20191028 TZHC Mwanza

I IN THE HIGH COURT OF TANZANIA ! IN HE DISTRICT REGISTRY \ I AT MWANZA ,,' HC. CRIMINAL APPEAL NO. 185OF 2018 I ( Original Cr. Case No.288 of 2015 of the District Court of Geita District at Bukombe before Hon!r Simfukwe SRM) CHARLES BENZILE ........... J•••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC. ■■■■ I ■• I. I ■■■■■ 1111. I ■ ■ ■• ■ ■ ~ •• 1 1 . 1111 ■ 1111 I . I 11 ■ ■• ■ RESPONDENT I JUDGMENT ' 9.10 & 28.10.2019 MADEHA,J At Geita District Court in Gei~ region, the above named appellant was I charged with four counts, the first counts of Armed robberyC/S 287A of the ' I Penal Code Cap 16 (R.E 2002) as amended by Act No. 4 of 2004 and 5rh Co"unt is count of rape C/S 130 (l)jand 131 (1) of the Penal code Cap 16 (R. E. 2002). At the end of the trial) the conviction was entered against the ! appellant C/S 287A of the Penal Code Cap 16 (R.E' 2002) as amended by ' ! ' Act No. 4 of 2004 and was respectively sentenced to serve thirty (30) years imprisonment in respect of the fir~t Count, The appellant was aggrieved by the findings of the trial court. He! is still dissatisfied with the sentence and conviction. The appellant has to c6me to this Court for appeal. 1 Briefly the prosecution case was that, the appellant was sentenced in his own plea of guilty. The allegation against the appellant is that, on 14/7/2015 at about 22:00 hours at the Kaboyole sub village at Mapuli guest house the appellants and others who were not arrested did invade the said guest house. The appellant did break the doors of that guest house by using a bush knife and entered inside. The appellant did beat the waitresses by using a bush knife while demanding the sales money. The appellant managed to take Tshs 380,000/=, the accused was arrested at the scene while escaping, he was arrested in the pit, the matter was reported to the police, and when taken to Court the appellant pleaded guilty to the first count of Armed robbery C/5 287A of the Penal Code Cap 16 (R.E 2002) as amended by Act No. 4 of 2004 and was sentenced to serve a minimum of thirty (30) years in prison. In this appeal, the appellant raised six grounds of complaints and I hereby consolidate it into two grounds, in his memorandum of appeal as follows. 1. The records (proceedings) there are irregularities. 2. The plea was equivocal and ambiguous imperfect ad unfinished to be based on conviction. 2 The appellant faulted the decision of the Court below that the sentence pronounced by the trial magistrate was not clear and prayed the Court to look at the issue of the charge. Following the appellant's allegations, Ms Rehema Mbuya, learned Senior State Attorney, submitted that, this appeal should not be here, as no appeal shall be allowed on plea of guilty unless he rejects the legality of the procedure cited the case of Haridi Athmani V. Republic 2006 TLR 79 CAT Arusha it was elaborated that if a person pleaded guilty, he has no room to appeal. The appellant pleaded guilty with full understanding of the charge and prayed to this court to dismiss the appeal. With the foregoing response of the Learned Senior State Attorney the appellant stated that in rejoinder, he was being beaten by the police. I will determine this appeal by discussing all the grounds of complaints. Starting with the first ground of complaint which states that; The plea of guilty entered by the appellant was unlawful. Here the appellant is contesting the plea of guilty that he entered in the trial court. In the case of Lawrence Mpinga V.R (1980) TLR 166 Samata J, it was held that; 3 "An accused person who had been convicted by any court of an offence on a plea of guilty, may appeal against conviction to the High Court on the following grounds.// 1. That's taking into consideration the admitted facts his pleas were in perfect ambiguous or unfinished and for that reason the lower court erred in law in treating it as a plea ofguilty. 2. That he pleaded guilty as a result of mistake ofmisapprehension. 3. That the charge laid at his door disclosed an offence not known to law and 4. That upon the admitted fact~ he could not in law have been convicted of the offence charged. Concerning the first ground of complaint, the plea of guilty was entered by the Court which was not in accordance with the law. This ground of complaint made me go through the case record, and see whether the appellant admitted all the facts constituting the offences with which he stood charged. It is clear from the record that the parties to the case did not sign on the memorandum of the agreed facts. As such, the appellant did not sign 4 on the admitted facts, and there was no conviction entered against the appellant. As indicated in section 192 of the Criminal Procedure Act Cap 20 {R.E. 2002) as amended by the Written Law Act, Act No. 3 of 2011, which elaborates the procedure to be done when conducting the preliminary states as follows; - ''(1) Notwithstanding the provisions of section 229✓ if an accused person pleads not guilty the court shall as soon as is convenient hold a preliminary hearing in open court in the presence of the accused and his advocate (if he is represented by an advocate) and the public prosecutor to consider such matters as are not in dispute between the parties and which will promote a fair and expeditious trial. (2) In ascertaining such matters that are not in dispute the court shall explain to an accused who is not represented by an advocate about the nature and purpose of the preliminary hearing and may put questions to the parties as it thinks fit; and the answers to the questions may be given without oath or affirmation. (3) At the conclusion ofa preliminary hearing held under this section, the court shall prepare a memorandum of the matters agreed and the 5 memorandum shall be read over and explained to the accused in a language that he understand~ signed by the accused and his advocate {if any) and by the public prosecuto,; and then fled {4) Any fact or document admitted or agreed {whether such fact or document is mentioned in the summary of evidence or not) in a memorandum filed under this section shall be deemed to have been duly proved/ save that it during the course of the trial the court is of the opinion that the interests ofJustice so demc1nd, the court may direct that any fact or document admitted or agreed in a memorandum filed under this section be formally proved'~ It is on the record that the appellant pleaded guilty to the offence of C/5 287A of the Penal Code Cap 16 (R.E 2002) as amended by Act No. 4 of 2004, However, it is clear to me that the trial magistrate failed to record anything in relation to whether the accused person admitted all the facts by the prosecution and pleaded guilty without lawful qualification, and whether the admitted facts constituted the offences with which he was charged and ultimately found guilty and convicted. In this case there is the failure on the part of the trial court to enter conviction of the appellant. In the case of 6 Shabani Iddi lololo and three others V. Republic, criminal Appeal No. 200 of 2006 (unreported) it was said that: - "Since there was no conviction entered in terms of section 235 (1) of the Act Criminal Procedure Act Cap 20 {R.E 2002) there was no valid Judgment upon which the High Court could uphold or dismiss" I perused farther the case record in Criminal Case No. 288 of 2015 of Geita District Court whereby the appellant pleaded guilty to the 1st count of Armed robbery C/5 287A of the Penal Code Cap 16 (R.E 2002) as amended by Act No. 4 of 2004 on 24/7/2015. For the 1st count to serve 30 years in prison while no conviction was entered against the appellant. I agree with the appellant that the procedure of a plea of guilty was not adhered to or complied with. In the case of Jonas Samweli @ Kanaka and Charles Bakari Criminal Appeal No. 58 of 2005 in which the accused pleaded guilty to a charge of robbery with violence, but later on claiming that his plea was unequivocal. In that case the court held that: - "On the basis of the record, we entertain no doubt in our mind, that the LeanedJudge correctly dismissed the appeal. The appellant's plea being unequivocal, they were correctly convicted on their own plea of guilty. It would follow that no appeal would lie on plea ofguilty. " 7 In this case there was a procedural irregularity in 'Conducting the plea of I guilty. I am of the view that the trial _magistrate failed to enter the conviction of the appellant. The trial magistrate also failed to notify the appellant to sign the facts agreed by the parties., The failure to enter conviction is fatal. As argued by the appellant, the procedure of a plea of guilty was not conducted well. In the case of MT 7479 SGT Benjamin Holeia V. Republic (1992) TLR 121 (CAT) it was stated that; ''The necessity to read and explain the memorandum to the accused is highlighted by the provisions of rules 4 and 6 of the Accelerated Trial and Disposal of cases Rules 1988 made under S.196 (6) of CPA 1985 and published under Government Notice No. 192 of 1st Juf½ 1988 rule 4: The person prosecuting shall in every trial under these rules, prepare, as clearly as possible, the facts of the case which shall be read to the accused and explained in a , language he can understand Rule 6: When the facts ofthe case are read and explained to the accused, the court shall ask him to state which of these facts, he admits and the trial Magistrate, Judge shall record the same. It is apparent that a statement by counsel or advocate for the accused to the effect that the matters ra~sed are admitted is not sufficient under the laws. It is the accused himself, who must indicate what matters, he or she admits.... " 8 In the case of Bahati Masebu V.R (CAT) MWANZA Cr. App. No. 135 of 1991 (Unreported) it was emphasized that; "We have had a look at the Rules Published under G.N No. 192/88 especially Rule 4 and 6. We desire to make four brief obseNations about the rules. Rrstly, there can hardly be any doubt that they are couched in mandatory terms. ;Secondly, we consider that in that context ''the facts of the case'" include the materials contained in documents like extra Judicial statements, autopsy reports and sketch plans. Thirdly, it is thus essential that the materials in such documents also be read and explained to the accused. And lastly, it is the accused and not his advocate, who shd,uld be asked to state the facts which he admits. We wish to point out to the Judges and Magistrates below that there may be cases in which such non-compliance may result into quashing convictions on appeal'. In the case of Pagi Msemakweli V. Republic (1997) TLR 331 (HC) it was stated that; ., ''Failure to conduct preliminary hearing is not fatal to proceedings unless such omission results in unfair trial leading 'to failure ofJustice'~ Also the appellant was convicted based on the defective charge, that is, the appellant was charged with the offence of armed robbery C/S 287A 9 of the Penal Code Cap 16 (R.E 2002) as amended by Act No. 4 of 2004, the appellant ought to have been charged with the offence of armed robbery C/5 287A of the Penal Code Cap 16 (R.E 2002) as amended by the Written Law Act, Act No.3 of 2011, the appellant was sentenced on plea of guilty based on defective charge, according to the offence and the facts of the offence must be verified, the prosecution should prove his case without any doubt. Even if the accused has pleaded guilty and the essence of the offence led to the offence charged in this case, the appellant was charged with armed robbery offence, the prosecution did not tender any money collected from the scene, The information presented by the prosecution did not give an indication as to the money stolen from the scene, the sword was found by . the accused was not tendered in Court as an exhibit, even the victim's PF3 was not tendered in Court as an· exhibit. In my opinion, if the appellant admitted the offence, the prosecution must be sure the information they provided relates to this offence, including providing relevant exhibits, in this case it did not happen, the facts must constitute the offence charged, and then the court may enter conviction of the offence charged. The appellant was charged for reliance on the defective charge, the court has to satisfy itself that the accusation is in accordance with the provisions of the law. 10 1 I f ., In the upshot and for the above reasons, I hereby quash all the proceedings and· the verdict of the subordinate Court inclusive of the sentences. I give an order for the release of the appellant from prison unless he is held there for other lawful purposes. Appeal allowed. Order accordingly. ~ U.E. Madeha Judge 28/102019 ~ U. E. rvl~deha Judge 28/10/2019 11