jackson didas machange vs republic 2019 tzca 10 27 february 2019

IN THE COURT OF APPEAL OF TANZANIA ATTANGA (CORAM: MUSSA, l.A, LILA, l.A. And MKUYE, l.A.) CRIMINAL APPEAL NO. 87 OF 2017 lACKSON DIDAS@ MACHANGE .....................................•......... APPELLANT VERSUS THE REPUBLIC •••••..••..••••••.••....•..•••••••.••..•..•...••••.•••••.•.•.•••..••. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tanga) (Aboud, l.) dated the 10th day of March, 2017 in Criminal Appeal No. 9S of 2016 JUDGMENT OF THE COURT zs" & 28th February, 2019 MUSSA, J.A.: In the District Court of Lushoto, the appellant was arraigned for arson, contrary to section 319(a) of the Penal Code, Chapter 16 of the laws R.E. 2002(the Code). The particulars on the charge sheet were that on the io" May, 2016, at Joegertal area, within Lushoto District, the appellant, 1 willfully and unlawfully, set fire to the house belonging to a certain Francis Lyamuya. When the case was called before the trial court for preliminary hearing, the charge was read over and explained to the appellant and, this is what transpired in Court:- "PLEA OF AN ACCUSED: It is true that I set fire unlawfully to the house of Mr. Francis. Sgd:- K. M. Saguda, RM. 26/05/2016 PUBLIC PROS: Since the accused person pleaded to the charge against him, I pray to read over the facts of the case as per section 192(1) of the Criminal Procedure Act Cap. 20 Revised Edition 2002. Sgd:- K. M. Saguda, RM. 26/05/2016 FACTS HEARING OPENS 2 1. Thet: accused person namely Jackson Didas@ Machange a resident of Jegestal Lustoto Accused: It is true that the said particulars are mine 2. Thet, accused person lives with his parents at Jegestal street at Lushoto Accused: It is true that I live with my parents. 3. That accused person did willfully set fire on the house of one Francis Lyamuya on 1 dh day of Ma~ 2016. Accused: It is true that I set fire to the said house. 4. Thet, soon after set fire on the said house/ he did escape or ran away in order to escape arrest but on 12/05/2016 accused person arrested an sent him to the Lushoto Police station. Accused: It is true that I escaped soon after event. 5. Person taken his caution statement by G. 42.49 d/c Joseph and he did confessed that he set fire on the said house. Accused: It is true that my confession statement was taken by the said police officer. 3 6. That on 13/05/2016 accused brought before this court and read over the charge against him who asked to plead thereto, accused pleaded not guilty to the offence whereas the case adjoined till today 26/05/2016 whereas the accused reminded his charge and confessed to all facts. Accused: It is true that previously I denied the charge but now I confess that I committed the offence. Sgd:- K. M. Saguda, RM. 26/05/2016 Court: Facts sheet tendered in this court is hereby adopted and formed part of the court proceedings. Sgd:- K. M. Saguda, RM. 26/05/2016" In the upshot, the appellant was found guilty on the facts, convicted and handed down the statutory maximum sentence of life imprisonment. He was aggrieved but, on appeal, the High Court (Aboud, J.) found no cause to vary the conviction and sentence. Still dissatisfied, the appellant 4 presently seeks to impugn both verdicts below through a memorandum which is comprised of two points of grievance. At the hearing before us, the appellant was fending for himself, unrepresented, whereas the respondent Republic had the services of two learned State Attorneys, namely, Mr. Waziri Makumbo and Ms. Regina Kayuni. When asked to elaborate his grounds of appeal, the appellant opted to let the State Attorneys speak first and retained his right to rejoin, if need be. For her part, Ms. Kayuni supported the appeal particularly on account of the fact that the plea was solicited during preliminary hearing to which no memorandum of undisputed matters was drawn to bless the exercise. To say the least, we entirely subscribe to the views of the learned State Attorney and hold that the procedure adopted by the trial court was highly irregular and cannot be the basis of an unequivocal plea of guilty. To that end, we are constrained to invoke our revisional jurisdiction under section 4(2) of the Appellate Jurisdiction Act, Chapter 141 of the laws R. E. 2002 (the AJA). In fine, the conviction and sentence are, respectively, quashed and set aside. It is noteworthy that the respondent as well as the 5 appellant have blessed such course but left to the Court to determine the way forward. In that regard, we think it will be in the best interests of justice to remit the matter to the trial court to enable the appellant to plead afresh before another Magistrate of competent jurisdiction. In the meantime, the appellant should remain in custody awaiting the resumption of the trial proceedings. DATED at TANGA this 2ih day of February, 2019. K. M. MUSSA JUSTICE OF APPEAL S. A. LILA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL I certify that this is a true copy of the original. 6