeal against the conviction. The same was well established various cases including but not limited to the following; Jack Mahembega (supra), Laurence Mpinga vs. R [1983] T.L.R.166, Machaba Makoro Komasiga vs. R, Criminal Appeal No. 303/2020 where they cited the case of Josephat James vs. R, Criminal Appeal No. 316 of 2010; where it was stated that: 6 1. Where the plea was imperfect, ambiguous or unfinished and, for that reason, the lower court erred in law in treating it as a plea of guilty, 2. Where an appellant pleaded guilty as a result of a mistake or misapprehension, 3. Where the charge levied against the appellant disclosed no offence known to the law, and 4. Where upon the admitted facts, the appellant could not, in law, have been convicted of the offence charged.” In the case of Josephat James (supra) the Court of Appeal went further to state that: “An appeal may also be entertained where an appellant was pressured into pleading guilty or the plea of guilty was procured as a result of a threat or promise offered by a person in authority in consideration of pleading guilty”. Basing on the above principles and position of the law regarding appeals against conviction arising from a plea of guilty and having perused the trial court’s records and proceedings, I am of the view that, the appellant in this case is not entitled to challenge the conviction which is based on his own plea of guilty. The charge was read and explained to the appellant, he admitted that “ni kweli nilitoa taarifa za uongo kweye mfumo wa kompyuta kupitia akaunti yangu ya facebook na kusababisha taharuki kwa umma wa watanzania.” Simply meant that, it is true that, I published false information on the computer system through my facebook account and 7 caused havoc in the Tanzania society. When the facts of the case were read to him as shown on trial court’s record, he also admitted. He admitted also, the exhibit tendered by the prosecution side that is, his cautioned statement, which was admitted as exhibit PE1. The facts which were read to him and brief facts of the case mentioned all elements of the offence the appellant was charged with. In my opinion, the appellant’s plea of guilty was unequivocal, it cannot be said the same was imperfect, ambiguous, unfinished or that, the appellant pleaded the charge as a result of any mistake or misapprehension. The offence and the facts are very clear. Further, it was explained to him in the language he understands that is Kiswahili. Also, the offence charged with was mad clear to him. Therefore, as stated above an appeal against a conviction based on unequivocal plea of guilty cannot be sustained, although an appeal against sentence can stand. See the case of Abdallah Issa vs. Republic (Criminal Appeal No. 392 of 2022) [2024] TZCA 502 (1 July 2024). Now, reverting to the grounds of appeal. The first and second grounds, the appellant claimed that, there was no computer or mobile phone were tendered in trial court, and also there was no evidence from an expert written document was tendered before the trial court. The law 8 is very specific that, once there is admission of an offence there is no need to tender evidence and witnesses. This was so held in the case of Machaba Makoro (supra) that: “Where the charge was admitted by the appellant and where unequivocal plea of guilty was rightly entered by the trial court. Where an accused admits the truth of the substance of the charge and he is convicted on his own unequivocal plea of guilty, the requirement to call witnesses or bring any evidence in support of the charge does not arise and it cannot be complained in appeal that the prosecution did not call witnesses in support of its case”. With the principle set by the Court, and the submission made by the learned State Attorney, I am certain that, the first and the second grounds have no merit. On the third ground of appeal that, the trial court erred in law when convicted and sentenced the appellant, that when cautioned statement was read, he was not given a chance to object or admit it. The learned State Attorney was against the appellant’s complaint. In my opinion, the learned state attorney submitted rightly that, the appellant was given a chance to object the cautioned statement. In the trial court’s records it is evidenced at page 4 where he admitted that ‘I have seen the cautioned statement, I have no objection, let it be accepted as an exhibit’. The appellant cannot come at this stage of appeal contend that when the cautioned statement was read, he was not given the 9 chance to object. Having said so, the third ground of the appeal has no merit and it is baseless. Basing on the above discussion, the appellant was convicted and sentenced on his unequivocal plea of guilty. Thus, the appeal has no merit and is hereby dismissed. Consequently, the conviction and sentence of the trial court is upheld and confirmed. It is so ordered. Right of appeal is explained. Dated and Delivered at MBEYA this 8th day of July, 2024. E.L. KAWISHE JUDGE Court: Judgment delivered in the presence of Mr. Salmin Zuberi State Attorney of the Respondent and in the presence of the appellant, Mr. Nyibe John Matondo. E.L. KAWISHE JUDGE 10