20190703 TZHC Mwanza

·t 1 I ,i 1: \ '; \ , ', !--=- IN THE HIGH COURT OF TANZANIA (MWANZA DISTRICT REGISTRY) AT MWANZA HC CRIMINAL APPEAL NO. 275 OF 2017 (Appeal from the Judgment of the District Court of Sengerema at Sengerema (Rugemalila, RM) Dated 15th of November, 2015 in Economic Case No. 211 of 2015) DUNIA THOMAS ....... ~ ..................................... -APPELLANT VERSUS THE REPUBLIC ................................................. RESPONDENT JUDGMENT OF THE COURT 08.05.2019 & 10.07.2019 M.K. ISMAIL, J The appellant herein was convicted of his own plea of guilty in respect of two counts. In the first count, the appellant, together with Mustafa Mathias @ Ali, were charged with the offence of conspiracy to commit an offence, contrary to section 384 of the Penal Code, Cap. 16 R.E. 2002. With respect to the second count, the charge was being in possession of a firearm, contrary to sections 4 and 34 (2) of the _Arms and Ammunition Act, Cap. 223 R.E. 2002. - The l st offence . . was at an . unknown time and date at Mission area within Sengerema District in Mwanza Region, while the 1 'second offence was allegedly committed on 5th October, 2015 at ~ 14.50. hours, at Sengerema Police Station in Mwanza Region. It is alleged, in respect of the second count, that the appellant was found in possession of one fire arm, make SMG No. 5637001603, and three rounds of ammunition. The District Court of Sengererr:ia in which the appellant was arraigned, convicted him of his own plea of guilty on both counts and sentenced him to imprisonment for seven years, in respect of I i i the first count; and payment of fine to the tune of TZS. ·15,000,000/= i :1 .~ or ajail term of seven years, in respect of the second count. l Significantly, however, the second accused in the trial proceedings pleaded not guilty to both of the counts, as a result of which the case against him went to full trial whose outcome is not known to this Court. Aggrieved by the conviction and sentence, the appellant has taken his battle to this Court by instituting an eight-ground petition of appeal quoted in verbatim as follows: 1. ,That, the case was tried in absence of the DPP's consent and certificate of transfer as it economic matter/offence; 2 2. That, the guilty plea was equivocal and unfinished to be treated by the court. 3. That, the plea ingredients were variance to the charged offences and facts of the case. 4. That, the judgment has no conviction statement. 5. That, the judgment has neither any provision of law for the offences nor names of the accused. 6. That, the trial court didn't state the rights of accused person before the plea for the appellant to differ between the offence and guilty. 7. That, the fact in the P/H has no any evidence of seizure certificate of the exhibits neither it's chain of custody to the court. 8. That, the alleged confusion of the appellant at Police was not supported by any caution statement nor the justice of peace. At the hearing of the appeal, the appellant was represented by Mr. William Chama, learned advocate, while the respondent enlisted the services Ms. Gisela Alex, learned State Attor.ney. Mr. Chama informed the Court that since the petition of appeal had 3 j i been prepared by the appellant, a lay person, some of the grounds G were not sensible enough to constitute the grounds of appeal. He opted to argue ground four of the appeal separately, and then ; combine the rest in ground two of the appeal. ii Submitting on ground four, the learned counsel held the view ,;'.j i fj that the impugned judgment is tainted with serious irregularities one :,l 'j which is that the trial magistrate did not enter a conviction. What is 'i '' in the judgment is a mere finding of guilty. In view thereof, he prayed that this Court should find that there was no judgment upon which the appellant would be sentenced, and one from which this appeal would emanate. He prayed that the matter be remitted back to the trial Court to cure the irregularity. In respect of the rest of the grounds, the learned counsel argued that the appellant's main complaint, especially in ground 2 is the manner in which the plea was taken. The appellant's contention is that the plea of guilty on which the trial court based its finding of guilty and sentence was equivocal and unfinished. He contended that the offence of conspiracy to unlawfully ,possess a fire arm is an offence which cannot be proved against one accused alone. He argued further . that since there is no other 4 ,_, I j evidence to prove conspiracy 1n the circumstances where an accomplice with whom the appellant allegedly conspired pleaded not guilty, while the appellant pleaded guilty. It was quite irregular, :,. '' he contended, that the court went ahead and made a finding of guilt without satisfying itself on the commission of the offence. He, ! . I therefore, prayed that the matter be remitted back for retrial. The respondent's rebuttal was terse. In respect of ground four I ·1 '1 '.,1 ',.·l . I of the appeal, the learned counsel was quick to concede that '>I '., •I ,,j section 235 (1) of the Criminal Procedure Act, Cap. 20 R.E. 2002 had ' been violated, in that, the trial court did not enter a conviction against the appellant. She joined the appellant's call to have the matter remitted for re-trial. In respect of ground two of the appeal, Ms. Alex was of the view that arguing this point, at this stage, would weaken the prosecution's case, contending that the proper course of action is to convict first and then impeach the conviction, especially on the manner in which it was entered. Notwithstanding Ms. Alex's stance, temptation got over her and she delved into this ground of appeal by contending that the appellar;t was charged with two counts to both of which he pleaded guilty. She argued that this was done 5 after facts were read and all ingredients laid bare. She said she believes that the plea was unequivocal and, in view thereof, the . appellant is prevented by section 360 (1) of the Criminal Procedure Act, from lodging an appeal against conviction which was of his own plea of guilty and given unequivocally. In sum, the learned counsel prayed _that further determination of this point should await conviction by the trial court. In rejoinder, the appellant's counsel still contended that plea in respect of both counts was equivocal because what is pleaded in respect of the first count is the same as that which relates to the second count. He argued that' this meant that plea in respect of the second count was in respect of the first count because second count did not relate to conspiracy. The learned counsel was of the view that in consequence of_ the alleged confusion, the appellant · pleaded guilty to an offence of conspiracy whose other accomplices were not known. Mr. Chama held the view that it is either that the appellant did not understand the charge or the trial magistrate was also in confusion, thinking that these were one. offence. He argued further that proceedings show that th·e second count was not pleaded to. 6 -=-::----- It was his urge that the irregularities be cured by ordering a re- trial. From the parties' rival submissions, it is quite undisputed that the appellant's complaint under ground four of the appeal is legitimate. That, the impugned judgment does not embody a conviction on which the sentence would be founded. What is contained in the judgment is a mere finding of guilt on which imposition of the prison term and payment of fine was founded. With these facts laid bare as they are, can we say that this is a valid judgment from which an appeal can emanate? The settled position is that composition of the judgment is an art that is regulated by statute. With respect to criminal proceedings in which convictions are entered, such composition is governed by the Criminal Procedure Act (supra), and the relevant provisions here _are section 235 (1) and 312 (1). The latter provides, in mandatory terms, that where proceedings result in a finding of guilt, the trial court should enter a conviction and specify the offence of which and the section of the law under which the accused is convicted, together with the corresponding punishment which is imposed by the sentence. Section 235 (1) compels the trial 7 i court to convict or acquit the accused person after conclusion of 0 the proceedings. This is done by composing a judgment which shall expressly provide for all of that. ,l I It follows that, anything which violates this noble requirement ,1 constitutes a fundamental violation that renders the judgment a mere charade which cannot be relied upon for anything, including founding an appeal against it. A glance at what the trial magistrate did in the trial proceedings, conveys nothing other than a picture of gross violation and an abhorrent injustice whose consequence has been a prominent feature in a multitude of the decisions made by the Court of Appeal. These decisions follow in the footsteps of the landmark decision in the case of Shaban Iddi Jololo and Others v. Republic, Criminal Appeal No. 200 of 2006, in which the Court of Appeal held as follows: " since there wgs no conviction entered in terms of Section 235(1) of the Act there was no valid judgment upon which the High Court could uphold or dismiss." The position was cemented in the subsequent decisions in Khamis Rashid Shaban v. Df1P, Criminal Appeal No. 184 of 2012 8 ' (unreported); Musa Mohamed v. Republic# Criminal Appeal No. 206 of 2005 {unreported); and Aloyce Thomas alias Mabelee v. Republic, Criminal Appeal No. 8 of 2016 (unreported). In the recent decision of Haji Makame v. Republic, Criminal Appeal No. 308 of 2017 (unreported), as was in the Jololo's case, the Court of Appeal, declared that the trial proceedings were a nullity, thereby setting aside the sentence and remit the file back to the trial court for conviction and imposition of appropriate sentence which would take into account the period the appellant had thus far served. In arriving at that position, the superior Court (Juma, C.J.,) had the following to say: "Both s. 235(1) of the CPA [Mainland] ands. 219 of the CPA of Zanzibar have repeatedly been subject of strict interpretation by the court, restating that trial magistrotes must first convict an accused who is found guilty of an offence before proceeding to sentence that accused. In Jonathan Mluguani v. R., the court reiterated that failure on the part of the trial court to enter a conviction is a fatal irregularity which renders both the subsequent proceedings and the judgment of the first appellate court defective". 9 In all of these decisions, the emphasis is that in such cases, the ,·, V 0 remedy is to remit the matter to the trial court for composition of a new judgment in order to cure the irregularity. I join hands with the counsel's view that this is the only inevitable consequence, under the circumstances. That said, I see· no need of discussing propriety or otherwise of the plea of guilty that was the subject of contention in ground two of the appeal. I find that, given the anomalous . I j I I nature of the judgment, this is a subject for another day. . ! ' '' l ,i In upshot, I hold that the appeal, being founded on · the .i JH defective judgment is incompetent. Accordingly, order 1 annulment of the trial proceed1ngs, quash the conviction and sentence, and order that the matter be remitted back for re-trial. It is so ordered. 10 l :·i '.- d ! 1 't>ate: l 0/07 /2019 I I ! ., l .,\ ~fl ~1 -i Coram: Hon. M. K. Ismail, J ·v . i "r, Appellant: Present in person Respondent: Ms. Ajuaye Bilishanga, Senior State Attorney B/C: B. France Ms. Bilishanga: The matter is for judgment and we are ready for it. ~--,~:/---\---.s-- M. K. Ismail JUDGE 10.07.2019 Court: 03.07.2019 11