Musa Shija Holo Shija

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA CRIMINAL APPEAL CASE REFERENCE NO. 202501192000001680 MUSA SHIJA ………….................................................................... 1ST APPELLANT HOLO SHIJA …………………………………………………………………..2ND APPELLANT Versus REPUBLIC……..……………………………………………………………...… RESPONDENT (Originating from the Decision of the District Court of Maswa at Maswa) (Hon. E. S. Missana - SRM) Dated the 14th August 2024 in Economic Case No.22634 of 2024 ----------------------------- JUDGMENT 17th February & 27th February 2025. F.H. MAHIMBALI, J The appellants are alleged to be siblings - brother and sister respectively. They married each other and thus are in sexual relations and blessed with two issues. Upon that discovery, were arrested, charged, convicted and accordingly sentenced to 20 and 30 years’ imprisonment for the first and second offences for offences of incest by male and female 1 respectively. It was alleged by the prosecution that MUSA S/O SHIJA on diverse dates and months in the year 2018 to 31st day of July, 2024 at Mandang'ombe village within Maswa District in Simiyu Region, did have Sexual intercourse with one HOLLO D/O SHIJA who is his Sister which is an offence Contrary to section 158(1) (b) of the Penal Code [Cap 16 R.E 2022]. As regards to the second offence which concerns the second appellant, it was alleged that HOLLO S/O SHIJA on diverse dates and months in the year 2018 to 31st day of July, 2024 at Mandang'ombe village within Maswa District in Simiyu Region with Consent, did permit her brother one MUSA S/O SHIJA to have Carnal Knowledge of her which is an offence Contrary to section 160 of the Penal Code [Cap 16 R.E 2022]. Upon being arraigned before the trial court (Maswa District Court) to answer the claims laid against them, they are recorded to have pleaded guilty and upon conviction, they were each sentenced to 20 and 30 years’ imprisonment respectively. They are now aggrieved, thus the basis of this current appeal based on two grounds, namely: 1. THAT: the trial court erred in law and facts to convict and sentence the appellants on their plea of guilty while the plea was equivocal plea. The trial 2 magistrate failed to observe that, there were technical words which used by the court and police prosecutor which was unknown to the appellants. 2. THAT; My Lord, the whole trial court proceeding was vitiated with a very serious procedural irregularities lead to the miscarriages of justice. During the hearing of appeal, the appellants fended for themselves whereas the respondent – Republic was being represented by Mr. Kadata – learned state attorney. Arguing for their appeal, the appellants firstly, invited the Respondent to respond to their grounds of appeal and if need be, they would rejoinder submission. They thus prayed for an acquittal claiming that they are not siblings but cousins to each other. Opposing the appeal, Mr. Kadata – learned state attorney, for the respondent, with the first ground of appeal, he submitted that, reading the typed proceedings of the case; one finds each appellant’s respective plea. Each one pleaded guilty to the charge (respective count) – while making reference to page 3 of the printed out proceedings. When the facts of the case were read over and explained, at page 4 they both admitted being true and that even their respective responses to the facts, they are recorded to have admitted the truth of the facts. Thus, their pleas before the District 3 Court were clear, complete and unequivocal in the eyes of the Law, submitted Mr. Kadata. The said facts of the case and even the charge sheet did not have the technical words which were not elaborated as alleged. He therefore, humbly prayed that this ground of appeal be dismissed for being devoid of any merit. As to the second ground of appeal, he submitted that the same be disregarded as there has not been evidence of serious procedural irregularity as alleged which should vitiate the said proceedings. The sentence issued by the trial court sufficed the penal provision. That notwithstanding, he however, submitted that this being the first appellate court is not bound by the findings of the trial court as this court is mandated to digest the whole proceedings and eventually come up with the proper finding as per law, he rested his submission. In his rejoinder submission, the first appellant while maintaining his earlier stand, he submitted the 2nd appellant is not his sibling but just related as his aunt’s daughter (thus cousin). So he wondered if his aunt’s daughter is his sibling prohibited by law as incest, he thus prayed for an acquittal. 4 On her part, the 2nd appellant too maintained her earlier positon on submission in chief and clarified that the 1st respondent is not strictly her sibling but just related as her uncle’s son. So, she too wondered if being her cousin (Her uncle‘s son) falls within the ambit of sibling, prohibited by law as incest. She too insisted for an acquittal. Before I deal with the merits of the appeal in the light of the submissions from both sides, I wish to express my agreement with Mr. Kadata that generally section 360 (1) of the CPA bars entertainment of an appeal against a conviction based on a plea of guilty except to the extent or legality of the sentence imposed. That provision states that: "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." I am cognizant that notwithstanding the above provision, an appeal against a conviction on a plea of guilty may lie under certain circumstances as an exception to the general rule. In Kalos Punda v. Republic, Criminal Appeal No. 153 of 2005 (unreported), the Court of Appeal cited with approval 5 the decision of Laurence Mpinga [1983] TLR 166 where the High Court (Samatta, J. as he then was) outlined four grounds upon which a conviction on a plea of guilty could be appealed against (See page 168). These criteria are the Court of Appeal in Deus s/o Gendo v. Republic, Criminal Appeal No. 480 of 2015 (unreported) as follows: "Such an accused person may challenge the conviction on any of the following grounds: 1. that, even taking into consideration the admitted facts, his 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. that he pleaded guilty as a result of mistake or misapprehension; 3. that the charge laid at his door disclosed no offence known to law; and, 4. that upon the admitted facts he could not in law have been convicted of the offence charged." 6 Although Mr. Kadata’s submission in opposition of the appeal contended that the appellant faults his conviction on the ground that his plea was equivocal, but faulted it that pleas taken and the facts of the case admitted in law disclosed the offences of incest by male and female as charged and convicted with. The germane question is, therefore, whether there was in fact an unequivocal plea of guilty on which the appellants were convicted. In the beginning, I reaffirm that an accused can only be convicted on his own plea of guilty if the court is satisfied that his plea is unequivocal. That is, where it is ascertained that he has accepted as correct facts which constitute all ingredients of the charged offence - see, for example, Ndaiyai Petro v. Republic, Criminal Appeal No. 277 of 2012 (unreported). As stated in the leading case of Adan v. Republic [1973] EA 445 decided by the defunct Court of Appeal for East Africa in a case originating from Kenya, to which it was fully subscribed by the Court of appeal in Charles Samwel Mbise Vs. Republic, Criminal Appeal No. 355 of 2019, CAT at Iringa, it must be certain that the accused really understood the charge and that he had no defence to it. 7 To start with, I think it is important that the penal provisions convicting the appellants are reproduced for easy of reference: S. 158 (1) Any male person who has prohibited sexual intercourse with a female person, who is to his knowledge his granddaughter, daughter, sister or mother, commits the offence of incest, and is liable on conviction- (a) if the female is of the age of less than eighteen years, to imprisonment for a term of not less than thirty years; (b) if the female is of the age of eighteen years or more, to imprisonment for a term of not less than twenty years. (2) It is immaterial that the sexual intercourse was had with the consent of the woman. (3) A male person who attempts to commit an offence under this section is guilty of an offence. 160. Any female person of or above the age of eighteen years who with consent permits her grandfather, father, brother or son to have carnal knowledge of her (knowing him to be her 8 grandfather, father, brother or son as the case may be) commits the offence of incest and is liable to imprisonment for life or for imprisonment of not less than thirty years and shall, in addition, be ordered to pay compensation of an amount determined by the court to the victim in respect of whom the offence was committed: Provided that, if the male person is below the age of eighteen years, to imprisonment of not less than thirty years. Now back to the case at hand, whether the appeal is brought with sufficient cause. To arrive at that conclusion, we must first revisit the plea of guilty entered against the appellants’ own pleas on the charge sheet and facts of the case. The test should be, whether the pleas of guilty were clear, unquestionable and thus unequivocal in the eyes of the law. Let the digital court record speaks for itself: Date: 14/08/2024 Coram : E. S Missana - SRM Pros: V. Mushumbusi SSA &Ass. Insp Wajanga PP Accused: Both are present c/c: Maria Pros: Your honor this is a fresh case, we pray to read charge to the accused persons 9 Court: The charge is readover and fully explained to the accused persons in the language they understand and are asked to plead there to Accused's pleas: 1st Count for for :1st accused; Ni kweli mhe nilifanya 2nd Count for second accused: Ni kweli nilifanya hivyo Court: The plea of guilty is entered in respect of both counts sgd, E.S.Missana-SRM 14/08/2024 FACTS BY PROSECUTION That, the accused persons’ names, address and particulars be as per the charge sheet. That, the first accused is charged with the offense of Incest by males c/s 158(1)(b) of the Penal Code Cap 16 [R.E 2022]. That, the second accused is also charged with the offense of Incest by female c/ s 160 of the Penal Code Cap 16 [R.E 2022]. That, both the accused persons are biological relatives means brother and sister. That, the first accused person, on diverse dates from 2018 to 31/07/2024, did have sexual intercourse with the second accused who is his biological sister. That, in the diverse dates and months, in the year 2018 to 31 /07/2024 at Mandang'ombe village, with consent, did permit her biological brother (the first accused) to have carnal knowledge of her.That, on 23/09/2022, at Mandang'ombe village, both the two accused persons got a child named Mohamed Mussa Shija and is alive to the moment. That, on 19/07/2024, the clan meeting seated and warned them of what they were doing, but they proceeded on such acts. That, on 31/07/2024, both the two accused persons were arrested and taken to Lalago Police Post then to Maswa Police Station. That, on the same date, at Maswa Police Station, both the accused were interrogated and 10 admitted to commit such offense. That, today, the charge has been read over to them and they plead guilty to the charge. Thats all. Pros; Your honor in this case we intended to have the following exhibits, which are both accused's caution statements, we pray to tender them. sgd, E.S.Missana-SRM 14/08/2024 Court: This court asks the accused persons whether they admit to the narrated facts and if they have any objection with regards to the exhibits? Accused's Responses; 1st Accused: The narrated facts are true and correct, and I don’t object the exhibit 2nd Accused: The narrated facts are true and correct, I dont have any objecton on exhibit Court: The two accused persons admitted to the narrated facts to be true and correct, also they don't object exhibits. To that end, this court finds that, the prosecution had successfully proved the case against them beyond doubt, and they are hereby found guilty of the offense, and forthwith they are convicted as per their own pleas pf guilty. Order accordingly. sgd, E.S.Missana-SRM With the above material facts, accused persons’ pleas and admission of the narrated facts, the issue for consideration is whether they suffice the pleas of guilty recorded. In my digest to the facts of the case as narrated by the prosecution, they don’t explicitly reveal if the two are blood relatives (siblings) or are just relatives (cousins) as alleged. For the offence of incest 11 to stand, the following must be established: that the accused persons and/ or the victim are in prohibited relations i.e granddaughter, daughter, sister or mother for incest by males or grandfather, father, brother or son for incest by female, secondly that the accused person(s) are in sexual relations. For this offence to be established, there ought to have been a concrete proof of sexual relations between the two (such as penetration) and knowledge that they are related. The legal prohibited relationship is restricted to close biological parents, grandparents and siblings (granddaughter, daughter, sister or mother for incest by males or grandfather, father, brother or son for incest by female). The material facts don’t explicitly establish the appellants the extent of their relationship. Are they siblings or cousins as they allege? The facts are not detailed explaining the description of their both parents for the said offences of incest to stand. The purported cautioned statements fall two shorts: firstly, they do not reveal that they were admitted as exhibits by the court despite not being objected by the defense. Secondly, the same were not read over to parties after their admission. As that is the mandatory requirement, none compliance to it renders the proceedings being irregular. It is settled law that whenever it is intended to introduce any document in evidence, it should 12 first be cleared for admission, and be actually admitted in evidence, before it can be read out in court (See: WALII ABDALLAH KIBUTA AND TWO OTHERS V. THE REPUBLIC, Criminal Appeal No. 181 of 2006 and JOHN MGHANDI @ NDOVO V. THE REPUBLIC, Criminal Appeal No. 352 of 2018 (both unreported). In the latter case the Court emphasized the objective behind the requirement to read over the admitted documentary exhibits to the accused person having said as follows: "We think we should use this opportunity to reiterate that whenever a documentary exhibit is introduced and admitted into evidence, it is imperative upon a presiding officer to read and explain its contents so that the accused is kept posted on its details to enable him/her give a focused defence. That was not done in the matter at hand and we agree with Mr. Mbogoro that, on account of the omission, we are left with no other option than to expunge the document from the record of the evidence”. The purported cautioned statements being expunged, and the material facts being not detailed to describe the appellants’ extent of their relationship being in prohibited parameters of the law, make the findings of their conviction and respective sentences improper before the law as the said 13 pleas of guilty are considered unclear, incomplete and unequivocal pleas of guilty. With all the above discussion and the analysis made, I find this appeal to have been brought with sufficient cause; and thus, it is accordingly allowed. The trial court’s findings on both: conviction and sentence is hereby quashed and set aside. As to the way forward, I hereby order retrial of the case before another magistrate with competent jurisdiction, for the prosecution to establish the ingredients of the charged offences against the appellants. In the meantime, pending trial, the appellants may be admitted to bail by the trial court on the bail terms to be set. DATED at SHINYANGA this 27th February, 2025. F.H. Mahimbali Judge 14