20171002 TZCA Mbeya

IN THE COURT OF APPEAL OF TAN:lANIA · AT MBEYA .. . (CORAM: MUSSA, J.A., M~IRAY, J.A., And MWANGESL J.A.) 'CRIMINAL APPEAL NO. 403 OF 2013 · .· NEMES MUYOMBE NTALANDA ..............•. ~ ................·•.•.....•.. ~ ..... APPELLANT VERSUS ·.·,THE REPUBLIC ............................................................ ~ ■■ l!CIII ■■• ■ RESPONDENT {Appeal from the decision of the High Court of Tanzania ·· at Mbeya) · · · ·· · · {Ngwala, J.) dated the 7th day of October, 2013 ···in· · · · · ' ·criminal Session Case No. 11 of . 2013 - . . '·. . JUDGMENT OF THE COURT 26 th September & 3rd October, 2017 MWANGESI, J.A.: According to the information whic_h was .lodg~d by the Republic at the .. · ··:H.igh Court of Tanzania Mbeya Registry, and read over to the appellant •: J1erei1J .on the oth. day ·of Oct~.ber, ·2oi3, h~ stood a~raigned for the offence. . ' ' .. . of:.murder contrary to the provision of section 196 of the Penal Code, Cap : 16:RE 2002 (the Code). .The particulars of the offence were to the effect . · 1 that, on the 21 st day of July 2011, at Isalalo village within the district of Mbozi in Mbeya Region,· the appellant did murder one Amina Maonezi Tulyanje. He did protest his innoq~nce. Nevertheless, through Ms Joyce Kasebwa learned counsel, who . . ·· · happened to be his counsel, the appellant did offer for a plea of guilty to a lesser offen~e . ·:.of manslaughter. co"ntrary ~. .,. . . to the provision of section . . 195 of ·-.the Code, ortthe reason ttiat he did not intend to kill the deceased, a prayer . which was~n~·resisted by the Repub_lic. Subsequently, the Republic did . --~----~--- ~- . ,. . . .tom mute· the information against the appellant to that of manslaughter ·contrary to the provision of~s~ction 195.of the Code. When. the same was .· ·read over to the appellant, he did enter a plea of guilty; The Republic was · .thereafter, invited by the Court to read in detail the fact:s:of the information, .·· which were again admitted by the appellant in the words (ni kweli, nilimuua mke wangu bi/a kukusudia" literally meaning, it is true that, I did kill my wife without intending to' do so. Thereupon, the learned trial Judge did record the following statement in ipsissima verba thus: · 2 "Upon the accused persons own piea of guilty to the _offence of manslaughter, the·· accused person is fou(ld guilty of the offence of manslaughter." Ms . Rhoda .Ngole . ~. learned . . .. State Attorney, . . . was thereafter . ,· required by . the; learned tri~I Judge to state out previo_us records of the appellant if any, foJlpwed by Ms Joyce Kaseb~a learned counsel, who_ was aske~ to advance . .., .-· · any mitigating factor~ on behalf of thefappellaht,.-before the sentence could • f ·.-be· imposed to him. Finally, the learned trial Judge did sentence the appellant to _go to jail for lif~.'. . . ),, •:'. : . ', ~ .. The appellant felt aggrieved by· the··sentehce -Which was meted by the · _, . , : ... ,: ·lear~ed trial Judge a·nd ·did prefer the current appeal to this Court. Initially, ·: r-·.. . .• ... · .. · ,•,·.· . ·-· . ... :his. _appeal was premised on 'four grounds. · Nonetheless, later,· the learned · --counsel who was· assigned to take over, his dock brief,. did condense the ·. . . grounds of appeal and· redu"ced them into two only namely: "First thaC the learned Honourable Judg~ erred, • both in points of.law· andfacts; when ·she sentenced the appellant to· a sentence __of Jife ;imprisonment . without being . . first convicted . . . . ' of the . offence .. . with .. .• , . which he was charged with. " i ., 3 Secondly, that, the learned Honourable Judge erred, both in points of law and fact~ when she sentenced . . . the appellant · td -serve a sentence of life . . · imprisonment which was illegal and excessive. " · When the appeal came for hearing on the 27th September, 2017, Mr. ' Sirpon Mwakolo learned counsel, being assisted by Ms Joyce Kasebwa ; le· rned counsel, did enter appearance for the appellant, whereas, Catherine ' . . I . · P9 I learned State Attorney, advocated for the respondent Republic. In · : a~plification of the grounds of appeal, Mr.· Mwakolo learned counsel,. did i ..· . . . .. .., submit . I . to the effect . that, much .as the . ·. ·records. of appeal . . . disclose at page .9, · l . . . .. . . .. . . . . . • . ·,aftjer the learned trial Judge had found the appellant guilty to the charged . 1. . .. · ·· ·of~ence, she di.d. omit to convict him· to. the charged-.· offence- and instead · ··1 l , - . . - -.- ,.· ·• . - .th: reof, she did proceed to sentence him .to life imprisonment as reflected at page 10 of the record of appeal. . ' ... . -·\ . --·i · In the view -.of. the learned counsel for the appellant, the omission . l. I oc.fasioned by the learned trial Ju~9,e was fatal an,d did vitiate the sentence .as.]t_he same was illegal. AS a result, .the learned counsel did :implore us to I . I I in 'oke our revisional powers stipulated under the provision of section 4 (2) of the Appellate Jurisdiction Act, Cap-141 RE 2002 (the AJA), to quash the 4 sentence that was imposed by the trial learned Judge _.and set it aside, -and in ·lieu thereof,· the records be remitted to·the trial Court with direction that, it does the needful i_~ ac~~rdc!nc_e to the dict~tes of the· law. The proposal by Mr:. Mwakolo learned counsel, was parroted QY Ms Catherine learned State Attorney, who infor~ed ·the Court that, she had as well noted the· said · ·anprt1aly and that, she was in agreement with her learned friend in all fours. I i 1 1. - At issue for our deliberation and consideration in the light of the .i. ' .. ' . .' .' . irry-gularity occasioned by the trial Court which has been pointed out by the ., ... ,: .· .. le~rned counsel for the appellant above, is whether the omission by the trial 1 I ; • , i ' ' . . . ·: ·,.·, , · le~rned Judge not to convict the appeHant before se.ntencing him was fatal.· 1.· • ,! . I ·· ·· · : .- :·. Un\like in trials conducted before· subordinate ·courts,-. where under Part VII I I •• ' • .. ! . . . . . . : :_: ·., · ··· ·,_o.t:¥he Criminal ProcedL:Jre Act; Cap 20·,RE 2002· (the ·CPA);: there are specific . i I •. ····· :, .·· ·· ·pr~visions that is, under section 228 Where there has been a plea of guilty i' · · ,. ~ · : by.~\the accused, and under section 235, where there has been a full trial, i I ··:: w~ich ·obligate-the "t'riai· magistrate I . . to. enter .conviction . . . before . sentencing an · ..... · ;·. · ::acfised, there·are no ·such··sfmilar provisions provided :for under Part VIII of • I . -· .=,· ·; :-: thl, '. i . .. . . . . . sa~e .· Act, ·.which: regu'.at~s . the procedure for trials.· before the. High ' ' <··. ·· Co -rt. To· appreciate the d1ss1m1lanty, we hereby reproduce the prov1s1ons iI redulatin"g situati'.ons of similar nature ih the two courts. I • • j I 5 The provision· of section 228 (1) and -(2) of the CPA, under which · pleas of guilty "in ·trials conducted before the subordinate courts is conducted reads that: '1228.· /1) The substance of the charge shall be . _stated to· the accused )J~rson by the·. court, and he shall f?e asked whether he admits or denies the truth of the charge. (2) If the accused person admits th~ lTuth of the charge, his admission shall be recorded as nearly as possible in the :words he use? -ahit the· rnagislTate ·r·. 1 shall_ convict him ·and:pass sentence -upon 'or make·-:.· an -order. again_st, hin,,_ unless th?re appears to be • • , • .• • •.I .• •• • ~ •... . • • ; • • , ,• '. sufficient cause to the contrary~,~- · [Emphasis supplied~] Where there has been conducted a full trial before the subordinate - · - court, and the accused has been found guilty, .the applicable provision is section 235 (l)·of the CPA, which provides that: • " (1) The court, having heard bQth _ the complainant . . •. ~ ·. .. . ..· .. ~ . . ., '_.' . . .· . . . and the accused person and t!Jeir witnesses and the evidence, shall·. cohvict . the . accused. and pass sentence upon ·-or - make. an order ·against him· 6 . according~ to law or shall acquit him or shall dismiss tbe. . .- ~h_arge under-~ection . . . 38 of the Penal . Code.. " · . . [Emphasis supplied~] On the-contrar.y, ,· . where.there .. . . has be_en,a - .· plea. . of guilty .. by the accused . ' .. . , ·in_ the trial conducted· before·the High Court/the provision of s·ection 282 of :th~ -CPA, which. regul'ates the situation~ has not been couched in mandatory terms where it states:· "282.- If the accused person pleads "guilt½ " the plea shall be recorded-: and he may• ;be convicted thereon.'" · .· [Emp~asis _~;uppli_ed.] · ·. r< ·:, ·,, And, where there has been: a.· full tria! befor'e the High Court, and . . ,ultimately the accused has been found guilty, Part VIII of the CPA, which .. ' : . . . . . ; .;creg~iates such proceedin.gs, is silent. It is ·on'ly what· has to be contained in . ·,. ·. a judgment, ·which ·has been. provided ·fa~ unde~··Part IX of the CPA, which happens to regulate both proceedings in. the subordinate courts' and in the High Court. The ·same i5.·worded thus: ..., ..... '_i_31Z {2) In :the- case: of co11victio1J the judgment .shall . . specify ··.. the . , . ,offence . of. ' . which,. . . and . the section of 7 the Penal Code or other -law under which/ the. accu_sed p~rson is_ convicted and the punishment to which he is sentenced. " : .: The questioD that ·crops from the above scenario, ·is whether the use i . of :the words "may be convicted" under section 282 of the CPA, :where . .. . i .th~re is a plea of guilty, an·d silence where there has been a full trial in the Hi. h Court, has left a leeway to the tri~I Judge, in the High Court, to deal·_ wi: h the situation in the way he would deem convenient. In our considered ~(' vi ·. , we do· not think the position of law is that much floppy. On the ' . I. . ... ·· ·:CO~trary and· on the reasons we are going to give soon, we are settled in _ ! ' ' .. ,• ... :·:.,...,, .. . .·· ... :_: .. . . I: . . .. • . - ' . .. . . . : .. --i. ' -•. _. .. : . . . ... .. :,.':, ·:. . _: out! minds that;. convicting - an accus_edperson ·.. '' .,.. . after he has pleaded guilty to . --:.-·,: .. : .·. anlinf~r:mation or after he,has.beef;}_ fo.und~:guilty afte°r-·a;-:full-trial before the· .. . .:,:::HiJh Court, is ·as mandatory as it is in the trials before the subordinate I . .· I . ·1·· . . . . . . . .. . .... , co~rts, where failure so to. do, has been held to be a fatal irregularity that _ i . ' .\.. :.. viti~tes the· entire proceedings. See: Jonathan Mluguani vs Republic, i ... 'i: :.·,:·. Cri~inal Appeal No·. 1s" of 2011, Mat:61~ Kajuni and Two Others Vs· . .. . iI . . . - ... ,. . '•· .:·-· _;_ ~-' ' · :. F :.;, .: _.Re;public, Criminal Appeal No. 145 of 2011, Godfrey l.eiboo Vs .: . , _ . . ' . ..: . · : .:: <: j ' ' :. . . ,:.- . < -_,-'. .. ,. · ··-Retpublic, Criminal ·Appeal No. 24 of 2013 and Emanuel Kabelele Vs i RrJblic, i . ; ;· _.;' :. ·... :_,:-,· .: . Criminal Appeal No. 419 of 201.s (all unre~orted.) I 8 . ! On mere analogy of proceedings conducted before the subordinate court and those conducted before th~ High cJutt, · o~e fails to find any justifying bases that could lead to what can be seen as doubl.e standard. We are thus made to believe that, the omission to impo~e. obligatiqn on the part ' ' of. the High Court Judge to ·convict before .~entencing was by· mere in 9dvertence. This presupposition finds support, frorri. the wording of section l . 6. ~1) of the Appellate Jurisdiction Act, Cap 141 RE 2002 (AJA), which reads: !I I "~ '}1ny person convicted ()n a. trial hc!lc/ by the High Court. or by a subon;linate . co..urt .. .exercising . . extended ' . .. '. : powers may appeal to the Court of Appeal- (a) .· Where fJe ·.:has been sentenced to death, .against conviction on .any ground of ! ' ":' :. appeal: and (b) In anyother case- · (i) against. ,his .conviction CJn .any ground of appeal.· and . . .. ' . . (ii) . against the sentence passed on conviction unless the sentence is 'one fixed bylaw. "· i ! 1 I ... [Emphasis supplied.] l . j. ·what we gather from the wording in· the above quoted provision is ' ' i ' '' ' ' : th~t, a challenge by ari appellant against the findings of the High Court, or, 9 a sentence meted by th_e same to the Court of Appeal, may only be possible where there has·. been conviction.- In that regard, going by what Part VIII of the CPA. tends to suggest, it would me~n that, one who was s.entenc~d without c:onvi,ctiOfl by t~e High· Court would have no right to ' . . appeal to the Court of Appeal. Being mindful of the stipulation under article . 13 (6) (a) of the ·Constit_ution of. the United Republic of Tanzania, which . guarantees the right to appeal, there is no way in which a provision of law would consciously be couched in a way that tends ·to impede such basic right. ;: . ,: And, even. if we were·to arg·ue-.the :issue Jri•the other. way·that,' since· ·::a::-: ,·.•:.:::an appeal is a coristftutional right.to an accused:.person and "that, sud, right . · . · . ca_n only- be exercised by· the·.accused where· there is:~convic.tio_n inthe High ,;l•>·-,·_:.Court, the necessary. implication. is that,· the High Court is niandatorily ,! .... : required to convict before imposing· a sentence to an accused person. All in :; .'-,:. ;; :all, we entertain no. doubt tha·t, . a High Court Judge has .a mandatory . obligation urider_ the Jaw, to convict an. accused pe~son before sentencing him. A similar: situation with slightly different facts was discussed _by this · •; ·,· : Court in the case of Kham is Rashad Shaban Vs the Republic, Criminal 10 Appeal No. 184 of 2012 where the complaint in the appeal was that, after a full trial .had been conducted· and the Court found the appellant to be guilty _of. mu~der, the trial Judge d_id. sentence. the appellant to suffer death by . hanging without convicting him .. The holding of_this .Court was to the effect .that,. a declaration by the :1earned trial Judge that; an accused is guilty, was ,;: :~~" :> •.. -'i not sufficient to bring into play the. provisions .of;the Criminal Procedure Act ' . _... (No .. 7 ot 200~ of the Laws of Zanzibar as wen :as the provision ·of section 6 I - . I -!~, (1) of the. AJA.. j I ~5,_;;:,iii_ . I · In the same vein, it is· our hold1n~{ that, the "failure by the learned trial /\···:··.: ::Judge in the instant appeal to ~titer conviction: before sentencing the ·. ·\.._-.:::·· ·; ·,r,evisional powers under the provision of section 4 (2) of the AJA,· we hereby· ·.. ,··.,;.•"quash and. set aside the 'se'ntence which was impos~d to the appellant. ·In ·· · ,. ·.: ..-., ., l:ieu:thereof, we order that the records be. remitted to the lea~ned trial Judge · to do the needful in compliance with the dictates of.the ·law . . :__ ,·.;•: .'' 1 •.:--:··:·;:, In the meantime, we direct that, the appellant has to remain under . ·custody to await his conviction to be legally formalized by the High Court, 11 where-after he· __can recommence his appeal process, if he still so wishes to · pursue. Order accordingly. DATED at _M,BEYA this 2nd day of October, 20~7. K. M. MUSSA JUSTICE OF APPEAL R. E; S. MZIRAY .. JUSTICE OF APPEAL : ,;1 \' .... : ,; . '· I certify that _this is a__ true copy- 9fthe· .originaL :. ·• • / . . R . . · T Qf:APPEAL : ..... 12