20130302 TZCA Dodoma

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: LUANDA, J.A., ORIYO, J.A. And MMILLA, J.A) CRIMINAL APPEAL NO. 29 OF 2011 JONAS LEMGOHA ..................................................... APPELLANT VERSUS. THE REPUBLIC .... I ■ ••••••• ■ •••••••••••• ■ •••••••••••••••• ■■• ■ •••••••• RESPONDENT 11 (Appeal from the Judgment of the High Court of Tanzania at Dodoma}· (Kibella, l} dated 11th day of March, 2011 · in Criminal Appeal No. 21 of 2010 JUDGMENT OF THE COURT. 26th February & 2nd 2013 ORIYO, J.A: The appellant, Jonas Lemgoha, was charged with the offence of Rape contrary to sections 130(1) and 131(1) of the Penal Code, Cap 16, as amended by section 5 of the Sexual Offences Special Provisions Act, No. 4 of 1998, as Revised. The particulars of the Offence were as follows:- "PARTICULARS OF OFFENCE· That Jonas s/o Lemgoha @ Matatizo charged on the 2tf'1 day of April 2008 at about 00:15 hours at Mmbande Village within Kongwa 1 District in Dodoma Region did Rape one Sophia sfo (sic) Sailowa a girl of 15 years" The trial District Court of Kongwa at Kongwa, convicted the appellant on his own plea of guilty and proceeded to sentence him to thirty (30) years imprisonment. Aggrieved, the appellant preferred an appeal to the High GGurt sitting at. Dodoma. The appeal was found devoid of merit and was accordingly dismissed , hence the second appeal to the Court. When this second appeal came up for hearing, the appellant who was unrepresented, appeared in person. The respondent Republic was .. represented by Mr. Angaza Mwipop~, learned Senior State Attorney. At the outset, Mr. Mwipopo, learned Senior State Attorney, informed us that the Republic did not support the conviction and sentence of the appellant. He gave reasons for the position taken by the Republic as follows:- (a) The plea given by the appellant was equivocal. (b) The trial court should have entered a plea of Not Guilty and then proceed to conduct a trial by taking evidence. (c) The facts on record do not constitute the ingredients of the offence of rape charged against the appellant. 2 · In support thereof, he referred us to the decision of the Court in the case of Ngasa Madina vs The Republic, Criminal Appeal No. 151 of 2005 (unreported). Mr. Mwipopo, learned Senior State Attorney prayed for a retrial unless the court deems it fit to order otherwise. On our part, we find it desirable to examine what actually transpired in the trial District Court and the circumstances in _which the appellant's 0 own plea of guilt was made.· It is dn record that the appellant was first arraigned in the trial court on 30/4/2008. On that date the ch_arge was read over and explained to him. His plea was-:- "It is not true. I only took her away" The trial court entered a plea of:- "Not guilty to the charge" Then the prosecutor prayed for leave to amend the charge whkh leave was granted. On 6/5/2008 when the case came up for a Mention, the prosecutor prayed to substitute the charge and the proceedings thereafter were as hereunder:- "Court: Leave granted. Substituted charge read over and explained to accused who pleads, 3 ACCUSED'S PLEA IN OWN WORDS: Ni kweli nilimchukua binti huyo kutoka kwao (MILIMPOSA) na nilimlala kama muda wa mwezi mmoja kama rafiki. Nilijua anao umri wa miaka (15) kumi na tano Nilimbikiri mimi mwenyewe. Entry Guilty to the charge thereto. Signed 06/5/2008 FACTS On 17/2/2008 at 23.00 hours at Mbande village, the accused visited the house of Samson Sailowa. The accused left the house in accompany of one Sophia d/o Sailowa a girl aged 15 years. The accused travelled with the kid up to Chalwe village in Dodoma Rural. H~ stayed with her for several days sexing. The,·accused was aware that the girl was attending Primary School education at Vilundilo · Primary School in STD IV. The accused then return (sic) the girl back home. Accused left on 28/4/2008 the accused revisited the same girl at 00.00 hours and tried to open the door. He managed to have the door opened. 4 The two joined each other in sexual acts. People who · shared the room with Sophia d/o Sailowa raised alarms and Sophia's father caused the arrest of the accused. The accused did not hide his charges (sic) against that school girl. He also offered a bar of soap to that girl. The matter was rep0rted at Police Station via VEO's Office .. The victim was · proved to be a school gi.rl and aged 15 years .as proved by her father. Accused: I admit the facts. Its true I was found sexing with the girl on 28/4/2008 at about 00.00 hours. I knew she was a school girl in STD IV. COURT Having taken into consideration the facts of the case and the accused's plea of guilty to the charge as well as to his admission of the facts, the court convicts Jonas s/o Lemgoha @ Matatizo as charged." The issue before us is whether the facts as found on record and which the appellant admitted by saying - I admit the facts, disclose the offence 5 of rape which was facing him. According to the record before us, it is apparent that the facts do not disclose the essential ingredients which constitute the offence of rape. The facts do not show that the appellant raped Sophia Sailowa aged 15 years. Under these circumstances, we agree with the learned Senior State Attorney that the facts do. not disclose the offence of rape the appellant was charged with. In view of the unveiled scenario, the trial court ought not to have entered a plea of guilty as it was done in this case. The trial court should have entered a plea of not guilty and the case to proceed to trial, as correctly submitted by the learned Senior State Attorney. Due to the above discrepancy or irregularity in the trial court, the learned High Court Judge on first appeal fell into the same trap when dismissing the appeal. He was misled by believing that the appellant had unequivocally pleaded guilty and he said:- ''ln actual fact, there was an admission of all the facts relevant to the charge and the appellant was convicted on his own plea. . There was an unequivocal plea of guilty and that the appeal against conviction is therefore incompetent " We are of the firm view that the irregularity or discrepancy in the trial court proceedings in Criminal Case No. 32 of 2008 where the facts do not 6 ~ ,~ 'disclose the offence charged is not curable. It is fatal as it goes to the root of the matter; see Ngasa Madina vs Republic, (supra) and Katias Mussa vs Republic, Criminal Appeal No. 443 of 2007 (unreported). In the event and for the foregoing reasons, the appeal is allowed. We therefore quash and set aside the orders of the trial court dated 6/5/2008. Similarly, the proceedings, orders and judgment of the High Court in (DC) Criminal Appeal No. 21 of 2010 are quashed and set aside. We order that the record in criminal case no 21 of 2010 be remitted to the trial court for a retrial, starting with a fresh plea as expeditiously as possible. nd DATED at DODOMA this 2 day of March, 2013 B.M. LUANDA JUSTICE OF APPEAL K;K.ORIYO JUSTICE OF APPEAL B.M.MMILLA JUSTICE OF APPEAL EPU OURTO 7