CRM APP

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: LILA. J.A.. KENTE. J.A., And MGONYA. J.A.^ CRIMINAL APPEAL NO. 501 OF 2020 CHACHA MAKONGE @ MWANSI.............................................APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma (Galeba. J/l dated the 25th day of September, 2020 in Criminal Appeal No. 60 of 2020 JUDGMENT OF THE COURT 05th & 18th July, 2024 LILA. JA: In a rather astonishing and shocking incident, two brothers were arraigned in court for attacking their father at night and taking away his money. The two persons are Juma Makonge @ Mwansi, (then 1st accused) who did not appeal and the appellant, Chacha Makonge @ Mwansi (then 2nd accused, now appellant). They were charged before the District Court of Serengeti at Mugumu with the offence of armed robbery contrary to section 287A of Penal Code, Chapter 16 of the Laws in Criminal Case No. 21 of 2020. The allegation in the charge was that the two did, on 12th January 2020, at Masangura Village within Serengeti District, steal cash money TZS 3,600,000.00 the property of one Makonge Mwansi, their i father, and immediately before and after such stealing, cut him on his head and his left hand by using a "panga" in order to obtain and retain the said stolen money. While Juma Makonge @ Mwansi maintained his plea of not guilty to the charge leading to a trial being conducted, the appellant pleaded guilty. Consequently, the trial court convicted him on his own plea of guilty and sentenced him to serve a mandatory thirty (30) years' imprisonment. The High Court of Tanzania sitting at Musoma in Criminal Appeal No. 60 of 2020, dismissed his appeal in its entirety. The present appeal reveals his grievances with the High Court decision. To appreciate the quintessence of this appeal, here is a brief background of the matter. The two brothers were first arraigned in Court to answer the charge on 27/02/2020 and the record shows that the appellant pleaded guilty leading to the facts on how the offence was committed being narrated by the prosecution to which the appellant admitted to be true. Having found them sufficiently establishing the offence, the learned trial magistrate proceeded to convict him as charged and sentenced him as stated above. Before the High Court, the appellant challenged the trial court's decision on grounds similar to the present ones. They were found unmerited and the appeal was dismissed. He has placed the same grounds 2 of appeal before us for re-consideration. The grounds of appeal, paraphrased, state that: - 1. That, the learned trial magistrate erred in law in convicting the appellant without asking him three times if he knew his plea of guilty; 2. That, the learned trial magistrate erred in law to convict and sentence the appellant without considering his age that he was below 18 years as required by Law of the Child. 3. That, the learned trial magistrate erred in convicting the appellant without verifying the truth of the offence charged and whether he committed maliciously or intentionally. 4. That, the learned trial magistrate erred in convicting the appellant for being when he continued with trial in the original case without considering the principle of natural justice, that is, the rule against bias. 5. That, the learned trial magistrate misled himself in law on the principle of natural justice of right to be heard by not affording an opportunity to the appellant to enter his defence (right to be heard) before proceeding to convict him. Like in both courts below, the appellant appeared before us in person and unrepresented. He adopted the grounds of appeal he lodged in Court on 10/12/2021 without more thereby paving way for the respondent Republic to respond to them. Mr. Tawabu Yahaya Issa and Mr. Isihaka Ibrahim Mohamed, both learned State Attorneys, appeared for the respondent Republic. They were firm in resisting the appeal. Having taken the floor on behalf of the respondent Republic, Mr. Issa urged the Court to dismiss the appeal on a reason that the grounds raised bear no relevance in a case where the appellant was convicted on his own plea of guilty and the plea proceedings were properly conducted. Starting with the legal position provided under section 360(1) of the Criminal Procedure Act, Chapter 20 of the Laws (the CPA) that, where a conviction arises from the accused's own plea of guilty, he is not allowed to appeal against conviction, he said, the appellant's appeal is no exception. Referring to pages 5, 6 and 7 of the record of appeal, he submitted that it is the appellant who requested the trial court to remind him of the charge which request was duly accepted and, upon the charge being read over to him, he said "/V/kweli nilimvamia baba na nilimkata na pangd' literally meaning "/£ is true I invaded my father and cut him with a machete." Further submitting, Mr. Issa said the facts were read out by the prosecution which revealed that the appellant invaded his father's house and broke the door at 02:00 hours having a "panga" with which he threatened his father to give him money and when the father resisted, the appellant cut the father on his head and left arm as a result he was shown where the money (TZS 3,600,00.00) was placed. The appellant took them and disappeared only to surface on 8/2/2020 when he surrendered himself and confessed to the Regional Crimes Officer (the RCO) committing the offence leading to his arrest and later being charged. It was Mr. Issa's further submission that the appellant unequivocally admitted the facts as being true and as they proved the charge, the appellant was properly convicted. In the circumstances, he insisted, the appellant, as was held by the High Court, cannot be heard to challenge his conviction. Reverting to the grounds of appeal, Mr. Issa was not moved a step to concede to any of the points of complaints. Discounting ground one of appeal, he submitted that it is not a legal requirement that where an accused person pleads guilty to a charge, he should be asked three times. Accordingly, he treated the complaint as baseless and should be dismissed. The complaint in ground two of appeal is that, the appellant's age was not considered as he was under 18 years to which the Law of the Child applies. The complaint was brushed out by Mr. Issa arguing that the facts of the case read over to the appellant referred to the appellant's particulars in the charge sheet which showed that he was twenty (20) years old to which the appellant, responding to the truthfulness of the facts, admitted to be true. The Law of the Child did not therefore apply to him, he insisted. Again, he contended, this complaint should be dismissed for want of merit. Submitting on ground three of appeal, the learned State Attorney was forthcoming that the facts which were admitted as being true showed that the appellant intentionally committed the offence for a reason that he broke the door, threatened and later cut his father with a "panga" so as to obtain and retain the money he had obtained from his father. Grounds four and five of appeal were argued jointly by the learned State Attorney that nothing on the record of appeal showed bias on the part of the magistrate who proceeded to convict the appellant after he had pleaded guilty to the charge. He implored the Court to dismiss this complaint, too. 6 Concluding his submission, Mr. Issa submitted that although during plea taking the appellant did not categorically state that he used a "panga" to obtain the money from his father, the facts narrated by the prosecution and later admitted by the appellant without qualification, cured the anomaly as they stated so and indicated the sum of money stolen by the appellant. He was, therefore, convinced that all elements of the offence of armed robbery were proved by the facts. He accordingly beseeched the Court to dismiss the appeal. The appellant had nothing to rejoin apart from pleading to the Court to allow his appeal and then order that he be released from prison. Let us preface our deliberation by going along with Mr. Issa's submission that the law [section 360(1) of the CPA] bars from being challenged a conviction arising out of an appellant's own admission of committing the offence charged but, we will hurriedly state that, under certain circumstances, that right is available to the appellant. In a long discussion held by the Court on the issue when an unequivocal plea of guilty may be found to be equivocal and may be successfully be challenged in the case of Michael Adrian Chaki vs Republic, Criminal Appeal No. 399 of 2019 (unreported), the Court saw no difficult to refer and borrow wisdom on the matter from the case of Rex vs Folder (1923) 2 KB 400 which was followed by the High Court of Tanzania in Laurent Mpinga vs Republic [1983] TLR 166 and later taken as good law by the Court in Karlos Punda vs Republic, Criminal Appeal No. 153 of 2005 (unreported) which set out four criteria which affect an unequivocal plea to be : - 1. That, even taking into consideration the admitted facts, the plea was imperfect, ambiguous or unfinished and for that reason, the lower court erred in law in treating it as a plea of guilty; 2. That, the appellant pleaded guilty as a result of mistake or misapprehension; 3. That, the charge laid at the appellant's door disclosed no offence known to law; and 4. That, upon the admitted facts the appellant could not in law have been convicted of the offence charged. In the light of the above legal position, by the appellant pleading to the charge saying "/V/ kweli nilimvamia baba na nilimkata na pangcf' (it's true that I invaded and cut my father with panga), cannot be taken as an unequivocal plea of guilty to the charge of armed robbery. It is an incomplete plea as, in terms of section 287A of the Penal Code, the offence is complete where it is established that there was stealing using a weapon in threatening for the purpose of either taking or retaining the stolen property. The appellant's plea lacks the element of stealing the 8 alleged sum of money. Taken alone, such a plea would therefore not warrant the appellant's conviction of the offence of armed robbery. However, as rightly submitted by Mr. Issa, the omission was cured by the facts narrated by the prosecution and admitted by the appellant to be true. For the facts, in a plea of guilty proceedings, to secure a conviction, they should establish every constituents (elements) of the charge for they take the place of the otherwise necessary strict proof of the charge beyond reasonable doubt by the prosecution calling witnesses to testify (see Rex vs Yonasani Egalu and Others, 9 E.A.C.A. 65 cited in Kato vs R [1971] HCD n. 364). We, painstakingly, reproduce the facts narrated by the prosecution which vividly established beyond reasonable doubt that the appellant used a weapon to steal money from his father as hereunder: "Personal details of the 2nd accused are as per the charge sheet. That on 12th January 2020 at 02:00 hours at Masangura Village within Serengeti district in Mara Region, the 2nd accused person went to the house of one Makonge s/o Mwansi (accused's father) break the door and entered there. The victim Makonge Mwansi was sleeping with his wife namely Ghati Koboko. The 2nd 9 accused person has a panga on his hand threatening the victim to cut with it if he failed (resist) to give him money. The victim resisted to give him money. The accused person started cutting him on his head and his left hand using the panga. The victim located the accused person to where the money was. The accused person took all money total Tshs. 3,600,000/= (Three Million and six hundred thousand only) and disappeared to unknown place. The victim's wife raised an alarm seeking for help. Two persons went there to assist them, their names are Joseph s/o Makonge Mwansi and Chacha s/o Kimore. They took the victim to Mugumu Police station, filed the case with reference number MUG/IR/111/2020, given the PF3, went to Nyerere DD Hospital for treatment On &h February, 2020 the 2ndaccused went to RCO Mara, reported the incident and admitted to commit the offence charged forthwith. He was brought to Mugumu Police Station. On 17th February, 2020, was brought to court and denied the charge. Today after the charge is read over, he admits to commitsuch offence on a particular day. That's all. "(Emphasis added) 10 Thereafter, the Memorandum of facts were read over and well explained to the accused person in his language he understood and he unambiguously admitted to the facts as being true. The facts above quoted, seriously examined, leave no one element of the offence of armed robbery unproven hence curing the anomaly of the plea entered by the appellant not disclosing that the appellant used weapon (a panga) to threaten and later cut his father so as to obtain TZS 3,600,000.00. The trial magistrate and the High Court cannot therefore be faulted for holding that the appellant's conviction was properly founded. Having satisfied ourselves that the appellant's conviction on his own plea of guilty was proper, we now turn to consider the appellant's complaints as reflected in the memorandum of appeal if they are meritorious. The complaint in ground one is about the appellant not being asked three times when his plea of guilty was being taken. Section 228(1) and (2) of the CPA imposes a duty on the court to call upon an accused person to plead to the charge, record his plea appropriately, that is to record the plea as nearly as possible in the words he uses and, in the event he admits the charge, proceed to convict and sentence him (See Adan vs Republic [1973] 1 EA 445). Although it is good practice that the court should make ii sure the accused person understands the nature of the accusation facing him and repeat reading the charge with clarity, it is not, as Mr. Issa rightly argued, a legal requirement that an accused's plea of guilty should be taken after being asked three times. This complaint is baseless and we dismiss it. Both courts below are being faulted in ground two for failure to consider the appellant's age that he was below eighteen years in sentencing him. In the first place, the appellant's age was not an issue before the trial court. The facts narrated by the prosecution referred to the appellant's personal particulars disclosed in the charge in which his age was stated to be 20 years' old to which facts the appellant admitted as being correct. He cannot be heard now saying he was under eighteen years. Being of that age, he was an adult at the time of committing an offence and the sentence meted against him was the prescribed minimum sentence under section 287A of the Penal Code. We agree with Mr. Issa that this complaint is not only an afterthought, but is also without merit and we dismiss it. Ground three raises an issue whether both courts satisfied themselves that the appellant committed the offence with malice or intentionally. Save for strict liability offences, in all other offences, armed 12 robbery inclusive, liability arises if an illegal act is done or omitted to be done (actus reus) and with ill-will termed in legal arena as malice or intention (mens rea). To resolve this grievance, one has to look at the facts narrated. Malice or intention if not express, it can be inferred from the acts or conducts of an accused person. The facts narrated clearly show that the appellant broke the door while holding a panga with which he threatened to cut his father if he could not give him money and later, upon a resistance, he cut his father on his head so as to obtain the money. He was shown the whereabouts of money, took them and disappeared. By conducting himself that way, it is obvious that the appellant intended to steal the money using a weapon which he succeeded, that is, to commit armed robbery. On the narrated facts, although the learned trial magistrate did not expressly state his findings on intention as did the High Court, both courts were right to, respectively, convict and sustain the appellant's conviction as charged. We dismiss this complaint. Bias and failure to accord the appellant a right to be heard form the crux of the appellant's grievances in grounds four and five of appeal. They are baseless complaints. As opposed to a trial which ensue upon an accused denying the charge where at the conclusion of the prosecution case and a case to answer being established and an accused is accorded 13 a right to enter his defence and call witnesses, in plea of guilty proceedings, all that the court does is, as explained above, to read the charge to the accused person, record his plea, and if he admits to the charge, record facts as narrated by the prosecution and record his response if he admits the facts as presented and record his mitigation before proceeding to convict and sentence him. This is exactly what was done by the learned trial magistrate. The record bears testimony that the appellant pleaded guilty to the charge and later admitted the facts narrated but he had no mitigation. There is nowhere can bias be seen or inferred. Instead, the appellant was accorded his rights to respondent to questions put to him by the trial magistrate and the answers were duly recorded by the learned trial magistrate. Certainly, these grievances have no basis and we dismiss them. In conclusion, there is nothing that would justify our interference with the unequivocal plea of guilty entered by the appellant. In the circumstances, the appellant could only exercise his right to appeal, in terms of section 361(1) of the CPA, to challenge the extent of the sentence imposed. However, that would not also succeed as the sentence of thirty years' imprisonment meted against him is the statutorily prescribed minimum sentence under section 287Aof the Penal Code. Both 14 lower courts' hands are tied and could not reduce it whatever the circumstances might have arisen. In the end, we hold that the appellant was properly convicted on his own plea of guilty and was also properly sentenced. The appeal is without merit and is hereby dismissed in its entirety. DATED at MUSOMA this 17th day of July, 2024. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 18th day of July, 2024 in the presence of the Appellants who appeared in person and Mr. Isihaka Ibrahim, learned State Attorney for the Respondent/Republic via video conference is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL